Legislature(2011 - 2012)

05/14/2011 10:06 AM Joint HB106


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10:06:40 AM Start
10:07:20 AM HB106
04:56:28 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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               HB 106-COASTAL MANAGEMENT PROGRAM                                                                            
                                                                                                                                
CHAIR JOHNSON announced that the  only order of business would be                                                               
HOUSE BILL  NO. 106,  "An Act extending  the termination  date of                                                               
the  Alaska  coastal  management  program  and  relating  to  the                                                               
extension; relating  to the  review of  activities of  the Alaska                                                               
coastal management  program; providing  for an effective  date by                                                               
amending the  effective date of  sec. 22,  ch. 31, SLA  2005; and                                                               
providing for an effective date."                                                                                               
                                                                                                                                
10:07:20 AM                                                                                                                   
                                                                                                                                
CHAIR OLSON moved to adopt CSHB 106(FIN).                                                                                       
                                                                                                                                
CHAIR JOHNSON objected.                                                                                                         
                                                                                                                                
A roll  call vote was  taken.  Representatives  Kerttula, Herron,                                                               
and  Johnson  voted  in opposition  to  adopting  CSHB  106(FIN).                                                               
Senators  Wielechowski,  Kookesh,  and Olson  voted  against  it.                                                               
Therefore, by a vote  of 0-3 of the House members  and 0-3 of the                                                               
Senate members, CSHB 106(FIN) failed to be adopted.                                                                             
                                                                                                                                
10:07:59 AM                                                                                                                   
                                                                                                                                
CHAIR OLSON moved to adopt SCS CSHB 106(FIN).                                                                                   
                                                                                                                                
CHAIR JOHNSON objected.                                                                                                         
                                                                                                                                
A roll  call vote  was taken.   Representative Kerttula  voted in                                                               
favor of adopting SCS CSHB  106(FIN).  Representatives Herron and                                                               
Johnson voted  against it.   Senators Wielechowski,  Kookesh, and                                                               
Olson voted  for it.   Therefore, by a vote  of 1-2 of  the House                                                               
members and 3-0  of the Senate members, SCS  CSHB 106(FIN) failed                                                               
to be adopted.                                                                                                                  
                                                                                                                                
10:09:12 AM                                                                                                                   
                                                                                                                                
RENA DELBRIDGE,  Staff, Representative Mike Hawker,  Alaska State                                                               
Legislature,  directed the  committee's attention  to Legislative                                                               
Legal  and  Research  Services red-  and  blue-lined  summary  of                                                               
changes between CSHB  106(FIN) and SCS CSHB 106(FIN).   The first                                                               
change  is the  clarifying language  located on  page 3,  line 4,                                                               
which specifies that one alternate  member will be appointed from                                                               
each of the specific regions.   The language on page 3, lines 13-                                                               
14, restructures  the language describing  part of  the Southwest                                                               
Alaska region.   She then  directed attention to the  language on                                                               
page 3,  lines 28  through page  4, line 10.   The  House version                                                               
allowed that  the members  of the Coastal  Policy Board  serve at                                                               
the  will  of the  governor,  while  the Senate  version  allowed                                                               
members of  the board to be  removed for cause and  adds language                                                               
outlining the  process of  removal of  a member  for cause.   The                                                               
process requires written  notice of the charges for  cause to the                                                               
member and provides  the member an opportunity to be  heard.  The                                                               
Senate  language   also  establishes  a  process   by  which  the                                                               
alternate member  replaces the removed  member and  the alternate                                                               
is replaced.   The Senate language defines the  term "for cause".                                                               
On  page  4,   line  19,  the  Senate   language  clarifies  that                                                               
alternates appointed  as department [staff] will  be appointed as                                                               
deputy commissioners, not merely deputies  or designees.  Page 8,                                                               
Section 8  of the House  version included six factors  that would                                                               
be considered  when determining whether  a policy uses  the least                                                               
restrictive  means  to accomplish  its  objectives.   The  Senate                                                               
version  splits the  factors  into two  groups  of three  factors                                                               
each,  the first  group of  which "shall  be considered"  and the                                                               
second group "may"  be required.  Ms. Delbridge then  moved on to                                                               
the next  change on  page 10,  lines 12-16.   The  House version,                                                               
CSHB   106(FIN),  allowed   that  the   department  can   require                                                               
additional action  by the districts, when  considering whether to                                                               
approve the  plan or  portions of  the plan.   The  House version                                                               
requires  that  "any  other  action   be  taken  by  the  coastal                                                               
district",  while the  Senate version  allows  the department  to                                                               
require  the coastal  district to  submit additional  information                                                               
only if the department determines  that additional information is                                                               
necessary for the  department to approve the plan  or portions of                                                               
the plan.  The next change can  be found on page 12, lines 10-13,                                                               
such  that  the  Senate  version   adds  a  new  subsection  that                                                               
prohibits  the department  from  requiring  coastal districts  to                                                               
designate  areas  for  the   purpose  of  developing  enforceable                                                               
policies.   On page 12, lines  18-19, there is a  language change                                                               
such that  the language "commissioner's  designee" is  changed to                                                               
"deputy  commissioner".    The aforementioned  change,  that  the                                                               
commissioner's alternates  will be deputy commissioners,  is also                                                               
made on page 13,  lines 6 and 13 as well as on  page 14, lines 8-                                                               
9,  and 31.   On  page  15 of  the House  version, CSHB  106(FIN)                                                               
created  definitions   for  "local  knowledge"   and  "scientific                                                               
evidence", whereas the Senate version,  SCS CSHB 106(FIN) deletes                                                               
those definitions.  The Senate  language on page 15, lines 29-31,                                                               
specifies that  the names  considered by  the governor  to create                                                               
this  policy board  are  also going  to  require three  alternate                                                               
members.  She referred to  the aforementioned as a clarification.                                                               
Page  16  includes  technical  language  changes  such  that  the                                                               
"alternate  member" is  added throughout  and the  term "Act"  is                                                               
replaced with  "section".  On page  16, Section 25 of  the Senate                                                               
version language is added to  require an additional reporting and                                                               
review  requirement such  that  the board  would  be required  to                                                               
report  to   the  governor   and  the   legislature  as   to  the                                                               
effectiveness   of  the   entire  coastal   management  statutes.                                                               
Continuing on  to page 17,  lines 8-13 have  conforming technical                                                               
language changes.   On page  17, beginning  on line 22  the House                                                               
version  contained  older  language related  to  effective  dates                                                               
contingent on 2006  actions that were no  longer necessary, while                                                               
the Senate version deleted that  reference.  The remainder of the                                                               
changes on page 18, lines 18-21, is conforming changes.                                                                         
                                                                                                                                
