Legislature(2011 - 2012)BARNES 124
03/28/2011 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB185 | |
| HB146 | |
| HB106 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 185 | TELECONFERENCED | |
| += | HB 146 | TELECONFERENCED | |
| += | HB 106 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 106-COASTAL MANAGEMENT PROGRAM
1:24:52 PM
CO-CHAIR SEATON announced that the final order of 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."
1:25:04 PM
CO-CHAIR SEATON directed attention to the following proposed
amendments which would not be addressed today: 27-GH1965\A.13,
27-GH1965\A.4, and 27-GH1965\A.5 in order for committee members
to have time to review the recently received material. He
clarified that proposed amendment A.13 was still forthcoming.
1:28:13 PM
The committee took a brief at-ease.
1:29:58 PM
CO-CHAIR SEATON said that the committee would address as many
amendments as desired, and that additional amendments would be
addressed at an upcoming meeting.
1:31:02 PM
CO-CHAIR SEATON clarified that although he had the amendments
drafted as a way of getting them all packaged together, he did
not necessarily support each of them.
1:31:48 PM
CO-CHAIR SEATON moved to adopt Amendment 1, labeled 27-
GH1965\A.2, Bullard, 3/25/11, which read:
Page 1, line 2, following "extension;":
Insert "relating to the development, review, and
approval of district coastal management plans;"
Page 2, following line 5:
Insert new bill sections to read:
"* Sec. 2. AS 46.40.030 is amended to read:
Sec. 46.40.030. Development of district coastal
management plans. (a) Coastal resource districts shall
develop and adopt district coastal management plans in
accordance with the provisions of this chapter. The
plan adopted by a coastal resource district shall be
based upon a municipality's existing comprehensive
plan or a new comprehensive resource use plan or
comprehensive statement of needs, policies,
objectives, and standards governing the use of
resources within the coastal area of the district. The
plan must meet the [STATEWIDE STANDARDS AND] district
plan criteria adopted under AS 46.40.040 and must
include
(1) a delineation within the district of
the boundaries of the coastal area subject to the
district coastal management plan;
(2) a statement, list, or definition of the
land and water uses and activities subject to the
district coastal management plan;
(3) a statement of policies to be applied
to all [THE] land and water uses subject to the
district coastal management plan as well as policies
that apply only to special management areas; and
(4) [A DESCRIPTION OF THE USES AND
ACTIVITIES THAT WILL BE CONSIDERED PROPER AND THE USES
AND ACTIVITIES THAT WILL BE CONSIDERED IMPROPER WITH
RESPECT TO THE LAND AND WATER WITHIN THE COASTAL AREA;
AND
(5)] a designation of any special
management [, AND THE POLICIES THAT WILL BE APPLIED TO
THE USE OF,] areas under [WITHIN] the district coastal
management plan and enforceable policies that will be
applicable within those special management areas
[RESOURCE DISTRICT THAT MERIT SPECIAL ATTENTION].
(b) In developing enforceable policies in its
coastal management plan under (a) of this section, a
coastal resource district shall ensure that the
enforceable policies are
(1) clear and concise as to the activities
and persons affected by the policies and the
requirements of the policies, whether the policies are
prescriptive or performance-based;
(2) necessary given local conditions; and
(3) supported by evidence, including
scientific or local knowledge, if the policies are
more specific than state or federal statutes or
regulations [MEET THE REQUIREMENTS OF AS 46.40.070 AND
MAY NOT DUPLICATE, RESTATE, OR INCORPORATE BY
REFERENCE STATUTES AND ADMINISTRATIVE REGULATIONS
ADOPTED BY STATE OR FEDERAL AGENCIES].
* Sec. 3. AS 46.40.040(a) is amended to read:
(a) Except as provided in (b) of this section
and AS 41.17, the department shall
(1) by regulation, adopt, under the
provisions of AS 44.62 (Administrative Procedure Act)
for the use of and application by coastal resource
districts and state agencies for carrying out their
responsibilities under this chapter, statewide
standards and district coastal management plan
criteria for
(A) identifying the boundaries of the
coastal area subject to the Alaska coastal management
program;
(B) determining the land and water uses and
activities subject to the Alaska coastal management
program;
(C) developing policies applicable to the
land and water uses subject to the Alaska coastal
management program;
(D) developing regulations applicable to
the land and water uses subject to the Alaska coastal
management program;
(E) developing policies and procedures to
determine whether specific proposals for the land and
water uses or activities subject to the Alaska coastal
management program shall be allowed;
(F) designating and developing policies for
special management areas [THE USE OF AREAS OF THE
COAST THAT MERIT SPECIAL ATTENTION]; and
(G) measuring the progress of a coastal
resource district in meeting its responsibilities
under this chapter;
(2) develop and maintain a program of
technical and financial assistance to aid coastal
resource districts in the development and
implementation of district coastal management plans;
(3) undertake review and approval of
district coastal management plans in accordance with
this chapter;
(4) initiate a process for identifying and
managing uses of state concern within specific areas
of the coast;
(5) develop procedures or guidelines for
consultation and coordination with federal agencies
managing land or conducting activities potentially
affecting the coastal area of the state;
(6) by regulation, establish a consistency
review and determination or certification process that
conforms to the requirements of AS 46.40.096.
