Legislature(2011 - 2012)BARNES 124
03/23/2011 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| Confirmation(s): Commissioner, Department of Natural Resources | |
| HB106 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 106 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
HB 106-COASTAL MANAGEMENT PROGRAM
1:53:20 PM
CO-CHAIR FEIGE announced that the next order of business would
be HOUSE BILL NO. 106, "An Act extending the termination date of
the Alaska coastal management program and relating to the
extension; relating to the review of activities of the Alaska
coastal management program; providing for an effective date by
amending the effective date of sec. 22, ch. 31, SLA 2005; and
providing for an effective date."
1:53:34 PM
JOE BALASH, Deputy Commissioner, Department of Natural Resources
(DNR), on behalf of the DNR, offered to present the consistency
review process and highlight a few points.
1:53:57 PM
DAN SULLIVAN, Acting Commissioner, Department of Natural
Resources (DNR), apologized since he was unable to attend the
hearing two weeks ago when the administration took up this bill.
He stated he has been focused on this issue and has discussed
this issue with legislators and the stakeholders. He said he
has recognized the importance of this program to the state. He
acknowledged that the Alaska Coastal Management Program (ACMP)
is a complicated program. He said he has been learning the
intricacies of the ACMP while moving forward on this issue. He
pointed out he has become aware of the disagreements in the past
history. He offered his intent to be respectful, transparent,
and constructive in terms of engagement.
ACTING COMMISSIONER SULLIVAN mentioned that the DNR has been
working internally within the administration and executive
branch toward getting its "own house in order." He has met to
resolve differences between agencies since they can be
problematic for the implementation of a program. He also
related some legislators have expressed interest in regular
meetings being held by directors, deputy commissioners and
commissioners.
1:56:32 PM
ACTING COMMISSIONER SULLIVAN stated the committee has heard or
will hear the results of the audit and DNR has been working on
regulations to improve key areas mentioned in the audit. He
advised that Mr. Balash would outline the consistency review
process and the development of local district plans.
ACTING COMMISSIONER SULLIVAN reported that the Governor's bill,
HB 106, represents a straight extension of the program and the
Governor's preference would be to keep that separate from the
issues of the program. However, he indicated his willingness to
engage with legislators who propose substantive changes to the
program. He indicated that this process will be based and
guided by four principles. First, the program must maintain a
predictable process. Second, the ACMP must be maintained as a
strong state program where participant input is valued. Third,
the Alaska Coastal Management Program (ACMP) standards and
enforceable policies must be objective and must not duplicate or
redefine existing authorities. Finally, coastal districts
should be afforded a meaningful role for input on projects but
should not possess a veto decision over projects. He
characterized the principles as broad. He reiterated his
willingness to meet with legislators to answer any questions.
1:58:30 PM
MR. BALASH related he would like to address the consistency
review process since it is important to understand the
differences between the review process and the development of
local programs.
MR. BALASH noted the committee had questions last week on the
consistency review process. The prior presentation melded back
and forth between descriptions of the review process and the
interplay with local enforceable policies and development of
local coastal plans. These are interdependent but significant
differences exist between the two. He highlighted that he would
like to keep the two issues separated so members will understand
whether the issue involves the review process or the development
of local plans. He offered to go through this presentation and
highlight instances in which the local districts and the public
have an opportunity to comment on projects and affect the
decisions that state agencies make on whether or not to grant a
consistency determination for a given project. He acknowledged
the program is very complicated. He offered that at the closing
he would discuss specific projects to "walk committee members
through" a consistency review process.
2:01:35 PM
MR. BALASH related that the ACMP authority comes from a variety
of authorities throughout federal and state law and regulations
[slide 2]. It is an umbrella program that draws on existing
authorities a number of state statutes have for the management
and protection of our state resources. He identified the
specific statutes governing the program as AS 46.39 and 46.40
and state regulations in 11 AAC 110, project review, 11 AAC 112,
statewide standards, and 11 AAC 114, district plan regulations.
MR. BALASH related the ACMP's place in the overall permitting
schedule [slide 3]. He pointed to the incredible array of rules
and regulations to protect the natural resources in the state,
including air, land, water, and fish habitat. Alaska has a
fortified level of hurdles for development in particular even
more hurdles apply to coastal zone development. He related that
obtaining a consistency determination from the Division of
Coastal and Ocean Management in instances in which development
is to proceed in the coastal zone. No other permit can be
granted by a state agency and no other authorization can be
granted unless the consistency determination has been issued by
the Division of Coastal and Ocean Management (DCOM).
2:04:47 PM
MR. BALASH discussed what triggers a consistency review [slide
4]. He indicated that part of that depends on project location
and the other depends on the type of authorization required. He
related the consistency determination is triggered when the
project is located within the coastal zone or outside the
coastal zone and is a federal activity with reasonably
foreseeable coastal effects, or the project requires certain
federal authorizations. In some instances some projects require
a state or federal permit and must undergo a consistency
determination. All of those circumstances are identified in
regulations and the program documents. He offered to provide
any documents to committee members.
MR. BALASH explained that the review process involvement [slide
5]. This process involves the applicant, the affected coastal
district, state resource agencies, federal agencies, and the
public. He elaborated that the applicant is often a developer,
and can be a private or public entity such as the state
Department of Transportation & Public Facilities (DOT&PF). The
process is designed to evaluate projects on the front end and
make sure the project will be executed in a manner that protects
and manages those coastal resources. This process not meant to
be a straight yes or no at the front end of the project. At the
end of the process the consistency determination details that
the project plan is consistent or in cases in which the plan is
not consistent the project must adopt alternative measures. He
characterized this as an important part to understand.
2:07:43 PM
MR. BALASH highlighted that the affected coastal district is the
local government or local coastal resource district and coastal
resource representatives are located in the area the project is
being proposed.
MR. BALASH discussed the ACMP consistency review process
timelines [slide 6]. He indicated the first process is to
determine the applicability. In the event the project is
required to be reviewed, the DCOM has a process to assist
project sponsors with "getting their arms around the program"
and what will be needed to obtain the necessary permits. He
explained that these meetings can happen informally ranging from
meeting with division staff to a wide array of review
participants. He pointed out one of the more useful tools is
the Coastal Project Questionnaire (CPQ) [slide 7]. He related
that this document is 18 pages that a project sponsor can fill
out that helps to identify the permits and authorizations
required on both the state and federal side in order for the
project to be completed. The CPQ will inform the departments
and agencies that will be involved, which drives who will
directly perform the review.
MR. BALASH offered his belief that the CPQ is an important tool
on the front end and once it has been completed and submitted
the consistency review process begins.
2:10:56 PM
MR. BALASH related that DCOM has 21 days to determine whether
the process is complete [slide 8]. Once the CPQ has been turned
in along with the relevant permit applications and the
determination has been made the scope of the review will be
decided. This process includes activity, the facilities,
effects on any coastal use or resource, and identify the things
that need to be examined since some low-impact activities would
not be included in the scope of the review. He characterized
this as a "bucket and bundle of activities" which are contained
for all the reviewers examining the project and whether the
project is consistent with the body of coastal policies.
MR. BALASH explained that once the application is complete and
the scope is defined, that the DCOM will prepare the public
notice [slide 8]. He indicated the public notice is prepared by
the division and appears on the state's online public notice
site, will be posted in three public places within the
potentially affected coastal district, and provided upon
request. He stated that public notice indicates whether it is a
30-day or 50-day review. He clarified that a 30-day review is
one limited to state authorizations and a 50-day review is one
in which federal authorizations are required. He stated the
public notice starts the consistency determination clock at day
1.
2:13:38 PM
MR. BALASH explained that once the public notice is issued
materials are sent to the reviewing parties, which is important
to note since the review participants includes the local coastal
district affected by the project. He further explained that
gives the local coastal district certain rights, such as the
right to review information, comment on information, and to be
considered in the decision-making process. He specified that
one of the critical components of the process is what occurs at
day 13 or day 25, depending on whether the review is a 30 or 50
day review. He emphasized that any reviewing participant can
request information, including the local district. A
participant has the right to review the additional information
to ensure that it complies with the request. In the extreme the
clock can be stopped if an applicant has not provided critical
information and does not restart until the information request
has been satisfied.
2:14:58 PM
REPRESENTATIVE P. WILSON asked for clarification on the number
of days it would take.
MR. BALASH answered that beginning on day 1 when the process
starts, when a project reviewer has seen the scope in the
application and wants additional information to better
understand how the project would affect the area or the
resource, the project reviewer can request that information from
the applicant. He explained that could occur on day two or day
five. Deadlines apply so a reviewer must request that
information of day 13 for a 30-day review. If the reviewer
misses the deadline it is too late, he said. Since an overall
number of days in which the review can be completed exist a
reviewer can effectively stop the clock to allow that
information needs to be satisfied. He clarified that these
delays are usually done at the request of the project applicant.
