Legislature(2007 - 2008)BELTZ 211
02/07/2008 03:30 PM Senate COMMUNITY & REGIONAL AFFAIRS
| Audio | Topic |
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| Start | |
| SB161 | |
| SB235 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 161 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 235 | TELECONFERENCED | |
SB 161-COASTAL MANAGEMENT PROGRAM
CHAIR OLSON announced the consideration of SB 161. The committee
substitute, Version 25-LS0883\C, was before the committee.
SKIP RYMAN, Manager, City and Bureau of Yakutat, said he served
as Yakutat's planner and its coastal district coordinator. When
Alaska decided to participate in the Coastal Management Program
it chose to use a model of multiple separate districts. The
state could have chosen a single statewide umbrella plan, but
Alaska's diversity made that impossible. The Northwest Arctic is
radically different from Southeast Alaska, for example. He
recalled Governor Murkowski eliminating the DGC [Division of
Governmental Coordination] and the Coastal Policy Council, and
then centralizing habitat and permitting functions within the
Department of Natural Resources (DNR). Those actions were
portrayed as a streamlining effort in order to make permitting
less complicated for developers. As the administration's efforts
took shape, it became obvious that it was the individual coastal
districts that were viewed as impediments to development, and
the actual goal was the muting and the elimination of their
voice in development issues.
MR. RYMAN said HB 191 was an honest attempt to reduce
bureaucracy and was never an attempt to eliminate participation
by Alaskans in development issues. But that was the intent of
many regulations that followed the bill. He said he attached a
position letter on the draft environmental impact statement for
approval of amendments to the Alaska Coastal Management Program.
It is signed by him for the City and Borough of Yakutat and by
Bert Adams for the Yakutat Tlingit Tribe. The letter expresses
their position on the issue. SB 161 seeks to reestablish full
participation of Alaskans in their affairs, and he extended
Yakutat's support for SB 161, including the reestablishment of
the Coastal Policy Council.
3:43:49 PM
MARLENE CAMPBELL, Director, Government Relations, City and
Borough of Sitka, said she has been the coastal management
coordinator and has been around for the entire revision process.
"I can only thank anyone who has had anything to do with the
development of SB 161, and especially sponsor Senator Olson for
the major step in the right direction." Sitka used to be
extremely proud of its coastal program as a responsive
supportive entity, working with developers while protecting the
environment in the coastal zone. That relationship changed with
the onset of HB 191, and it further changed with the forced
revision of Sitka's coastal plan, which removed any effective
policies related to subsistence or habitat "or most of the other
areas within our coastal plan that had been so helpful to us …
in developing workable compromises for taking care our local
area." Sitka's coastal district is 4,710 square miles.
MS. CAMPBELL thanked Senator Olson for sponsoring the bill. She
strongly supports broadening public involvement in permitting;
it is especially true with the Department of Environmental
Conservation (DEC), which is now reviewing air, land, and water
quality permits with absolutely no communications with the
coastal districts or the public. Legislation requiring a public
process for DEC permits will provide an "excellent ability for
the communities to reconnect with the permit process." The
subsistence component is important and is mentioned in Sitka's
coastal plan, "but we have not been able to effectively
promulgate any enforceable polices related to it." Reconnecting
subsistence with the coastal plan is very important to all
communities that feel strongly about subsistence uses.
3:47:19 PM
CHAIR OLSON asked about future coastal development in Sitka.
MS. CAMPBELL said there is ongoing development, but there is
nothing large scale like a big mine in the immediate future. But
any current development is outside the ability of Sitka's
coastal managers to comment effectively, and it is outside the
public's ability to be notified. "I'm no longer up to speed on
what may be happening, and I think this legislation will go a
long way to, at least, providing public notice of those kinds of
situations." Sitka could use some development, she opined.
CHAIR OLSON asked if the plan was approved.
MS. CAMPBELL said it was approved in April.
3:48:30 PM
MARV SMITH, Community Development Coordinator and Coastal
Coordinator, Lake and Peninsula Bureau, Iliamna, said he
supports SB 161 because it reestablishes the Coastal Policy
Council and gives the district a say in consistency reviews.