* Sec. 4. AS 46.40.070 is amended by adding a new
subsection to read:
(c) In reviewing and approving a district
coastal management plan under (a) of this section, the
department may not require a district to designate
areas for the purpose of developing an enforceable
policy.
* Sec. 5. AS 46.40.210 is amended by adding a new
paragraph to read:
(13) "special management area" means a
delineated geographic area within the coastal area
that is sensitive to change or alteration and that,
because of plans or commitments or because a claim on
the resources within the area delineated would
preclude subsequent use of the resources to a
conflicting or incompatible use, warrants special
management attention, or that, because of its value to
the general public, should be identified for current
or future planning, protection, or acquisition; these
areas, subject to the board's definition of criteria
for their identification, include:
(A) areas of unique, scarce, fragile or
vulnerable natural habitat, cultural value, historical
significance, or scenic importance;
(B) areas of high natural productivity or
essential habitat for living resources;
(C) areas of substantial recreational value
or opportunity;
(D) areas where development of facilities
is dependent upon the utilization of, or access to,
coastal water;
(E) areas of unique geologic or topographic
significance that are susceptible to industrial or
commercial development;
(F) areas of significant hazard due to
storms, slides, flooding, earthquakes, active faults,
tsunamis, volcanoes, liquefaction, ice movement or
snow avalanches, or erosion; and
(G) areas needed to protect, maintain, or
replenish coastal land or resources, including coastal
flood plains, aquifer recharge areas, beaches, and
offshore sand deposits."
Renumber the following bill sections accordingly.
CO-CHAIR SEATON then directed attention to the spreadsheet of
district comments on each of these subjects.
REPRESENTATIVE P. WILSON objected for discussion.
1:32:30 PM
CO-CHAIR SEATON explained that almost all the districts
identified this as an issue. He stated that proposed Amendment
1 clarified that the enforceable policies applied to all of the
land and water issues subject in the plan, and that the policies
be clear and concise. He noted that, as suggested per the 2008
draft amendments for the Alaska Coastal Management Plan (ACMP),
the legislative audit, and the draft regulations, there were no
designated areas.
1:34:26 PM
REPRESENTATIVE P. WILSON asked about the necessity of proposed
Amendment 1, and for any ramifications if it was not included.
1:34:56 PM
RANDY BATES, Director, Division of Coastal and Ocean Management,
Department of Natural Resources (DNR), in response to
Representative P. Wilson, explained that, with regard to
proposed Amendment 1, the concept of designated areas was to
draw in specific areas that were important to manage and create
predictability for the industry. He said those designated areas
were included in the existing regulations.
1:35:32 PM
REPRESENTATIVE P. WILSON asked if these areas were necessary.
1:35:45 PM
JOE BALASH, Deputy Commissioner, Office of the Commissioner,
Department of Natural Resources (DNR), in response to
Representative P. Wilson, explained that DNR had concerns with
proposed Amendment 1, as written. Regarding the need for
designated areas to have an enforceable policy, he suggested the
possibility of massaging "those particular linkages." He
reflected that the concern was for development of a meaningful
enforceable policy that was available to applicants, in advance,
to plan appropriately for the permitting process. He stated
that designated areas allowed applicants and stakeholders to
better understand the what, where, and when of what they were
contending with. He said that, under certain conditions, it was
possible to have separation of designated areas from enforceable
policies.
1:37:33 PM
REPRESENTATIVE P. WILSON asked about the uncertain
circumstances.
MR. BALASH replied that this related to the issue of enforceable
policies. He shared that the program was "incredibly
interconnected and interdependent." He opined that
disconnection of enforceable policies from designated areas
would have effects on other sections of statute. He directed
attention to the need for awareness of the development and
application of enforceable policies in the local areas. He
pointed out that the local districts were given due deference in
the review process for the interpretation and application of the
local policy. He emphasized the necessity for clear, specific
policies with an understanding for application in the context of
a project review.
1:38:58 PM
REPRESENTATIVE P. WILSON asked to clarify that a pre-designated
area would avoid contention.
MR. BALASH replied that "the clearer the rules are, and the
clear it is ...."
REPRESENTATIVE P. WILSON asked if that was "a yes or a no."
MR. BALASH asked for the question to be re-stated, as he wanted
to ensure that he understood the question.
1:39:47 PM
REPRESENTATIVE P. WILSON posed a scenario in which "there's a
designated area beforehand, then afterwards, when you go through
the process there's not as much squabbling."
MR. BALASH replied that designated areas made the rules clearer,
so there would be less squabbling and confusion in the
application of enforceable policies. He explained that should
the policy apply to the coastal district at large, then
sufficient information needed to be submitted with the plan.
