Legislature(2011 - 2012)BARNES 124
03/25/2011 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB106 | |
| HB173 | |
| HB106 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 106 | TELECONFERENCED | |
| + | HB 173 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 106-COASTAL MANAGEMENT PROGRAM
1:07:43 PM
CO-CHAIR FEIGE announced that the first order business is 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."
[The motion to adopt the proposed committee substitute labeled
27-GH1965\B, Bullock/Bullard, 3/16/11, at the March 16, 2011
hearing was left pending due to an objection.]
1:08:25 PM
EDWARD ITTA, Mayor, North Slope Borough, paraphrased from the
following written testimony [original punctuation provided with
minor formatting changes]:
Thank you, Mister Chairman. I appreciate this
chance to speak with the committee today. Let me get
right to the point. I'm in favor of the work draft of
the committee substitute for HB 106, because it makes
substantive and logical changes to the existing
program, which is really no program at all.
The federal law on coastal management allows a
voice for Alaskans in the permitting process when
federal lands or waters are considered for
development. The State thinks the law is working just
fine. But when it comes to the Arctic [Outer
Continental Shelf] OCS, the State has been notably
absent from the discussion of a whole range of
primarily federal issues that are important State
concerns-including endangered species rulemaking,
development of a National Ocean Policy, and ocean
discharge limits.
Instead of being engaged, the State simply submits
generic written comments saying it supports
development, and then it litigates. That certainly
doesn't address issues of concern to the affected
local communities. From the local perspective, coastal
management as it is now practiced in Alaska is a
hollow program. It's ineffective because it ignores
community input.
Alaskans agree that people who are closest to the
action have unique concerns and deserve a voice and a
chance to contribute their local expertise, especially
when it comes to projects in their own back yard.
Hasn't the State been aggressively making that same
point with respect to recent federal actions in
Alaska?
Alaskans also care about preserving our unique
subsistence cultures. And for communities in the North
Slope and Northwest Arctic regions, nothing is more
critical. That being said, we also recognize that jobs
and economic progress are essential to our quality of
life and to the preservation of our subsistence
culture. We depend on a strong oil and gas industry
and state economy as much as anyone else. We are not
in any way "anti-development".
Several coastal zone proposals have been placed on
the table, and I've asked the Administration to sit
with us and go through them point by point. The
Borough's position has been that there is nothing in
these proposals that cannot be modified.
But the State has thus far declined to discuss any
significant changes in the program. We'll meet and
they'll hear us out, but they have not budged on
anything. Their energy goes into explaining how well
the program works for the State. This opens the door
for industry to argue that local involvement will kill
development. If that's the case, then how come we've
had so much development on the North Slope and at Red
Dog? Until 2003, those developments were permitted
through a coastal zone program that was much stronger
than anything recently proposed.
Many who have commented on this bill say that six
more years of deliberation are necessary to identify
appropriate changes that would address district
concerns. I can't tell you how frustrating it is to
hear that. We and other districts have already spent
huge amounts of time and money on that effort over the
past eight years. There have been endless workshops,
stakeholder meetings, program re-evaluation meetings,
a federal review of the program, a legislative audit,
and plenty of hearings in Juneau. At this point,
delaying action is no action. It's just kicking the
issue down the road for someone else to deal with
later. And when it comes to the Arctic OCS, later may
be too late.
Without a meaningful program, our communities are
left with only one option. If the State has no
interest in addressing our concerns, then we'll have
to turn to federal agencies for help. We'll have to
see if the U.S. Fish & Wildlife Service, National
Marine Fisheries Service, [Bureau of Energy
Management, Regulation, and Enforcement] BOEMRE and
the EPA will pay more attention. That's the corner
we're being forced into.
The Borough has been really clear that on most
federal issues-like [National Petroleum Reserve-
Alaska] NPR-A development or Endangered Species
listings-we have a lot more in common with the State
than we have with the feds or the [nongovernmental
organizations] NGOs. I don't see why the State would
want to push us away in a direction that could have
unintended consequences.
There will be a de facto alignment going forward-
either the State can align with the local communities
whose interests it ought to represent, or the federal
agencies and local communities can align. I don't
like that choice and that's a choice that should
concern all Alaskans who want urban and rural
interests to come together. Alaskans are most
successful when we're united.
On coastal zone management, the North Slope
Borough has tried to play by ever-changing rules since
2003. We have nothing to show for it. Now it's up to
the Administration and the Legislature. If you're
going to leave the program as it is, and let coastal
management work for everybody except those coastal
communities who clearly have the most at stake, it
probably makes more sense to go ahead and let the
program sunset.
On the other hand, if the State believes that
local communities really should have a say in coastal
policy, if it values the partnerships that come from
working together on important federal issues, and if
it is willing to consider reasonable changes to a
clearly flawed ACMP, then we're listening.
