Legislature(2023 - 2024)BUTROVICH 205
04/30/2024 01:30 PM Senate TRANSPORTATION
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| Audio | Topic |
|---|---|
| Start | |
| SB263 | |
| HB395 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 263 | TELECONFERENCED | |
| *+ | HB 395 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 263-ROADS & HWYS ADV BOARD; IMPROVEMENT PRGM
1:39:12 PM
CHAIR KAUFMAN announced the consideration of SENATE BILL NO. 263
"An Act relating to the Roads and Highways Advisory Board;
relating to metropolitan planning organizations; relating to the
statewide transportation improvement program; and providing for
an effective date."
CHAIR KAUFMAN said this is the second hearing on SB 263 and a
committee substitute would be considered that incorporates
original changes submitted by the committee and some changes
requested by the Department of Transportation.
1:39:57 PM
CHAIR KAUFMAN solicited a motion.
1:40:02 PM
SENATOR MYERS moved to adopt the committee substitute (CS) for
SB 263, work order 33-LS1460\S, as the working document.
1:40:16 PM
CHAIR KAUFMAN objected for purposes of discussion.
1:40:30 PM
MATTHEW HARVEY, Staff, Senator James Kaufman, Alaska State
Legislature, Juneau, Alaska, provided an explanation of changes
for SB 263, version A to S.
[Original punctuation provided.]
Explanation of Changes for SB 263
Bill Version A to S
Page 1, Lines 5 - 14:
Adds a new Section 1 adding language clarifying that
Metropolitan Planning Organization's (MPOs) must be
established by agreement between the governor and
local governments.
Page 2, Lines 8 - 11:
Revises language in AS 44.42.053(a) to clarify the
development cadence and to add "intermodal".
Page 2, Lines 18 - 24:
Adds language requiring that the STIP incorporate
without change applicable tribal transportation
programs, federal lands transportation programs, or
federal lands access programs.
Page 2, Line 25 through Page 3, Line 3:
Adds language stating that agreements between the
state and a metropolitan planning organization
relating to foundational structure or roles and
responsibilities must be made available on the
Internet website.
Page 3, Lines 4 - 10:
Moves the distribution list for STIP submissions and
changes to this new subsection (f).
1:41:35 PM
MR. HARVEY continued with the explanation of changes for SB 263,
version A to S.
Page 3, Lines 15 - 27:
Replaces the designated board seats for public members
from specific judicial districts with the requirement
that the board must consist of at least two members
from each judicial district. Also, adds "one member
who is a community leader residing in the unorganized
borough".
Page 4, Lines 2 4:
Adds language clarifying terms of members appointed to
fill vacancies.
Page 4, Lines 7 9:
Adds the requirement that the board adopt bylaws
including guidelines for board operations.
Page 4, Lines 21 29:
Revises the preconstruction review process by
1. Requiring that the department submit to the board
a list of projects that have been in the
preconstruction phase for at least 8 years.
2. Allowing the board to request a presentation from
the department on any listed project.
3. Providing clarity that the board may issue
project recommendations following the
presentation.
4. Requiring that the recommendations are submitted
to the included distribution list.
1:42:31 PM
SENATOR MYERS referred to SB 263, Section 3, page 4, line 21-22.
He noted the time for these projects began with three years, was
extended to five and is now in the bill at eight years. He said
eight years in the preconstruction phase seems excessive and may
suggest that time and effort is being expended on projects that
are not fruitful.
1:43:29 PM
MR. HARVEY said the extension from five to eight years was
requested by the Department of Transportation and Public
Facilities (DOTPF) and he deferred the question to DOTPF.