1:41:00 PM
REPRESENTATIVE P. WILSON asked whether DNR has tried to
"massage" the problems in order to reach a solution.
MR. BALASH replied that DNR had just received the specific
amendments and had done an initial review of the language. He
expressed that it was difficult to provide a specific position
on this amendment without knowledge of any other amendments, as
that would allow a purview of the entire package.
1:43:03 PM
CO-CHAIR SEATON asked if Mr. Balash had testified, at a prior
meeting, that the review process allowed for public and district
comments of which the industry would not be aware. He opined
that enforceable policies would allow the industry to be aware
of the parameters.
MR. BALASH replied that the opportunity to request designated
areas in the review process was an opportunity just for the
designation. He explained that the request for a designated
area allowed the district to have deference on the application
of the statewide standard in that area.
1:44:48 PM
CO-CHAIR SEATON pointed out that Mr. Balash had stated that the
industry needed to know the rules. However, if rules were added
during the review process, the industry would not have prior
knowledge of these.
MR. BALASH replied that having designated areas ahead of time
and having enforceable policies ahead of time was the ideal.
1:45:24 PM
REPRESENTATIVE MUNOZ asked if designated area requirements were
removed, would policies which applied to those designated areas
then be applied to other areas outside of the designated areas.
MR. BALASH replied that he was unsure, but that the possibility
would exist. He offered his belief that the local district
would still be allowed a special management area with specific
policies applied to that area, but it would not be necessary for
a special designated area in order to apply the policy.
1:46:42 PM
CO-CHAIR SEATON directed attention to page 1, lines 21-22, of
Amendment 1.
1:47:12 PM
CO-CHAIR FEIGE asked why it had been so difficult for coastal
management districts to come up with designated areas. He
opined that it was necessary to have a basis for an enforceable
policy, with the scientific or local knowledge to support it.
He asked if it would make sense to apply it to a specific area,
so that future applicants would be aware of the area of
enforceable policy.
MR. BALASH replied that the legislative audit recognized that 70
percent of the requested designated areas were approved. He
pointed out that it was easier to get an area designated than it
was to obtain a local enforceable policy. He noted that it was
possible to have a designated area without a local enforceable
policy. He reflected that there was frustration with a failure
to approve enforceable policies without recognition that
"approval of designated areas goes a long way in setting up the
coastal districts' seat at the table in the review process."
1:49:36 PM
CO-CHAIR FEIGE asked whether the enforceable policies would
apply to the entire coastal zone district if designated areas
were eliminated.
MR. BALASH, in response, directed attention to the specific
language referenced in proposed Amendment 1, page 1, lines 20-
22. He explained that there would be a two-tier effect, which
would include a statement of policies that apply to all land and
water uses, as well as policies that apply only to special
management areas.
1:50:36 PM
CO-CHAIR FEIGE requested clarification of the difference between
a designated area and a special management area.
CO-CHAIR SEATON related that designated areas cannot be applied
to federal lands, which could limit the ability to have effect
on federal lands. He stated that special management areas can
be adopted.
CO-CHAIR FEIGE asked how the special management area is defined.
CO-CHAIR SEATON replied that, as an example, a migratory route
of caribou would not have to designate each specific spot.
MR. BALASH offered to clarify any misunderstandings. He said
that it had been suggested that a return to the language prior
to 2003 would allow the designation of federal lands, which he
declared untrue. He explained that the program, prior to 2003,
was indeed doing that, but that it was an oversight to prior
federal approvals which was not caught until the audit report.
1:54:41 PM
REPRESENTATIVE HERRON asked if DNR would work with the committee
on each of the amendments. In response to Mr. Balash, he shared
that the proposed amendments labeled 27-GH1965\A.4, 27-
GH1965\A.5, and 27-GH1965\A.13 were being temporarily held.
MR. BALASH offered to point out the proposed amendments to which
the administration was opposed.
1:56:29 PM
CO-CHAIR SEATON requested that comments be directed to Amendment
1, which is before the committee.
1:57:00 PM
REPRESENTATIVE HERRON, directing attention to proposed Amendment
1, inquired as to why designated areas were required in
regulation but not in federal law or state statute.
MR. BALASH offered his belief that the specific statutes that
spell out where enforceable policies shall be provided were in
AS 46.40.040 and AS 46.40.070.
1:57:43 PM
REPRESENTATIVE HERRON requested that responses to his questions
be directed specifically to designated subsistence use areas.
He asked if the administration would support an amendment which
repealed designated subsistence use areas, but did not affect
the other designated use areas.
MR. BALASH responded:
The issue surrounding subsistence areas is going to go
directly to the level of information provided in the
plan regarding the nature of those activities, the
location, and the timing throughout the year. At the
statewide standard level, the policy is that
applications from project sponsors are to avoid
subsistence areas and, if that's not practicable, to
minimize any impact or effect on subsistence
activities, and, if that is not possible, to then
mitigate the impacts on those subsistence activities.
MR. BALASH pointed out that the ability for a project sponsor to
accomplish this was dependent on the information at hand. He
opined that this could be accomplished.