In closing, the Committee Substitute contains many
good proposals. I encourage the Committee to take a
positive step forward on this issue by adopting the
CS.
1:17:18 PM
REPRESENTATIVE GARDNER requested that Mayor Itta repeat the
three specific examples of areas in which "the state is missing
in Arctic discussions."
MAYOR ITTA specified the example of the Endangered Species Act
listings for the polar bear, walrus, and the bearded seal. He
also specified the examples of the critical habitat designation
as well as OCS issues regarding possible exploration and
activity in the Arctic Ocean.
1:19:19 PM
REPRESENTATIVE HERRON recalled that there has been other
testimony about designated subsistence areas and suggested that
may be a part of the legislation that needs to be discussed. He
asked if the federal government considers the state not
requiring designated subsistence areas an invalid part of the
process.
MAYOR ITTA characterized the designated subsistence area as a
catch 22 issue in that the division overseeing coastal zone
management and locally enforceable policies also holds the
authority to designate subsistence areas. Without designated
subsistence areas, "we" are unable to have locally enforceable
policies. The [North Slope Borough] can't address the areas of
concern because the division within the Department of Natural
Resources (DNR) that oversees coastal management refuses to
designate subsistence areas. Therefore, it's a real wall.
1:21:25 PM
REPRESENTATIVE HERRON agreed that is the conundrum about which
many have testified. However, he related his understanding that
the federal government has told the state that it cannot require
designated subsistence areas from coastal districts. He asked
if that's Mayor Itta's understanding.
MAYOR ITTA answered that would be news to him as it would be the
first he has heard of this.
1:24:26 PM
CO-CHAIR SEATON informed the committee that the proposed CS,
labeled 27-GH1965\B, Bullock/Bullard, 3/16/11, was put forward
in an integrated fashion in order to bring the concerns
identified by the coastal districts in one document. However,
it's difficult for the committee to adopt the entire piece of
legislation. Therefore, Co-Chair Seaton explained that he would
like to withdraw the CS, Version B, from consideration and then
come forward with individual elements of Version B as amendments
to the original legislation as well as other amendments. The
aforementioned will allow the committee and the public to
comment on each element as it's moved forward.
1:26:01 PM
REPRESENTATIVE P. WILSON removed her objection to the motion to
adopt the proposed CS, labeled 27-GH1965\B, Bullock/Bullard,
3/16/11.
CO-CHAIR SEATON withdrew his motion to adopt Version B.
1:26:21 PM
REPRESENTATIVE DICK related his appreciation for the committee
addressing HB 106 in this manner.
1:26:38 PM
The committee took a brief at-ease.
[The committee set HB 106 aside while it addressed another bill,
the committee then returned to HB 106 later in the hearing.]
HB 106-COASTAL MANAGEMENT PROGRAM
2:13:14 PM
CO-CHAIR FEIGE announced that the next order of business is a
return to 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."
2:13:43 PM
JOE BALASH, Deputy Commissioner, Office of the Commissioner,
Department of Natural Resources, told the committee that today
he will discuss the coastal district planning process, which is
the process by which the department reviews and approves local
district plans that are then used in the coastal consistency
review. Referring to slide 2 entitled "Federal Structure for
Coastal Programs and Local Participation," he informed the
committee that the Coastal Zone Management Act (CZMA) is a
federal program that allows states to develop their own coastal
management program, which Alaska did in the 1970s. Basically,
there are three techniques that can be utilized. "Technique A"
is a locally implemented coastal management program in which
there is a state program, standards are developed, and the
authorization to provide the consistency determinations is given
to the local [community]. "Technique B" is a purely state
program in which a state agency administers the program,
collects the comments, performs the reviews, and grants the
authorizations. "Technique C," a hybrid of the other
techniques, is one in which coastal districts are allowed to
form and participate in the program. If the coastal districts
choose, they can develop local coastal district plans that are
incorporated as part of the reviews the state performs and is an
additional element of participation in the program. Alaska is
the only state that has taken this approach. Whether the
district or area has a local plan, coastal districts can
participate in the review and comment process. The
aforementioned, he opined, is an important and necessary element
to achieve the consensus necessary to advance projects in a
responsible manner.
2:17:12 PM
REPRESENTATIVE MUNOZ asked if the technique A falls under the
30-day or 50-day limitation on a review or is there no
limitation.
MR. BALASH suggested that Representative Munoz may be referring
to the ABC list for the consistency review process. He
clarified that the aforementioned techniques are the overall
path a state takes when choosing which type of program to have.