Presently, air, land, and water quality is not included, making
it difficult to do consistency reviews properly. The local
districts do not have the power to adopt meaningful enforceable
policies. In comparing the old plan with the new one for his
borough, it is significantly different. Local people should have
input. There is development in the area that is detrimental to
the communities, and "we want to have the local input." The plan
under the previous administration did not consider all the
ramifications. All 17 communities of the borough are on
freshwater or saltwater. Fishing is an important livelihood, and
the communities should have input on how the coastal zone can be
developed. SB 161 heads in that direction.
3:51:06 PM
CHAIR OLSON asked if any recent developments have been affected
by the past administration.
MR. SMITH said there will be a big one in the future.
CHAIR OLSON asked what difficulties the district will encounter.
MR. SMITH said the bill will give the local governments some
say-so in what development goes on in their coastal districts.
His district is trying to use statewide standards when a coastal
consistency review comes before it. The planning commission was
presented with a project for review under those standards "and
they simply said we need to go back to the old plan."
3:52:41 PM
CHAIR OLSON asked if his coastal plan has been approved.
MR. SMITH said they are waiting for it to be approved and hope
it will be approved soon.
SENATOR STEVENS said before HB 191 there was a council "in
control of things." Now the department seems to be running
things. Communities keep saying that there is no forum or role
for the locals in policy development. Is there some middle
ground? Is the best answer to go back to the previous policy
council? Or is there "some middle way of including communities
and still keeping the department involved?" Some testifiers say
they don't want to change the day-to-day operations of the
department, they just want more balance and to be at the table.
3:54:28 PM
MR. SMITH said being at the table is very, very important. He
said to go back is not the answer, but suggested molding what is
present into something that will work for everybody. The current
plan has been a lot of hard work. Maybe the present regulations
need to be tweaked. He can't answer whether the state must have
the council, but it was made up of locals who understood what
happens and could convey that to the staff. That was a good
working relationship. He is not 100 percent sure it will work.
Having that local input to the DNR staff is a great asset. There
was also a working group, which is also gone. The people at the
local level can give critical input.
3:56:01 PM
SENATOR STEVENS said he is struggling with it, and this
committee may not be the place to go over the details of how a
council would be created. He suggests passing it to the
Resources Committee. It is an important issue and he has heard
both sides. The department felt they had no control of the
outcome, and the local districts had no place at the table.
DAN EASTON, Deputy Commissioner, Department of Environmental
Conservation (DEC), said he will focus on the "DEC carve-out"
that will be removed by the bill and on single agency reviews.
He has an incomplete understanding of SB 161. The DEC carve-out
has two parts: "a definition that says that the DEC standards
for air quality, water quality, and solid waste disposal, as
well as spill prevention and response planning, are the sole
enforceable policies of the ACMP for those purposes." The second
part is when DEC issues a permit for an activity, it establishes
that activity as consistent with those ACMP policies. So "when
we issue a permit, that establishes consistency automatically
with those policies." The effect is that project activities that
require a permit from DEC are not subject to the ACMP process -
they are carved out from the ACMP process. Current law reflects
the thought that DEC has the duty to interpret the state
environmental standards, "and that DEC would authorize only
activities that comply with those standards."
4:00:31 PM
MR. EASTON said, "Because the state environmental standards are
the only enforceable ACMP policies for those purposes, DEC
authorization is both necessary and sufficient to establish
consistency with the ACMP standards." That carve-out is removed
by SB 161. DEC's authorizations typically include air emissions,
water discharge, and pesticide permits, and approvals for oil
spill prevention and response/contingency plans. When DEC issues
an authorization, those activities aren't subject to ACMP review
but are subject to an administrative process of public notice
and comment. The permitting decisions are subject to
administrative and judicial appeals processes, "so it may not be
an ACMP process, but it's not a closed process either."
4:01:42 PM
MR. EASTON said when DEC is the only permitting authority for a
project, it determines if it should go through an ACMP review,
but only for activities that are not carved out. Any project
could have parts that would be subject to an enforceable
district policy, and it is up to DEC to make a decision with
DCOM as to whether there are parts of the project that should be
subject to local district review. "We have internal guidance
that tells us how to operate this process." The first step is
sending a letter to the coastal district, and it includes
project information and asks the district to identify any
enforceable policies that it has. If there are none, there is no
ACMP review. If the district says there are enforceable
policies, and if DEC agrees with that, DEC will subject the
project to an ACMP review for the purposes of deciding whether
or not these other parts of the project - those beyond DEC's
permits - are consistent with coastal district policies. "Our
actual experience with these single agency reviews is limited,
largely because there have been so few approved, effective
coastal management plans." Since the carve-out has been in
effect, DEC has only sent out 11 project scope letters to
districts to see if any enforceable policies applied. Of those,
one ACMP review was conducted. As more district plans are
approved, the number of project scope letters and single agency
reviews that DEC will conduct will increase.