2:00:23 PM
REPRESENTATIVE HERRON requested a solution to the conundrum of
the requirement for a designated subsistence area, which could
be denied or modified if there was a project that had an effect
on a subsistence species.
MR. BALASH agreed that this was an ongoing struggle, but
highlighted that the plans were "not set in stone and left there
forever, they can be amended from time to time as information is
gathered or made available to supplement or augment the local
coastal plan." He stated that this allowed "the program's
staying in tune over time." He expressed the importance for
maintaining the program training, which included explanations
for "how it can be made to work and what the opportunities are
to change the plan so that it better suits the needs of the
local communities." He stated that it was not necessary to
specifically draw very tight boundaries for subsistence
activities in a certain area, but that it was necessary to find
the balance to allow predictability in the consistency review
process. He offered his belief that it was necessary to have
program staff to help in both the review and planning stage, and
the need for a balance of the needs of the districts and the
needs of the industry.
2:04:25 PM
CO-CHAIR SEATON expressed that a problem was the changing
requirements to define designated areas, which was even more
problematic for subsistence designated areas. He explained that
Amendment 1 would still allow special management areas outside
of federal areas, and would allow for broader designated areas.
2:06:05 PM
REPRESENTATIVE HERRON, reflecting on the response by Mr. Balash,
stated that a further conundrum arose when districts changed
their plans, yet were criticized by the industry for delaying
the process.
MR. BALASH stated that the rules in place at any given time
would be the rules used to evaluate a given project. He agreed
that later projects could, indeed, have a different set of
standards as rules changed. He emphasized that local districts
could comment on subsistence, even if there was not a specific
designated area. He opined that certain districts would only
comment if they were guaranteed due deference. He stated that a
district could comment on subsistence whether or not there was a
local subsistence policy or a designated area, and that these
comments were considered by the Division of Coastal Ocean
Management (DCOM) during the review process.
2:08:53 PM
CO-CHAIR SEATON listed the boroughs that had identified this as
a problem.
2:09:58 PM
REPRESENTATIVE P. WILSON expressed concern with the proposed
amendment, and offered her belief that the designated areas
would help the districts when entering the review process. She
offered an example of a district with designated areas, which
allowed the district to require a business application to attain
compliance. She opined that planning ahead and establishing
areas would provide protection.
MR. BALASH agreed that having designated areas helped everyone
operate more efficiently during the review process. He offered
that Amendment 1 allowed for designated or special management
areas, and he stated that these would be encouraged by DNR in
the plan development process.
2:14:34 PM
CO-CHAIR SEATON clarified that currently a [coastal district]
can't have an enforceable policy that covers more than the
designated area; therefore designated areas are required. He
stated that developing industries had to be made aware of areas
of enforceable policy outside the designated areas, as
subsistence areas often exceeded designated areas.
2:15:28 PM
CO-CHAIR FEIGE asked if there was any limit to the size of a
designated area.
MR. BALASH replied that there was not. He explained that it was
necessary "to show that the activity or the habitat or the
natural hazard is present in the area." He pointed out that
often in the application for a designated area it would become a
more limited geographic area.
2:16:34 PM
CO-CHAIR FEIGE reflected that it was necessary for a checklist
for the applicant during the process. He opined that the
coastal zones needed "to come up with a plan, and if they do,
they get the preference on considerations when it comes to
reviewing this plan." He related his understanding that if
there was not a designated area, there would not be preference
in that specific area during the review process.
MR. BALASH, in response, agreed. He explained that the due
deference to a district during the review process was determined
by whether they had a local enforceable policy or a designated
area. He reported that, after the comment deadline period,
there was a search for consensus among all the state, federal,
and local groups; however, if there was not consensus, then DCOM
had to decide which comments would drive the decision and that
was when deference became important and relevant.
2:18:50 PM
CO-CHAIR FEIGE asked if it was possible to make it easier for
districts to encompass more land area into a designated area.
He offered his belief that it was already a relatively easy
process.
MR. BALASH replied that many districts would disagree with that
statement while DCOM would agree with it, and thus there is an
area of tension. He surmised that even though the hurdle for
granting an area was lowered, the question would still arise:
"how is a local policy developed and approved and then
ultimately applied in the review process?" He reflected that an
increase to the number or size of designated areas would still
not be the answer for many local districts.
2:20:58 PM
REPRESENTATIVE MUNOZ asked if there were districts with policies
that applied to the entire district.
MR. BALASH offered to research the question.
MR. BATES, in response to Representative Munoz, said that only
about 12 designated areas had been processed in the past 7 years
for a consistency review. He explained that once a project
review was initiated, there were only 12-14 requests to
designate for that specific project. He offered his belief that
four to six requests had been by the North Slope Borough, for
the entirety of the coastal zone specific to permafrost for
natural hazards, and community areas for hunting of bowhead
whales, among others. He stated that the more defined requests
had usually been granted.
2:22:50 PM
REPRESENTATIVE MUNOZ asked to clarify that 16 policies were
promulgated with designated areas.