1:43:56 PM
ANDY MILLS, Legislative Liaison, Department of Transportation
and Public Facilities (DOTPF), Juneau, Alaska, said the request
for the increase in time [that a given project has been in the
preconstruction phase] reflected the effort to obtain the
resourcing level needed for the type of project described. He
emphasized that the list of preconstruction planning items is
very long. He reported that DOTPF has experienced an increase in
the volume of information requested by the advisory boards from
DOTPF staff in the preconstruction phase. He acknowledged that
DOTPF willingly supports the board with these requests. The
fiscal note provided reflects the resources required to provide
that board support by describing the workload. He said five
years for preconstruction was not very long and added that the
term "preconstruction" was not clearly defined and has been
interpreted in different ways. He said DOTPF would like to work
with the committee to clearly define "preconstruction". He said
he wished right-of-way acquisition and other pieces of the
preconstruction phase were faster. He noted that the federal
"stale list review" is ten years and the eight-year
recommendation from DOTPF was intended to split the difference.
1:45:48 PM
SENATOR MYERS shared his perception that DOTPF does a lot of
planning, some resulting in good projects while other projects
are thrown by the wayside. He suggested money and time could be
saved and transparency to the public could be improved by
cutting down on the number of plans. He acknowledged right of
way acquisition and other legal considerations can drag things
out, but he expressed desire to move projects from planning to
actual usable infrastructure.
1:47:22 PM
SENATOR TOBIN also expressed reservations about the eight-year
window and the opportunity for good community input. She
referred to the 92nd Avenue project and said an eight-year
horizon would have been too long for adequate and meaningful
public participation. She referred to SB 263, Section 3, page 4,
line 23 and said she was concerned that flexibility and
nimbleness to respond to community needs and other circumstances
would be hindered by specifying that projects must be "listed"
on the TIP or the STIP. She asked what the off-ramp for these
projects would be.
1:48:45 PM
MR. MILLS replied that this reflects a resourcing problem for
DOTPF more than a policy decision on the cadence or timing [for
the STIP and TIP development]. He noted that some projects are
subject to additional scrutiny because of a heightened political
climate around something that isn't necessarily associated
[directly with the project]. He mentioned bridge projects that
were not an issue until there was some industry in the area and
noted that it would be important to be cognizant about
downstream effects [of projects]. He said eight years was not
intended to be a requirement as much as a recommendation that
reflects the workload required for planning some projects. He
noted use of the word "may" and said "may" might mean all the
projects on the list and the need to provide support for all the
projects. He offered the committee members the opportunity to
attend a project evaluation board (PEB) meeting to observe the
in-depth review of a subset of a list of projects. He said it
would be an occasion to see the workload for the volunteers who
meet quarterly or more often to make progress. He said DOTPF
staff is involved in preparing the materials for those review
meetings.
1:50:39 PM
SENATOR TOBIN said she would work with the bill sponsor to craft
language for SB 263 that will allow for flexibility for planning
timelines.
1:51:03 PM
CHAIR KAUFMAN referred to planning vocabulary in the
construction industry and said definitions for planning stages
were very tight. He questioned whether "preconstruction" was
undefined.
1:52:00 PM
MR. MILLS opined that multiple definitions could be used for
preconstruction. He explained that there exists a different
understanding of preconstruction between the groups that are
involved in project development.
1:52:50 PM
CHAIR KAUFMAN asked whether that suggests an opportunity to
define it.
MR. MILLS suggested that preconstruction could be considered to
begin with project design as a definitive moment, as opposed to
the planning effort which can be quite variable. He acknowledged
potential for variability.
1:53:28 PM
CHAIR KAUFMAN deferred the work of defining preconstruction to
another time and agreed that it would be likely be helpful to
the process.
1:53:43 PM
SENATOR MYERS referred to SB 263, Section 1, and noted that MPOs
would be created by agreement between the governor and local
government and that they would be created in areas with
populations greater than 50,000. He asked whether the Kenai
Borough, with a population around 60,000, qualified to form an
MPO.
MR. MILLS said MPO formation is driven by the U.S. census. He
said the formation of an MPO would be triggered by a census area
population between 50,000 - 200,000, and 200,000 and over. He
offered to provide the committee with the federal regulations
that define the parameters to trigger MPO formation. He said
that the U.S. census area for Kenai does not have a population
exceeding 50,000.
