Legislature(2009 - 2010)BARNES 124
03/22/2010 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB414 | |
| HB74 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 414 | TELECONFERENCED | |
| += | HB 74 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 74-COASTAL MANAGEMENT PROGRAM
1:19:43 PM
CO-CHAIR NEUMAN announced that the next order of business is
HOUSE BILL NO. 74, "An Act relating to the Alaska coastal
management program; and establishing the Alaska Coastal Policy
Board." [Before the committee was CSHB 74(CRA).]
REPRESENTATIVE REGGIE JOULE, Alaska State Legislature, joint
prime sponsor of HB 74, said his staff member, Elizabeth
Hensley, will present the bill and other people on line will
provide additional information.
1:20:59 PM
ELIZABETH HENSLEY, Staff, Representative Reggie Joule, Alaska
State Legislature, stated [CSHB 74(CRA)] would amend the Alaska
Coastal Management Program (ACMP), which was created pursuant to
the 1972 federal Coastal Zone Management Act. She said that,
among other things, the intent of the 1972 Act was:
to preserve, protect, develop, and where possible to
restore or enhance the resources of the nation's
coastal zone for this and succeeding generations; to
encourage the participation and cooperation of the
public, state and local governments, as well as of the
federal agencies; to provide for the coordination and
simplification of procedures in order to ensure
expedited governmental decision making for the
management of coastal resources; and to give
opportunities for public and local government
participation in coastal management decision making.
MS. HENSLEY explained that the Alaska Coastal Management Program
was created in 1977 when the Alaska State Legislature enacted
the Alaska Coastal Management Act. The program was federally
approved in 1979. Originally, a 17-member board oversaw the
program, but in 2003, under House Bill 191, the Murkowski
Administration concentrated all decision making authority in the
Department of Natural Resources (DNR).
1:22:26 PM
MS. HENSLEY said CSHB 74(CRA) has three primary objectives. The
first is to establish the Alaska Coastal Policy Board. The
nine-member board would consist of five public members appointed
by the governor and the other four members would be the
commissioners of the Department of Natural Resources, the
Department of Environmental Conservation, the Alaska Department
of Fish & Game, and the Department of Commerce, Community, &
Economic Development. The board would be responsible for
approving district coastal plans, grant programs, and
regulations; DNR would retain day-to-day management of all ACMP
matters and would retain responsibility for project consistency
reviews. The second objective is to streamline the ACMP
consistency determination process and to promote inter-agency
cooperation and issue resolution. To that end, it would bring
the Department of Environmental Conservation (DEC) back into the
review process, as this department was carved out of the review
process in 2003. The third objective is to restore the role of
coastal districts by allowing them to establish local
enforceable policies that are meaningful. Local districts would
be empowered, but have no veto power. The bill recognizes that
local people have local knowledge that is of importance when
dealing with coastal resource uses.
CO-CHAIR NEUMAN opened public testimony.
1:25:27 PM
EDWARD ITTA, Mayor, North Slope Borough, supported HB 74, saying
this subject means a lot to coastal communities throughout
Alaska and is of importance to all Alaskans who want to see
orderly and efficient development in the state's coastal areas.
He noted that there are some misconceptions about what HB 74
would do. First, the ACMP is a coordinating program, not a
permitting program. Second, HB 74 would not create new
obstacles to slow down development projects; rather, it would
establish a process for resolving conflicts between project
applicants, agencies, and local districts. The bill would
streamline the participation of all stakeholders by having them
work together early in the process.
1:29:12 PM
MAYOR ITTA said HB 74 would not simply reinstate the way things
were before 2003 when the program was essentially gutted. It
would restore a local voice in the process through local
enforceable policies and a coastal policy [board] that would
decide disputes instead of one individual. The bill would not
allow citizen or third-party lawsuits, which was a sore point in
the old process. Additionally, the bill would not allow local
concerns to trump legislative or agency authority and would
strike a middle ground between the pre-2003 arrangement and the
current approach of shutting out meaningful local input.
MAYOR ITTA pointed out that HB 74 relates to the debate in his
borough over offshore development in the Arctic Ocean. He
allowed he is not a fan of Outer Continental Shelf (OCS)
drilling, but added that he recognizes his is a development
borough and OCS development is probably going to happen. So,
rather than fight it, he would prefer to work with industry,
agencies, and the executive and legislative branches of the
State of Alaska to ensure this project is done with world-class
care. He said he has recently had some success in convincing
his fellow whalers that lawsuits do not need to be filed to get
some accommodation and recognition of whaler's concerns.
Progress has been made with Shell on a variety of concerns, as
well as with the U.S. Minerals Management Service (MMS), which
wrote some of the whaler's concerns into Shell's exploration
permit for this summer's Beaufort Sea activity.
1:32:31 PM
MAYOR ITTA specified, however, that he cannot point to any
progress in regaining a meaningful local voice in the coastal
management process. North Slope residents remember how coastal
zone management used to work at the local level and know that
that has been taken away. He said what frustrates him the most
is that by watering down the ACMP so there is virtually no local
voice, the State of Alaska has effectively abandoned its
opportunity to exercise influence in coastal waters. All the
cards have been handed over to the federal government and in the
absence of a credible state program local people will look there
for a substitute chance for recognition of local concerns.