10:18:05 AM                                                                                                                   
                                                                                                                                
CHAIR  JOHNSON requested  an explanation  of the  Senate version,                                                               
SCS CSHB 106(FIN).                                                                                                              
                                                                                                                                
10:18:23 AM                                                                                                                   
                                                                                                                                
DAVID   GRAY,  Staff,   Senator  Lyman   Hoffman,  Alaska   State                                                               
Legislature, informed  the committee  that in the  Senate Finance                                                               
Committee  there were  many discussions  with the  administration                                                               
and members of  the House regarding the  Senate's desired changes                                                               
to  HB 106.   In  many cases,  the administration  responded with                                                               
language changes  that accommodated  the Senate.   However, there                                                               
were some  issues about which  the administration  maintained its                                                               
concern.   He recalled  that only about  seven issues  were taken                                                               
up,  including the  minor issue  of the  change in  language from                                                               
"deputies"  to "deputy  commissioners".   There are  a couple  of                                                               
outstanding issues that remain, he remarked.                                                                                    
                                                                                                                                
10:19:55 AM                                                                                                                   
                                                                                                                                
CHAIR  OLSON inquired  as  to the  reason for  the  filing of  an                                                               
additional report  as required on page  16, line 31, of  the red-                                                               
and blue-lined legislation.                                                                                                     
                                                                                                                                
MR.  GRAY   explained  that   the  Department   of  Environmental                                                               
Conservation  (DEC) carveout  in  the  House version  practically                                                               
eliminates  DEC   permits  from  involvement  with   the  coastal                                                               
planning  commission.   The  Senate thought  there  should be  an                                                               
incentive in  order to have  serious consideration  regarding the                                                               
DEC carveout and  whether it should be modified.   He pointed out                                                               
that one of the iterations of HB  106, once in the Senate, was to                                                               
repeal the carveout  two years from now and thus  it would follow                                                               
the report from the new  policy board.  The aforementioned wasn't                                                               
well  received.     He  further  related  that   the  Senate  was                                                               
interested  in  the board  returning  four  years from  now  with                                                               
recommendations regarding how the entire program was working.                                                                   
                                                                                                                                
10:23:14 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE HERRON  recalled that during discussions  with the                                                               
attorney general  regarding the DEC carveout  sunset that Senator                                                               
Hoffman wanted there was a suggestion  of a compromise.  He asked                                                               
if the blue-lined  language on page 16, line 31  through page 17,                                                               
line  1, was  the language  the attorney  general brought  to the                                                               
Senate.                                                                                                                         
                                                                                                                                
MR.  GRAY replied  yes, adding  that  the language  was from  the                                                               
attorney  general  and  was also  discussed  with  Representative                                                               
Herron.                                                                                                                         
                                                                                                                                
10:24:28 AM                                                                                                                   
                                                                                                                                
CHAIR  OLSON, referring  to page  15 of  the red-  and blue-lined                                                               
legislation, inquired as to the  rationale behind eliminating the                                                               
definitions for "local knowledge" and "scientific evidence".                                                                    
                                                                                                                                
MR.  GRAY  explained that  the  definition  of "local  knowledge"                                                               
[utilized in  the House  version] includes  what has  always been                                                               
accepted  and used  in  the regulations  plus  the following  new                                                               
language:    "not  contradicted by  scientific  evidence".    The                                                               
definition  of  "scientific evidence"  that  is  utilized in  the                                                               
House version  could be presented  to contradict  local knowledge                                                               
and that  definition also  exists in  current regulations.   Some                                                               
felt that there should be  a higher standard when local knowledge                                                               
can't be  brought forward.   The new provision of  the definition                                                               
of  "local  knowledge" that  requires  local  knowledge can't  be                                                               
contradicted by  scientific evidence constrained  local knowledge                                                               
such   that  it   couldn't  be   considered  in   the  processes.                                                               
Therefore, there was  a desire to make a higher  standard for the                                                               
elimination of local knowledge,  which resulted in suggestions to                                                               
require  a  preponderance of  scientific  evidence  or clear  and                                                               
convincing  evidence.    The aforementioned  suggestions  weren't                                                               
accepted by  some in the  Senate, which resulted in  deleting the                                                               
definitions from  the legislation and leaving  the definitions in                                                               
regulation as they  are currently.  If there was  a need for some                                                               
qualification of local knowledge,  then the Department of Natural                                                               
Resources (DNR)  could promulgate regulations.   Mr. Gray related                                                               
that the Senate  felt that deletion of the  definitions of "local                                                               
knowledge"   and   "scientific   evidence"   would   allow   more                                                               
flexibility in dealing with the two.                                                                                            
                                                                                                                                
10:28:37 AM                                                                                                                   
                                                                                                                                
SENATOR  WIELECHOWSKI related  his understanding  that the  House                                                               
legislation, CSHB  106(FIN), included  the definitions  of "local                                                               
knowledge"  and "scientific  evidence"  as they  are in  existing                                                               
regulations and placed them in statute.                                                                                         
                                                                                                                                
MR. GRAY replied yes.                                                                                                           
                                                                                                                                