2:16:46 PM
MR. BALASH returned to his presentation. He stated that a
reviewing entity and specifically a coastal district not only
can request specific information, but can also request a
specific geographic area within the proximity to the project to
be designated for a specific purpose or set of protections. He
related that a subsistence area or a natural hazard area can be
requested and designated by the local district. He cautioned
that this has nothing to do with the local coastal plan but is
simply in the context of this review. He recalled this is a
tool that has been used under the existing program since the
2003 changes. In particular, the North Slope Borough has
utilized this for more than a half dozen projects to protect
subsistence areas important for local use. He characterized
this as a significant tool. However, this does not necessarily
become part of the permanent local plan. He reported that
reviewing agencies and entities can submit their analysis of the
project and its consistency with the local and statewide
standards.
2:18:53 PM
REPRESENTATIVE GARDNER referred to the day 13/25 portion of the
slide that represents the point during which reviewers could
request additional information or designate an area for special
review, but the consideration does not become part of the
permanent plan. She asked for clarification for the instance in
which the local community holds a concern not addressed by state
or federal statutes or plans. She wondered why this would not
be included as part of the permanent local plan.
MR. BALASH asked to defer the question as the department is
scheduled to talk about local plans and their development on
Friday. He clarified that the review process timeline is
specific to the permits and projects in question to mitigate
impacts on an area.
REPRESENTATIVE GARDNER agreed to wait.
2:20:18 PM
MR. BALASH continued the presentation. He reported that
comments are submitted by all of the reviewing state and federal
agencies to the coordinating agency which is typically the DCOM.
He related that the comments must be in writing and basically
says one of two things: either it is consistent or can be made
to be consistent by doing certain specified things.
MR. BALASH emphasized that this is the opportunity for
communities to "drive" how a project will proceed. The
evaluation consists of the coordinating agency considering all
comments and granting due deference to the coastal district in
considering and applying the standards to the affected coastal
community. He referred to 11 AAC 110.255(a), which read, "The
coordinating agency shall give a commenting resource agency and
coastal district with an approved plan due deference within that
agency's or district's expertise or area of responsibility." He
clarified that in other words "they're getting to really call
the balls and strikes" as the standards are applied to the
project. He said, "And that's a big deal." He stated that this
is a state program and "a big gate keeper" on whether a project
happens in the coastal zone or not. He pointed out that if a
project does not get a consistency determination from DCOM, the
developer does not get to proceed with the project and it is at
this particular stage in which a coastal district can determine
whether the project is in conformance or not. He concluded that
if the coastal district says no, the department will go that
way. He characterized this as a unique tool. The DCOM has
found this to be an important part of the process as it approves
projects for development.
2:23:37 PM
MR. BALASH said it is not uncommon to have conflicting views
between the reviewers as to whether a project is consistent. In
such instances, a consensus process is specified under 11 AAC
110.255 (c) which lays out how to resolve this through
consensus. He read:
If the comments indicate that a consensus does not
exist among the review participants, the coordinating
agency shall facilitate a discussion among the review
participants to attempt to reach a consensus. If the
review participants cannot reach consensus, the
coordinating agency shall develop a proposed
consistency determination that is based on the
comments and positions of the resource agencies and
affected coastal resource districts.
MR. BALASH pointed out that someone must make the decision,
which is typically DCOM, and that decision is spelled out and
identifies whether there are alternative measures needed to meet
consistency and proceed with the project. When the coordinating
agency has reached that step by day 24/44 that proposed
determination, in writing, would be circulated to all reviewing
entities and made public. Again, this would give the project
applicant an "up or down" so either the project is consistent or
it is not. If it not consistent the means for making it
consistent would be spelled out.
2:25:55 PM
MR. BALASH stated that the applicant has a choice of adopting
the alternative measures and proceeding or abandoning the
project and withdrawing it. He indicated that the applicant
would also have the opportunity at this point to elevate the
decision. The elevation can be spurred by one of the reviewing
entities, including a coastal district or an applicant. That
would take the decision from DCOM and elevates the decision to
the commissioner. Fortunately that does not happen very often.
He related his understanding that the one time it occurred since
the 2003 program, the elevation was initiated by a coastal
district and the commissioner sided with the coastal district
against the division. Once the final elevated decision is made
a final consistency determination it is published on day 30/50
depending on the scope of the review.
MR. BALASH clarified that the process does not always need to go
30/50 days in all cases. The DCOM has an expedited process.
2:28:05 PM
CO-CHAIR FEIGE inquired as to the first point in which a coastal
district becomes aware of an application.
MR. BALASH answered that on day 1 the coastal district would
receive the official notice electronically to the official for
the coastal district. Typically the communities have an
awareness of a forthcoming project during the pre-review
process.
2:28:55 PM
CO-CHAIR FEIGE inquired as to whether a municipality within the
coastal district is notified that an application has been
received.
MR. BALASH answered correct.
2:29:09 PM
CO-CHAIR FEIGE referred to day 13 or day 25 and asked for
clarification.
MR. BALASH responded that the number of days depends on which
scope the project falls under and whether it is a 30/50 day
track.
2:29:23 PM
REPRESENTATIVE HERRON related his understanding that the
statutes require a plan, following the criteria, which is
submitted to the DCOM. The department must review and approve
the process. He inquired as to why the presentation is covering
the review and approval process prior to covering the management
plans, submission, and department review.
MR. BALASH responded that during the first presentation the
department was asked to provide a flowchart on the review
process and did not. He remarked that the department is doing
its best to meet the co-chairs' request.
2:30:25 PM
REPRESENTATIVE MUNOZ asked for a percentage of the projects that
are able to complete the process in 30 or 50 days. She further
inquired as to the reason to have the process go much longer.
MR. BALASH answered that he does not have a specific percentage,
in mind. He recalled some summary information in members'
packets that identifies the number of projects applied,
withdrawn, and completed. He deferred to Mr. Bates.
2:31:33 PM
RANDY BATES, Director, Division of Coastal and Ocean Management
(DCOM), Department of Natural Resources (DNR), answered that 100
percent of the projects going through a consistency
determination are completed within the 30 to 50 day timeframe.
2:31:58 PM
MR. BALASH stated that not every single activity requires a
complete review like this. The division has developed an ABC
list (slides 9-10). He identified that the ABC list identifies
certain routine activities that frequently occur and are not
required to undergo a longer process. He identified "A list"
activities as ones pertaining to low impact activities or
projects. The B list activities would include activities that
are "generally consistent" when alternative measures are taken
into account. Additionally, the B II category of projects would
include the ones that fall under the nationwide or general
permit list. The C list would include the types of state
permits that occur too infrequently to be included on a general
or categorical designation. He emphasized that those projects
are those that absolutely go through the 30 to 50-day review
process. In FY 2010, 20 percent of the project reviews were
completed and conducted through this expedited list mechanism.
He reiterated that a review is not necessary in instances in
which all of the activities fall on the A or B list [slide 10].
Additionally, parts of a project may be excluded if resource
agencies and the affected coastal district agree that the A or B
list has a "de minimis" impact. He restated that this is a way
to narrow the focus of the program and reviewers and
concentrates staff time on the projects that matter most.
2:34:32 PM
MR. BALASH emphasized that the ACMP is unique and valuable
[slide 11]. He commented that how it is applied in Alaska is
very different than in other coastal states. Alaska has taken
steps to ensure that its program is an effective program and one
that allows communities to make a difference in the way projects
occur in the coastal zone. He pointed out the extensive number
of coastal miles in Alaska and how it affects Alaska's
communities from fishing to reliance on resources in coastal
areas. The federal consistency reviews have had an impact on a
number of things that do not necessarily relate to a specific
project such as lease sales. He related that if the program was
not continued the state would not be able to participate in
reviewing federally permitted activities, such as the outer
continental shelf (OCS). The governor has recommended the
program be extended for six years.
MR. BALASH provided examples of reviews [slide 12]. He related
that the Northern Fiber Optic Link is one project. Projects
were competing for federal funds and this project proposed
installing 30,000 miles of fiber optic cable around the outer
coast of Alaska and tying into the existing fiber optic link.
This project would make a big difference in everyday life in
rural areas of the state in terms of commerce and quality of
life. The DCOM received the coastal project questionnaire
application and held a pre-application meeting with the
applicants.
2:38:32 PM
MR. BALASH reported that the division issued an insufficient
information letter to let the applicant know that additional
information would be required for a complete application.
Subsequently a second pre-application meeting was held. He
explained a series of separate meetings with agencies were held
to detail the issues with the application which ultimately
resulted in a complete application. The division then started
its review. The division received a request for additional
information from the Bristol Bay Borough and conflicts with the
Naknek and Dillingham fisheries arose including the Bristol Bay
CRSA. He explained that the project proposed cable landings to
be sited in a high erosion area. The Northwest Arctic Borough
expressed concern with subsistence in the Kotzebue Sound.
Numerous applicant project changes occurred during the course of
the review. The applicant received a second request for
additional information (RFAI) from the Bristol Bay CRSA so the
clock was stopped to evaluate the RFAI and consult with the
review participants. He said the review was restarted three
days later with new comments, deadlines, and proposed and final
determination date.