MAYOR ITTA cautioned that national environmental groups will
likely be jumping all over this vacuum that he believes has been
caused by the state's inaction. A credible state plan could
help to dampen the resistance that environmental groups are
encouraging. It is a tool the state can use to the benefit of
all parties, yet there has been no movement by the state toward
a solution. He said he believes very strongly in local control
and that the State of Alaska must control its own destiny and
not allow another federal program to overtake and override the
good things that have been done in the state.
1:35:04 PM
MAYOR ITTA said he has been thinking about options that might be
available should the state do nothing. One option is for the
borough to rewrite Title 19 of its municipal code and create new
permitting hoops for project applicants to go through. Another
option is to work with federal agencies and legislators on the
concept of an Arctic regional citizen advisory council. A third
option is marine spatial planning through President Obama's
Whitehouse Council [on Environmental Quality]. He clarified he
does not believe a federal solution is a good alternative
because he believes everyone is better off with a state program
that recognizes local people as stakeholders and that takes
local concerns seriously. However, he must support something
because, as North Slope Borough mayor, doing nothing is not an
option. Doing nothing would simply fan the flames of resistance
at a time when he believes he has convinced a significant number
of whalers and other North Slope Inupiaq Eskimos that they can
work with the State of Alaska just as headway has been made with
federal agencies and the oil companies.
1:37:03 PM
MAYOR ITTA pointed out that people on the frontlines of proposed
developments, like the people in his community, have unique
concerns and insights. He said he believes that HB 74
reestablishes and refines a mechanism that can give local people
a voice without stalling the process. He directed attention to
page 11 of his PowerPoint presentation that depicts a map of
development in Prudhoe Bay in 1977 and a map of all permitted
development in Prudhoe Bay as of 2001. He said he is aware of
no project being stopped, and emphasized that the ACMP was a
program that gave the North Slope Borough a local voice and
development still happened. He maintained that striking a
balance that mitigates the concerns of the North Slope Inupiaqs
who have lived along the coast for thousands of years is a small
consideration in light of the billions of dollars that are being
talked about.
CO-CHAIR NEUMAN said he appreciates Mayor Itta's offer to work
with the legislature and DNR.
1:40:50 PM
REPRESENTATIVE TUCK referred to page 10 of Mayor Itta's
PowerPoint presentation and asked whether the Coastal Impact
Assistance Program (CIAP) would bring additional funds [$79.8
million] to the state for a properly managed coastal program.
MAYOR ITTA responded correct.
MS. HENSLEY explained that according to a document prepared by
DNR's Division of Coastal and Ocean Management about $14.5
million was allocated directly for 2010 to Alaska coastal
districts, also called coastal political subdivisions, through
the Coastal Impact Assistance Program. About $27 million was
allocated directly to the state. She understood that some of
this money goes directly to the coastal political subdivisions,
some directly to the state, and some to individual entities that
apply for funding through the CIAP grant program. In response
to Co-Chair Neuman, she agreed to provide members with a copy of
the document.
CO-CHAIR NEUMAN noted there is also a program dealing with soil
and water conservation districts whose funding has been cut, but
the program brings in $8-$9 in matching funds for every $1 it
receives. He asked whether this program could apply for CIAP
funding.
REPRESENTATIVE JOULE deferred to Mr. Randy Bates for an answer.
1:44:57 PM
BERT COTTLE, Mayor, City of Valdez, testified that the City of
Valdez supports HB 74 because it would correct part of the
damage that was done in the 2003 changes and would put coastal
communities back at the table as policy makers. Before the 2003
changes, the City of Valdez had 41 enforceable policies under
which input could be made, but today that number is 14; HB 74
would change that. The City of Valdez supports Section 37 [of
the bill as originally introduced] which would eliminate the
carve out of the Department of Environmental Conservation. This
department needs to be back at the table and not be a stand-
alone policy maker. Also, Section 37 [of the bill as originally
introduced] would eliminate the requirement for coastal
districts to update their plan every 10 years. There is no
reason to update a plan that is current because updating is
costly and time consuming. Section 1 of HB 74 would establish a
small coastal policy board, which the City of Valdez feels would
be good. The previous 17-member board was too large to be
effective. This smaller board would only address Alaska coastal
management policy issues and would be unable to override any
agency's authority.
REPRESENTATIVE SEATON noted that the bill version before the
committee, CSHB 74(CRA), only goes as high as Section 36.
MAYOR COTTLE said Section 37 is the section number he was given.
In further response, he said he would contact Representative
Seaton after the hearing in this regard.
1:47:52 PM
TOM OKLEASIK, Planning Director, Northwest Arctic Borough,
stated the Northwest Arctic Borough supports adoption of HB 74,
as does the borough's planning commission jointly with the North
Slope Borough Planning Commission via Resolution JBPC0901. He
said the Northwest Arctic Borough supports HB 74 for three
reasons. First, the bill would update the ACMP to a modern
coastal management program where good governance is valued
through public involvement. One of the borough's key objectives
under its strategic plan is to increase public participation for
an interactive and engaging borough democracy. The borough's
mayor, assembly, and planning commission value hearing from the
area's lifelong Alaska residents, communities, and businesses in
order to make the best governing decisions, policies, and good
public relations. However, under the current ACMP,
participation of stakeholders was identified as a key weakness
in the October 2002-August 2007 evaluation that was conducted by
the National Oceanic and Atmospheric Administration (NOAA)
Office of Ocean and Coastal Resource Management. The evaluation
report states on page 6, paragraph 4, that elimination of the
Coastal Policy Council was controversial, particularly with
transferring its authority solely to state staff. Checks and
balances are a fundamental premise of the U.S. democracy, he
said, and reinstatement of the Alaska Coastal Policy Board under
HB 74 would promote modern governance and checks and balances so
that bureaucrats in Juneau are not disconnected from Alaskan
communities and forcing decisions upon Alaskans.