SENATOR  WIELECHOWSKI  highlighted   that  essentially  the  only                                                               
change  from those  definitions in  regulations was  the addition                                                               
under "local  knowledge" of subparagraph  (C).  He  then inquired                                                               
as to how the addition of subparagraph (C) impacts HB 106.                                                                      
                                                                                                                                
MR. GRAY said that he couldn't answer that question.                                                                            
                                                                                                                                
SENATOR   WIELECHOWSKI  then   related  his   understanding  that                                                               
although   the  addition   of  subparagraph   (C)  allows   local                                                               
knowledge,  a  junior  scientist  who  documents  the  site  with                                                               
journal  entries and  a photograph  could  overrule thousands  of                                                               
years  of  local  knowledge.    He asked  if  that's  Mr.  Gray's                                                               
understanding of the provision as well.                                                                                         
                                                                                                                                
MR. GRAY  opined that it's  a possibility.   He related  that the                                                               
Senate   received   concern   from   districts   regarding   what                                                               
[subparagraph (C)] meant and whether it was necessary.                                                                          
                                                                                                                                
10:32:07 AM                                                                                                                   
                                                                                                                                
CHAIR  JOHNSON  remarked  that the  term  "junior  scientist"  is                                                               
inappropriate since  the definition for scientific  evidence sets                                                               
a fairly  high bar for  the scientific evidence,  including being                                                               
peer reviewed.                                                                                                                  
                                                                                                                                
10:32:51 AM                                                                                                                   
                                                                                                                                
SENATOR  WIELECHOWSKI  stated  that  although  that  may  be  the                                                               
intent, that's  not what  the language  of [CSHB  106(FIN)] says.                                                               
He  directed attention  specifically to  the language  of Section                                                               
20(17)(C)(i)-(ii) of CSHB 106(FIN).   The aforementioned language                                                               
could result in a professional  junior scientist coming to Alaska                                                               
for the summer,  issuing an opinion, and  overruling thousands of                                                               
years   of  local   knowledge.     If   there   is  a   different                                                               
interpretation  of  this  proposed   statute,  then  perhaps  the                                                               
language  needs to  be clarified  because  the existing  proposed                                                               
language of  Section 20(17)(C)(i)-(ii) of CSHB  106(FIN) does not                                                               
impose a high bar for scientific evidence.                                                                                      
                                                                                                                                
10:33:58 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE KERTTULA said that she  read the language the same                                                               
as  Senator  Wielechowski, and  thus  the  language needs  to  be                                                               
clarified.                                                                                                                      
                                                                                                                                
10:34:26 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE KERTTULA informed the  committee that she reviewed                                                               
the legislation  regarding how local  knowledge is used  and only                                                               
found  three  places  other  than the  definition  in  which  the                                                               
legislation references local knowledge.                                                                                         
                                                                                                                                
MR. GRAY concurred.                                                                                                             
                                                                                                                                
REPRESENTATIVE KERTTULA pointed out that  in each of the areas in                                                               
which  local knowledge  is used,  the state  maintains the  final                                                               
say.   In fact, in  one of the sections  the state is  the entity                                                               
that uses local  knowledge to overturn a district  decision.  She                                                               
asked  if Mr.  Gray has  the same  understanding, that  the state                                                               
always  holds  the  final  trump   card  in  terms  of  decisions                                                               
regarding local knowledge.                                                                                                      
                                                                                                                                
MR. GRAY  mentioned that there  had been questioning as  to where                                                               
the problem is that [subparagraph (C)] addresses.                                                                               
                                                                                                                                
10:35:54 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE KERTTULA interpreted  the language in subparagraph                                                               
(C),  "not contradicted  by scientific  evidence",  to mean  that                                                               
local  knowledge   can't  be   contradicted  by   any  scientific                                                               
evidence, no matter how minimal.                                                                                                
                                                                                                                                
MR. GRAY related his understanding  that the feeling was that DNR                                                               
has a  considerable amount of say  with regard to how  things can                                                               
work out.   He  reiterated that  the question  remains:   Why the                                                               
need?                                                                                                                           
                                                                                                                                
10:37:23 AM                                                                                                                   
                                                                                                                                
CHAIR JOHNSON  said that it's  necessary to have  the definitions                                                               
[of local  knowledge and scientific  evidence] in  statute rather                                                               
than regulation.   However, he  acknowledged that there  could be                                                               
reason  to debate  whether the  definition  is proper.   He  then                                                               
stated his opposition to striking the [definitions] entirely.                                                                   
                                                                                                                                
10:38:05 AM                                                                                                                   
                                                                                                                                
CHAIR OLSON  asked if Chair  Johnson would entertain a  motion to                                                               
strike subparagraph (C) and reinsert paragraphs (16) and (17).                                                                  
                                                                                                                                
CHAIR JOHNSON responded not at this time.                                                                                       
                                                                                                                                
10:39:10 AM                                                                                                                   
                                                                                                                                
LARRY   HARTIG,   Commissioner,   Department   of   Environmental                                                               
Conservation,  began  by  explaining  that he  is  present  today                                                               
because  he  was  part  of the  administration's  team  that  was                                                               
involved in negotiations regarding  the Alaska Coastal Management                                                               
Program (ACMP).  He then related the  administration's thanks for                                                               
all the  hard work  done on the  ACMP.  At  the beginning  of the                                                               
legislative session,  the administration  made clear what  it saw                                                               
as the  guiding principles  in trying  to craft  a new  ACMP that                                                               
moves from  the years  of constant turmoil  and litigation.   The                                                               
four principles are as follows:                                                                                                 
                                                                                                                                
     1) There needs to be a predictable ACMP process;                                                                           
     2) Community input needs to be valued;                                                                                     
     3) There must be objective and predictable standards,                                                                      
     enforceable policies; and                                                                                                  
     4) There must be no local veto over proposed projects.                                                                     
                                                                                                                                