4:04:20 PM
MR. EASTON said SB 161 "retains the part of the carve-out - the
provision that the DEC environmental standards as established by
statute and regulation are the sole enforceable policies of the
ACMP for those purposes -- but the bill eliminates the second
part of the carve-out, such that no longer would simply our
authorization of an activity establish that activity as
consistent with the ACMP program." That change will have unclear
impacts. DEC would continue to develop permits and other
authorizations, "but it would appear that the Coastal Policy
Council would also be called on to determine whether permitted
activities comply with state environmental standards." That
potential transfer of authority concerns him.
CHAIR OLSON asked how DEC will make sure there's not a
subjective issue when it approves plans. "You had stated that in
order for some of these plans to be consistent -- and this bill
does away with that consistency -- isn't there a subjective
element to that that is what got us to where we are today?"
MR. EASTON said there are two parts to consistency. One is: "Is
a project … consistent with the DEC standards?"
CHAIR OLSON said that part is still in place with SB 161.
MR. EASTON said DEC attorneys don't advise it that way. That is
the question. "We actually read … that now this is no longer.
While that standard remains, and there's a statement in statute
to that effect, that the Coastal Policy Council, now, would …
also have say as to whether an activity complies with the state
air quality standards, for example. That's what worries us. At
least it's a question we have."
4:07:01 PM
LINDSAY WOLTER, Assistant Attorney General, Environmental
Section, Department of Law, said page 11 refers to the DEC
carve-out. DEC has statutes and regulations as their exclusive
enforceable policy of the ACMP, but (d) on Page 11 refers to the
extent that DEC doesn't cover certain projects, the coordinating
agency shall review all project activities to ensure consistency
with water and air. That is where the confusion is raised. "What
does it mean to the extent that DEC doesn't cover the topic?"
"We're not sure how it would be interpreted."
CHAIR OLSON asked how subjective that is since there is not a
clear interpretation.
MS. WOLTER asked if the program has been subjective to date.
CHAIR OLSON said if there is confusion in the interpretation of
what Mr. Easton was alluding to, then that makes it a subjective
issue.
MS. WOLTER said she is not sure of the question, but it is not
clear what (d) does in relation to (b). It seems that DEC's
statutes and regulations are the exclusive enforceable policy
for the ACMP, but then (d) opens up the scope of any review,
saying that, to the extent that those statutes and regulations
don't apply, then all project activities will be reviewed to be
consistent with statewide standard enforceable policies, which
are the local policies. She questioned what that means.
4:10:37 PM
SENATOR WAGONER said it looked like Mr. Easton wanted to say
"we're having conflicting or dueling groups, because you might
make a decision, and then this group would have the authority to
review that decision and take further action on your decision."
MR. EASTON said that is correct.
SENATOR WAGONER said that is counter productive to what the
legislature tried to do when a bill was passed three years ago.
MR. EASTON said it is not entirely clear at this point that that
will be the effect. It is muddled, "and we worry that that would
be the effect, but it's just not that clear."
4:11:49 PM
SENATOR WAGONER said that is how he interpreted it.
SENATOR THOMAS said he is confused about "section (d)". It
appears "that either somebody has a lot of foresight and that
they're looking forward to issues that may not necessarily be
considered in those particular statutes that deal with
predominantly the DEC, or that, for whatever reasons, they want
to create confusion and allow it to get channeled back to the
more local communities." "Is that not, at least, one
interpretation that people were looking forward to things that
may not necessarily have been covered, and that was the reason
for putting this language in, that if it wasn't, that they still
had the opportunity to participate in the process?"
MR. EASTON asked what he was referring to.
SENATOR THOMAS said he is talking about small (d) on lines 22 to
26 on Page 11.