1:50:46 PM
MR. OKLEASIK said the second reason for the borough's support of
HB 74 is that it would bring balance to the bureaucratic
decision-making process for coastal management issues. The
Northwest Arctic Borough has been attempting to revise its
coastal management plan since 2005, but has yet to receive
approval due to state staff interpretations of the laws and
regulations. The borough has met all the deadlines and made
many special efforts to meet bureaucratic demands. It has
attempted mediation with the state, which ended in impasse
despite the financial expense and many hours and days invested
in that process. As of today, the borough has been waiting for
over a year for the DNR commissioner to makes a decision. The
statutes and regulations have no timeline for making a decision,
so communities are left hanging in a "Catch 22 bureaucracy".
This has been a terrible and expensive experience for any
community to be forced through and the legislature needs to make
changes so that Alaskan communities can successfully work with
their own state government. The bill would bring more balance
to these important decisions and promote responsible resource
and community developments, especially by the Alaska residents
most impacted. The ACMP needs to be valued and given the
legislative tools to work and to respect all Alaskans.
1:52:14 PM
MR. OKLEASIK explained that the borough's third reason for
supporting HB 74 is because it would assist in advancing
communication between DNR and local communities. Creation of
the Alaska Coastal Policy Board would help ensure that coastal
districts and the state agencies work together on resource and
community development. Right now the project developers and
coastal districts are in reactive roles with state agencies
overruling any decision throughout the process. This was
illustrated recently with the Kodiak Kenai Cable Company project
to bring broadband access to the Arctic region, including
Kotzebue. Due to the Northwest Arctic Borough's coastal
management plan not being approved, the borough as a coastal
district had to make any request for information during the
public review process for the applicant. Additionally, the
company was not made aware of areas in the borough's coastal
district that are important to ongoing subsistence activities.
This caused many frustrations because DNR had to review all
communication and decide what action to take, which slowed down
the project development. Information from the district coastal
management plan was not made available by DNR for review by the
parties until the public notice step. Had the borough's coastal
management plan been approved, that company would have known the
district's designated areas and policies and built them into its
plans at the start of its planning process instead of being
caught in the current "Catch 22" bureaucracy with no foreseeable
timelines for resolution. The coastal district could have
worked proactively and coordinated more closely with the
company. The bill would assist in advancing communication in a
closely coordinated fashion and would bring good public
practices into the Alaska Coastal Management Program.
1:54:38 PM
CO-CHAIR NEUMAN asked Mr. Okleasik why the district's coastal
management plan may or may not be approved.
MR. OKLEASIK replied he has been trying to get a good handle on
that since his first day on the job. The district has been sent
in 20 different directions, and even when the district follows
the directions it comes back as unapprovable. It does not make
sense to have the district do what it was directed to do and
then be told that [DNR] changed its mind. There is no effective
appeals process before a third party; state staff has sole
discretion over all appeals, which has been the extremely
frustrating part of the program.
1:56:14 PM
CO-CHAIR NEUMAN asked Mr. Okleasik to describe one issue that
has been the most controversial.
MR. OKLEASIK answered there has been so much resistance that he
cannot describe one single thing. However, one example is that
the district has its subsistence policies in designated areas
and out of these policies only one area has been approved. In
Kotzebue, fish- and meat-drying racks are right in front of
people's homes and antlers are all over the place. Therefore,
it is crazy that only one small subsistence area has been
approved in the whole borough.
1:57:43 PM
MARLENE CAMPBELL, Coastal Management Coordinator, Sitka District
Coastal Management Program, City and Borough of Sitka, stated
that the assembly of the City and Borough of Sitka approved
Resolution 2009-32 supporting HB 74 to enable Alaska's coastal
communities to more effectively participate in the Alaska
Coastal Management Program. The resolution reaffirms the
position of the City and Borough of Sitka and the community of
Sitka ever since House Bill 191 was initiated. Prior to the
ACMP revision, the Sitka Coastal Management Program was a model
of effective coastal management. It allowed the Sitka community
to have due deference and protected local resources and
activities while at the same time permitting responsible
development. The revision process forced complete revision of
Sitka's coastal plan, and Sitka lost more than half of its
enforceable policies. The policies remaining are so restricted
that they are virtually unusable in coastal comments.
MS. CAMPBELL noted that HB 74 would restore the Sitka district's
opportunity for a seat at the table in management decision
making by establishing the Alaska Coastal Policy Board to
participate in district management plan approvals, which is
desperately needed. The board would not be involved in the
consistency review process. She said this greatly improved and
streamlined board is necessary for checks and balances. The
bill would streamline project reviews through the inclusion of
air and water quality issues and the Department of Environmental
Conservation (DEC) [Section 37 of the bill as originally
introduced]. She said it is her view that the carve out of DEC
has been totally dysfunctional and removal of air and water
quality from the purview of the ACMP was a grave error.