COMMISSIONER  HARTIG opined  that the  compromise struck  in CSHB
106(FIN)  adheres to  those principles  and  allows dialogue  and                                                               
issue resolution rather  than litigation.  The  governor's May 12                                                               
letter to  Senator Hoffman  and both  bodies attempts  to address                                                               
the  concern  that  SCS  CSHB  106(FIN)  interrupts  the  balance                                                               
achieved  by  the  four  principles.    He  emphasized  that  the                                                               
aforementioned was  after months of [discussions]  back and forth                                                               
that was preceded by many  years of [discussions] back and forth.                                                               
Many people  put a lot  of effort  into crafting the  language in                                                               
CSHB  106(FIN) and  it didn't  take  much to  upset the  balance.                                                               
Commissioner  Hartig   related  that  upon  receipt   of  Senator                                                               
Hoffman's seven concerns the administration  tried to review them                                                               
with an  open mind.  During  that review, as Mr.  Gray indicated,                                                               
suggested language  was proposed.   However, at the onset  of the                                                               
discussion [the administration] identified  that the DEC carveout                                                               
and definitions couldn't be changed.                                                                                            
                                                                                                                                
10:43:47 AM                                                                                                                   
                                                                                                                                
COMMISSIONER  HARTIG then  turned  to the  definitions of  "local                                                               
knowledge" and  "scientific evidence".   He pointed out  that the                                                               
aforementioned  definitions first  appear in  Section 7  of [CSHB
106(FIN)]  where  "local  knowledge"   is  used  to  support  the                                                               
identification of a  need of an enforceable policy.   Prior to HB
106 local  knowledge was used primarily  to designate subsistence                                                               
use, not to justify the  establishment of enforceable policies or                                                               
define what those  policies look like.  The  aforementioned was a                                                               
major  shift,  he remarked.    When  the administration  reviewed                                                               
local knowledge  in terms  of how  to expand  the voice  of local                                                               
districts, other uses of local  knowledge beyond its primary uses                                                               
by DNR were included.                                                                                                           
                                                                                                                                
10:45:27 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE  KERTTULA clarified  that  Commissioner Hartig  is                                                               
correct in terms  of the current program, but  under the previous                                                               
program local knowledge was accepted  as evidence and information                                                               
when  the agencies  made  decisions.   In  fact, local  knowledge                                                               
played a large role in the Good News Bay case.                                                                                  
                                                                                                                                
10:46:03 AM                                                                                                                   
                                                                                                                                
COMMISSIONER  HARTIG noted  that he  was speaking  to the  change                                                               
from the  status quo.   He then  stated that the  four principles                                                               
illustrate  that  the  administration  was  seriously  trying  to                                                               
expand the use  of local knowledge and its use  in justifying the                                                               
need for additional  enforceable polices and crafting  those.  He                                                               
directed attention to AS 46.40.030 and  pages 7-8 of the red- and                                                               
blue-lined version  of HB 106,  which list the  four requirements                                                               
of  an  enforceable  policy.    One of  the  requirements  is  to                                                               
"address a coastal  use or resource of concern  to the residents"                                                           
and local knowledge can be used to establish the aforementioned.                                                                
                                                                                                                                
10:47:10 AM                                                                                                                   
                                                                                                                                
CHAIR  OLSON pointed  out that  this discussion  regarding "local                                                               
knowledge" assumes  there is a  coastal management plan  in place                                                               
and  approved by  DNR.    However, the  majority  of the  coastal                                                               
management plans haven't been approved  and thus there's no place                                                               
at the table for folks to express their concerns.                                                                               
                                                                                                                                
CHAIR JOHNSON recalled that of  the 23-24 coastal zone districts,                                                               
only 3 haven't been approved.                                                                                                   
                                                                                                                                
COMMISSIONER  HARTIG related  his  belief that  Chair Johnson  is                                                               
correct, but mentioned that DNR could verify the numbers.                                                                       
                                                                                                                                
CHAIR  OLSON maintained  his understanding  that the  frustration                                                               
was  in  regard to  the  coastal  management plans  that  weren't                                                               
approved, which he understood to be more than just three.                                                                       
                                                                                                                                
CHAIR JOHNSON said he would like the aforementioned clarified.                                                                  
                                                                                                                                
10:48:15 AM                                                                                                                   
                                                                                                                                
COMMISSIONER HARTIG  pointed out that AS  46.40.030 addresses the                                                               
development of  district coastal management plans,  and therefore                                                               
what  he is  discussing is  applicable to  the approval  of those                                                               
plans.   The  hope would  be  that those  coastal districts  with                                                               
unapproved plans will be approved  whatever the legislation looks                                                               
like.   The intent, he  emphasized, is for the  coastal districts                                                               
to  have a  voice, which  is achieved  via an  [approved] coastal                                                               
management plan.                                                                                                                
                                                                                                                                