2:40:23 PM
MR. BALASH related the comment deadline was reached and comments
received from the Alaska Department of Fish & Game (ADF&G), the
Bristol Bay CRSA, the Northwest Arctic Borough which focused
mainly on conflicts with fishing activities and subsistence. He
added that one comment was received from a Nome miner about
conflicts with Norton Sound mining activities. The division
issued a proposed determination objecting to the project but
proposing alternative measures. The applicant adopted the
alternative measures into the project description, avoiding
subsistence and peak fishing activities by adopting timing
windows and notified communities and competing user groups. The
DCOM issued a final consistency determination for the Northern
Fiber Optic Link project.
2:41:18 PM
MR. BALASH provided a second project example of the consistency
review process for the Sitka Runway Safety Area Project [slide
13]. He provided background information on the project site and
review. He explained that the airport sits on Japonski Island
with marine waters on three sides. The runway itself did not
meet Federal Aviation Administration (FAA) standards for safety
area and stipulated an upgrade. The Department of
Transportation & Public Facilities (DOT&PF) proposed an
intertidal fill to create a 280 foot by 200 foot wide runway
safety area expansion which required a U.S. Army Corps of
Engineers (USACE) permit. He stated that DCOM coordinated a
pre-review meeting between the USACE and DOT&PF and received a
complete Coastal Project Questionnaire (CPQ) which began the 50-
day consistency determination review. Comments were received
from the Environmental Protection Agency (EPA), the U.S. Fish
and Wildlife Service (USF&WS), National Marine Fisheries Service
(NMFS), which were forwarded to the review participants. Review
participants commented at the ADF&G and Sitka Coastal District
level. The concerns were not around habitat, but the coastal
district was afraid the fill could damage a wastewater outfall
line and/or block vessel passage through Middle Channel to the
harbor. The division issued a proposed determination objecting
to the project but proposing alternative measures, including
alternatives to protect the outfall from the wastewater line, to
provide video documentation of the fill placement, and to notify
mariners of the in water work windows. At that point the DOT&PF
asked the division so stop the clock so it could take stock of
the situation without the pressure of time. The DOT&PF
facilitated meetings with the local coastal district and
affected agencies and ultimately DOT&PF modified the project.
The DCOM restarted the clock and the project moved forward.
2:44:30 PM
MR. BALASH related another example of the consistency review
process, the Cosmopolitan Oil Development Project [slide 14].
He stated that this project is just outside Anchor Point in the
Southern Kenai Peninsula. He then provided background
information and detailed the consistency review process taken.
He said that the parcel represents a collection of leases
offshore intended to be developed onshore using horizontal
drilling techniques. The parcel ownership was private upland
but was surrounded by private recreational and residential
properties. He related that DCOM held a pre-application meeting
after an application packet was received. The applicant also
applied to the federal Minerals Management Service (MMS) since
the reservoir was located further offshore so a portion would
lie in the federal offshore area. After some discussion with
DCOM the applicant withdrew its MMS application. He offered
that several letters of support were received but also received
comments from people concerned about the drilling noise that
might occur. He pointed out that during the exploration phase
of the project the neighboring properties had been impacted on a
24-hour basis. The Alaska Division of Oil and Gas (ADO&G)
requested an alternative measure to make the project consistent
with the energy facilities statewide standard in terms of
adjacent uses. He identified the proposed project activities
were incompatible with private residences and private properties
under the standard. The recommendations were to construct an
earth and berm barrier to minimize sound, to construct a fence
to block sound and visual impact and additional alternatives
based on discussion with the adjacent landowners. The applicant
agreed to build noise attenuating fencing or earthen berms and
to enclose some equipment in noise mitigating modules. The
applicant minimized the visual impacts with the lighting to
ensure it was directed more closely to the ground to reduce
offsite illumination and through appropriate facility painting.
The division found the project consistent and the project moved
forward with the consistency determination. He remarked that
the project is not advancing in this particular fashion. The
leases were relinquished and will be offered at the upcoming
Cook Inlet oil and gas lease sale.
2:48:23 PM
MR. BALASH referred to the fourth project, the Kenai Watershed
Project [slide 15], noting that this project was one that had an
expedited review using the ABC list process. The Kenai
Watershed Forum is a local non-governmental organization (NGO)
that was seeking to improve and replace culverts blocking fish
passage. He related that on June 17, 2011 the DOMC received
three CPQs from the Kenai Watershed Forum for three separate
projects. The next day the DOMC sent "heads-up" e-mails to
other sister agencies within the DNR, ADF&G, Department of
Environmental Conservation (DEC), and the local coastal district
notifying them of the three applications, asking whether any
permits were required by ADF&G Division of Habitat, and whether
the agencies would agree to an expedited review using a general
consistency determination (GCD). The agency responses indicated
no permits required from DNR. However, the ADF&G Division of
Habitat required permits. On June 22, 2011, an expedited review
letter for all three applications and determined the project was
consistent via GCD #7 on the "A List" for the bridges and
culverts. Thus, these three culvert projects were able to move
to completion in the month of June.
2:50:33 PM
MR. BALASH offered that 20 percent of the projects are expedited
in this fashion. He detailed the culvert projects were 3 of 93
project requests the Anchorage project review team received in
the month of June. He underscored the substantial activity
happening in the coastal zone and the importance that the DCOM
places on being responsive to all stakeholders and the DCOM's
efforts to provide a predictable process that is easy to
navigate and complete.
2:51:24 PM
CO-CHAIR FEIGE related that the legislature must decide whether
to extend the ACMP. He pointed out that if the legislature
cannot come to an agreement, the program would be allowed to
lapse. He asked for clarification on the program impacts such
that if the legislature cannot come to an agreement and the ACMP
sunsets for the effect on the state and the developers on
projects within the coastal districts.
2:53:03 PM
LARRY HARTIG, Commissioner, Department of Environmental
Conservation (DEC), stated that the ACMP is a voluntary program
not mandated by the federal government funded by the U.S.
Department of Commerce. In the event that the department lost
the program, the state would not be in violation of a federal
law because it is a voluntary program. In terms of the
permitting agencies, including the DEC, the state would not lose
the right under the federal statutes governing the Clean Water
Act, the Clean Air Act, and Safe Drinking Water Act to move
forward with the permits and authorizations it issues on
projects. Thus, the department would still be able to issue
permits in the state.
2:54:02 PM
COMMISSIONER HARTIG offered his belief that the one thing that
would be lost right now under AS 40.40.040(c), the DEC's
standards are extended to OCS and offshore areas and other
federal activities. He offered that what it would mean when
Shell Western E&P Inc. or ConocoPhillips Alaska, Inc. conducts
exploration and needs federal permits that the Alaska's
standards must be met under the AS 40.40.040(c). When EPA would
issue a permit for air permitting it would come to DEC through
the DCOM to assess whether the permit was consistent with state
standards. In the event the ACMP lapsed the state would still
have an opportunity to comment through the National
Environmental Policy Act (NEPA) process although it would not
conduct a consistency determination review process.
COMMISSIONER HARTIG pointed out that issues arise in the
permitting process that could be resolved at an early stage if
all the agencies are coordinating the project prior to the
formal permitting process. He said that overall, the bottom
line is that it would not preclude projects from moving forward
or from permits being issued but it might change opportunity for
local input, and the department would have to find a different
vehicle to provide the state's comments during the federal
permitting process.
2:56:49 PM
CO-CHAIR FEIGE inquired as to whether that would be good or bad
for the state or if it would be neutral.
COMMISSIONER HARTIG answered that it depends on what the coastal
zone management program looks like. He thought ways exist for
the state to manage and construct the program. He suggested
that certain changes would raise concerns which would need to be
weighed against some of the benefits. He elaborated that a
well-refined program can offer benefits while not constructing
unnecessary barriers, duplication, confusion, or lack of
predictability. Additionally, federal money comes with the
program. He cautioned that benefits are not automatically
reaped without detriments.
2:58:04 PM
REPRESENTATIVE HERRON related much discussion has been held with
the DEC "carve-out." He inquired as to whether the DEC "carve-
out" is necessary except for the Prevention of Significant
Deterioration Air Quality Permit (PSD).
COMMISSIONER HARTIG answered yes. He said that he felt strongly
as does the administration about keeping the DEC "carve-out."
Besides the Prevention of Significant Deterioration (PSD) air
permit, which he identified as an air permit issued for a
complicated permitting facility, the same issues that arise in
the context of air permitting come up in the context of other
permits including water permits. The changes made during
Governor Murkowski's administration to the ACMP program in 2003
were ones made prior to the primacy for the MPDS program so no
water permitting was necessary under the Clean Water Act. Thus,
the argument that problems didn't exist back then can't be made.
He detailed three aspects to the DEC "carve-out." First, as
previously mentioned, the "carve-out" provides a vehicle for
extending state standards to the OCS and for the DEC consistency
determination. Secondly, the "carve out" also provides that
DEC standards apply to air and water quality for spill
prevention and response as well as for other standards. If the
standards are met consistency should be found under the ACMP.