Additionally, HB 74 would maintain legislative authority over
the Alaska Coastal Management Program and maintain the ability
to pass future ACMP legislation.
2:00:30 PM
MS. CAMPBELL said House Bill 191 was sold as a means of
streamlining the ACMP; instead, these regulatory changes
crippled the program and disabled local participation. Due
deference to coastal communities with approved programs would be
restored by HB 74. It would not slow down permitting because
all the parties would have a seat at the table at the same time
to resolve conflicts and expedite permitting. She said she has
been the coastal management coordinator for the City and Borough
of Sitka since 1987, and HB 74 would be a great step forward to
reinstate some of the best features of the Alaska Coastal
Management Program.
MS. CAMPBELL pointed out that designations did not make it into
HB 74, and these are a problem for Sitka. Designations are
extremely problematic to coastal districts because the districts
are no longer permitted to have enforceable policies that relate
to resources without designated specific areas. In many cases,
the resources that the policies relate to may move from area to
area, so she hopes that the designations can be made more
flexible and promulgate policies as long as a thorough analysis
and justification for the specific policy is provided and have
no conflicts with state or federal law.
CO-CHAIR NEUMAN noted that on April 15, 2009, the committee
closed testimony on HB 74 and held the bill over, but that
public testimony has been re-opened today.
2:02:53 PM
REPRESENTATIVE GUTTENBERG inquired whether Sitka believes the
Department of Environmental Conservation is an appropriate
agency to be returned to involvement in the ACMP process.
MS. CAMPBELL responded yes, the city assembly's resolution
specifically supported the re-involvement of DEC in the
consistency review process rather than having the department's
participation carved out and totally separate from the ACMP. At
the local level, to not be able to even consider air and water
quality issues when making coastal management decisions that so
directly relate to the air and water quality issues of coastal
decisions is counterintuitive and unproductive. From a
practical standpoint, there is no real capability of
communicating with DEC because of it being carved out of the
program and not a participant. The City of Sitka once had a
productive relationship with DEC and this communication and
interaction is missed.
CO-CHAIR NEUMAN closed public testimony for the time being after
ascertaining that no one else wished to testify.
2:05:22 PM
CO-CHAIR NEUMAN requested Mr. Randy Bates to highlight the
administration's concerns with HB 74.
RANDY BATES, Director, Division of Coastal and Ocean Management,
Department of Natural Resources, said the department continues
to have significant concerns with the drafting and provisions of
this bill because the issues the department raised last year
have not yet been addressed. These issues relate specifically
to the authority and purview of coastal district enforceable
policies and the relationship that is expected to exist between
coastal management and the laws that state and federal
legislators have established.
2:06:51 PM
CO-CHAIR NEUMAN inquired whether there is some legal question
regarding establishment of an Alaska Coastal Policy Board.
MR. BATES responded that, in his opinion, the basic question of
whether it is DNR making the decisions on enforceable policies
or a coastal policy board is irrelevant. The questions that DNR
is concerned with are specific to the authority of coastal
district enforceable policies. The North Slope Borough, the
Northwest Arctic Borough, and DNR have engaged for quite awhile
regarding the authority of coastal district policies. For
example, one of the districts wanted the ability to manage or
write an enforceable policy related to noise-producing
operations so it could have a policy that maybe limited noise
producing operations to less than 125 decibels to address the
impact on marine mammals. However, the Marine Mammal Protection
Act specifically preempts states from developing laws like that;
it is a duplication of authority and the Act precludes that.
Additionally, the state's own granting agency, the Office of
Ocean and Coastal Resource Management within the National
Oceanic and Atmospheric Administration (NOAA), has said that
while that may be an approvable policy generally if it relates
to just noise, it would be illegal to implement the policy at
the project review level. From the department's perspective,
there are significant legal concerns with the structure of these
enforceable policies, what is proposed within HB 74, and the
relationship of those policies with the state authorities. That
must be addressed before moving on with any meaningful crafting
of statutes that would affect coastal management.
2:09:28 PM
REPRESENTATIVE P. WILSON requested Mr. Bates to specify which
parts of the bill need to be changed to meet the department's
concerns.
MR. BATES replied the department's first substantive concern is
that HB 74 would create a new oversight body, the Alaska Coastal
Policy Board, and would vest that body with the ability to
approve enforceable policies that would override agency
authority, effectively rendering the legislative establishment
of laws relative to resource management and protection moot.
The second concern is that the bill is specific to the issues of
a group of ACMP participants and does not balance or represent
the interests of all ACMP participants and stakeholders. While
there may be specific sections of the bill that relate to this,
the fundamental issue that must be resolved is the relationship
between enforceable policies and existing state and federal
laws. It is DNR's opinion that establishment of a coastal
policy board is irrelevant, as is providing additional purview
in the statutes for district enforceable policies, until the
relationship between these laws is addressed and it is
determined whether a district enforceable policy can be more
stringent than a law established by the state legislature.
2:12:13 PM
REPRESENTATIVE EDGMON said he is hearing a sense of conciliation
from representatives of the coastal areas, but he is hearing
zero conciliation from DNR and that the bill is a non-starter.
He asked whether there is any middle ground or attempt by the
state to work with its constituent base in the coastal areas, or
is DNR flatly refusing to work on this issue.