The point of explaining the various techniques was to illustrate
that Alaska's program is unique and adds more value to the
program. Although coastal districts, he explained, can form and
not necessarily have a local coastal district plan that is part
of the program, they can participate in the reviews.
Furthermore, even without a local plan there are certain
circumstances under which they can be granted due deference in
the review proceeding in the consistency review process.
However, Mr. Balash wanted to be clear that due deference is not
given to any local district at any time, rather it's dependent
upon the circumstances. If the local district has an approved
local plan with local rules and designated policies, then they
enjoy deference on those particular pieces and components.
Otherwise, the local district is just another reviewing entity
participating in the review process.
2:19:13 PM
MR. BALASH explained that for those coastal districts that do
wish to participate and develop a local coastal plan there are a
set of regulations and procedures for the district to follow and
adopt a plan. He then directed attention to slide 3, which
relates the elements of a coastal district plan. The list of
elements is specified in the regulations. He noted that the
plan itself has a large amount of information regarding the area
itself, including the resources, historic use of the area, and
activities of the local residents. All of the information is
developed in a public process, as specified on slide 4.
2:20:23 PM
CO-CHAIR FEIGE asked if all that's presented on slide 4 happens
prior to any reviews.
MR. BALASH replied yes, adding that the process occurs in
accordance with the regulations. The [plan] is developed by the
coastal district, which informs the division that they want to
print a plan or amend their plan.
2:20:527 PM
CO-CHAIR SEATON, returning to slide 3, inquired as to where the
historic use of an area is incorporated in the [elements] of the
coastal district plan.
MR. BALASH answered that within the resource inventory, resource
analysis, and subject uses, and activities the coastal district
identifies, particularly for subsistence use areas, what is used
and the times of year it's used.
2:21:35 PM
CO-CHAIR SEATON asked if per the regulation there are fine
details for the very specific areas and uses. He asked if the
regulations define and require that specificity.
MR. BALASH said that he would talk more about designated areas
and activities later. However, he offered that to the extent a
local plan includes information, that information doesn't mean
the area has achieved the designated area status under the plan.
2:22:38 PM
MR. BALASH then returned to the flow chart on slide 4, which
illustrates the sequential process that occurs over two to three
years. This is a long-involved process in which a coastal
district has meetings with agencies, stakeholders, and the
public; performs its initial work; and submits a public draft to
DCOM. After achieving completeness in the application stage,
the coastal district then moves on to the public hearing,
comment, and meeting stage. Mr. Balash drew the committee's
attention to the various stages of the process leading up to the
final approval process. He then focused on the second step of
the final approval process in which the commissioner approves or
disapproves the amendment. At this stage, if a coastal district
is dissatisfied with the evaluation made by DCOM, it can request
mediation. Mediation is a voluntary process and the district is
not bound to accept the mediator's decision. However, following
[the medication] the commissioner issues the final approval [or
disapproval] for the plan.
2:25:05 PM
MR. BALASH highlighted that at various stages during the process
there are opportunities for public comment. He opined that the
record would show that as the coastal districts have gone
through this process, some of them have generated significant
comments by specific interest, whether it was by state or
federal agencies, trade associations, and impacted industries.
The intent is to obtain a lot of input into those local plans
and to help DCOM evaluate the specifics that matter the most,
particularly in the enforceable polices section.
2:26:02 PM
MR. BALASH related that since the law was changed in 2003, four
coastal districts have requested mediation. Two of the coastal
districts utilized a professional mediator and reached an
agreement. However, two other coastal districts utilized a
professional facilitator and despite concerted effort DCOM was
unable to approve the enforceable policies that were of high
value to those coastal districts. Both of the coastal districts
that utilized the professional facilitator voluntarily declared
an impasse and don't currently have approvable plans.
2:27:07 PM
MR. BALASH, referring to slide 5, pointed out that the major
focus of the DCOM approval process is in regard to specific
components of the plan, which include enforceable policies,
designated areas, and maps. There are certain rules with regard
to the enforceable components, which resulted in DCOM creating
the ACMP Enforceable Policy Decision Tree. He characterized the
ACMP Enforceable Policy Decision Tree as a lengthy road map
that's dependent upon the paths taken at the forks of the
process. Ultimately the ACMP Enforceable Policy Decision Tree
determines whether a policy or area is approvable.