He expressed the department's concern about potentially removing
the "carve-out" on air or any permitting is primarily due to an
absence of predictability and reliance that those standards are
based on the best science, engineering, and public process.
3:00:25 PM
COMMISSIONER HARTIG related the final concern about removing the
DEC "carve-out." He related that just like the PSD permits, the
NPDES permits or water permits have schedules that are followed
when issuing the permits, some mandated by federal law, some by
state law. Typically, the DEC would develop a water permit
using federal and state standards. He related a scenario in
which someone wants more time to comment on a draft permit.
Under the ACMP consistency determination process the DEC is on
the ACMP clock and cannot provide an additional 30 days. If the
ACMP were to lapse, the DEC may not be able to follow the right
federal process for the timing for the permit and still meet the
ACMP. He stated that this would apply to both to air and water
quality permits. The schedules for two different programs may
not mesh. He offered his belief that the PSD and all other
permits would have the same issues as the NPDES permits.
3:01:45 PM
CO-CHAIR SEATON announced that he held a conversation with
Commissioner Hartig who has agreed to put in writing the time
sequences.
COMMISSIONER HARTIG agreed to provide the information to the Co-
Chairs.
3:02:19 PM
CO-CHAIR FEIGE announced that HRES will reconvene at 6:00 p.m.
tonight but for members who could stay for the next few minutes
that he will continue on with the DNR's presentation.
3:03:01 PM
CO-CHAIR SEATON requested notes on the four projects presented
as examples.
MR. BALASH agreed to provide them to the committee. In further
response to Co-Chair Seaton, he also offered to provide a copy
of the questionnaire, the CPQ.
CO-CHAIR FEIGE pointed out that the questionnaire can also be
found online under DCOM's website.
CO-CHAIR SEATON clarified his interest in having a CPQ that has
been filled out by an applicant.
3:04:22 PM
REPRESENTATIVE P. WILSON referred to slide 8 to the review
timeline. She inquired as to whether a community could go
beyond the traditional subsistence area and request an entire
area be designated as subsistence.
MR. BALASH responded that she is delving into some of the
distinctions between the local plan and the consistency review
process. He explained that the subsistence designation is
significant for the three coastal districts that have not yet
had their plans approved yet. The program process requires that
the subsistence use and documented subsistence activity must be
submitted. He acknowledged subsistence has been a big part of
why a local plan has not been approved.
MR. BALASH said that even without the permanent designated
subsistence area in the local plan, the consistency review
process in day 13/25 allows for requests for subsistence area
designation in the review solely for a specific process. He
reiterated that a district could request that a particular area
be designated for that project so the review process does allow
subsistence activities to be considered and addressed during the
consistency determination.
3:07:34 PM
REPRESENTATIVE HERRON related that the governor has expressed
interest in only an extension of the ACMP, but earlier comments
indicated a willingness of the department to entertain some
changes to the ACMP program. He inquired as to any reason why
not to have coastal policy board even without veto power.
ACTING COMMISSIONER SULLIVAN asked for clarification on the
question.
REPRESENTATIVE HERRON recalled earlier testimony that the
department did not want to have a coastal policy board with veto
power. He inquired as to whether it would consider a coastal
policy board that provided input but did not have veto power.
He asked whether the administration would have any objection to
that structure.
ACTING COMMISSIONER SULLIVAN related that he was unprepared to
get into substantive issues right now.
3:10:14 PM
CO-CHAIR FEIGE answered if he would like to see it in writing.
ACTING COMMISSIONER SULLIVAN answered absolutely.
3:10:20 PM
REPRESENTATIVE HERRON suggested there may be an amendment that
may eliminate the requirements for subsistence use areas. He
suggested that perhaps that could be discussed at a future
meeting.
CO-CHAIR SEATON, following up on Representative P. Wilson's
question, expressed interest in the process between day 13/25
and day 17/30 in which areas could be designated and uses. He
recalled that local enforceable policies are in place so
developers know what activities can be done. He expressed
concern that "things that aren't in enforceable policies or
anything can be thrown in at the last minute and stop the clock
between day 13 and day 17 while we consider putting in something
that is not in a local policy or state standard." He asked for
clarification on whether he is misunderstanding the process.
3:11:42 PM
MR. BALASH answered no, that he did not think he was
misunderstanding the process. He characterized this as a tool
available through the review process put in place as a result of
the 2003 changes. He added that during discussions it was
decided a mechanism to designate areas was needed in the review
process to address a potential gap between the old local plans
being extinguished and the new ones not yet approved. He stated
that the tool remains in the ACMP and in the review regulations.
He said this has been utilized by the coastal districts in that
particular fashion. He acknowledged that what Co-Chair Seaton
has described in having a local plan with the subsistence areas
clearly identified on the front end is the ideal. He offered
his belief that real differences of opinion exist as to under
what circumstances an area is designated and the size of the
subsistence area and what parts of the year the designations
apply. He hoped to get into some of those distinctions in later
hearings. He pointed out that discussing an area the size of
the North Slope Borough that the land mass and coastal area is
immense.
3:13:32 PM
CO-CHAIR SEATON asked whether this provision is only available
for subsistence or for anything not in an enforceable policy for
a specific area.
MR. BALASH offered to provide a specific list of what can be
designated. He related his understanding the additional
information did not just pertain to subsistence but did not
encompass everything else either. He suggested that natural
hazard areas could be identified and anything that could be
identified in a local plan could also be identified at this
juncture with this tool.
3:14:21 PM
REPRESENTATIVE GARDNER recalled earlier testimony from Glenn
Gray who has indicated some districts had frustration with
instructions or changes that were given verbally. She related
his understanding that the districts were told that the
clarification would not be put in writing. She inquired as to
whether it is it possible to have a requirement that the
instructions in writing. She personally prefers "in writing"
provisions, she said.
MR. BALASH understood that this particular line of questions and
occurrence in the past was an attempt to obtain finer
granularity as the conversation develops and questions become
more nuanced. He emphasized it was not that the answers were
changed but the questions were becoming more specific. He
characterized the program as voluminous. The program rules and
regulations are written ones which have been in place since
2005. He acknowledged the period of time when legislation was
developed and debated in 2003 to the period when ultimately the
OCRM approved the state's program in 2005 that certain nuances
could not be rectified. He indicated that some understandings
and assumptions were made in 2003. He offered to provide the
written program.
3:16:51 PM
REPRESENTATIVE GARDNER stated that regardless of the reason for
the question, it seemed to be reasonable to expect to be
directed to a specific regulation cite. If the answer is not in
existing regulation, it seemed reasonable to be provided an
answer in writing since it would create a chain and record that
can be referred to later on by the parties involved. She
elaborated that obtaining information in writing can help avoid
misunderstandings. She reiterated that creating a record seemed
to be a reasonable approach.
MR. BALASH agreed that she made a reasonable request and he
offered to review the DCOM's policy.
3:18:06 PM
REPRESENTATIVE P. WILSON stated that anyone considering a
project needs to know the parameters and bases to consider prior
to submitting an application. She now recognizes the importance
written guidelines provide to applicants.
MR. BALASH answered she is correct. He stated that from the
agency's perspective, as the agency charged with "handing out
the permission slips," knowing the rules has relevance since the
agency must be able to "stand squarely" on its decision, answer
questions, and offer guidance to applicants on how to proceed.
He pointed out due to the extensive coastline in Alaska, the
DCOM affects most projects.
REPRESENTATIVE P. WILSON surmised there must be numerous areas
that no person has ever set foot on.
3:20:24 PM
CO-CHAIR FEIGE recessed the meeting until 6:00 p.m.
6:05:59 PM
CO-CHAIR FEIGE reconvened the House Resources Standing Committee
meeting at 6:05 p.m.
6:06:13 PM
CO-CHAIR FEIGE announced that the committee would now take
testimony on HB 106
6:06:41 PM
JOHN SANDOR, speaking on behalf of himself, stated that he
served as Commissioner of the Department of Environmental
Conservation in 1990-1994 during Governor Wally Hickel's
administration. He also serves as a board member for the Alaska
Energy Coalition and is Chair, Juneau Chamber of Commerce's
Resource Committee. He said he is speaking today on his own
behalf, as a resident of the state to support HB 106. He was
aware of proposals to modify the bill to add districts that
would play a greater role in consistency determinations in the
coastal zone. He expressed concern that the investment
community could be subjected to uncertainties if the state
reverts back to the prior process of approving coastal zone
consistency determinations district by district basis. He noted
that Southeast Alaska has had a significant population decline
He supported the timber industry but it was essentially
terminated in the 1990s. The Department of Labor & Workforce
Development (DLWD) 2010 population projections indicate
Southeast Alaska population will decline from 69,000 to 59,000
by 2034. He urged members to pass HB 106 and continue to
maintain the consistency determination process of the past few
years.
6:10:03 PM
JOHN CHASE, Community Planner & Coastal Area Specialist,
Northwest Arctic Borough, related that the Northwest Arctic
Borough (NWAB) promotes responsible and sustainable development.