4:13:39 PM
MR. EASTON said it is a bit complex. Section 16 is the new
subsection (b). State environmental standards allow effects on
resources, so the water quality standards allow some change in
water quality. It depends on the circumstances, but it is not a
no-change standard. It is the same with air and spills. Reading
the new section (d), he wonders if it is a provision that says
that for the types of changes that would be allowed by state
standards, that the coastal policy council is then required by
(d) to actually look and see if those changes are going to
comply with ACMP standards and enforceable district policies. So
it provides both a second level of review and it invites the
districts to make standards that are more restrictive than state
standards. It is a question and a concern.
SENATOR THOMAS said, "It appears to me that you're
incorporating, to the extent that, those particular statutes do
not take into consideration some potential effect, that you just
have this policy or this procedure that you go through." It
appears to be incorporating existing statute -- not challenging
it. Unless someone is trying to be creative, it does incorporate
existing statute into it, and if something that was not
anticipated pops up, there is this process to address it.
4:16:09 PM
MR. EASTON said the reference to 46.03.0409, 14 and (d), is a
reference to the state statutes that underpin the standard
regulations. DEC develops standards in regulation pursuant to
AS46.03, so it refers to state water and air quality standards.
SENATOR THOMAS said that was his understanding, and "that's why
I figured they were incorporated into the consideration
already." That is why he is confused.
MR. EASTON said, of the loss of the DEC carve-out in SB 161, "it
is probably clear that we continue to develop permits and other
authorizations, but it appears that the Coastal Policy Council
would also be called on to determine whether permitted
activities comply with state DEC environmental standards." That
transfer of authority concerns him. Interpreting standards
requires expertise and oversight by federal agencies. DEC has
engineering and environmental professionals, so it is qualified
as arbiters of state environmental standards. DEC strives to be
consistent and predictable. Involving the council is one effect,
and secondly the bill would require developing procedures to
meld DEC permitting into the ACMP process. "I hear that
discussed a lot, as if maybe that was the sole effect of the
bill, and again, we wonder about that." Bringing the DEC
permitting process under the ACMP process without subrogating
DEC authority to the council seems possible, but it would
require an amendment.
4:20:03 PM
MR. EASTON said the bill eliminates 46.40.040 (b)(2), which
establishes the standards for judging ACMP consistency for
activities in the OCS [outer continental shelf] and activities
outside of state jurisdiction. "By eliminating that direct
statement of what the standards are to be used in the OCS, it
creates a question of what standards are intended to be applied
outside of state waters." The bill appears to do much more than
"return activities authorized by DEC procedurally to the ACMP
process." It raises questions as to the role of DEC and the
Coastal Policy Council in the application of DEC statutes and
regulations. It appears to invite ACMP standards that are
different from DEC regulations and from one coastal area to
another. The bill also removes the state environmental standards
as a basis for determining coastal consistency in the OCS. He
acknowledged that the coastal districts have been adversely
impacted through changes in the ACMP process, and it needs to be
addressed. There is opportunity to improve the procedural nexus
between the ACMP process and the DEC process, "and we would
welcome an opportunity with DNR to work on such improvements."
4:22:38 PM
SENATOR STEVENS said that Mr. Easton has heard the same concerns
he has heard from the local districts. They don't have a seat at
the table and can't comment on projects. "You have said, very
clearly, that this is something that we must address." "How do
we bring the communities back into this process more, and I
assume your position would be without giving them veto power
over the department?"
MR. EASTON said it is a good question, and he doesn't know. He
defers to DNR as the lead in how to improve the program. His
only interest is the DEC carve-out. "We are interested in making
sure that the districts feel like they have a seat at the table,
at the same time we're very interested in not subrogating our
final authority for interpreting and applying state
environmental standards."
4:24:48 PM
CHAIR OLSON said it looks like there is a fear that DEC
standards will come under the umbrella of ACMP standards, and he
asked if there is a conflict between the two standards.
MR. EASTON said there is no conflict now, because it is clear
that DEC standards are the policies. There is concern that, in
certain areas, the districts may want different standards, and
that could create a patchwork of different standards. It might
not be based on science or subjected to federal approval. It
would not create a good regulatory regime.
SENATOR WAGONER asked how many coastal districts there are and
how many have submitted and approved plans.