2:28:32 PM
MR. BALASH, referring to slide 6, told the committee that he
wanted to discuss House Bill 191, very contentious legislation,
which was passed in 2003. The intent of House Bill 191 was to
put ACMP in context and to illustrate that the state has a
robust program that takes into account local input and values
while at the same time recognizing that there is an entire body
of state and federal law regarding the protection of the
environment, including the coastal areas. The legislation
eliminated the Coastal Policy Council, which had been the
governing body of the ACMP, and transferred those authorities to
the Department of Natural Resources. The legislation also
required a rewrite of the ACMP statewide standards that govern
activities in the coastal zone as well as the development of
local plans. The aforementioned, thus, required all local plans
be rewritten and reapproved. He highlighted that House Bill 191
made important clarifications in the consistency review process
and the Department of Environmental Conservation (DEC) carveout
was established. Referring to slice 7, Mr. Balash pointed out
that after the passage of House Bill 191, the statutory
requirements occurred in AS 46.40.030 and 46.40.070. Those
statutes specify that local enforceable policies "shall not
duplicate, restate, or incorporate by reference statutes or
regulations adopted by state or federal agencies." The statute
was largely in response to the practice of a number of coastal
districts that adopted, by reference, the regulations
promulgated by DEC regarding land, air, and water use. The
aforementioned created conflict and tension between the local
district when it interpreted its plan and the interpretations by
the agency that actually promulgated the regulations. The
notion was to eliminate duplication and conflicting
interpretations of the same regulations. The statute also
requires that the enforceable policies be clear and concise with
regard to the activities and person affected by the policies.
Furthermore, the enforceable policies must use precise,
prescriptive, and enforceable language and shouldn't address
matters regulated or authorized by state or federal law unless
the enforceable policy relates specifically to a matter of local
concern. Referring to slide 8, Mr. Balash stated that matters
of local concern are defined specifically in AS
46.40.070(A)(2)(C) such that the matter of local concern
demonstrates it's sensitive to development, isn't adequately
addressed by state or federal law, and is of unique concern to
the coastal resource district as demonstrated by local usage or
scientific evidence. Mr. Balash characterized those as high
statutory hurdles that are further fleshed out in the
regulations.
2:33:25 PM
CO-CHAIR SEATON related his understanding that there has been
some consternation regarding the interpretations of the language
"not adequately addressed by state or federal law." Therefore,
he requested clarification on the aforementioned language
because his understanding is that there are interpretations that
state law doesn't have the ability to address it, even if there
are no regulations. If the state has the ability to address the
matter of local concern, then it's considered adequately
addressed, and therefore no local concern can be about something
for which the state hasn't issued regulations.
MR. BALASH agreed that the language "not adequately addressed by
state or federal law" does drive much conflict between local
planners and DCOM. Furthermore, it's a difficult area to parse.
As an example he turned to the preservation and regulation of
fish habitat, which the legislature has charged ADF&G with
protecting throughout the state. Those who conduct activities
in an area with sensitive fish habitat must follow specific
rules and obtain the permits required by ADF&G, Division of
Habitat. Therefore, when a local coastal district tries to
regulate or constrict the impacts on fish habitat in a manner
that is already addressed by ADF&G there is tension. The
question is whether it's the legislature's desire to allow local
coastal districts to get into the middle of fish habitat issues
that ADF&G already has the authority to regulate. The
department, DNR, has determined that ADF&G already has that
authority and thus makes those decisions. Although the local
reviewing entity is still able to comment when an activity is
occurring and there is a fish habitat involved in the project,
it doesn't enjoy due deference. He explained that during the
review process if consensus can't be found, then one must be
aware of the agency that enjoys due deference. Currently, the
policy is to give due deference to the biologist versus the
local community. Still, consensus among all parties is
attempted, he emphasized. Mr. Balash suggested that there might
be something the Division of Habitat regulations don't address,
which is the point at which some local coastal districts have
tried to find some room to insert their own policies. Although
the aforementioned is a gray area, it hasn't been treated as a
gray area in the implementation of the standards for reviewing
local plans.
2:38:23 PM
CO-CHAIR SEATON recalled testimony that local coastal districts
would be able to address matters that aren't specifically
addressed by the agencies, particularly when there is no map
showing the habitat. Therefore, whether a matter is adequately
addressed by state or federal law is fairly questionable when
there is no map. However, the agency has taken the stance that
since they would have the ability to pen regulations on the
matter, the local coastal district can't have local policies.
He asked if that's the case.
MR. BALASH opined that the question is whether or not
"adequately addressed" is a subjective or objective term of art.
Unfortunately, it is subjective. Whether a matter has been
adequately addressed by the agency with authority is a matter of
interpretation. Although DCOM has worked to balance it, the
division has erred on the side of not having exceptions because
once exceptions are granted it's difficult to draw a hard line.
The [DCOM] has been tough with regard to the elimination of the
overlap of authority.
2:41:08 PM
CO-CHAIR SEATON recalled that the state's testimony regarding
House Bill 191 was that if a matter wasn't adequately addressed
in regulations, then the local coastal districts could address
it in their enforceable policies. Co-Chair Seaton said that he
wanted to be sure that the legislative intent of that point
isn't being stretched since Mr. Balash's comments are opposite
of what the legislature was told at the time House Bill 191 was
debated.