10:48:51 AM                                                                                                                   
                                                                                                                                
COMMISSIONER  HARTIG referred  to  Section 7(b)(4)  of both  CSHB
106(FIN) and  SCS CSHB 106(FIN),  which read:  "employ  the least                                                           
restrictive  means to  achieve the  objective of  the enforceable                                                           
policy";  the  key phrase  of  which  is the  "least  restrictive                                                       
means".   He then pointed  out that under Section  8(c)(2) "local                                                           
knowledge" or  "scientific evidence"  can be  used to  support an                                                               
alternative method.   For example,  a community that relies  on a                                                               
caribou herd  for subsistence would  want to ensure  any proposed                                                               
development/activity  in  the  coastal  area  doesn't  negatively                                                               
impact the caribou herd.  In  such a case, local knowledge can be                                                               
used to establish  an enforceable policy.  If  local knowledge is                                                               
used to  establish an enforceable  policy, then that area  can be                                                               
protected.    However, the  question  arises  as to  whether  the                                                               
enforceable policy applies to the  entire [coastal district] area                                                               
or specific designated  areas.  The thought was  that if [coastal                                                               
districts] aren't required upfront  to have designated areas, the                                                               
requirement to utilize the least  restrictive means would provide                                                               
[boundaries].   Local knowledge or  scientific evidence  could be                                                               
used to establish  the boundaries.  Although the  limits of local                                                               
knowledge could  be reached in  cases when the  proposed activity                                                               
hasn't occurred in the area  before, scientific evidence could be                                                               
used to  fill in the  gaps.  Commissioner Hartig  emphasized that                                                               
the idea  is for "local  knowledge" and "scientific  evidence" to                                                               
work  harmoniously as  is  the  case most  of  the  time, as  was                                                               
mentioned in Mayor Itta's letter.   Therefore, although he wasn't                                                               
anticipating many  conflicts, there  will be  limits to  both and                                                               
there may reach a point of  conflict.  [In times of conflict] the                                                               
definition   is   more   important    in   terms   of   providing                                                               
predictability   and  avoiding   conflicts.     To  achieve   the                                                               
aforementioned  in the  legislation,  the language  is such  that                                                               
"scientific evidence" trumps "local  knowledge" while making sure                                                               
that  the  definition  of scientific  evidence  is  very  robust.                                                               
Commissioner Hartig  noted his agreement with  Chair Johnson that                                                               
"scientific  evidence"   isn't  a   junior  scientist   waving  a                                                               
photograph.                                                                                                                     
                                                                                                                                
10:54:56 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE KERTTULA  pointed out that under  Section 8 (d)(3)                                                               
the  department  may  require "any  other  relevant  factors"  to                                                               
determine  whether  an  enforceable   policy  employs  the  least                                                               
restrictive   means.      She   asked   if   that's   a   correct                                                               
interpretation.                                                                                                                 
                                                                                                                                
COMMISSIONER HARTIG said that the  idea is to provide guidance in                                                               
statute  in order  to avoid  debate and  uncertainty later.   The                                                               
factors  in Section  8(c)(1)-(3)  are factors  that most  coastal                                                               
districts  can provide.   However,  the additional  factors under                                                               
Section 8(d)(1)-(3)  are more costly  factors the  department may                                                               
or  may not  require.   Therefore,  the  "may" language  provides                                                               
flexibility  such that  the  Section  8(d)(1)-(3) factors  aren't                                                               
required of a  coastal district in every  instance.  Furthermore,                                                               
Section 8(d)(3)  is intended  as a  catchall, although  DNR would                                                               
have to  determine that it's  something that could  reasonably be                                                               
produced  by  the  coastal  district   and  is  relevant  to  the                                                               
decision, which is the least restrict alternative.                                                                              
                                                                                                                                
REPRESENTATIVE  KERTTULA  maintained  that the  department  could                                                               
still require any other relevant  information.  She surmised that                                                               
it  doesn't  really  depend  upon   the  contradicting  power  of                                                               
"scientific   evidence"  over   "local  knowledge"   because  the                                                               
department  can  still  trump  [the  situation]  because  it  can                                                               
require any other relevant information.                                                                                         
                                                                                                                                
COMMISSIONER HARTIG reminded the  committee that these provisions                                                               
refer  to the  approvability  of the  plans  and the  enforceable                                                               
policies that are part  of the plans.  He said  he hasn't heard a                                                               
complaint in the past.   Commissioner Hartig explained that first                                                               
there would  need to  be a reason  to evaluate  the alternatives.                                                               
Therefore,  the  test  of relevancy  would  protect  the  coastal                                                               
districts.   Furthermore,  there  are portions  of  the act  that                                                               
require DNR  to assist  coastal districts.   He opined  that it's                                                               
difficult to  respond to  the real risk  without a  real example,                                                               
particularly   since  that   concern   wasn't  expressed   during                                                               
negotiations.                                                                                                                   
                                                                                                                                
10:58:57 AM                                                                                                                   
                                                                                                                                
REPRESENTATIVE   KERTTULA  returned   to  Commissioner   Hartig's                                                               
earlier caribou example and posed  that local knowledge says that                                                               
caribou  are in  a particular  area whereas  scientific knowledge                                                               
says the  caribou are in  another area.   Representative Kerttula                                                               
said  that she  didn't understand  why it  would be  necessary to                                                               
undercut   the  existing   [regulatory]   definition  of   "local                                                               
knowledge"  with  the requirement  found  in  CSHB 106(FIN)  that                                                               
local  knowledge  isn't   contradicted  by  scientific  evidence,                                                               
particularly since  local knowledge can ultimately  be trumped by                                                               
the department.  In Section  8 the aforementioned is accomplished                                                               
by  the following  requirement:   "any  other relevant  factors."                                                               
Ultimately,  the   department  maintains  authority   over  these                                                               
decisions and local knowledge is merely one factor to review.                                                                   
                                                                                                                                
COMMISSIONER HARTIG,  continuing with  the caribou  example, said                                                               
there may be  local knowledge that the caribou  utilize a certain                                                               
migratory route, although there may  be no scientific evidence of                                                               
that at the time.  If  that local knowledge met the definition in                                                               
CSHB 106(FIN)  such that  the local knowledge  is based  on local                                                               
observations  and  is consistently  accepted  by  members of  the                                                               
community, then "it's in."   However, there could be concern that                                                               
the  aforementioned could  cause a  certain area  of the  coastal                                                               
district to  become off  limits to some  activity in  the future,                                                               
and may desire further testing of  that local knowledge.  A study                                                               
could be  performed, although it would  have to meet the  test of                                                               
scientific evidence.   If that scientific  evidence was produced,                                                               
then there would  have to be review as to  whether there is truly                                                               
a  conflict  between  the  local  knowledge  and  the  scientific                                                               
evidence.  Commissioner Hartig said,  "There is a path there, ...                                                               
people  know  that  absent  ...  truly  contradicting  scientific                                                               
evidence, the local knowledge is going  to be used."  The balance                                                               
is that  scientific evidence has  to have  what he regarded  as a                                                               
high hurdle.                                                                                                                    
                                                                                                                                