MR. BATES, in response, said that there were a dozen or so
designated area requests that were handled through the
consistency review process.
2:23:42 PM
REPRESENTATIVE MUNOZ asked if there were policies that applied
to the entire district.
MR. BATES offered his belief that there were not any approved
policies throughout the entire district, specific to
subsistence. He said that, during mediation on these policies,
there was agreement on approvable areas and closer agreement to
an approvable plan. He offered to research her question.
REPRESENTATIVE MUNOZ expressed interest in subsistence policies
and policies that are non-subsistence that might apply to the
entire district.
MR. BATES reminded members that there are two opportunities to
designate, one of which is within the context of the district
planning process and the other is within the consistency review
process of a specific project. Within the context of a district
planning process there are a number of items for which a coastal
district can designate and write enforceable policies, including
tourism, recreation, energy siting, commercial seafood and fish
processing, natural hazards, habitat, subsistence, archaeology,
and pre-history. There are a number of items coastal districts
can designate during their planning process. The benefit of the
aforementioned is that the data is gathered and retrievable when
an applicant seeks information regarding impacts of a project in
a specific area. Within the state standards, a district can,
through the consistency review process, designate the following
four areas: habitat, subsistence, natural hazards, and
archaeology. For any of those topics, there are districts that
have districtwide designations for tourism, recreation, and
etcetera.
2:26:54 PM
CO-CHAIR SEATON reminded the committee that before it is
Amendment 1, which would remove the requirement for a designated
area site prior to having a subsistence, habitat, natural
hazard, or archaeological site usage in the district.
REPRESENTATIVE P. WILSON maintained her objection to Amendment 1
[text provided previously].
2:27:48 PM
CO-CHAIR FEIGE opined that it's important to have a clear,
concise, well defined checklist. The main objective of the ACMP
is to provide the rules at the beginning so that the applicant
is aware from the beginning. Having a designated area specifies
a particular area where a rule or enforceable policy applies.
Not including that requirement in the ACMP opens it up to
questioning regarding what the rule is and why it applies to a
particular area. If it's difficult to provide a basis for a
particular subsistence activity in a defined area, designated
area, then he questioned how the local coastal district is going
to obtain enough data, local knowledge, and etcetera to support
an enforceable policy over the entire coastal district. Co-
Chair Feige opined that it would behoove the coastal districts
to define those areas because they are getting a preference in
terms of their priority in the decision-making process.
Therefore, Co-Chair Feige suggested that rather than removing
the designated area requirement, the committee should determine
how to make it easier for coastal districts to define those
designated areas. He further suggested that the committee
should work with DCOM to amend the regulations. Co-Chair Feige
related his opposition to Amendment 1.
2:31:03 PM
CO-CHAIR SEATON agreed that an initial checklist is good, but
the problem is that 13 days into the review process [coastal
districts] can designate or nominate an area for designation.
Since DCOM has made the requirements for obtaining designated
areas for subsistence and habitat so tight, industry is unaware
of the concerns because they aren't enforceable policies. He
agreed that this problem with enforceable policies would not
exist if Amendment 1 was adopted. In fact, he opined that he
would welcome the department coming forth with alternative
mechanisms for consideration. Co-Chair Seaton reminded the
committee that the purpose of Amendment 1 is to allow special
management areas, which are designated areas, without requiring
the designation.
2:33:38 PM
A roll call vote was taken. Representatives Kawasaki, Herron,
Munoz, Foster, Dick, Gardner, and Seaton voted in favor of the
adoption of Amendment 1, labeled 27-GH1965\A.2, Bullard,
3/25/11. Representatives P. Wilson and Feige voted against it.
Therefore, Amendment 1 was adopted by a vote of 7-2.
2:34:30 PM
CO-CHAIR SEATON directed attention to Amendment 2, labeled 27-
GH1965\A.6, Bullard, 3/25/11. He explained that Amendment 2
would exempt projects requiring an environmental impact
statement (EIS) from the 90-day consistency review limit.
2:34:48 PM
The committee took an at-ease from 2:34 p.m. to 2:36 p.m.
2:36:29 PM
CO-CHAIR SEATON explained that the EIS process is a long
duration. He opined that a complicated project requiring an EIS
and the consistency review requirement with a 90-day timeline
approval for the project is inconsistent. Co-Chair Seaton then
moved that the committee adopt Amendment 2, labeled 27-
GH1965\A.6, Bullard, 3/25/11, which read:
Page 1, line 3, following "program;":
Insert "relating to the time limitations for a
consistency review and determination for certain
projects occurring in a coastal resource district;"
Page 2, following line 5:
Insert a new bill section to read:
"* Sec. 2. AS 46.40.096(o) is amended to read:
(o) The time limitations in (n) of this section
(1) do not apply to a consistency review
involving
(A) the disposal of an interest in state
land or resources; or
(B) activity requiring an environmental
impact statement;
(2) are suspended
(A) from the time the reviewing entity
determines that the applicant has not adequately
responded in writing within 14 days after the receipt
of a written request from the reviewing entity for
additional information, until the time the reviewing
entity determines that the applicant has provided an
adequate written response;
(B) during a period of time requested by
the applicant;
(C) during the period of time a consistency
review is undergoing a subsequent review under (d)(3)
of this section."