MR. BALASH responded, "... that's a fair acknowledgement."
However, without sufficient legislative interpretation as to
whether "adequately addressed" has occurred, the department had
to exercise its judgment. He characterized the aforementioned
as a part of administering a program.
CO-CHAIR FEIGE commented, "We'll work on that."
2:42:30 PM
CO-CHAIR FEIGE inquired as to how local usage or scientific
evidence is demonstrated, accomplished.
MR. BALASH deferred to Mr. Bates.
2:43:32 PM
RANDY BATES, Director, Division of Coastal and Ocean Management,
Division of Natural Resources, pointed out that the two terms,
"local usage" and "scientific evidence," are defined in DNR's
regulations. To justify a designated area for subsistence use
requires the demonstration of local usage, which means the
current and historical use of an area. He noted that definition
of "local usage" was added in 2005 as part of the additional
regulations package. The definition of "scientific evidence" is
specific to what a coastal district would need to provide to
justify a designated area or an enforceable policy for habitat
and other areas, which is based on documented and peer-reviewed
scientific principles and other requirements.
2:44:56 PM
CO-CHAIR FEIGE inquired as to how "local usage" is demonstrated.
MR. BATES informed the committee that the definition of "local
usage" is found in 11 AAC 114.990(23) and is as follows:
(23) "local usage" means current and actual use of a
coastal resource by residents of the locality in which
the resource is found;
A local coastal district would demonstrate local usage by
affirmation or confirmation of local usage. Simply put, a
resident could raise an issue that the assembly adopts as part
of the district plan. He acknowledged that the designation of
subsistence uses has had to include a lower threshold of local
usage so it could be moved forward for the coastal districts.
There isn't a body of information related to all of the use
areas or the science behind the use areas, and therefore the
threshold for proving subsistence was low. In terms of habitat,
a higher threshold of scientific evidence is required.
2:46:52 PM
CO-CHAIR SEATON asked then if Mr. Bates is only referring to a
municipal district adopting a matter into a local ordinance in
response to someone raising an area of subsistence.
MR. BATES clarified that the aforementioned is one form of
confirmation or affirmation. He explained that all coastal
district plans have to go through an approval process either as
a city through their code, as a municipality through their
assembly and ordinances, or as a coastal resource service area
through their board.
2:47:46 PM
CO-CHAIR FEIGE asked then if it would be adequate confirmation
of local usage for an elder to inform the coastal zone
management board that he has always hunted for seals in a
particular area.
MR. BATES responded, "In general, the answer is yes." He then
provided the following example of a designated area that DNR
couldn't approve. He recalled that while historically the
community of Point Hope had participated in the harvest of bow
head whales, it hadn't done so for a number of years.
Therefore, the aforementioned local usage didn't meet the
threshold of the definition because there hadn't been a hunt or
a subsistence harvest for bow head whales for at least a decade.
Since the community was intending to hunt the following spring,
the district was told that when the hunt was completed it should
submit the information with its coastal management plan and it
would qualify as local usage.
2:49:24 PM
CO-CHAIR SEATON recalled that 280 enforceable policies were not
approved and inquired as to why they weren't approved.
MR. BALASH said he will touch on that later in the presentation,
but noted that most of the time denial can be attributed to
duplication of state or federal law or the local coastal
district not adequately demonstrating that the matter isn't
addressed by state or federal law or regulation.
2:50:57 PM
MR. BALASH, returning to slide 9 of his presentation, pointed
out that there are other important criteria. He emphasized that
"adequately addressed" is a specific filter/qualification in the
statute. He then related that another area of consternation has
been whether or not a policy flows from the statewide standards.
Again, statute specifies that local plans and policies must meet
statewide standards and district plan criteria while also
requiring DNR to identify what land and water uses and
activities are subject to the ACMP. Due to that statutory
requirement, DCOM has established a long list of activities from
which local enforceable policies would flow. Those activities
include the following: coastal development, natural hazards,
coastal access, energy facilities, and others that he offered to
provide the committee. Moving on to slide 10, Mr. Balash stated
that another important component of the coastal district
management plans is the designated areas. He highlighted that a
designated area doesn't necessarily need to have an accompanying
local enforceable policy. Once a designated area has been
approved in the local plan, the policies that apply in that area
are ones for which the local coastal district enjoys due
deference during the review process. There are certain subject
uses that are identified areas in the local plan, and there are
more of those than are considered in the consistency review
process. He explained that the statute in 2003 required
designated areas to be included and approved because under the
old program the designated areas weren't actually being approved
while the policies were still being applied. Therefore, there
was confusion regarding when and under what circumstances a
policy applied or not. With the legislative goal of providing
certainty and predictability with the ACMP review process for
project sponsors, the [designated areas] provided clarification
regarding what the rules were and where they applied. Mr.