1:55:17 PM
SENATOR MYERS sought clarification that the numbers necessary to
qualify for an MPO are not based on an existing organized area,
rather it is based on the way the census bureau breaks down
their census areas.
MR. MILLS concurred.
1:55:37 PM
SENATOR TOBIN read from Case No. 3AN-05-8951 CI, page 4 "This is
significant because 23 U.S.C. subsection 134(d)(1) provides that
"a designation of a metropolitan planning organization under
this subsection or any other provision of law shall remain in
effect until the metropolitan planning organization is
redesignated under paragraph (5)." And paragraph (5) of that
same federal statute provides that an MPO "may be redesignated
by agreement between the Governor and [the applicable] units of
general purpose local government."
SENATOR TOBIN expressed concern with the insertion of "by
agreement between the governor and local governments" in SB 263,
Section 1, line 9-10 because "redesignation by agreement"
happens after an MPO has already been designated by federal
code. She noted this particular court case also says the
legislature shall not establish any law or policy about
designating MPOs and here we are, the legislature, inserting
language about designation of MPOs. She said she wanted to make
sure the committee is not running afoul of this particular
summary judgement, nor federal code and ensure that SB 263 is
not replicating existing statute.
1:57:01 PM
CHAIR KAUFMAN called on Mr. Harvey.
1:57:05 PM
MR. HARVEY deferred to Legislative Legal Services, Department of
Law and Department of Transportation and Public Facilities
(DOTPF).
1:57:33 PM
CHAIR KAUFMAN invited Ian Walsh to answer questions on SB 263.
1:57:48 PM
IAN WALSH, Counsel, Legislative Legal Services, Legislative
Affairs Agency, Juneau, Alaska, asked for the question to be
repeated.
SENATOR TOBIN restated her concerns:
1. That SB 263 would establish in statute the designation of
how a metropolitan planning organization (MPO) shall be
established when that is already part of federal law, in
other words, that SB 263 would be replicating federal law
with state statute.
2. Whether SB 263 aligns with the summary judgement in Case
No. 3AN-05-8951 CI.
1:58:32 PM
MR. WALSH, in answer to her first question, said 23 USC
134(d)(1) is the federal law that provides the original
designation of an MPO by two mechanisms. He read 23 USC 134
(d)(1)(A) by agreement between the Governor and units of
general-purpose local government that together represent at
least 75 percent of the affected population (including the
largest incorporated city (based on population) as determined by
the Bureau of the Census); or (B)in accordance with procedures
established by applicable State or local law. He said he was not
sure that the amendment to "add by agreement between the
Governor and local government" is necessary, because without
that, the default would be to the federal law. He opined that it
does not conflict with the federal law or with the summary
judgement decision because the federal law explicitly provides
for functionally the same procedure to create an MPO.
1:59:38 PM
SENATOR TOBIN referred to her preference for less prescriptive
statute. She said more prescriptive law can create guardrails
that prove deleterious to good governance. She questioned the
need to replicate the designation of MPOs when it is already
established in federal code.
2:00:08 PM
CHAIR KAUFMAN concurred and revisited the purpose for SB 236,
recalling the widespread concern over the recent STIP process
and over potentially missing a construction season.
2:00:51 PM
SENATOR TOBIN referred to SB 236, Section 4, page 3, line 26.
She noted that "one public member" had been amended to say "one
member who is a community leader" and asked why a "community
leader" was specifically sought, especially when it is often
difficult to find people to serve on boards and commissions. She
noted the selection could be restrictive, but that keeping the
statute less specific would allow for a larger pool of
candidates.
2:01:39 PM
MR. MILLS said this language was put forward because it repeats
the structure codifying the aviation advisory board. He
suggested that "leader" was still a fairly broad description.
2:02:08 PM
SENATOR TOBIN maintained her position and said her priority was
to find someone to serve.