MR. BATES answered that HB 74 will not work the way it is
structured and DNR has significant concerns with the way it
would work. The department is very troubled with the ongoing
concerns that continue to be raised related to coastal
management and absolutely wants to resolve those issues. The
department is working on regulatory fixes that will resolve
certain issues, some of which are partially addressed within
this bill. The department will continue to look at the
relationship between those state and federal laws and what they
mean to coastal district laws. It is not that DNR has a hard
line against any changes to coastal management; it is the
fundamental issue that must be resolved before any other
discussion on changes to coastal management can move forward.
2:14:35 PM
REPRESENTATIVE KAWASAKI pointed out that an answer still has not
been heard to Representative P. Wilson's question regarding the
changes that need to be made in HB 74 for the department to say
that it is a good bill.
CO-CHAIR NEUMAN agreed. He suggested that a sectional analysis
would help members know what the bill does and would assist with
questions of Mr. Bates.
2:15:19 PM
REPRESENTATIVE GUTTENBERG inquired whether district enforceable
policies can supersede state or federal law.
LINDSAY WOLTER, Assistant Attorney General, Environmental
Section, Civil Division (Anchorage), Department of Law,
responded that that is the fundamental question that must be
answered and she is not prepared to answer it today. She said
this question has been ongoing for several years and the state
has been seeking advice from the Office of Ocean and Coastal
Resource Management, which is the federal oversight authority
for the coastal management program; however, no specific answer
has been received. She has been trying to answer the question
within her office, but she has not received an okay to move
forward and use client money to answer the question. While it
is a simple question, it is a very complicated issue and
complicated to answer. In some scenarios the specific examples
of enforceable policies really do intrude upon state or federal
authorities that have been specifically granted by either the
state legislature or Congress. She said she thinks the
department's position is that it does not want to be in the
position of trying to approve enforceable policies that might
not comply with current state or federal authority.
2:18:25 PM
REPRESENTATIVE P. WILSON asked how the bill would, as currently
written, supersede state and federal law.
MS. WOLTER began searching her papers and said she looked at....
CO-CHAIR NEUMAN interjected that Section 14 discusses preemption
and he believes the bill says no to Representative Guttenberg's
question.
2:19:48 PM
REPRESENTATIVE P. WILSON inquired how many meetings have been
held to work these things out.
MR. BATES replied these changes were brought about in 2003 by
House Bill 191, which mandated that each coastal district revise
its district plan according to the statutes and the regulations
that DNR had to rewrite. So, DNR has been working with the
coastal districts since that point to help them develop their
plan revisions. Of the 33 coastal districts with plans, 5
voluntarily dropped out because they felt existing state laws
and local ordinances would take care of their concerns. Of the
remaining 28 districts, 25 revised their plans in 2007 and 2008.
One district does not have a plan, but is working towards it.
The North Slope and Northwest districts pursued mediation and
voluntarily declared impasse with the state after exhausting
mediation opportunities, so their plans currently remain
unapproved. In the department's opinion, significant movement
on plan revisions was achieved during that time of mediation.
In terms of enforceable policies, many pieces were agreed to.
However, there were still some outstanding issues that were
critical to those districts such that they felt impasse was the
only recourse. Several meetings occurred weekly, if not daily,
for those two districts.
MR. BATES said monthly meetings have been reinstituted with the
working group, which is composed of representatives from the
coastal regions and all of the state's agencies, and the
department has monthly meetings specifically with the coastal
districts. The department is trying to reconstitute some of the
communication that was lost over the last few years, and the
meetings, telephone calls, and conferences are in the hundreds.
There is still some frustration on the districts' parts because
the statutes are not being changed to accommodate a broader
opportunity for district policies and that remains a substantial
sticking point.
2:22:56 PM
REPRESENTATIVE P. WILSON asked Mr. Bates to state what the
specific sticking points are so that members can see how those
are addressed by HB 74.
MR. BATES directed attention to an April 18 [2009] letter to
Representative Neuman in the committee packet which articulates
the top issues with the coastal districts that remain
outstanding. He offered to put together a list should this
letter be insufficient. He reiterated, however, that the piece
that must first be resolved before engaging in discussion on
policies is the relationship between coastal district
enforceable policies and existing state and federal laws.
2:25:42 PM
REPRESENTATIVE GUTTENBERG inquired whether Mr. Bates has given
Representative Joule an analysis of why HB 74 would not work and
recommended alternatives to make it work. He noted that he was
on the House Resources Standing Committee in 2003 when the
enforceable policies were removed and DEC was carved out.
MR. BATES answered that Representative Joule has attended one of
the conferences and his staff has attended conferences when both
statutory and regulatory revisions were discussed. While he has
not had specific discussions directly with Representative Joule
or Senator Olson, the sponsor of the Senate companion bill, he
has had discussions with their staff and representatives from
the different districts about district enforceable policies and
the relationship between state and federal laws. The department
has not engaged in revising HB 74 because of its substantive and
significant concerns with the bill. The department wants to
resolve the issues, but the legal aspects of those policies must
be looked at before a board is re-created or the authority of
policies expanded. Whether it is a coastal policy board or the
DNR commissioner presiding over these policies, the fundamental
legal basis must be understood for whether policies can infringe
upon state or federal laws. Neither a board nor the
commissioner can violate the law and approve a policy that is
preempted by federal law, and it is this piece that must be
solved before there can be discussion on who is deciding
ultimately on district plans.