Balash then moved on to another point of contention, which is
regarding whether a designated area can include federal land.
The federal law doesn't allow federal land to be included in a
designated area, and therefore it creates a challenge in the
adoption of designated areas in local plans, particularly for
those in or around significant bodies of federal land. However,
there is a way to have the state's enforceable policies apply to
certain federal activities occurring on federal lands, but
that's something to take advantage of during the consistency
review process by doing an effects test. Still, it can't be
included permanently in the local plan itself. Mr. Balash
noted that the aforementioned is particularly important when
discussing the offshore areas. Because the designated area
can't include federal lands, Alaska extends three miles offshore
and beyond that point is federal land. Although an area can't
be designated in the offshore for subsistence uses, natural
hazards, or the like for purposes of the local plan, during the
consistency review process the federal effects test can be
performed to determine whether the activity on the federal land
is going to have an effect on a coastal use or coastal resource.
For example, if an activity offshore of the Beaufort and Chukchi
Seas caused the whales to deflect toward land, the activity is
having an effect on the use of a coastal resource or activity.
The aforementioned allows the [state] to reach out beyond that
three-mile limit, which is of great frustration for those who
identify their entire being with the bow head whale. Prior to
2003, designated areas that included federal land were what he
characterized as an oversight by both the state and federal
agencies and came to light when reworking the program.
2:58:10 PM
CO-CHAIR SEATON asked, "Is the state in the same position, as
far as if we are talking about a use and designated areas are
required that we lose some of our ability to constrain or
control or ... to affect those kind of uses on federal lands
because designated areas are not permitted by the state or the
districts on federal land?"
MR. BALASH opined that it does present an obstacle. However,
the federal effects test can be utilized to credibly demonstrate
that the coastal resource or coastal uses are going to be
effected.
2:59:47 PM
MR. BALASH, continuing is presentation, informed the committee
that there are specific requirements in the regulations
regarding how a designated area becomes such. Furthermore, each
type of area has its own set of rules for documentation and
consultation. As mentioned earlier with regard to subsistence
uses, local use documentation provides a means of meeting the
requirement and getting the area into the local plan. Important
habitat areas are a different classification and have a
different set of rules. Moreover, important habitat areas
require a more stringent set of requirements in terms of written
scientific evidence that the area is biologically and
significantly productive. These designated areas are important
during the consistency review process as well as for those who
want to understand what's going on in the local area where the
project is being developed. He then moved on to the requirement
that a designated area must be described or mapped at a scale
sufficient to determine whether a use or activity is located
within the [designated] area, which has been a cause for
concern. The mapping is a burden and has costs, but it's
necessary to understand where and when different rules apply.
3:03:39 PM
MR. BALASH directed the committee's attention to slide 12, which
is the flow chart of the ACMP District Enforceable Policy
Decision Tree. As mentioned earlier, there are a number of
filters that are used to screen out an enforceable policy in
order to decide whether it's something unique or of local
significance and importance. He pointed out that the district
can designate an area, but not necessarily have an enforceable
policy that goes along with it. As illustrated by the flow
chart, it's difficult to satisfy all the requirements to obtain
a local enforceable policy into the plan. The aforementioned
was intended by House Bill 191 in 2003. It's a difficult point
of contention between the districts and the division, while
recognizing the ACMP's place in the overall regulatory structure
at the state and federal level for the development of natural
resources and conducting activities in these sensitive areas.
With regard to an earlier question regarding the reasons why
enforceable policies have been disapproved, Mr. Balash said he
wasn't sure there is a document that states every reason why a
given enforceable policy would be disapproved. However, once an
enforceable policy fails one of the tests in the ACMP District
Enforceable Policy Decision Tree, the enforceable policy is
disapproved. Disapproved enforceable policies have been
reviewed on occasion and the mediation process is utilized to
move disapproved enforceable policies to approved enforceable
policies. In some cases, the division has faced a challenge in
terms of the advice the coastal districts are receiving. When
the coastal districts receive advice from people who opposed the
changes made in 2003 and who disagree with the policy at a
fundamental level, it's not conducive to finding common ground.
He related that he has information that suggests numerous
examples in which coastal districts included in their plan
[enforceable] policies that it knew weren't approvable well in
advance and forced the division to comment negatively and
disapprove the plan. The aforementioned is unfortunate, he
opined.
3:07:55 PM
CO-CHAIR SEATON remarked that he found it difficult to believe
that plans were disapproved without communicating to the
districts why they were disapproved. Therefore, he requested
the committee be provided with the communications and reasoning
for the first four to five district [plans] that were
disapproved.