It is important to the NWAB that it has a "seat at the table" to
address potential impacts to coastal resources and uses. He
related that subsistence remains an important way of life for
NWAB but under the current program the NWAB was not afforded the
means to discuss impacts to subsistence during the ACMP project
reviews. The NWAB has had difficulties getting proposed
subsistence areas approved by DNR for inclusion in its plan and
during consistency determinations. The NWAB supports the
proposed committee substitute (CS) for HB 106. This draft fixes
three of the biggest problems with the ACMP. The proposed CS
would establish a coastal policy and appeals board. It would
make the criteria for enforceable policies more clear. It would
bring air and water quality back to ACMP. The new Coastal Policy
and Appeals Board (CPAB) would be more efficient than the former
Coastal Policy Council because its duties would be limited to
three things: approving changes to the ACMP regulations with
DNR; resolving differences for projects elevated by a review
participant; and making final decisions on coastal district
plans when a district and DNR cannot reach agreement during
mediation. He offered his belief the NWAB would current have a
plan in place if the Coastal Policy and Appeals Board were
firmly in place. It is likely that the regulations regarding
coastal district plan approval criteria would have been more
reasonable so the NWAB would not have had to request mediation.
Secondly, DNR would have had more motivation to reach an
agreement during mediation if the final outcome could be
appealed to a board. The NWAB appreciated clarification in the
proposed CS for HB 106 in terms of criteria for approval of
coastal district enforceable policies. He related that the DNR
admitted its regulations are more stringent than expected so it
is necessary to amend the statutes to provide more
predictability. Lastly, the proposed CS for HB 106 would bring
back air and water quality issues into ACMP issues by
eliminating the DEC "carve out." The "carve out" just has not
worked, he said. Even the DNR's 2008 proposed changes to the
ACMP's statutes would have eliminated it. In summary, the NWAB
supports the proposed CS for HB 106 and urges the committee to
adopt it. He concluded that DNR has recognized problems with
the ACMP it has made little effort to fix these problems.
6:13:55 PM
REPRESENTATIVE MUNOZ asked whether the Northwest Arctic Borough
had approved district plan.
MR. CHASE answered there was not an approved plan but has
attempted to mediate with DNR without success.
REPRESENTATIVE MUNOZ asked whether the NWAB was still working
toward a plan.
MR. CHASE answered the NWAB has worked to draft a coastal
management plan.
REPRESENTATIVE MUNOZ asked whether the defined subsistence areas
were part of the proposed coastal management plan.
MR. CHASE answered that he cannot define subsistence as defined
in the plan but he could explain what subsistence means to him
personally. He offered that subsistence means taking bearded
seals, ringed seal, caribou, sheefish, salmon, ducks, geese, and
ptarmigan. He related that subsistence means all of those
things that he feeds his family.
6:15:41 PM
REPRESENTATIVE SEATON asked whether NWAB incorporate enforceable
policies into borough code.
MR. CHASE responded no. He explained that some enforceable
policies are in the coastal management plan but the policies are
not included in the borough code. After conferring with NWAB
staff, corrected his answer by stating that some of the
enforceable policies are in the borough code.
REPRESENTATIVE SEATON asked for an explanation on the
procedures. He related his understanding the NWAB has
enforceable policies incorporated into the code. He surmised
that an applicant would need to seek a permit from the NWAB
after its project had undergone a Division of Coastal and Ocean
Management (DCOM) consistency review.
MR. CHASE answered no.
6:17:21 PM
REPRESENTATIVE P. WILSON asked how many subsistence areas are in
NWAB.
MR. CHASE responded that the NWAB has identified 17 subsistence
areas in its coastal management plan but only one was approved
and 16 have been disapproved.
REPRESENTATIVE P. WILSON asked why the others were declined.
MR. CHASE said he was unsure of the specific reason for the
denial. He stated that many of the NWAB's subsistence use areas
have been denied and it has been disheartening during mediation
sessions to have so many areas disapproved. He elaborated the
difficulty since it is impossible to pinpoint a specific place
where seals or caribou will be on any given day although it is
possible to identify the general area subsistence use happens.
6:19:13 PM
CO-CHAIR FEIGE clarified for the audience that a CS has been
presented but has not yet been adopted. [Before the committee
was HB 106.]
6:19:30 PM
KATHIE WASSERMAN, Executive Director, Alaska Municipal League
(AML), offered that the AML held considerable discussion on this
issue during its annual conference in December. She related
that the best way to "cement" the decision came from a council
member in the City of Cordova who asked, "Why would we not want
to have a voice in what happens in our coastal areas as
municipalities." She offered the AML's support to extend the
ACMP, but would like to see some changes made. She pointed out
that some people assume the AML will be opposed to things. She
assured members the AML does not want a veto power. She
clarified that the AML wants to "be at the table." She offered
that all the mayors want to see wise growth in the community.
She summarized the resolution such that the AML supports
extending the ACMP, establish a Coastal Policy Board, bring back
air and water quality issues into the ACMP consistency reviews,
and eliminate requirement for designation of subsistence use
areas and allow meaningful enforceable policies. She summarized
that the AML supports extending the ACMP.
6:21:27 PM
REPRESENTATIVE MUNOZ related that the law required due deference
to communities that have a district plan with enforceable
policies. She inquired as to whether the communities receive
due deference as defined by law.
MS. WASSERMAN answered that most communities have had a
difficult time getting their consistency reviews processed
through the ACMP. She offered an example such as the North
Slope Borough and the NWAB that has had a difficult time
identifying the subsistence caribou region since game moves.
She reiterated that it is difficult to designate a closed area
for subsistence.
6:22:33 PM
REPRESENTATIVE MUNOZ clarified that she had been referring to
those communities with approved plans and enforceable policies
already approved by the state. She asked whether those
communities had adequate input into the process.
MS. WASSERMAN related her understanding that those communities
do not believe they have adequate input. The communities have
few areas for comment. Some of them have put the enforceable
policies into ordinance hoping they can address them in that
manner. In response to a question, she provided the last
"bullet" from her testimony, which was to eliminate requirements
for designation of subsistence use areas and allow meaningful
enforceable policies. She referred members to AML's resolution
in members' packets.
6:23:51 PM
REPRESENTATIVE HERRON referred to removing designation areas.
He asked whether that provided a conundrum. He elaborated, "You
have to have them, but if you don't have them, you can't comment
subsistence on a consistency review."
MS. WASSERMAN agreed, that it is a "Catch 22" since if a
community does not have this designation the community can't
comment and if the community cannot capture the designation, it
just keeps revolving. It becomes a situation in which there is
not a way to fit in and provide comment.
6:24:42 PM
REPRESENTATIVE SEATON related his understanding that she had
primarily been referring to the enforceable policy not being
adopted. He related his understanding that 210 of 409
enforceable policies have been adopted. He inquired as to
whether she was referring to the remaining enforceable policies
that were disapproved. Thus, if communities did not have the
ability to comment on those policies since the policies had not
been approved at the time the communities made their plans.
MS. WASSERMAN agreed. She offered that the committee heard
today about the review, which is great, but if communities
cannot make comments on the review it does not help
municipalities.
6:25:45 PM
REPRESENTATIVE P. WILSON asked whether there is any room to work
on this issue.
MS. WASSERMAN said she totally believes there is room to work on
the issue. She would like to see the ACMP extended. She
recalled that Commissioner Hartig mentioned that if this were to
go away, the State of Alaska would have less input into what
the federal government wanted. Municipalities feel they have
less input into what the state wants. She stated that the
municipalities would like to see the extension passed and work
on the issues and be part of the solution without garnering veto
power.
6:27:06 PM
DEAN WESTLAKE, Assembly Member, Northwest Arctic Borough (NWAB),
said Ms. Wasserman brought up a valid point. The consistency
review has been a "one way street." He explained that the NWAB
must be consistent with DNR rather than "hashing" anything out.
He explained that the NWAB's priority has been subsistence but
not to the exclusion of resource development. The NWAB is not
opposed to resource development. Instead the NWAB has been pro-
development in a responsible fashion. He pointed out that the
NWAB, the size of the State of Indiana only wants 17 designated
subsistence areas. He said it points to how marginalized the
NWAB has been in this process. The NWAB wants local
involvement. He referred to what the EPA has currently been
doing in terms of emissions at the Red Dog Mine and reiterated
the NWAB "wants a voice at this table." The NWAB believes it
could assist with development. He characterized this as the
state missing out a good partner. He reviewed the NWAB's
resolution in support of the AML's resolution of support for the
AMCP's extension. He concluded that this is "near and dear to
us." He restated that the NWAB should "have a say in this and
consistency review should go both ways."