Renumber the following bill sections accordingly.
2:37:21 PM
REPRESENTATIVE P. WILSON objected for discussion purposes. She
then inquired as to why the 90-day timeline exists. She also
inquired as to whether the 90-day timeline takes longer [than 90
days].
MR. BALASH explained that within the current statute is a
specific limitation on how long consistency reviews can take in
order to have a predictable process. Amendment 2 would violate
one of the four principles identified early on regarding the
[administration's] willingness to constructively engage with the
legislature on these questions of substance. Mr. Balash said
that he isn't aware of a problem that would be solved by
Amendment 2. In fact, having consistency reviews conducted
early on better informs project sponsors what it will take to
meet the needs of the local coastal districts by obtaining a
consistency determination early in order to better adjust the
project earlier rather than later when the EIS is close to
completion.
2:39:03 PM
CO-CHAIR SEATON clarified that Amendment 2 doesn't mean there
would be no consistency review, rather it means that the time
limits of the section don't apply if the project requires an
EIS.
2:39:21 PM
REPRESENTATIVE P. WILSON recalled that the 90-day timeframe was
provided to shorten the time in which it takes to obtain
permits.
2:39:52 PM
CO-CHAIR SEATON informed the committee that the 90-day timeframe
for approval of permits doesn't circumvent the federal EIS
requirement as an EIS will still be required for any significant
projects. Therefore, the question is whether there will be
deadlines that coincide and cause [the state] to be out of
compliance with being able to do a project and perform a
consistency review in 90 days when an EIS is required.
2:40:33 PM
REPRESENTATIVE GARDNER said she didn't recall any testimony that
this has been a problem.
2:40:46 PM
CO-CHAIR SEATON reminded the committee that there was testimony
that the time limits were problematic. He recalled testimony
relating concerns about the time limits for air quality permits
and the conflicts between federal and state time limits.
Amendment 2 addresses the aforementioned and provides a
mechanism to "look at" long duration projects that were
complicated and provides a mechanism to address such projects,
which normally require an EIS. He related that it was thought
that Amendment 2 would identify those complicated projects that
require longer timeframes.
2:41:41 PM
CO-CHAIR FEIGE recalled that the testimony regarding timeframes
was in regard to DEC permits and the DEC carveout. The EIS is a
federal requirement. He then asked if under the ACMP there has
to be a determination of consistency prior to starting an EIS.
MR. BALASH replied no, not before the EIS process is started.
However, the clock can start for the consistency review once the
application is complete. The consistency review can be
completed prior to the completion of the EIS process and in some
cases can even do so prior to the completion of the initial
comment phase of the EIS. Having the consistency review occur
at the front end of the EIS process goes toward [addressing]
some of the issues prior to decisions being made by the federal
government during the EIS process. Therefore, the existing
process, he opined, is beneficial to the project and the
reviewing entities, both federal and local, because an applicant
cannot obtain the other permits if project activities occur in
the coastal zone and the applicant doesn't have a consistency
determination. Obtaining the determination early is beneficial,
he reiterated. He reminded the committee that during the review
process DCOM determines whether the project is consistent or
isn't consistent unless alternative measures are adopted. The
aforementioned informs the project sponsor early on what needs
to be changed to be consistent, rather than finding out at the
end and having to redesign then.
2:44:22 PM
CO-CHAIR FEIGE surmised then that the ACMP guides the applicant
toward a path that will most likely result in success.
MR. BALASH replied yes. However, he clarified that a
consistency determination doesn't guarantee an applicant will
obtain the other permits, but they can't be obtained without the
consistency determination. In further response to Co-Chair
Feige, Mr. Balash related his understanding that an EIS is
fairly costly for an applicant.
CO-CHAIR FEIGE suggested then that in fairness to the applicant
it would be better to have the ACMP determination earlier rather
than later.
MR. BALASH agreed, but clarified that when that process starts
is dependent upon when the applicant chooses to apply for
review.
2:45:53 PM
CO-CHAIR SEATON related his understanding that the
administration doesn't want to be able to stop the consistency
review process for a complex project that requires an EIS. He
said that he would withdraw Amendment 2, if the department is
comfortable requiring the 90-day timeframe even for a complex
project that requires an EIS.
MR. BALASH stated that the administration is adamant that the
90-day clock be preserved and doesn't want to have exceptions
that could spin that process out of control.
2:47:08 PM
CO-CHAIR SEATON withdrew Amendment 2, labeled 27-GH1965\A.6,
Bullard, 3/25/11.
