Legislature(2003 - 2004)
04/11/2003 03:33 PM Senate RES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SB 142-DNR LEAD RESOURCE DEVELOPMENT PROJECTS
CHAIR OGAN said that most of the questions he raised about SB
142 at the April 9 hearing have been answered. At that hearing,
Senator Lincoln suggested putting a sunset date in the
legislation. He supports that suggestion and would like to see
the program reviewed by the legislature in the second year of
the next administration. He asked Ms. Burleson-Baxter if she
would like to testify.
MS. JANET BURLESON-BAXTER, Department of Natural Resources
(DNR), told members that she, Dick Lefebvre, Bob Loeffler and
Cam Leonard were available to answer questions.
SENATOR ELTON thanked the representatives from DNR and DEC for
bringing him up to speed on this legislation, as he was absent
from the last hearing. He then said he had several questions to
ask on behalf of Senator Lincoln, who was excused. The first
question was about the appeal process under the new system. He
noted Senator Lincoln was concerned that the new permitting
office would be in charge of issuing permits while the
individual agencies would hear the appeals.
MS. BURLESON-BAXTER said none of the agencies would lose their
authority over appeals of their respective permits. An appeal
could be brought to the DNR project office but if the issue
surrounded an individual permit, the adjudicatory process would
be dealt with through the existing appeal procedure of the
particular agency.
MS. MARY SIROKY, Department of Environmental Conservation (DEC),
affirmed Ms. Burleson-Baxter's explanation.
SENATOR ELTON then asked, on behalf of Senator Lincoln, if the
cost of the new office would be minimal because the cost will be
transferred to the permittee. He questioned whether the cost
will be difficult to estimate until DNR knows how many major
permit applications it will have.
MS. BURLESON-BAXTER nodded affirmatively.
CHAIR OGAN pointed out the fiscal notes are zero but the funds
for this legislation are included in the Governor's operating
budget request. He commented that approach keeps the number of
committee referrals down but questioned what will happen if no
new positions are funded in the budget. He said putting the
actual cost of the positions on the fiscal note would be
clearer.
MR. DICK LEFEBVRE, Acting Deputy Commissioner, DNR, said DNR has
a number of large projects in the queue already. DNR anticipates
that the reimbursable services lined up for this year will
continue into next year. The component in the budget recognizes
some of those funds. Whether SB 142 passes or not, DNR will need
authorization to receive and expend those funds, which is why
DNR used the budget as the main vehicle to carry the funding
request.
CHAIR OGAN asked if DNR could be the lead agency if the funding
request in the operating budget is not met.
MR. LEFEBVRE said it could.
SENATOR ELTON commented that when the legislature directs
departments to make an unallocated budget reduction, the
legislature does not know where that reduction will take place.
He agreed the bill should have a fiscal note that reflects the
source of the funds and how those funds will be spent.
SENATOR STEVENS said his interpretation of the section being
repealed on page 3, AS 46.35.070, is that a state agency still
has the responsibility to issue the permit but the coordinator
is being changed, which is the reason for the zero fiscal note.
MR. LEFEBVRE said that is correct.
SENATOR ELTON offered a conceptual amendment to include a sunset
date that takes effect two years into the next administration.
SENATOR STEVENS objected for the purpose of discussion. He then
asked the department to comment on the sunset provision and how
the three-phase team concept would be implemented with a sunset
provision. He also asked what program the state would revert to
if the sunset took place, and whether it would be the program in
existing Section 4.
CHAIR OGAN pointed out that Section 4 is not being used at this
time.
SENATOR STEVENS asked DNR staff to comment on the sunset
concept.
MS. BURLESON-BAXTER said DNR likes the concept of the bill. She
pointed out the concept of the lead agency began during the
Hickel Administration and was continued through the Knowles
Administration to this one. She said if a sunset provision is
included, she believes DNR would try to carry on with the team
concept as best as it could because it has been successful for
DNR in the past.
SENATOR STEVENS pointed out that DNR would have no authority to
continue as the lead agency if a sunset took place.
MS. BURLESON-BAXTER said DNR would not have prescriptive
statutory authority but it might engage in a memorandum of
understanding.
SENATOR ELTON said his understanding is that a sunset would
require the state agencies to revert to the ad hoc process used
now. He said the argument for a sunset review is that it would
set in motion a process to answer some of the questions, i.e.,
is the new office charging the permittees an appropriate amount.
A sunset review would give the legislature the opportunity to
review the definition of a large natural resource project and
tweak or eliminate aspects of the program that are problematic.
A sunset also reminds the department that the program will be
reviewed, which induces good behavior.
MR. LEFEBVRE told members one benefit of having clear statutory
authority is that the federal agencies, when preparing
environmental impact statements (EIS), would know who they have
to deal with. Right now, they must deal with state agencies
individually unless state agencies agree amongst themselves
prior to the start of a project.
SENATOR STEVENS said in his opinion, some of the annual sunset
reviews undertaken by the legislature are routine
reauthorizations. The legislature has the authority to make
changes to a program at any time, if need be. He said while a
sunset review forces the legislature to review a program, there
is a dividing line between a reauthorization and a review and
evaluation. He said DNR's annual report to the legislature
should keep legislators informed about how DNR's authority as
lead agency is being utilized.
SENATOR WAGONER said he planned to support the amendment but
would prefer an annual review because sunset reviews are very
time consuming. He believes this legislation is one of the most
important before the legislature this year.
SENATOR STEVENS said he believes in putting the onus on DNR to
describe how this concept is working by requiring it to present
an annual report to the legislature.
MR. LEFEBVRE pointed out that one of the benefits of the lead
agency concept is that it is voluntary on the part of the permit
applicant. If the applicant is not satisfied with the project
process, the legislature will know about it well in advance of
the next legislative session.
SENATOR DYSON said inherent in the missions and measures process
is an annual review by the Legislative Finance committees. He
said he believes most sunset review time lengths should be
doubled because they are very time consuming. However, because
this is a new concept, he feels a sunset provision is valid so
that the legislature makes sure an annual review takes place
every year.
SENATOR ELTON said he prefers the formalized process of a
[sunset] review.
CHAIR OGAN pointed out the next DNR commissioner could be very
anti-development and a lot of power has been consolidated within
that position. He advised that it might be prudent to take a
formal look at this change in a few years as a check and balance
measure.
SENATOR WAGONER said his concern with a sunset review is that
the legislature has the right to review this piece of
legislation any time it deems it necessary but he feels the
legislature should watch this program change closely because it
is new. He expressed concern that 2008 is a long time from now
so he proposed a sunset review in two years.
SENATOR ELTON accepted Senator Wagoner's proposal as an
amendment to his amendment.
SENATOR DYSON objected.
The motion to adopt the amendment to the amendment, to change
the date of the sunset review from 2008 to two years, carried
with Senators Stevens, Wagoner and Elton in favor, and Senators
Dyson and Ogan opposed.
MS. SIROKY told members that from the agencies' perspective, a
longer time frame for a sunset review would be better. She
expressed concern that projects take a significant amount of
time from start to finish so a two-year window might not be long
enough to see whether the process is working. She suggested a
four or six year window.
CHAIR OGAN moved to amend the amendment to require a sunset
review in four years.
There being no objection, the motion carried.
The committee then voted on the amended amendment, that being
whether to include a sunset provision [to take effect in four
years]. The motion carried with Senators Dyson, Elton, and Ogan
in favor, and Senators Wagoner and Stevens opposed.
There being no further testimony, SENATOR WAGONER moved SB 142
as amended from committee with individual recommendations and
its accompanying fiscal notes. There being no objection, the
motion carried.
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