6:30:54 PM
RON PLANTZ, Human Resources & Community Relations Manager, HECLA
Greens Creek Mining Company (Greens Creek), stated that Greens
Creek Mining Company (Greens Creek) is one of the largest
private sector employers with 340 employees, as well as numerous
indirect jobs. The largest property taxpayer in Juneau. He
spoke in support of HB 106 as it offers predictability while the
stakeholders work on a long-term solution on issues. He related
under the current scenario Greens Creek runs out of area to
place its tailings in 2015. He cautioned that would likely
result in cessation of its operations. Greens Creek is
currently undergoing a NEPA process with the U.S. Forest Service
(USFS) as the lead agency working in partnership with state and
local organizations to expand the tailings area. He anticipated
a final environmental impact statement (EIS) and Record of
Decision (ROD) in the spring of 2012. Greens Creek would have
two seasons to complete the process timely and avoid any
unanticipated delays or interruptions. He reiterated that
Greens Creek counts on the predictability of the process which
he characterized as a very public process with public comment on
the front-end before the final draft EIS and after the final
draft of the EIS has been released. He predicted the EIS and
ROD would be issued timely and is the reason Greens Creek
supports this extension of the current program.
6:33:44 PM
REPRESENTATIVE SEATON asked whether Greens Creek was permitted
prior to the 2003 ACMP changes under the previous Coastal Zone
Management Program. He observed that Juneau has been supportive
of access and permits and further asked whether Greens Creek had
concerns that the Juneau would adopt a policy to preclude Greens
Creek from utilizing areas.
MR. PLANTZ answered yes, that Greens Creek knew what to expect
in the prior process and wants predictability so the mine would
not experience any delays in the permitting process.
6:35:45 PM
REPRESENTATIVE HERRON referred to earlier testimony on the
review and consistency determination process. He stated that
some of his constituents would like to see local participation
without having veto power. He inquired as to whether he would
support having more people "at the table" so long as the
timeline would not be lengthened
MR. PLANTZ responded that currently Greens Creek has a
predictable process that provides local input through the
sessions with the lead agency. He recalled that Juneau and
Angoon previously participated in the USFS sessions. He
maintained that it relates to predictability. Greens Creek
knows the statutes and regulations and counts on its ability to
adhere to them in a responsible manner to achieve the approvals
from the state and federal government. He encouraged ongoing
conversations with affected stakeholders.
REPRESENTATIVE HERRON asked for clarification on whether this is
through the comment process as opposed to an "at the table
process."
MR. PLANTZ responded that the large mine permit process as well
as the local process with the City and Borough of Juneau. He
was unsure of any comparable process with Angoon but Greens
Creek has held regular conversations with the city council and
other community members.
6:37:33 PM
CO-CHAIR FEIGE suggested that the possibility exists the ACMP
could sunset. He inquired as to whether what preference he had
with respect to the ACMP.
MR. PLANTZ said:
We would prefer to have what we have now because it's
predictable. Again, we encouraged that multi-year
grace period while people work together on a solution
that's well thought through with all the consequences
and implications involved thoroughly vetted. And then
where we end up after that is fine. No program at all
puts us in a very unpredictable situation again.
REPRESENTATIVE HERRON asked whether this represents a perfect
process that doesn't need adjustments.
MR. PLANTZ answered no, but the process needs to be extended
while people explore more thoughtful considered options.
6:39:06 PM
MARILYN CROCKETT, Executive Director, Alaska Oil & Gas
Association (AOGA), ,on behalf of the Alaska Oil & Gas
Association (AOGA), testified in support of HB 106, which would
extend the sunset date for the ACMP. She expressed support for
HB 106 since virtually all the operations of members of AOGA
take place in or adjacent to the coastal zone. The AOGA has
been actively engaged in development and implementation of
provisions of the original act and program since its inception
in 1977. She related her personal observations during the time
the coastal zone districts programs were developed. She pointed
out that the AOGA has been an advocate to sound legislation and
regulations that balance resource development with environmental
protection. The AOGA input to achieve these goals has included
support for a timely smooth functioning and predictable state
permitting program. In order to be successful and serve all
entities in Alaska, any permitting program, in particular the
ACMP, must embody the following principles: provide benefit for
all Alaskan residents by developing Alaska's resources; contain
clear and unambiguous requirements; avoid opportunities for
misinterpretation; provide predictable and firm timelines;
provide predictability regarding applicable applications and
scope; avoid duplication with other state and federal permitting
programs; and contain clear limits so that district policies not
require agencies to implement authorities they do not already
have through existing statute. She concluded that AOGA believes
the program as it exists today encompasses these principles and
AOGA supports continuance of the program in its current form.
6:41:21 PM
MICHAEL SATRE, Executive Director, Council of Alaska Producers,
on behalf of the Council of Alaska Producers, stated that the
CAP is non-profit, trade association representing the producing
large metal mines and developmental projects in the state.
Unlike most coastal states, Alaska has a very strong ACMP that
ensures development activities in the coastal areas follow
strict statewide standards while conforming to the approved
local polices of its coastal districts. Alaska's existing
statutes dictates that the state defer to local coast districts
in the implementation of statewide standards. It allows for
some flexibility of designating certain areas of local concern
during the consistency review process and most importantly,
allows for a predictable non duplicative permitting pathway for
development in the state's important coastal areas. The Council
of Alaska Producers urges members to pass HB 106 without
amendments as it believes it is important to separate the
extension of this program from concerns regarding its
effectiveness and allowance for meaningful local input. He
expressed concern that adding substantive amendments to the bill
may result in controversial legislation that may not pass the
body and the ACMP will sunset completely at the end of June. He
reiterated that the CAP urges members to preserve the program.
He suggested that if members believe that changes and
improvements still required that they should do so. He
encouraged the legislature work with the governor, the DNR, the
local coastal districts, and concerned industry during the
interim, potentially, to find ways to implement the findings
from the legislative audit. He further encouraged the
legislature to find ways to promulgate regulations under
consideration since 2008 and ensure this program will remain in
effective and work for all Alaskans ranging from industry,
subsistence regulations, or coastal districts.
6:44:40 PM
REPRESENTATIVE HERRON inquired as to whether he supported the
six-year extension.
MR. SATRE answered yes. He emphasized that the key is to extend
the program for a meaningful amount of time that does not put us
under a strict deadline to try to find ways to amend the program
any change it. He expressed concern that such a process ends up
with the program working for one part of state but not another.
He stressed the importance to deal with subsistence use issues
and concerns for meaningful local input, yet still allow the
development of natural resources throughout the state and
especially along Alaska's coastal regions. He urged members to
separate what has become a very emotional debate on the
effectiveness of the ACMP from the program simply existing. He
suggested that it may take a task force and timeline to
recommend improvements to the program.
REPRESENTATIVE HERRON inquired as to what the impetus or urgency
to make changes will come from if the program is extended for
six years. He asked why not work on it now.
MR. SATRE offered his belief that it would be incumbent on
legislature to find the direction and hold DNR's feet to the
fire to make them do the work and make this program work for
Alaska. He said there are very good things about this industry
is supportive of the ACMP and staff try hard to implement the
program. He would like to ensure that finding of the
legislative audit are implemented, ensure concerns raised during
the committee discussions are addressed, and find workable
solutions for issues. The process should be separated from the
extension bill with the "sunset date staring us in the face."
He stated that some people have suggested a shorter extension
date, less than the current six years, but continue to address
ACMP issues.
6:47:38 PM
REPRESENTATIVE SEATON stated that in 2008 regulations were
proposed but not adopted. The federal government suggested
changes in the approval process. The legislative audit
identified problems. He asked what changes he would like if it
not to just leave the current program in place. He explained
the legislature works on a time frame. It seems as though he is
requesting the time frame be removed and for the legislature to
tell communities and coastal districts that it will not address
the issues. He inquired as to the level of confidence he had
that something will happen if the extension passes.
MR. SATRE agreed that this presents a bit of a conundrum. The
CAP wants the program to move forward recognizing that there are
"some warts" on it. The time frame between now and the sunset
date will not allow enough time to address problems. He
surmised that it may cause possible controversial legislation
that may not pass the legislature. He offered his belief that
if able to move program forward for another six years then it's
up to the legislature to bring parties to table including DNR,
coastal districts, and industry to make the program better or
introduce another bill to address the substantive issues. He
said CAP thinks that will not be necessary since the parties
could work together to make the program more effective at the
DNR level and address issues.
6:51:10 PM
PAUL GLAVINOVICH, Minerals Consultant, speaking on behalf of
himself, expressed his support for HB 106. He related that he
has been engaged in the mining industry in Alaska for 40 years.
He has been actively engaged in numerous projects that have come
under the oversight of the ACMP. He said he does not have
affection for the program, but acknowledged the structure it has
provided for coastal communities and realized the political
reality for its continued existence. He related his
understanding that some would like to change the existing
program to address alleged concerns by some of the coastal
communities. He stated that HB 106 would extend the program.
Changes to the program should be separated from the extension
bill. The ACMP provides an added layer of oversight, but he has
learned to navigate the program. He expressed concern that
changes may complicate the permitting process in the state.
6:52:48 PM
KEITH SILVER, encouraged members to pass HB 106, as written. He
opposed any changes to ACMP program that would shift decision
making from the DNR to other entities. He offered his belief
those six additional years would allow time to work with the
stakeholders to create a lasting document. He urged members to
pass HB 106 as written.