2:28:56 PM
CO-CHAIR NEUMAN surmised DNR and the other state departments are
trying to figure out the federal implications because federal
funds are being received. He understood that DNR is also
dependent upon answers from federal attorneys which may be what
is taking time.
MR. BATES responded yes, that is part of it.
2:29:45 PM
REPRESENTATIVE GUTTENBERG observed that Section 14 on page 11 of
CSHB 74 (CRA) states in several places that the board cannot do
things that are preempted by state or federal [law]. Therefore,
he is trying to determine why this is still a sticking point
given that Section 14 seems to delineates that.
MR. BATES replied that, to him, the difference is preemption
versus either duplicative or overriding authority. There is a
difference between specific federal preemption and that which
simply is not allowed by law, either overriding law or
duplicating or being more stringent. While Section 14 deals
specifically with preemption, the department's legal question is
much broader than that: Can a district enforceable policy,
which is ultimately adopted by the state as a state policy and
federally approved, overwrite statutory authority. For example,
can a district overwrite or be more stringent than what is
established in state law for habitat authority under Title 16?
Therefore, the department is struggling with a bigger question
than just preemption.
2:32:10 PM
CO-CHAIR JOHNSON observed that there is language throughout the
bill that states may or must adopt regulations approved by the
board, such as on page 3, line 24, and page 7, line 29, and page
11, line 27. He asked whether there are other statutes that
provide for a board to approve regulations. He said it seems to
him that regulations are up to the department and this may be
dealing with the separation of powers. He added that it gets to
the issue that there is a board that cannot preempt regulations
that it must approve.
MR. BATES answered he is unsure whether other boards, such as
the Board of Game or Board of Fisheries, establish regulations.
He said this bill would vest powers within the Alaska Coastal
Policy Board that would give it the authority to establish
regulations and he believes that was how the Coastal Policy
Council was set up during the years prior to 2003.
2:33:52 PM
CO-CHAIR NEUMAN repeated that he would like to have
Representative Joule review the provisions of the bill.
REPRESENTATIVE EDGMON argued that it makes no sense to have this
in-depth discussion if DNR is unwilling to compromise or come
forward with solutions. He said the department left the
committee meeting of April 9, 2009, with a mission to foster a
solution. However, rather than offering solutions today, the
department is saying "no", not until this issue of enforceable
policies is established, even though the Alaska Coastal Zone
Management Program has been around for 25 years.
2:34:58 PM
CO-CHAIR NEUMAN pointed out that Mayor Itta expressed a desire
to work with the state. He reiterated that he would like to
have Representative Joule review the bill's contents because
that might answer many of these questions.
MR. BATES said that while DNR has significant concerns with the
bill, it does not mean that the department does not want to work
with folks. The department is continuing its ongoing outreach
to the North Slope and Northwestern districts as well as to the
other districts. The money from the Coastal Impact Assistance
Program (CIAP) is flowing and is not contingent upon a rewritten
coastal management program. About $79 million will come to
Alaska over the next couple of years because the state has a
coastal management program. A wide variety of coastal
districts, including the North Slope and Northwest districts,
are receiving a significant portion of this money. Receipt of
the money has no bearing on whether the North Slope and
Northwest coastal districts have plans; the money is based on
proximity to producing wells for leases. It is a great
opportunity for the state to engage in mitigation and additional
work related to Outer Continental Shelf activities.
2:37:29 PM
MS. HENSLEY explained that Section 1 would establish the Alaska
Coastal Policy Board, comprised of five public members
representing coastal districts and the commissioners of the
departments of natural resources, fish and game, environmental
conservation, and commerce, community and economic development.
REPRESENTATIVE JOULE, in response to Co-Chair Neuman, said the
five public members would be appointed by the governor and the
governor would use the criteria laid out in the bill to select
the appointees. People from around the state would forward
their names to the governor and the governor would make the
appointments from that pool of names.
2:40:04 PM
CO-CHAIR JOHNSON estimated that 60-70 percent of the state's
population lives in the Upper Cook Inlet area, yet that area
would have only one representative on the coastal policy board
as provided on page 2, lines 9-13.
REPRESENTATIVE JOULE surmised Co-Chair Johnson is thinking that
that part of the coastal district is unrepresented. However, he
countered with the question, "Where is the resource development
going to occur?" He said there are many ways to look at this,
but agreed there are numerous people in that district and Co-
Chair Johnson's point is well made.
CO-CHAIR NEUMAN said all Alaskans are in this together and he
knows from his discussions with Representative Joule that that
issue is being looked at.
2:41:51 PM
REPRESENTATIVE P. WILSON understood that the pre-2003 coastal
policy program worked well. She therefore requested that when
reviewing the sectional analysis, Ms. Hensley note how each
section is different than what existed prior to 2003.
MS. HENSLEY responded that this is a complex program and she
will do this as well as she can. She pointed out that there are
people in the audience with 20-plus years of experience who
could clarify or answer what she does not know in this regard.
2:43:58 PM
REPRESENTATIVE P. WILSON requested Mr. Tom Lohman to also note
how each section is different than what existed prior to 2003.