4:27:26 PM
RANDY BATES, Director, Division of Coastal and Ocean Management
(DCOM), DNR, said there are 28 participating districts. There is
a federal granting agency (OCRM) that has approval authority
over any program changes Alaska makes. There are 16 coastal
district plans in effect and approved. Four were sent to OCRM,
and he just received notice that those program changes have been
approved. It also approved the transfer of authority to the new
DCOM. Now those four plans will be filed with the Lieutenant
Governor and go into effect 30 days after his signature.
SENATOR WAGONER asked if eight have not been submitted or if
they are being updated.
MR. BATES said Aleutians East, Bristol Bay, and Juneau have
completed their plans and are pending submission to OCRM. The
districts have to clean up those plans and get them in final
form. They have DNR approval. Bering Straits, North Slope
Borough, and Northwest Arctic Borough have chosen to mediate the
decision of the DNR commissioner. The other two, Cordova and
Ceñaliulriit, are going to be submitted.
4:30:43 PM
CHAIR OLSON asked how long those will take.
MR. BATES said for the five that are not mediating, "the
timeframe is largely their doing." As soon as DNR gets a clean
version - incorporating the commissioner's recommendations --
DNR will submit it to the federal agency. That takes two to
three weeks, and OCRM has a 28-day review process that can be
extended. So that is two to three months after getting a clean
plan from Aleutians East, Bristol Bay, Juneau, Ceñaliulriit, and
Cordova.
SENATOR KOOKESH moved the committee substitute for SB 161,
version 25-LS0883\C, Bullock, from committee with individual
recommendations and attached fiscal note(s).
SENATOR WAGONER objected.
A roll call vote was taken. Senators Kookesh, Stevens, Thomas,
and Olson voted in favor and Senator Wagoner voted against.
Therefore, CSSB 161(CRA) passed from committee on a vote of 4:1.
4:35:01 PM
SENATOR STEVENS said he would like to hear about a middle ground
because every community expressed frustration at not being at
the table. He asked DNR to present that to the next committee.
SENATOR KOOKESH said that "middle ground" will need to be
supported by the communities. The department has had a lot of
time to work on this and the communities are still unsatisfied.
CHAIR OLSON said he has not heard a single district happy with
it, and if there was middle ground it should have been put in
place a long time ago.
SENATOR STEVENS said he agrees. He has heard enormous
frustration. In the sponsor statement, Chair Olson said not to
go back to the way things were. It needs discussion.
4:36:43 PM
SENATOR WAGONER said, "I understand some of the reasons. If you
take authority for permitting in certain areas away from local
areas, I understand why they are upset, and that is one of the
reasons they are upset." At the same time, one of the reasons it
was done was because people were having trouble getting permits.
He opposes SB 161 even if it may be a large improvement, "but
until the districts do what they said they would do and get
their plans through, reviewed, and approved and accepted - and
we got all 28 of them that have done that - then if we need to
make some modifications, that's the time to make modifications."
He said some people haven't even complied with the law yet, and
keep getting extensions "for years and years and years." He gets
upset that these people delay and delay and delay. His borough
is one of them. But there comes a time when "you do the work
that you say you will do, and then … if there are problems …
we'll work them out." He said the committee is talking about
passing a new bill when people haven't complied with the bill
that's in place.
4:38:34 PM
CHAIR OLSON said the ability to comply with the old one is
almost impossible. Part of it was the problem that DNR had
hiring people and redoing letterheads. "We need to go ahead and
do something in a timely manner so we have some way to regulate
what's going on out there." Yesterday there was a big sale in
the Chukchi area, and people are upset because they didn't have
any influence. It is federal lands, and that is the reason for
the bill. Over the last six years, "attempt after attempt by
people that I have been in close contact with, have been
frustrated." There is a letter from one of the directors that
said he won't talk about regulation review until June 2009. "I
find that not just upsetting, I find that unreasonable." He said
he offered the bill to get some movement.
4:39:50 PM
SENATOR WAGONER said it is also frustrating to sit here and have
the people say they can't comply. "I can come up with 1,000
different reasons why I can't do something, and sometimes it's a
lot easier to do that than do the work that's requested of me
and then look at it and see if it works or doesn't work and then
go from there."
CHAIR OLSON said that is valid.
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