CHAIR KAUFMAN commented that the aviation board has been
observed to function well and that it seems like a valid model
for the other transportation boards.
2:02:30 PM
CHAIR KAUFMAN noted that SB 263 received a significant fiscal
note from the Department of Transportation and Public
Facilities, OMB Component Number 2762, dated April 24, 2024. He
requested DOTPF to address the analysis for the fiscal note;
provide explanation of the assertions made, the need for the
fiscal note and the thoughts behind it.
2:03:24 PM
MR. MILLS noted that SEAN LYNCH, Counsel, Transportation
Section, Civil Division, Department of Law, Juneau, Alaska, was
present and available to answer questions. He said that DOTPF
reviewed the provisions of SB 236 and determined that the
requirement of the bill for the Roads and Highways Board to
review projects necessitated the fiscal note. He said the
figures for the fiscal note were a modest estimate, based on
preconstruction estimates from the regional directors for the
number of projects possible. He noted that the language of the
fiscal note is "may" rather than "shall" as in previous drafts.
He said DOTPF would seek to define preconstruction. He referred
to SB 263, Section 3, Version A and said "continued viability
standard" would require definition as there were multiple
factors that would contribute to a project's viability. He said
a Transportation Planner I position would be necessary to
facilitate all the coordination and communication to prepare,
facilitate and allow the board to carry out its function. He
noted that SB 263 called for viability review of preconstruction
projects every two years. SB 263, Version A initially called for
this review for projects that had been in the preconstruction
phase for three years. Version B extended that to five years and
Version S to eight years.
2:06:14 PM
SENATOR MYERS referred to page 2 of the fiscal note from DOTPF,
OMB Component Number 2762, dated April 24, 2024. He noted that
there were about 230 projects in Northern, Central and
Southcoast Regions noted on page 2, currently in the
preconstruction phase. He asked how many projects are built each
year.
MR. MILLS stated he did not have those numbers and would report
back to the committee.
2:07:02 PM
CHAIR KAUFMAN sought to summarize the discussion. He noted that
some terms ["preconstruction" and "continued viability"] need to
be defined. He said the question before the board was to
determine the volume of work that would be called for by the
Board of Roads and Highways and that determination would point
to the need or lack of need for the fiscal note. He asked that
DOTPF address the other points from the fiscal note analysis.
2:07:37 PM
MR. MILLS pointed out the federal requirements reflected in the
analysis. He said DOTPF was working with federal partners on the
stewardship and oversight agreement. According to the agreement
DOTPF would be required to provide additional resources and
capacity. He noted that DOTPF has quite a bit of activity
statewide and there is no excess capacity to provide resourcing
to the level that could be required by SB 263, Version A. The
fiscal note seeks to resource the department adequately and
provide for the underpinning requirements from the agreement
with federal highways.
2:09:44 PM
CHAIR KAUFMAN said the STIP processes are in regulations that
came out of an Administrative Order, and he said that is what
the state is operating under currently. He said the desire was
to get into statute what is needed in statute and to provide
some of the benefits that the Aviation Board, as a highly
functional board, receives now. He noted the concerns that were
elevated in the fiscal note and asked whether DOTPF would prefer
to keep the STIP in regulation, as it is now, as opposed to
having it outlined in statute.
2:10:35 PM
MR. MILLS deferred to Sean Lynch.
2:10:52 PM
SEAN LYNCH, Counsel, Transportation Section, Civil Division,
Department of Law, Juneau, Alaska, offered a hypothetical
example of the potential complication to developing the STIP
that could result from having the STIP processes in state
regulation. He referred to CSSB 263, Section 3, which describes
a two-year cycle for STIP development. He noted that the current
STIP process follows federal regulation, 23 CFR 450.218(a),
which says the STIP shall be updated every four years, "or more
frequently if the Governor of the State elects a more frequent
update cycle." He pointed out a conflict between a two-year
cycle in statute or currently, without statute, a four-year or
less cycle at the election of the governor. In his example,
something occurs to "gum up the works," while attempting to meet
the two-year STIP cycle. He suggested that a party opposing one
particular project could potentially result in a significant
delay [to the STIP process]. He pointed out that the federal
statutes and regulations recognize they are about a planning
process. He said there is no right to go to court. He said once
the plan is adopted and there is a federal-aid project, people
have the right to vis a vis that project, or to engage the
National Environmental Policy Act (NEPA) review process or any
number of public interactions regarding judicial rights. But, he
said, in the planning process, there are no rights to judicial
review of the plan.