MR. BALASH agreed to do so. He then directed the committee's
attention to slide 4 and pointed out that there are multiple
steps during the amendment process when the comments of DCOM and
analysis of plans are known and available.
3:09:59 PM
MR. BALASH, continuing his presentation, moved on to slide 13
entitled "Examples of Enforceable Policies." He reminded the
committee that the legislature purposefully limited enforceable
policies to reduce duplication with existing authorities and to
focus ACMP on the coast and coastal interactions. The
boundaries of the program had been limited, which impacted the
makeup of the local plans. Mr. Balash said it's understandable
why local districts would like to have greater authority and the
opportunity to have a given policy regardless of whether the
state or federal agency manages that issue, such as in regard to
marine mammals. The Marine Mammal Act is a federal law used by
the National Oceanic and Atmospheric Administration (NOAA) to
manage aquatic resources. Therefore, when proposed district
policies would regulate the impacts and take of marine mammals,
it duplicates the aforementioned federal law. He acknowledged
that it's a hot button issue. Although the entire department
and the governor understands the importance of the bow head
whale to the Inupiat people, under this program policies
regulating the bow head whale can't be approved. The
aforementioned, he stated, will be difficult to reconcile. He
then directed attention to slide 14 and discussed the City &
Borough of Juneau's Wetlands Management Plan. Originally, DNR
was going to disapprove Juneau's Wetlands Management Plan, but
after consultation with the U.S. Army Corps of Engineers the
city was able to request and receive authority to manage the
wetlands and include it in Juneau's local coastal district plan.
3:13:41 PM
REPRESENTATIVE P. WILSON asked if, in the aforementioned
situation, the City & Borough of Juneau (CBJ) already had a
general permit. She related her understanding that Juneau has
three different general permits from the U.S. Army Corps of
Engineers that allows the city to "take care of themselves."
MR. BALASH related his understanding that had to do with whether
some nationwide permits that exist for wetlands activities would
apply in Juneau. "This is a separate deal, just for the
wetlands here in the CBJ," he stated.
3:14:28 PM
MR. BALASH, returning to his presentation, moved on to
consistency review examples in which the local enforceable
policies were applied successfully. The Bristol Bay Borough was
able to rely on four of its approved district policies to
persuade the U.S. Army Corps of Engineers to exclude the borough
from a suction dredging general permit. General permits, he
explained, are permits that operate by regulation as opposed to
permitting a specific activity. The Division of Habitat sited
the habitat standard to require miners to stay away from
fisheries statewide. In the Kenai Peninsula Borough an
applicant proposed a shellfish farm in Halibut Cove and the
district used one of its policies to propose an alternative
measure, which led the applicant to adjust the operation. In
the Bristol Bay CRSA, an applicant proposed a new hybrid fiber
optic and microwave broadband network. The district used one of
its enforceable policies to propose an alternative measure that
was used in the Nushagak Mulchatna Designated Subsistence Use
Area and Recreational Use Area. The aforementioned illustrated
how the coastal districts are using their plans to change
projects that are actually being proposed and established. "To
the extent this state has developed this particular program,
we're able to provide opportunities for locals to affect those
projects, even with limited enforceable policies," he
highlighted.
3:17:32 PM
MR. BALASH, referring to slide 16, returned to the flow chart on
the consistency review process. He clarified that when he
presented information on Wednesday he didn't mean to leave the
impression that local coastal districts enjoy due deference in
many circumstances, particularly in the box on Day 13/25 when a
local district requests the designation of a specific area,
which isn't always granted. However, if that specific area is
granted in that particular review, the district does enjoy due
deference in the process that occurs during the consideration of
comments and the attempts to resolve issues. Again, it's an
attempt to obtain consensus between all the reviewing entities,
not just those enjoying due deference.
3:18:40 PM
CO-CHAIR FEIGE, referring to bullet 2 on slide 15, recalled that
there have been complaints regarding restrictions on how the
coastal districts can spend their implementation funding.
MR. BALASH confirmed that there are some restrictions on those
activities. There are a couple of strains of revenue from the
federal government, some of which require a state match while
others do not. Section 306 funds are implementation funds that
amount to about $2.1 million in the fiscal year (FY) 2011
budget. The section 306 funds are shared with state agencies
and a portion is shared with the coastal districts. The section
309 funds can only be used for changes to the program. The
section 306 funds, implementation funds, are for consistency
reviews and the activities that take place in the implementation
of the program, while the section 309 funds are for project plan
amendments. These funds are a limited pot of money that's
distributed on a competitive basis to coastal districts. If a
coastal district wanted to propose a new designated area in its
plan, [the section 309] funds would be available.