11:03:08 AM                                                                                                                   
                                                                                                                                
CHAIR OLSON  pointed out that  there are studies  that contradict                                                               
each other.   Therefore,  he questioned  how the  department will                                                               
decide which study carries more weight and prevails.                                                                            
                                                                                                                                
COMMISSINER HARTIG  said that although he's  not the commissioner                                                               
of  DNR,  he  deals  with the  matter  [of  conflicting  studies]                                                               
regularly]  in  the environmental  arena.    He highlighted  that                                                               
before "scientific evidence"  can be considered it  must meet the                                                               
definition set out in proposed  Section 20(17)(A)-(C)(1)-(3).  In                                                               
regard to the  earlier mention of a junior  scientist producing a                                                               
photograph  for scientific  evidence, that  photograph must  meet                                                               
the requirements  specified in the  aforementioned section.   The                                                               
idea with the requirements of  Section 20(17)(A)-(C)(1)-(3) is to                                                               
narrow the scope  in hopes of eliminating  the competing science.                                                               
Practically speaking,  it would be  left to  DNR to bring  in the                                                               
expertise  of other  agencies and  experts and  have the  parties                                                               
bring in their  own experts for review through  the permitting or                                                               
ACMP   process  to   determine  the   best  science.     If   the                                                               
aforementioned can't  be accomplished,  then more studies  can be                                                               
required.                                                                                                                       
                                                                                                                                
11:06:40 AM                                                                                                                   
                                                                                                                                
CHAIR  JOHNSON  inquired   as  to  the  process   when  there  is                                                               
conflicting local knowledge.                                                                                                    
                                                                                                                                
COMMISSIONER   HARTIG    indicated   he   would    answer   [upon                                                               
reconvening].                                                                                                                   
                                                                                                                                
11:08:15 AM                                                                                                                   
                                                                                                                                
CHAIR JOHNSON recessed to the call of the chair at 11:08 a.m.                                                                   
                                                                                                                                
12:41:01 PM                                                                                                                   
                                                                                                                                
CHAIR JOHNSON reconvened the hearing at 12:41 p.m.                                                                              
                                                                                                                                
12:41:17 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE HERRON  inquired as  to why  it's so  important to                                                               
include the  language of Section  20(16)(c) in the  definition of                                                               
"local knowledge"  when clearly the  state has the  advantage, as                                                               
illustrated in AS 46.40.030 and AS 46.40.                                                                                       
                                                                                                                                
COMMISSIONER  HARTIG  directed   attention  to  proposed  Section                                                               
15(a)(2)(B),  which relates  to situations  in which  the coastal                                                               
district wants to  adopt an enforceable policy  that is otherwise                                                               
within  the jurisdiction  of a  federal or  state agency  to set.                                                               
The aforementioned applies to agencies  other than DEC because of                                                               
the DEC  carveout.  He  then highlighted the language  of Section                                                               
15(b)(1)(A),  which  is  strong  language  that  addresses  those                                                               
situations  in  which  there is  a  proposed  enforceable  policy                                                               
that's within a  federal or state agency's authority to  set as a                                                               
standard.   Therefore,  it's  not  "in the  full  field" that  he                                                               
discussed  earlier  regarding the  use  of  local knowledge,  but                                                               
rather is a subset of that.                                                                                                     
                                                                                                                                
12:45:08 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE HERRON  opined that  for him and  his constituents                                                               
the  terms "local  knowledge" and  "scientific evidence"  in CSHB
106(FIN)   are   necessary.      However,   the   language   "not                                                               
contradicted" in  Section 20(16)(C) is  of concern.   He informed                                                               
the  committee   that  he  had   discussed  replacing   the  "not                                                               
contradicted"  language with  "non  contradicted" and  "supported                                                               
by".                                                                                                                            
                                                                                                                                
COMMISSIONER HARTIG  mentioned that  during discussions  with the                                                               
Senate  regarding CSHB  106(FIN), the  Senate was  told that  the                                                               
definitions   and    the   DEC   carveout    were   "must-haves."                                                               
Furthermore,  there  were  no such  discussions  with  the  House                                                               
[regarding potential language changes  to the definitions and the                                                               
DEC carveout].    Commissioner Hartig said he  isn't prepared nor                                                               
authorized   to  negotiate   such   language   changes  [to   the                                                               
definitions].                                                                                                                   
                                                                                                                                
REPRESENTATIVE   HERRON  recalled   that  the   commissioner  had                                                               
characterized the language "not contradicted"  as clumsy.  If the                                                               
language  is the  crux of  the legislation,  then he  opined that                                                               
it's the  responsibility of the  committee to work  on developing                                                               
language that will work for both bodies.                                                                                        
                                                                                                                                
12:48:48 PM                                                                                                                   
                                                                                                                                
SENATOR WIELECHOWSKI  inquired as to  the impact to the  state if                                                               
HB 106 doesn't pass and the  ACMP lapses.  He further inquired as                                                               
to   whether  the   aforementioned  is   something  the   Parnell                                                               
Administration supports.                                                                                                        
                                                                                                                                