THOMAS LOHMAN, Attorney at Law, Environmental Resource
Specialist, Department of Wildlife Management, North Slope
Borough, noted he has been with the borough's coastal program
since 1987 and the North Slope plan was first adopted in May
1988. He said the Alaska Coastal Management Plan did not work
well pre-2003, depending upon where a person wants to focus.
The problems with the program that existed in 2003 were solved
before House Bill 191 and largely had to do with third-party
involvement in consistency reviews, which did delay projects and
that was solved by the legislature. House Bill 191 was
essentially enacted because there was a certain momentum, a
sense that there was a problem with the program even though that
problem no longer existed at that point. He said this bill does
not roll all the way back to pre-House Bill 191; some things are
different. He acknowledged there were problems with the
previous Coastal Policy Council, including its unwieldy size of
17 members that made it difficult to get a quorum. The
requirement was that the public members be elected officials
from regions around the state. This was a problem because
elected officials did not necessarily have knowledge of the
program. The wording of HB 74 would put people with knowledge
on the board because they would be nominated by the regions.
2:45:26 PM
MR. LOHMAN said he believes this overriding legal question is a
red herring, given the coastal management program has been
around for a very long time. The North Slope Borough has met
with the Office of Ocean and Coastal Resource Management and
that agency has had no problem in either Alaska pre-2003 or any
other programs the agency administers around country where local
programs are stricter than applicable federal laws. With the
board in place, a district would still have to supply scientific
evidence, local knowledge, and other data bases to show
scientifically why a district wants to do something stricter.
Regarding the noise example brought up by Mr. Bates, he said the
North Slope district would yield to DNR because the 125 decibels
is a highly scientific question that has to do with impacts on
marine mammals. The example that comes up at every meeting the
North Slope district has had with the state is the issue of tank
farm regulation where there are statewide one-size-fits-all
requirements for the lining and diking of tanks. If local
knowledge indicates that rainfall and snowfall conditions
require that something more be done, the district would need to
go to the board or DNR, whichever is the case, to show that its
special conditions necessitate stricter requirements. That is
not in conflict with, he argued; it is stricter for reasons that
must be proven to this third-party board. He said that is what
is being asked for and that is what this bill accomplishes,
which is why he believes this issue of usurping state or federal
authority is a red herring.
MR. LOHMAN maintained that local districts having the ability to
craft local policies that reflect local concerns is in keeping
with what every Alaska governor has said since statehood about
being opposed to federal intrusion into what goes on in the
state. Given Alaska's large size and diversity, the same holds
true for around the state - there are reasons at a local level
to express views through local enforceable policies. In the
case of the oil industry on the North Slope such policies solve
problems rather than cause them. A signal is sent to the
developer/applicant about what is expected and discussions can
then occur before permits are submitted. He said this bill does
not roll it back completely to pre-2003 because there were
problems then; it rolls it back at the district enforceable
level giving districts some influence. The bill also corrects
some of the problems that existed with the program pre-2003.
2:48:54 PM
REPRESENTATIVE TUCK asked what the changes are in CSHB 74(CRA)
that would make the new board a legal problem when the pre-2003
Coastal Policy Council was not a legal problem.
MR. LOHMAN responded he does not see any legal problem with the
board. He said a letter was written months ago by Mr. Bates
through the DNR commissioner to the attorney general's office
looking for an opinion on this, but no answer has yet been
received. He pointed out that no question was ever heard about
the ability of an independent coastal policy board to approve
regulations or to approve local adopted policies under the old
program; this question was not heard until December 2008. The
North Slope Borough had 30-plus local policies pre-2003; it
applied for 41 under this program, received 5, and none went
through unamended. The pre-2003 Coastal Policy Council had an
involvement through a petition process and individual reviews.
That was messy because a lot of the council members were
unfamiliar with the program and unfamiliar with broader regions
of the state, but there was no legal problem with it. The
proposed board would not at all be involved with individual
consistency reviews. He said he thinks any perceived problem
with the old board has been solved and he does not believe there
was a legal problem in either case.
MR. LOHMAN, in response to Co-Chair Neuman, said he lived on the
North Slope for nine years, but now lives in Anchorage. He
reiterated he has been with the North Slope Borough since 1987.
2:51:37 PM
REPRESENTATIVE SEATON inquired whether the Department of Law is
saying that the legislature by statute does not have the
authority to give a district the ability to write regulations.
MS. WOLTER provided an answer by using the tank farm issue. She
said the state legislature has given specific authority to the
Department of Environmental Conservation (DEC) to regulate this
particular thing; so, DEC has gone through a public process to
create regulations that address tank lining, tank capacity, and
so forth. However, this normal public process would not occur
if districts can add something different than what DEC has
already regulated. Without a public process, project applicants
would not have any say in why they might not agree with those
more stringent enforceable policies, which are enforced as state
law. Another concern is that between districts there could be
very different standards. A project overlapping two districts
with different standards would have to comply with two different
standards rather than the one DEC standard. She said she thinks
this is something that is important for the legislature to
figure out. If authority has been given to a state agency to
regulate something specifically, how far does the legislature
want to go with enforceable policies on a district-by-district
basis and how far can they go on a state level.
MS. WOLTER noted that on a federal level, any changes to
statutes and regulations resulting from program changes must go
through the federal oversight body and be approved by that body.