3:20:48 PM
CO-CHAIR FEIGE asked if strings are attached to the different
funding sources.
MR. BALASH answered that the strings are connected to the
purpose of the particular grant line. For example, it would be
inappropriate for a community that requested section 309 funds
and received them to try to use those funds to pay a consultant
for a consistency review. For the aforementioned activity,
section 306 funds would have to be used.
CO-CHAIR FEIGE surmised, "So, it's not that they can't hire
consultants, it's just they have to be very careful what that
consultant is engaged in doing for them under the funding
stream."
MR. BALASH agreed with that summation.
3:21:31 PM
MR. BALASH, in response to Representative P. Wilson, explained
that when coastal districts request a grant, an agreement is
signed that specifies how much funding can be used and for what
purposes. The request includes a budget, including the
approximate hours for a consultant, training, and travel.
3:22:46 PM
REPRESENTATIVE P. WILSON inquired as to how a coastal district
would know how many hours it will take.
MR. BALASH deferred to Mr. Bates.
MR. BATES explained that annually a particular amount of grant
funds is set aside in order that those funds go to the districts
for implementation. Those implementation funds have averaged
$710,000 over the last several fiscal years; those funds are
split between the 20 participating coastal districts based on a
funding formula that was developed by Department of Commerce,
Community & Economic Development and DNR. For example, the City
of Sitka, the City & Borough of Juneau, and the North Slope
Borough each receive about $38,000 annually and base their work
plan on that amount of funds. Although that amount of funds may
not be enough to fully fund their participation in the ACMP,
they have to match that with local funds and anything else
necessary has to come from the [coastal district] unless [the
state] can provide additional funds somehow.
REPRESENTATIVE P. WILSON questioned how the [coastal districts]
would know the amount of hours they would spend on the various
activities.
MR. BATES clarified that the municipalities aren't held to the
same standards as the CRSAs, which exist solely for purposes of
coastal management. As part of an annual budget, CRSAs provide
an estimate of how much time will be spent on consistency
reviews, bookkeeping, and education. He characterized the
aforementioned as a best guess with which the department is
willing to work. The municipalities, on the other hand, don't
put together as detailed a work plan annually. The department
reimburses the CRSAs through [DCCED] on actual expenditures.
Therefore, while the CRSAs develop a work plan, they also have
to submit detailed billings for reimbursement.
3:25:42 PM
CO-CHAIR SEATON, referring to slide 14, related his pleasure in
understanding that the Bristol Bay Borough, the Kenai Peninsula
Borough, and the Bristol Bay CRSA use the enforceable policies
to make a project with stipulations and conditions that better
fit with the local area and its concerns. Co-Chair Seaton
expressed the need for the public to understand that this
program [uses the enforceable policies] not as a wall, but to
make the project work well within the system.
3:26:49 PM
MR. BALASH agreed with Co-Chair Seaton in terms of the program
that is in place today. However, he then provided two examples,
one of which is in regard to an enforceable policy and the other
is in regard to a designated area from the draft plan submitted
by the North Slope Borough. In these examples, he posited that
Shell is going to engage in an exploration plan in the Beaufort
Sea. The North Slope Borough proposed an enforceable policy
that states: "When there are potentially conflicting uses,
subsistence uses of plants, fish, and wildlife, including marine
mammals, shall be the highest priority use of the lands and
waters in the coastal area." Therefore, if Shell or
ConocoPhillips or any other lessees were to engage in an
exploration plan, they would go to DCOM with their questionnaire
and put forward a plan stating their belief the project is
consistent with the program, including the local enforceable
policy. The comments from the coastal district could object to
the coastal plan based on the impact on the bow head whale and
related subsistence activities and propose an alternative
measure, which would be to modify the exploration plan such that
it would be a winter only activity. The aforementioned would
dramatically increase the cost and time for Shell to conduct
those exploration activities. In order to obtain a consistency
determination in that case, Shell would have to agree to the
aforementioned alternative measure. Although there is some
question as to whether that's how the borough would implement
the policy and submit their comments, it's an example of how
that particular series of policies would fall out in the
consistency review process. Mr. Balash emphasized, however,
that he didn't believe the aforementioned scenario is a stretch
and in fact, mirrors some of the requests from the borough in
certain situations with the offshore.
3:30:10 PM
CO-CHAIR SEATON recalled testimony the other day that instead of
using the consistency review process to resolve such matters,
Shell has been waiting as the federal government proceeds
through its processes, which has caused a number of years delay
as well. Now, the programs are being modified to be similar to
the local enforceable policies that were suggested at the
outset. Therefore, Co-Chair Seaton expressed the need to ensure
the consistency review process will provide the fastest way to
develop a process.
3:31:28 PM
[HB 106 was held over.]