2:47:20 PM
CO-CHAIR SEATON moved that the committee adopt Amendment 3,
labeled 27-GH1965\A.8, Bullard, 3/25/11, which read:
Page 1, line 3, following "program;":
Insert "relating to consistency determinations
made under the Alaska coastal management program;"
Page 2, following line 5:
Insert a new bill section to read:
"* Sec. 2. AS 46.40.096(h) is repealed."
Renumber the following bill sections accordingly.
CO-CHAIR SEATON explained that Amendment 3 would repeal the
limitation that doesn't allow third party litigation based on
coastal zone reviews.
REPRESENTATIVE HERRON objected.
2:48:05 PM
CO-CHAIR SEATON further explained that Amendment 3 is being
offered because the industry's belief that changes are being
made to allow third party litigation. He emphasized that the
aforementioned is not his intention. Therefore, voting on
Amendment 3, which would allow third party lawsuits, allows the
committee to be on record that there is no intention to allow
such suits. Third party lawsuits would be either from an
environmental entity, industry entity, or other party that wants
to sue on the basis of the determination. Prior to 2003 such
lawsuits were allowed, but after 2003 they were disallowed. Co-
Chair Seaton stated his intention to vote against Amendment 3
and expressed his belief that if the committee fails Amendment 3
it would clarify that there is no intention in any of the
committee's amendments to allow third party lawsuits, and
therefore leave the law as it exists now.
2:51:03 PM
REPRESENTATIVE HERRON called for the question.
2:51:09 PM
A roll call vote was taken. Representatives Kawasaki, P.
Wilson, Herron, Munoz, Foster, Dick, Feige, Seaton, and Gardner
voted against it. Therefore, Amendment 3 failed by a vote of 0-
9.
2:52:21 PM
CO-CHAIR SEATON moved that the committee adopt Amendment 4,
labeled, 27-GH1965\A.9, Bullard, 3/25/11, which read:
Page 1, line 3, following "program;":
Insert "relating to the application of the
consistency review and determination process for the
Alaska coastal management program to activities inland
of the coastal zone;"
Page 2, following line 5:
Insert a new bill section to read:
"* Sec. 2. AS 46.40.096(l) is amended to read:
(l) The regulations adopted under (a) of this
section apply, as authorized by 16 U.S.C. 1456(c), to
(1) activities within the coastal zone or
inland of the coastal zone if the activities would
cause direct and significant impact to a coastal use
or resource; and
(2) activities on federal land, including
the federal outer continental shelf, that would affect
any land or water use or natural resource of the
state's coastal zone; for purposes of this paragraph,
those activities consist of any activity on the
federal outer continental shelf and any activity on
federal land that are within the geographic boundaries
of the state's coastal zone notwithstanding the
exclusion of federal land in 16 U.S.C. 1453(1)."
Renumber the following bill sections accordingly.
REPRESENTATIVE HERRON objected.
2:52:39 PM
CO-CHAIR SEATON explained that the purpose of Amendment 4 is to
allow the coastal zone to go inland and address any activities
that would cause direct or significant impact to the coastal
zone or use of a resource. Prior to 2003 coastal zones could be
designated far up rivers all the way to Fairbanks. This is
generally referred to as the inland reach provision. Co-Chair
Seaton clarified that Amendment 4 is being offered in order to
allow the committee to address the matter on the record such
that the coastal zone area is confined to the coastal area. Co-
Chair Seaton stated his opposition to Amendment 4.
2:54:06 PM
REPRESENTATIVE GARDNER inquired as to the effect of Amendment 4
with regard to potential efforts against the Pebble Mine to
protect fishery resources.
CO-CHAIR SEATON said that he didn't believe it would apply.
2:55:22 PM
A roll call vote was taken. Representatives Dick, Gardner,
Kawasaki, P. Wilson, Herron, Munoz, Foster, Feige, and Seaton
voted against it. Therefore, Amendment 9 failed to be adopted
by a vote of 0-9.
2:56:11 PM
CO-CHAIR SEATON moved that the committee adopt Amendment 5,
labeled 27-GH1965\A.10, Bullard, 3/25/11, which read:
Page 1, line 3, following "program;":
Insert "relating to the definition of project
under the Alaska coastal management program;"
Page 2, following line 5:
Insert a new bill section to read:
"* Sec. 2. AS 46.40.210(9) is repealed and
reenacted to read:
(9) "project" means all activities
described in AS 46.40.096(l) and all activities in the
list of permits, certifications, leases, approvals,
and authorizations that trigger a consistency review
developed under AS 46.40.096(m), including a federal
agency activity as defined in 15 C.F.R. 930.31;"
Renumber the following bill sections accordingly.
CO-CHAIR FEIGE objected.
2:56:37 PM
CO-CHAIR SEATON stated that Amendment 5 would clarify that the
project includes the oil and gas leases. There was a question
as to whether oil and gas leases were covered under the current
language of HB 106. The goal is to be clear that oil and gas
leases are covered by the coastal zone system. He emphasized
that Amendment 5 doesn't change the status of the law or the
coverage, but rather Amendment 5 merely clarifies what is
covered by the coastal zone management system.