6:53:38 PM
RACHEL PETRO, CEO and President, Anchorage, Alaska State Chamber
of Commerce (ASCC), stated that this year the ASCC selected
continuation of ACMP in current form as one of its top three
priorities. The ASCC believes the ACMP should remain in its
current form and supports HB 106. She expressed an awareness of
prior discussions and it seems logical to preserve the program
and the predictability that it is critical to extend the
program. She related that approach would allow the time needed
to work together on changes, which can be well vetted in the
public process. She encouraged members to pass HB 106 in its
current form.
6:55:10 PM
FRANK KELTY, Chair, Aleutian West CRSA, stated that the Aleutian
West CRSA region encompasses the large portion of the Bering
Strait fishing industries, including communities of Unalaska,
Nikolski, Atka, Adak, and Shemya. He stated the City of
Unalaska has been the number one port in the nation for 22
years. The Aleutian West CRSA supports the reauthorization of
HB 106 and thinks it is critical it be extended but needs some
changes. He pointed out that in 2008 the Aleutians West had 60
enforceable policies at the time the Murkowski administration
changed the ACMP. Now it has 10 enforceable policies. He
lamented that the number one fishing port in the nation has no
say on air, land and water quality issues. He offered support
for the Coastal Policy Council, noting he served on the CPC
through several governors. He thought the CPC worked well and
gave individuals an opportunity to voice concerns. The CPC
approved district plans. He reported the Aleutians West CRSA
has an approved district plan. He stressed the importance that
the CPC be reinstated. He expressed concern over the area
designations, particularly in an area as large as the Aleutians
Islands. He reported the borough does not have any subsistence
policy due to issues designation. He remarked that most of the
policies left are ones that not very exciting since they relate
to sand and gravel, and recreation areas.
6:58:34 PM
REPRESENTATIVE P. WILSON related her understanding that the
Aleutians West CRSA has fewer enforceable policies. She
inquired as to whether the state has taken any action the
borough wishes it had not done.
MR. KELTY answered the DEC "carve out" was a major hit to many
of the borough's policies.
REPRESENTATIVE P. WILSON asked for clarification on whether the
state issued permits in the Aleutians West CRSA that the borough
was opposed to being developed.
MR. KELTY answered that he was not aware of any projects.
6:59:52 PM
JASON BRUNE, Executive Director, Resource Development Council
(RDC), testified in support of HB 106 as currently written for
six years. He related that the RDC is a statewide business
association comprised of individuals and companies from Alaska's
oil and gas industry, mining, forest products, tourism, and
fisheries industries. Additionally, the RDC members include
native corporations, local communities, organized labor and
industry support firms many of whom are intimately involved with
the ACMP program. He related RDC's purpose as an organization
that encourages a strong, diversified private sector in Alaska
and expansion of its economic base through the responsible
development of our natural resources. He has held numerous
conversations with members, including the North Slope Borough,
the Arctic Slope Regional Corporation, NANA, Sealaska, and many
oil, mining and timber companies on how to find a win-win
situation. He expressed concern that the middle ground would
extend the program as it exists because without passage of this
bill the program will disappear. He reiterated the RDC's
support for the current bill as drafted but will oppose any
proposed amendments to the ACMP that would shift decision-making
authority from the DNR to other entities. Additionally, the RDC
would oppose any changes that would impede, delay, duplicate
processes since those activities jeopardize investments in
resource development projects which cost Alaskans jobs or
business opportunities. Ultimately any changes that diminish
the sovereignty of the state, as represented by the
administration should not be accepted by the committee. This
bill should be passed as is expeditiously. And additionally
changes to the ACMP should be dealt with in separate
legislation. Additionally, he endorsed four principles as
previously laid out by the administration. A predictable
process must be maintained. The ACMP must be maintained where
participant input is valued. The ACMP standards and enforceable
policies must be objective and must not duplicate or redefine
existing authority. Finally, coastal districts should be
afforded a meaningful role on projects but should not possess a
veto decision over projects. He reiterated his desire to have
the committee pass the bill in its current form.
7:03:40 PM
MARV SMITH, Manager, Bristol Bay Borough (BBB), on behalf of the
BBB, expressed support for the ACMP extension. He emphasized
the need for major changes to the program. He supported the
CS, including the policy and appeals board provision to resolve
differences between the DNR and coastal districts. The CS would
repeal district area requirements for designations. It would
also clarify that the coastal districts' enforceable policies
apply to all land and water issues subject to the plan. It
would further require plans to be clear and concise,
prescriptive and performance based. It would repeal "adequately
addressed" as stated in standards. That needs to be changed.
It would also delete the DEC "carve out." The proposed CS would
exempt projects requiring an EIS from the 90 days consistency
review. He stressed that boroughs and cities would be at the
table. The BBB, as capital of the largest sockeye salmon
industry, has seven onshore processors, and promotes economic
development. He offered his belief that the input should be at
the local level, which does not currently happen. The BBB has
an approved coastal district program. However, the BBB approved
the district about five years at a time when DNR recommended one
consistency policy. Thus, the BBB's program only contains one
policy. He characterized its program as one that basically "has
no guts in it." The BBB obtained a DNR grant and has currently
been working to revise its coastal program and incorporate
policies with "some teeth." However, it has been difficult to
get approval from DNR. He related that he previously has served
as the Coastal Coordinator for the Lake and Peninsula Borough so
he's been involved in the process of trying to get a program
adopted. He reiterated the need to rewrite the program. He
recommended the committee adopt the CS and move it forward. He
said, "Kicking the ball down the road for seven more years don't
solve the problems we've got today. We've got to fix them now."
7:06:42 PM
REPRESENTATIVE P. WILSON asked whether the state permitted
something that was not wanted in the district during the time
the BBB has only had one designation.
MR. SMITH answered no, not to his knowledge.
7:07:24 PM
DAVID STONE, Mayor, Yakutat; President, Alaska Conference of
Mayors, stated that at its November 2010 meeting the Alaska
Conference of Mayors, along with the Alaska Municipal League,
discussed coastal zone and issued a resolution, 2011-22, that
should be in members' packets. He related that considerable
discussion prior to a vote led to only one negative vote. He
pointed out that the organization represents 150 organizations
that span 36,000 miles of coastline in Alaska. Additionally,
the major projects in operation were all in prior to 2003 when
the ACMP was changed. He recalled earlier testimony that only
one percent of the projects had problems of approval. He
offered his belief that his organization's vote with only one
negative vote identifies the will of the public. He urged
members to extend the ACMP but currently the communities are not
happy with the program.
REPRESENTATIVE SEATON asked him to summarize the resolution or
identify it as the Alaska Municipal League's (AMLs) resolution.
MR. STONE agreed it was the AML's resolution.
7:10:06 PM
REPRESENTATIVE P. WILSON asked whether the state permitted
something that Yakutat had opposed since the changes to the ACMP
were made.
MR. STONE deferred to the Yakutat Borough Manager.
7:10:53 PM
The committee took an at-ease from 7:11 p.m. to 7:30 p.m.
7:30:46 PM
CO-CHAIR FEIGE brought the committee back to order.
7:31:03 PM
TOM LOHMAN, Attorney, North Slope Borough, stated he has worked
for the NSB for almost 24 years. He has been involved in the
coastal management program since its approval in 1988. He asked
to testify in support of HB 106 with appropriate changes to
restore a meaningful role for local coastal districts. He
responded to earlier testimony suggesting a process up to six
years for stakeholders to deliberate on the needed changes for
the program, noting a good faith has been going on for eight
years. He offered that a significant number of meetings have
been held with numerous stakeholders present. He detailed that
draft legislation and suggested regulatory changes have been
made without resolution to the issues. He offered his belief
that the NSB and other boroughs are not anti-development. The
boroughs want some measure of respect from state government that
the state government demands from the federal government. The
ACMP at its heart "is a development program." If the ACMP
provides a meaningful role for your constituents, the local
communities, it also would enhance that likelihood that projects
would be permitted more smoothly. He spoke to earlier testimony
by the administration. He related that Mr. Balash posed a much
rosier picture that implied the district have far greater power
to influence projects than is true. He described the ACMP as a
"big gatekeeper" on whether a project can occur or not on the
coastal zone. He quoted, "If a coastal district says no we go
their way." He respectfully suggested that has not been the
case. He also said to his knowledge there had only one
elevation appeal to the commissioner of DNR of a project review
that had occurred since 2003, but the NSB has elevated three
different projects to the commissioner and of the decisions went
their way. In fact, there was little or no attention to any of
the concerns that the NSB raised. He emphasized that the NSB
does not have any coastal management plan, a local plan, at this
time. The NSB has attempted to have its plan approved and has
not been able to reach agreement with the state. Two of the
elevations brought to the DNR's commissioner involved the Shell
Oil drilling in the Beaufort and Chukchi Seas. Some may argue
that this provides an indication that the NSB is anti-
development. He said:
That couldn't be farther from the truth. If you go
back and look at those elevations you'll see that we
raised...number one, Shell did not do its best work in
its early proposals for those projects. And there's
no better indication of that than that they've come
around now and made substantial changes to their
project design and operations, many of which met the
concerns we raised and were ignored by the state DNR
in our elevations and our consistency reviews.