2:14:03 PM
SENATOR TOBIN asked whether it would be possible to return to a
four-year STIP process after moving to a rolling STIP, as would
be established by SB 263.
2:14:38 PM
MR. MILLS said the morning had been spent with federal highway
planning partners, including some visiting from Washington D.C.
He said there was great dialogue regarding the STIP and MPOs and
that there is a solid partnership between DOTPF and the federal
planners. He acknowledged a rough spot while developing the
recent STIP, but said they are moving forward rebuilding and
retooling the STIP processes. He spoke about aligning the MPO
TIPs planning cycles with the STIP process. He said with the
four-year STIP process currently in place, there is not great
alignment. Moving to a rolling STIP will lead to a new cadence
and getting ahead of the planning process, avoiding recent
problems and realigning with the MPOs and their short-term TIPs.
The concern created by allowing for judicial relief as an option
was that it may expose the planning processes to politicized
events or contention about something stipulated in statute that
DOTPF does not have flexibility around and thereby creating an
impediment to completing the STIP. He indicated DOTPF
acknowledges the requirements of the department to create the
STIP and set forth in AS 44.42, however, is concerned about
impediments that could be created by additional openings
resulting from a judicial process.
2:16:39 PM
CHAIR KAUFMAN requested an overview of the perspective of
Legislative Legal Services.
2:17:03 PM
MR. WALSH said he would provide an overview of court Case No:
3AN-05-8951 CI. He said he did not have a comment on DOTPF's
questions about judicial review and he did not think those
questions were related to the court case, but he would be open
to questions from the committee. He said court case 3AN-05-8951
CI was filed in the early 2000's and dealt with the Anchorage
area MPO. The MPO became effective in 2002. In 2003-2004, the
legislature passed two bills that affected the Anchorage MPO
(AMATS). Senate Bill 260 attempted to change the composition of
AMATS' policy board by requiring an area with a population
200,000 or more change the composition of the policy board.
Senate Bill 260 also included intent language that purported to
require the governor to enter into an agreement with Anchorage
to restructure the board according to the legislation. Through
court case 3AN-05-8951 CI, the Anchorage Superior court decided
changing the composition of the policy board as required by
Senate Bill 260 was a redesignation of the MPO (AMATS). The
court reviewed the federal law covering redesignation, 23 USC
134 requires that the MPO may be redesignated by agreement
between the governor and units of local government. The
Anchorage Superior Court concluded that did not comply with the
federal requirement because changing the composition of the
policy board for AMATS was a redesignation by the legislature
and Anchorage did not agree to it and indeed Anchorage filed
suit to try to stop it. The Anchorage Superior Court held that
the attempted redesignation through Senate Bill 260 was invalid.
He said the section of Alaska law enacted by Senate Bill 260 is
AS 19.20.210, which SB 263 proposes to repeal. AMATS is not
complying with Senate Bill 260 because of the conclusion by the
Alaska Supreme Court that it was not valid and because Senate
Bill 260 only applies to areas with Senate Bill 260 greater than
200,000, would only apply to the Anchorage area.
2:21:00 PM
CHAIR KAUFMAN removed his objection.
2:21:04 PM
CHAIR KAUFMAN found no further objection and CSSB 263, was
adopted as the working document.
2:21:40 PM
At ease
2:22:20 PM
CHAIR KAUFMAN reconvened the meeting and asked Mr. Lynch and Mr.