In regard to Mr. Lohman's statement that the borough would be
willing to yield on the issue of noise levels, she said the
Marine Mammal Protection Act preempts the state and is a clear
example of something that would not be allowed on the
enforceable policy level. The state has brought specific issues
to the federal government asking whether they would be
approvable and in many examples the federal government has said
no. Even when something has gone through on a state level,
there have been problems getting it approved as part of the
state program by the federal program.
2:55:51 PM
MS. HENSLEY said Ms. Wolter's point about duplication is
addressed in Section 14 [page 11, lines 10-12], and the law is
not new, it was simply moved from AS 46.40.030. The only thing
that has been added in this section is the preemption standard
because it is a term understand the world over.
MS. WOLTER clarified she is not talking about the duplicating
language; rather, she is talking about when enforceable policies
are more stringent or more specific than state or federal law.
2:57:04 PM
MS. HENSLEY returned to her sectional analysis review, noting
Section 2 clarifies that the Department of Natural Resources
will render all federal consistency determinations as well as
state consistency determinations when a project requires a
permit from the department or from two or more state resource
agencies. This provision is significant because [pre-2003] the
Coastal Policy Council that made the consistency determinations.
REPRESENTATIVE EDGMON interjected that one year later the legal
issue has still not been resolved for whatever unknown reason,
and going through the bill is academic unless the legal issue is
resolved. He therefore requested that the attorney general
address the committee so there can be some clarity on this issue
before moving forward.
CO-CHAIR NEUMAN agreed the attorney general can be asked to come
to the next hearing, but maintained it is still important to
know what the bill would do.
2:58:54 PM
MS. HENSLEY explained that Section 3 would establish authority
for DNR to adopt regulations after approval by the board. She
added that she would research other instances in which a board
makes regulations and get that information to members. She said
Section 4 would establish the powers of the board, including the
ability to accept grants and take reasonable action to carry out
the intent of the program. Section 5 would establish the duties
of the board to approve the ACMP standards and the criteria for
district plan approval. Section 6 defines the board. Section 7
provides for approval of ACMP program changes by the board; this
provision essentially changes the word department to the word
board.
3:00:12 PM
MS. HENSLEY related that Section 8 looks at objectives. The
second objective remains the same regarding the development of
industrial or commercial enterprises, given that the ACMP is
intended to promote development. She pointed out that
subsistence is added to paragraph (5) on page 6, line 9.
CO-CHAIR NEUMAN inquired whether [adding subsistence] would give
the proposed coastal policy board the ability to manage game.
MS. HENSLEY replied she does not believe it would because this
change is just stating what is already there; the federal law
includes subsistence as one of the resources that can be
managed. Coastal districts already have authority to create
enforceable policies that address subsistence, so it is a
technical change to clearly reflect what is covered.
3:01:21 PM
MS. HENSLEY said Section 9 is more substantial in that it
removes the requirement for district enforceable policies to
meet statewide standards. The statewide standards criteria was
somewhat confusing, so this section provides that the district
plan criteria must be met.
CO-CHAIR NEUMAN announced that the meeting time had expired and
asked which sections of the bill should be looked at by the
committee in regard to substantial changes.
MS. HENSLEY responded the most substantial changes are the
creation of the Alaska Coastal Policy Board and the re-uniting
of the Department of Environmental Conservation with the
program. She emphasized that the board would not conduct the
review process of projects as that would remain with DNR.
3:02:43 PM
REPRESENTATIVE JOULE reminded members that the North Slope and
Northwest Arctic districts still have not had their plans
approved and maybe that is where the focus of the bill should
be. He pointed out that this is the fourth year for this bill
in one form or another, along with DNR's opposition to the bill.
He related that at one time DNR said it would introduce its own
bill and he wishes DNR would provide that guidance or join him
in his office to hammer this out. He said he has met with the
commissioner on several occasions and attended DNR's symposiums,
yet nothing materializes. In reference to Mayor Itta's
statement that he must support something, and given the state
not taking any action, Representative Joule said he is unsure
what options that leaves the mayor.
[HB 74 was held over.]
3:05:52 PM
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB414-REV-TAX-03-20-10 Separation of Oil and Gas Production Tax.pdf |
HRES 3/22/2010 1:00:00 PM |
HB 414 |
| HB 74 HRES Pkg for 3.22.10.pdf |
HRES 3/22/2010 1:00:00 PM |
HB 74 |
| HB 414 HRES for 3.22.10.pdf |
HRES 3/22/2010 1:00:00 PM |
HB 414 |
| HB 74 Mayor Itta Presentation.pdf |
HRES 3/22/2010 1:00:00 PM |
HB 74 |
| HB 74 Calista Letter.pdf |
HRES 3/22/2010 1:00:00 PM |
HB 74 |
| HB 74 Shell Letter.pdf |
HRES 3/22/2010 1:00:00 PM |
HB 74 |
| HB 74 joint association letter on ACMP.pdf |
HRES 3/22/2010 1:00:00 PM |
HB 74 |
| HB 74 AK Miners Assn Letter.pdf |
HRES 3/22/2010 1:00:00 PM |
HB 74 |
| HB 74 Steel Fab Letter.pdf |
HRES 3/22/2010 1:00:00 PM |
HB 74 |
| HB 74 Harbour Article 3.30.10.pdf |
HRES 3/22/2010 1:00:00 PM |
HB 74 |