COMMISSIONER  HARTIG clarified  that the  governor wants  to have                                                               
the ACMP  in place.   What began as  a simple extension  has gone                                                               
through  months of  negotiations and  much effort.   Commissioner                                                               
Hartig  felt  that the  ACMP  has  value  in terms  of  providing                                                               
federal funds to the state,  which results in jobs and additional                                                               
planning funds.   He  estimated that about  $1.2 million  goes to                                                               
various communities for planning.   Through the ACMP there's also                                                               
the  opportunity  to involve  people  in  the process  early  on,                                                               
although there are  other ways to do so.   Furthermore, there are                                                               
federal activities in federal waters  that must show [compliance]                                                               
with the  ACMP.   Due to  the DEC  carve, DEC's  spill prevention                                                               
standards  are   the  state's  enforceable  policies   for  spill                                                               
prevention.  Therefore, Outer  Continental Shelf (OCS) activities                                                               
are   reviewed  for   consistency  with   DEC  spill   prevention                                                               
standards, which  are in  most cases  more rigorous  than federal                                                               
standards.   The  aforementioned provides  a layer  of protection                                                               
and a  voice in  the process.   Commissioner Hartig  offered that                                                               
without ACMP some  of those primary benefits  could be replicated                                                               
by the state while others couldn't be replicated.                                                                               
                                                                                                                                
12:51:34 PM                                                                                                                   
                                                                                                                                
CHAIR  OLSON  inquired  as  to whether  the  governor  will  veto                                                               
coastal  management  legislation  that's   similar  to  SCS  CSHB
106(FIN).    If   the  commissioner  is  unable   to  answer  the                                                               
aforementioned, he inquired as to  what Commissioner Hartig would                                                               
recommend to the governor.                                                                                                      
                                                                                                                                
COMMISSIONER  HARTIG  opined  that the  governor's  position  was                                                               
fairly clear in  the letter he sent to Senator  Hoffman and which                                                               
was forwarded to the entire  body.  Commissioner Hartig expressed                                                               
concern  that  there  will  be  focus on  one  item  rather  than                                                               
considering  [the  legislation]  on  balance.    The  letter,  he                                                               
further  opined,  provides  clear  guidance with  regard  to  the                                                               
definitions.                                                                                                                    
                                                                                                                                
CHAIR  OLSON  acknowledged   that  there  have  been   a  lot  of                                                               
negotiations  with the  governor  over the  last several  months.                                                               
However, he emphasized that [folks  having been trying] to have a                                                               
voice over the last five years,  which has been frustrating.  The                                                               
aforementioned  is  likely  why   both  sides  have  been  fairly                                                               
determined to address key issues.                                                                                               
                                                                                                                                
12:53:25 PM                                                                                                                   
                                                                                                                                
REPRESENTATIVE KERTTULA related that  she, too, wants the program                                                               
to  survive,  but  expressed concern  that  the  two  independent                                                               
definitions from  the regulations have  been mixed in  the manner                                                               
before the committee today.   She then echoed her earlier remarks                                                               
that every time local knowledge  is mentioned in the legislation,                                                               
the  state  retains  the  right to  trump  local  knowledge  when                                                               
necessary.   Therefore, she questioned  why it's necessary  to do                                                               
this.  She  expressed hope that the governor  and the legislature                                                               
work together  to develop a  compromise in the language  and save                                                               
this program, albeit what's being  argued about are the scraps of                                                               
the former  program.   Still, Representative  Kerttula maintained                                                               
that  there  is enough  left  to  have  a robust  and  meaningful                                                               
program.   In fact,  she surmised  that there  will be  places in                                                               
which the  state agencies will  want to allow local  knowledge to                                                               
prevail.   In conclusion, Representative Kerttula  expressed hope                                                               
that there is a way to work out the language.                                                                                   
                                                                                                                                
12:55:07 PM                                                                                                                   
                                                                                                                                
CHAIR JOHNSON  remarked that  all the  language, save  the sunset                                                               
date could be  deleted.  He opined that  the aforementioned might                                                               
be acceptable to everyone.                                                                                                      
                                                                                                                                
CHAIR  OLSON noted  that the  governor  might not  be happy  with                                                               
that.                                                                                                                           
                                                                                                                                
12:55:34 PM                                                                                                                   
                                                                                                                                
CHAIR OLSON moved that the committee adopt SCS CSHB 106(FIN).                                                                   
                                                                                                                                
12:55:54 PM                                                                                                                   
                                                                                                                                
CHAIR JOHNSON then recessed to the call of the chair.                                                                           
                                                                                                                                
1:08:04 PM                                                                                                                    
                                                                                                                                
CHAIR JOHNSON reconvened the meeting.                                                                                           
                                                                                                                                
1:08:12 PM                                                                                                                    
                                                                                                                                
CHAIR OLSON withdrew his motion to adopt SCS CSHB 106(FIN).                                                                     
                                                                                                                                
1:08:20 PM                                                                                                                    
                                                                                                                                
CHAIR  OLSON posed  a scenario  in which  two scientific  studies                                                               
contradict each other, but one was  determined to be invalid.  In                                                               
this  case would  the  invalid study  trump  local knowledge,  he                                                               
asked.                                                                                                                          
                                                                                                                                
COMMISSIONER HARTIG said  that he would have to  think about that                                                               
further.  The definitions are  there to guide the agencies, which                                                               
can  request more  information and  study.   Commissioner  Hartig                                                               
then offered that  the first question would be  whether both meet                                                               
the  definition of  scientific  evidence.   If  that's the  case,                                                               
additional study may  be required.  Ultimately, it's  left to the                                                               
agency's discretion through a public process.                                                                                   
                                                                                                                                
CHAIR OLSON  surmised then  that the answer  is yes,  the invalid                                                               
study would trump local knowledge.                                                                                              
                                                                                                                                
COMMISSIONER  HARTIG replied  yes,  but noted  that  there are  a                                                               
number of steps  prior to reaching that point,  such as requiring                                                               
more studies.                                                                                                                   
                                                                                                                                
1:10:21 PM                                                                                                                    
                                                                                                                                
CHAIR  JOHNSON, continuing  to refer  to Chair  Olson's scenario,                                                               
inquired  as  to  how  local   knowledge  would  marry  into  the                                                               
scientific studies.                                                                                                             
                                                                                                                                