Mills for comments on SB 263.
2:22:38 PM
MR. LYNCH commented on the legislature's ability to designate
the policy board. He referred to Case No. 3AN-05-8951 Cook Inlet
and read from the "Order on Motions for Summary Judgement", page
1. "this court finds that federal law was amended in 2005 to
specifically authorize the Alaska Legislature to change the
membership and selection of the AMATS Policy Committee without
requiring municipal agreement." He explained that "SAFETEA-LU"
[subsection 4404(b)] was the federal law in 2005 that included a
stand-alone provision. He read from Case No. 3AN-05-8951 Cook
Inlet, Discussion, 2,b, page 16, "this court finds that
[SAFETEA-LU, subsection 4404(b) expressly accords to the Alaska
Legislature the ability to by-pass the redesignation requirement
of 23 U.S.C. subsection 134 (d)(5) that specifies that
redesignation of MPO's can occur only with the agreement of the
Governor and the affected local government.." He opined that the
legislature has the power to create the policy board in the way
that it chooses. He said SAFETEA-LU only gave this power to the
legislatures of Alaska and Hawaii. He said the repeal of AS
19.20.210 as proposed in SB 263, is within the legislature's
power. He said the legislature may remove all standards and
modify the policy board. The outcome of Case No. 3AN-05-8951
Cook Inlet was that both parties (the State of Alaska and the
Municipality of Anchorage) decided they would not follow AS
19.20.210. However, he emphasized that according to the law, the
legislature does have the power to designate and remove the
policy board requirements. Removing AS 19.20.210 would remove
the legislature's power to create and designate the policy
boards.
2:28:04 PM
CHAIR KAUFMAN opened public testimony on SB 263; finding none he
closed public testimony.
2:28:41 PM
MR. MILLS said it was clear that SB 263 demonstrates the effort
to do right by DOTPF and the state. He noted that there are many
legal considerations. He said DOTPF looks forward to providing
more information to the committee as the sponsor of SB 263.
CHAIR KAUFMAN instructed DOTPF to submit any further points to
the committee.
2:29:20 PM
CHAIR KAUFMAN [held SB 263 in committee].
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 263 Fiscal Note DOTP&F 4.24.24.pdf |
STRA 4/30/2024 1:30:00 PM |
SB 263 |
| SB 263 Explanation of Changes Version A to S 4.30.24.pdf |
STRA 4/30/2024 1:30:00 PM |
SB 263 |
| SB 263 CS Work Draft Version S.pdf |
STRA 4/30/2024 1:30:00 PM |
SB 263 |
| HB 395 Ver A Sponsor Statement 4.18.24.pdf |
HTRA 4/18/2024 1:00:00 PM STRA 4/30/2024 1:30:00 PM |
HB 395 |
| HB 395 Sectional Analysis 4.18.24.pdf |
HTRA 4/18/2024 1:00:00 PM STRA 4/30/2024 1:30:00 PM |
HB 395 |
| HB 395 Ver A Support Document Map1.4.18.24.pdf |
HTRA 4/18/2024 1:00:00 PM STRA 4/30/2024 1:30:00 PM |
HB 395 |
| HB 395 Ver A Support Document Map2 4.18.24.pdf |
HTRA 4/18/2024 1:00:00 PM STRA 4/30/2024 1:30:00 PM |
HB 395 |
| HB 395 Ver A Resolution 2024-02 4.18.24.pdf |
HTRA 4/18/2024 1:00:00 PM STRA 4/30/2024 1:30:00 PM |
HB 395 |
| HB 395 Letter of Support - Boreal Carbon Corporation.pdf |
STRA 4/30/2024 1:30:00 PM |
HB 395 |
| HB 395 Letter of Support - Clint Hall.pdf |
STRA 4/30/2024 1:30:00 PM |
HB 395 |
| HB 395 Letter of Support - CDG Beyond Real Estate.pdf |
STRA 4/30/2024 1:30:00 PM |
HB 395 |