2:57:21 PM
CO-CHAIR FEIGE said he didn't recall any testimony indicating
this was a point of contention. He inquired as to the impact of
the ACMP covering oil and gas lease sales within the coastal
zones because it would cover onshore as well as offshore.
CO-CHAIR SEATON responded that the information the committee has
received is that oil and gas leases are already covered, but
they're not specified. Therefore, Amendment 5 would clarify
that what it's currently applied to is covered under the ACMP.
CO-CHAIR FEIGE requested that the department relate its
perspective in terms of benefits and concerns regarding whether
oil and gas lease sales should be covered under the ACMP.
MR. BALASH directed attention to lines 8-9 of Amendment 5. He
expressed concern that this may damage the existing phasing of
the reviews that are done during the oil and gas sale,
exploration, and development processes. Specifically, he
expressed concern that Amendment 5 would require the
[consistency] review to look beyond the sale to activities that
might occur through exploration and development. If the
aforementioned is the case, then he would have severe concerns
about Amendment 5.
2:59:52 PM
CO-CHAIR SEATON withdrew Amendment 5 in order to provide the
administration time to review it, but he noted that he will re-
offer Amendment 5 at a later date after review of any unintended
consequences.
3:00:39 PM
CO-CHAIR SEATON announced that the remaining amendments will be
set aside and HB 106 will be considered again on Wednesday,
March 30, 2011.
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB146 Sponsor Statement.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 146 |
| HRES 3.7.11 HB 106 Coastal Management Program.PDF |
HRES 3/7/2011 1:00:00 PM HRES 3/16/2011 1:00:00 PM HRES 3/18/2011 1:00:00 PM HRES 3/28/2011 1:00:00 PM HRES 3/30/2011 1:00:00 PM |
HB 106 |
| Dec_17_RR_letter[1].pdf |
HRES 3/28/2011 1:00:00 PM |
HB 146 |
| Corp_ARTA_2005_excerpt.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 146 |
| Dec_17_RR_letter[1].pdf |
HRES 3/28/2011 1:00:00 PM |
HB 185 |
| HB 146 Chronolgy Final.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 146 |
| HB0146A.PDF |
HRES 3/28/2011 1:00:00 PM |
HB 146 |
| HB0146B.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 146 |
| HB146-CCED-ARRC-02-25-11.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 146 |
| HB146-DNR-MLD-03-20-11.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 146 |
| HB185-DEC-WQ-03-11-11.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 185 |
| Blank_CS_HB185.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 185 |
| HB0185A.PDF |
HRES 3/28/2011 1:00:00 PM |
HB 185 |
| FEDERAL WATER POLLUTION CONTROL ACT Summary.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 185 |
| AK_CWA_Support_Letter_Mar_2011.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 185 |
| HB185 Sponsor Statement.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 185 |
| DMVA Letter to Support CWA Amendment.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 185 |
| DEC Response to (H) RES HB 185- Munitions Ltr.PDF |
HRES 3/28/2011 1:00:00 PM |
HB 185 |
| ACMP Coastal District Comments I.pdf |
HRES 3/18/2011 1:00:00 PM HRES 3/28/2011 1:00:00 PM HRES 3/30/2011 1:00:00 PM |
HB 106 |
| ACMP Coastal District Comment II.pdf |
HRES 3/18/2011 1:00:00 PM HRES 3/28/2011 1:00:00 PM HRES 3/30/2011 1:00:00 PM |
HB 106 |
| ACMP Approved Coastal District Enforceable Policies.pdf |
HRES 3/18/2011 1:00:00 PM HRES 3/28/2011 1:00:00 PM HRES 3/30/2011 1:00:00 PM |
HB 106 |
| AMCP_Powerpoint_3-11 (2).pdf |
HRES 3/18/2011 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 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 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 |
| HRES 3.25.11 HB 106 - ACMP District Planning Process.pdf |
HRES 3/25/2011 1:00:00 PM HRES 3/28/2011 1:00:00 PM HRES 3/30/2011 1:00:00 PM |
HB 106 |
| HRES 3.25.11 HB 106 Mayor Itta Testimony.pdf |
HRES 3/25/2011 1:00:00 PM HRES 3/28/2011 1:00:00 PM HRES 3/30/2011 1:00:00 PM |
HB 106 |
| HB 106 AMENDMENTS.PDF |
HRES 3/28/2011 1:00:00 PM HRES 3/30/2011 1:00:00 PM |
HB 106 |
| HB 106 Amendment descriptions.docx |
HRES 3/28/2011 1:00:00 PM HRES 3/30/2011 1:00:00 PM |
HB 106 |
| HB 106 Amendment A.13 Alaska Coastal Policy and Appeals Board.pdf |
HRES 3/28/2011 1:00:00 PM HRES 3/30/2011 1:00:00 PM |
HB 106 |
| HRES 3.28.11 HB 106 DCOM Response Backup.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 106 |
| HRES 3.28.11 HB 106 DCOM Response Letter.pdf |
HRES 3/28/2011 1:00:00 PM |
HB 106 |