COMMISSIONER HARTIG explained that  first the scientific evidence                                                               
being offered  would be  reviewed in terms  of whether  it passes                                                               
the definition and if it  does, that scientific evidence would be                                                               
used.  Second, if local  knowledge passes the definition, then it                                                               
can be used.  In a scenario  in which there is a conflict between                                                               
one  piece   of  scientific  knowledge   and  another   piece  of                                                               
scientific knowledge  and there's  a conflict  between scientific                                                               
knowledge and  local knowledge, there would  be opportunities for                                                               
additional input,  studies.  However, ultimately  the agency will                                                               
have to make a decision with  regard to which piece of scientific                                                               
evidence  is  more persuasive  and  determine  whether that's  in                                                               
conflict  with   the  local  knowledge   and  if  so,   then  the                                                               
[scientific evidence] could trump that.                                                                                         
                                                                                                                                
1:12:43 PM                                                                                                                    
                                                                                                                                
SENATOR WIELECHOWSKI related his  understanding that the language                                                               
means that any  scientific evidence, as defined  by statute, that                                                               
contradicts local  knowledge makes it impossible  for agencies to                                                               
consider  local  knowledge.    He  highlighted  the  language  of                                                               
Section 7(b)(3),  and reiterated his understanding  that if there                                                               
is science  that contradicts local knowledge,  then consideration                                                               
of local  knowledge is essentially  removed and can't  legally be                                                               
considered.                                                                                                                     
                                                                                                                                
COMMISSIONER  HARTIG clarified  that it's  only when  there is  a                                                               
direct  and substantial  conflict.   In the  hypothetical caribou                                                               
migration situation, local knowledge would  be used so long as it                                                               
passes  the definition  test.   However, if  the local  knowledge                                                               
reaches a  point where  there is a  conflict with  the scientific                                                               
evidence, then the local knowledge  isn't used on that particular                                                               
issue.                                                                                                                          
                                                                                                                                
1:14:36 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE KERTTULA  said she  believes that's  what everyone                                                               
wants to have happen, but that's  not what the statute says.  She                                                               
pointed to the "not contradicted  by" in the definition of "local                                                               
knowledge" in Section 20(16)(C).                                                                                                
                                                                                                                                
1:15:05 PM                                                                                                                    
                                                                                                                                
SENATOR KOOKESH told  the committee that 10  years of subsistence                                                               
battles  with which  he was  involved are  similar to  this.   He                                                               
opined that  [the legislature] wants  to use local  knowledge and                                                               
have  local input,  but he  doesn't  believe this  administration                                                               
wants to use  it.  Senator Kookesh said, "For  the record ... the                                                               
administration  does not  want to  use local  knowledge and  will                                                               
find  every   way  not  to   use  it."     He  opined   that  the                                                               
aforementioned is unfortunate because  those in rural Alaska want                                                               
to find a way to have local  knowledge be counted as a factor and                                                               
on equal  footing.   However, this  legislation doesn't  allow it                                                               
and the administration doesn't want it to happen, he said.                                                                      
                                                                                                                                
1:15:54 PM                                                                                                                    
                                                                                                                                
CHAIR JOHNSON interjected his belief  that all Alaskans, not just                                                               
rural Alaskans,  want local  input in  resource development.   He                                                               
indicated  his  opposition to  characterizing  this  as an  urban                                                               
versus rural conflict.                                                                                                          
                                                                                                                                
SENATOR KOOKESH  stated that this  issue revolves  around coastal                                                               
zones in Alaska, which are mostly populated by Native Alaskans.                                                                 
                                                                                                                                
CHAIR JOHNSON  noted that  he lives  in a  coastal zone  in which                                                               
half the population of the state resides.                                                                                       
                                                                                                                                
1:16:36 PM                                                                                                                    
                                                                                                                                
CHAIR JOHNSON recessed to the call of the chair at 1:16 p.m.                                                                    
                                                                                                                                
4:52:05 PM                                                                                                                    
                                                                                                                                
CHAIR JOHNSON reconvened the meeting at 4:52 p.m.                                                                               
                                                                                                                                
4:52:17 PM                                                                                                                    
                                                                                                                                
CHAIR  OLSON moved  to adopt  SCS  CSHB 106(FIN)  and insert  the                                                               
language of CSHB  106(FIN) on page 14, lines 10-14  and lines 16-                                                               
29 and add the following paragraph in Section 6 as follows:                                                                     
                                                                                                                                
     (5)  in  administering   AS  46.40,  address  conflicts                                                                    
     between  local  knowledge  and scientific  evidence  by                                                                    
     determining  the relative  strengths of  the scientific                                                                    
     evidence   and  the   evidence  supporting   the  local                                                                    
     knowledge,  and  render  a written  decision;  in  this                                                                    
     paragraph "local  knowledge" and  "scientific evidence"                                                                    
     have the meanings given in AS 46.40.210.                                                                                   
                                                                                                                                
There being no objection, it was so ordered.                                                                                    
                                                                                                                                
4:54:00 PM                                                                                                                    
                                                                                                                                
CHAIR JOHNSON  explained that  although the  Conference Committee                                                               
on HB 106 doesn't have limited  powers of free conference at this                                                               
time, the committee  intends to act in  anticipation of receiving                                                               
limited powers of free conference.                                                                                              
                                                                                                                                
4:54:38 PM                                                                                                                    
                                                                                                                                
CHAIR  OLSON moved  to adopt  the  CCS HB  106.   There being  no                                                               
objection, it was so ordered.                                                                                                   
                                                                                                                                
4:55:16 PM                                                                                                                    
                                                                                                                                
CHAIR JOHNSON announced a brief recess.                                                                                         
                                                                                                                                
4:56:00 PM                                                                                                                    
                                                                                                                                
CHAIR  OLSON  made  a  motion  to  grant  Legislative  Legal  and                                                               
Research Services  the authority to make  all necessary technical                                                               
and  conforming changes  to reflect  the committee's  work today.                                                               
There being no objection, it was so ordered.                                                                                  

Document Name Date/Time Subjects