MR. LOHMAN emphasized that the NSB does not take an anti-
development stance. The proposed CS for HB 106 ensures that
policies have "been run through certain criteria." The NSB will
not haphazardly use policy to halt projects. He envisioned that
the NSB would craft policies which will "provide a road map to
applicants for how to design their projects in advance to front-
load the projects. He related that Shell Oil had characterized
its experience as "five years of frustration" to get "where we
are today, much closer to agreement with the NSB than when it
brought its elevations." He related that Mr. Balash spoke of
reviews of federal activities including the outer continental
shelf (OCS) sales as a reason the state really likes the program
relating to the federal consistency provisions. However, he
argued that DNR has passed on opportunities to review a number
of federal projects including Arctic OCS lease sales in which
the opportunity existed and the responsible federal agency, MMS,
offered its lease sales for consistency review but state
declined. He pointed to review of proposed U.S. Navy training
and bombing activities in the Gulf of Alaska that envisioned
five years of sonar activity and abandonment of 300 thousand
pounds of spent material. The state opted for a de minimus
review although the sheer numbers supported a much more
extensive review. He reiterated that the NSB is not anti-
development, pointing to the history of oil and gas development
as support for this view. He pointed out a total absence of any
instance of projects halted based on the NSB's implementation of
the coastal management plan. He related in the few instances in
which projects have been delayed that the projects were also
delayed by other permitting processes that discovered flaws in
the applications and proposals. The web of development that has
occurred in the NSB since 1988 has been permitted under the
former coastal management program with more far-reaching local
enforceable policies. He said to put a meaningful role for the
coastal districts into the ACMP would not halt develop since the
NSB depends on oil and gas development as much as the state
depends on it. Instead, it would have the effect of tailoring
the application of the entire state program to address specific
concerns on the NSB. Thus, the NSB would bring expertise to the
process just as it has in the past and to do so on the OCS,
beyond the reach of the NSB's land management regulations, is
something critically important to the NSB's constituents.
7:38:23 PM
REPRESENTATIVE SEATON asked how many projects annually to NS
Borough for approval.
MR. LOHMAN said he did not know for certain. However, he
affirmed the NSB has not used its program to stop any of them.
7:39:21 PM
REPRESENTATIVE P. WILSON related that the impetus for the
changes to the ACMP was an attempt to reduce the timeline for
the permitting process. She asked whether the NSB would still
agree to keep the same timeline.
MR. LOHMAN said yes. He referred to the former pre-2003
program, in which the timing of the consistency reviews may have
been more difficult in past, but the NSB has not had problem
meeting the timelines for the consistency reviews in conjunction
with other agency reviews.
REPRESENTATIVE SEATON asked whether the NSB had incorporated its
enforceable policies into the borough code.
MR. LOHMAN said yes, but to the extent that the NSB involving
OCS concerns, the NSB does not have any reach beyond 3 miles.
He characterized it as a significant concern. Additionally,
subsistence has been another concern that can be addressed
through land management regulations, but "it is not clean fit"
to perform wildlife management and subsistence regulation
through land management regulations. He reiterated that the NSB
is "red flagging for applicants" any concerns. He referred to
the 2003 amendments. He recalled long discussions with the
DNR's commissioner who said in front of legislative committees
that coastal districts would be able to craft local enforceable
policies specifically on OCS issues. He said, "We came up with
a big goose egg when we tried to do that in our plan amendment."
7:42:16 PM
BILL LUCEY, Coastal District Coordinator, City and Borough of
Yakutat, read from prepared testimony, as follows:
My name is Bill Lucey I am the coastal district
coordinator for the City and Borough of Yakutat. For
the record the City and borough would like to support
the reinstatement of a streamlined Coastal Policy
Council, bring back coordinated DEC reviews and expand
local enforceable policies without area restrictions.
I would also like to point out for the record that we
are not asking for "veto" power over projects. What
we are asking for is strong local input regarding
coastal development. There is difference between
simply providing comments then sitting at the
negotiating table. Regardless of the claim that we're
given due deference and allowed to call "balls and
strikes", my experience is that we are generally
ignored if an agency person disagrees with us.
Furthermore we have a handful of very narrow policies
remaining for our use and that requires us to comment
utilizing state standards. Those have also been
significantly whittled down after the program change
in 2003.
All municipalities want economic growth. We also want
a strong position from which to champion the kind of
economic growth our citizens prefer. Sometimes this
can cause conflicts between user groups which is
exactly why the ACMP exists. It provides a platform
to negotiate these conflicts outside the courtroom.
That is why all the mayors at the AML convention,
excepting one, voted to restore the ACMP to its former
structure. That seems to be a clear mandate for this
committee and the legislature to act now on amending
the ACMP. We have been talking about this "stuff" a
lot. We've testified over and over again on various
aspects of this and we've gone absolutely nowhere.
If development is pursued irresponsibly we end up
using taxpayer dollars to clean up after the fact.
The majority of my job involves fish habitat
restoration: fixing blocked culverts, decommissioning
poorly constructed logging and gas exploration roads,
wetland restoration, and endless tree thinning.
Again, this is all at taxpayer expense. These are
avoidable expenses. We have the experience locally to
know what impacts are likely to occur from proposed
projects because we have spent years hunting and
fishing and making a living in our boroughs and we've
been cleaning up after the remains of some of these
past actions. Federal and state agencies don't always
have the local knowledge - sometimes they do.
Sometimes they have superior knowledge but they don't
always have the right knowledge to make a good call
"on the ground." The enforcement is sporadic and
there is a constant turnover of personnel. That is
why we want to form customized local enforceable
policies specific to our area and we want them to
complement, not replace or duplicate state and federal
management.
There has been a lot of talk about predictability. As
far as that is concerned I don't recommend getting
into commercial fishing like our town. However, a
recent report from Northern Economics of Anchorage put
the industry at $5.8 billion dollars annually,
producing the largest number of private sector jobs in
the state. The vast majority of our past enforceable
policies that were thrown out dealt with fish habitat
as commercial fisheries rely on good habitat and clean
water. It's as simple as that. When you throw the
economics of sport fishing into Yakutat we get another
$2-3 million dollars of benefit. That's a lot to a
town of 600 people. Our town has an extremely high
per capita of commercial fishing permit holders.
Though the abundance varies the fish come back every
year. Long after the gas and minerals are extracted
people will still be able to make a living fishing and
it is our responsibility as borough managers and staff
to maintain that opportunity for our citizens.
In closing, there are people working hard at DCOM
attempting to function within the existing ACMP
limitations and I would like to recognize them for
their efforts. I frequently work with state,
corporate, tribal and federal managers on a wide
variety of research and development projects. We are
currently exporting gravel, beginning second growth
logging and discussing cruise ship tourism. We can
work together effectively. We are not going to bring a
halt to resource development. We simply wish to move
it forward responsibly, protecting our established
industries and with maximum benefit for communities,
the land, the water and the state as a whole.
CO-CHAIR FEIGE asked whether he had written testimony.
MR. LUCEY recalled he has submitted previous written testimony.
He offered to fax a copy of his testimony.
7:47:40 PM
BOB HOEKZEMA, Geologist; Research Assistant, Alaska Miners
Association (AMA), on behalf of AMA, testified in support HB
106, as introduced, without any changes. He emphasized the
importance of extending the ACMP be extended to ensure that it
does not sunset. He further stressed the importance to extend
the ACMP for several years to provide for careful analysis of
the program to determine whether and what changes are needed.
He stated that this is a complex issue and it is crucial that
the impacts of any changes will be fully understood.
[HB 106 was held over.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HRES 3.23.11 DCOM List of Unapproved District Policies.pdf |
HRES 3/23/2011 1:00:00 PM |
|
| HRES 3.23.11 DCOM Presentation HB 106 Coastal Management Program.pdf |
HRES 3/23/2011 1:00:00 PM HRES 3/28/2011 1:00:00 PM HRES 3/30/2011 1:00:00 PM |
HB 106 |
| HRES 3.23.11 DCOM Response to Questions.pdf |
HRES 3/23/2011 1:00:00 PM |
|
| Bio Information for Comm. Dan Sullivan - DNR.pdf |
HRES 3/23/2011 1:00:00 PM |
|
| HRES 3.23.11 AOGA HB 106 Testimony.pdf |
HRES 3/23/2011 1:00:00 PM HRES 3/28/2011 1:00:00 PM HRES 3/30/2011 1:00:00 PM |
HB 106 |
| HRES 3.23.11 Public Comment on HB 106.PDF |
HRES 3/23/2011 1:00:00 PM HRES 3/28/2011 1:00:00 PM HRES 3/30/2011 1:00:00 PM |
HB 106 |