Legislature(1993 - 1994)

02/11/1994 09:15 AM FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  SB 238:   An  Act  establishing  a procedure  for  review of                 
            proposed   projects   under  the   Alaska  coastal                 
            management program, and relating to petitions  for                 
            compliance  with  and   enforcement  of   district                 
            coastal management programs under that program and                 
            to the disposition of those petitions.                             
                                                                               
            Elizabeth  Kerttula,  Assistant  Attorney General-                 
            General Civil Section,  Juneau office,  Department                 
            of   Law,  and   Dr.  Paul   Rusanowski,  Division                 
            Director, Division  of Governmental  Coordination,                 
            Office of the Governor testified  in support of SB
            238.  Amendments 1 and 2 were ADOPTED.   SB 238 as                 
            amended was REPORTED  OUT of committee with  a "do                 
            pass" and a zero fiscal note for the Office of the                 
            Governor.                                                          
                                                                               
  SENATE BILL NO. 238:                                                         
                                                                               
                                                                               
       An Act establishing a procedure  for review of proposed                 
       projects under  the Alaska coastal  management program,                 
       and  relating  to  petitions for  compliance  with  and                 
       enforcement  of  district  coastal management  programs                 
       under  that  program and  to  the disposition  of those                 
       petitions.                                                              
                                                                               
  CO-CHAIR  PEARCE  announced  that  SB  238  was  before  the                 
  committee.    She  said  that  the  Coastal  Policy  Council                 
  coordinated state  agencies and  local coastal  districts in                 
  reviewing and issuing state permits for proposed development                 
  projects effecting  natural resources in our  coastal zones.                 
  SB 238 clarified when and how certain parties could petition                 
  the Coastal Policy Council during  a Coastal Zone Management                 
  Program consistency review.  SB 238 corrected a problem that                 
  occurred  when  a petition  was  brought before  the Council                 
  after a final  Commissioner level decision on  a consistency                 
  review  had  been made.    Under current  Coastal Management                 
  Program statutes and regulations, the Resource Commissioners                 
  of the departments  cannot delegate their  responsibility to                 
  participate in the elevation of  a consistency determination                 
  nor may  they delegate their authority to  decide a petition                 
  in a  final consistency determination.  However, as noted in                 
  the informal  AG's opinion that  was included in  the files,                 
  the Commissioners also cannot  sit in both capacities.   The                 
  bill  would add clarification to the  statute to insure that                 
  complaints were heard and addressed in a timely manner.  She                 
  thought  the  bill  insured  that   citizens,  agencies  and                 
  effected  projects  would have  a  voice in  the development                 
  policies in  our coastal areas.  The  bill was proposed as a                 
  result of intensive collaboration between the coastal policy                 
  council  subcommittee,  the  Department  of  Law,   Co-chair                 
  Pearce, and other interested parties.                                        
                                                                               
  Co-chair  Pearce  invited  Dr.  Paul  Rusanowski,   Division                 
  Director, Division  of Governmental Coordination,  Office of                 
  the  Governor, and   Elizabeth Kerttula,  Assistant Attorney                 
  General-General Civil Section, Juneau office, Department  of                 
  Law, to join the members at the table.                                       
                                                                               
  DR. PAUL RUSANOWSKI said that SB  238 addressed a problem in                 
  the Coastal Zone  Management Program as Co-chair  Pearce had                 
  described in that the elevation  process for project reviews                 
  depended upon  an elevation review  by the directors  of the                 
  resource agencies, and, if  unresolved, by the commissioners                 
  of  the respective resource agencies.   The project was also                 
  subject to petition to the Coastal Policy Council.  This had                 
  created a due process problem that had been brought to light                 
  by the  Attorney General  opinion and  required a  fix.   In                 
  addressing what appropriate fix  was necessary, the  Coastal                 
  Policy Council  endorsed a statutory  fix after a  very long                 
  consensus building  process with a subcommittee  and working                 
  group.   The fix  proposed was  a major  improvement to  the                 
  overall Coastal Zone  Management Program and to  the dispute                 
                                                                               
                                                                               
  resolution process that was built into  it.  In the proposed                 
  amendment, a project that was undergoing  consistency review                 
  in the Coastal Zone Management Program would be subject to a                 
  consistency review at the regional level which was the first                 
  stage of review.  If it was challenged by one of the parties                 
  withstanding, it would  go to  the director level  elevation                 
  and ultimately to a commissioner level and then on to court.                 
  A crossover would not  be allowed of that project  review to                 
  the Coastal  Policy  Council.   In  lieu of  that  crossover                 
  petition  process   to  the   Coastal  Policy   Council,  an                 
  alternative petition  process had been  incorporated in  the                 
  review  at  either the  regional  consistency review  or the                 
  director level review.  Any of the parties participating  in                 
  the consistency review  or a  member of the  public who  had                 
  commented  on that  project during  the  consistency review,                 
  could petition to the Coastal Policy  Council to insure that                 
  their  comments   that  had   been  submitted   were  fairly                 
  considered in the  consistency review process by  the agency                 
  conducting the  review.   The Coastal  Policy Council  would                 
  review that petition and make a determination which comments                 
  were fairly considered.   If, in the opinion of  the Coastal                 
  Policy Council,  such action  had been  taken, the  petition                 
  would be dismissed.  If the Council  thought a hard look had                 
  not been  taken, they  would remand  the consistency  review                 
  back to the director  or regional level to  reconsider those                 
  comments  in  the  process  and  render  a  new  consistency                 
  determination.  This considerably expanded the participatory                 
  role  of  the public  in the  process  and insured  that the                 
  process conducted by  the agencies did what  the legislation                 
  originally intended and was an improvement in the program.                   
                                                                               
  The  proposal had  a negative  fiscal note.   He went  on to                 
  explain   how  the   savings  to   the  administration   was                 
  accomplished.  At  present, the program  was subject to  the                 
  Alaska Procedures Act (APA) which  required a formal hearing                 
  process for any  petitions.  SB 238 removed  the requirement                 
  for  APA and  allowed an  informal hearing  process  to take                 
  place.  Based on  past petitions, it was estimated  that the                 
  cost  of conducting a  hearing was roughly  $30,000 for each                 
  petition received.  Historically,  one petition was received                 
  a year.  However, the bill also mandated that the  public be                 
  informed of  all consistency  reviews being  conducted.   It                 
  would  be  necessary to  expand  some of  the  public notice                 
  activities presently being  conducted in  the program.   The                 
  best  estimate of projects  that were not  subject to public                 
  notice was approximately  400 out of  1500 to 2000  projects                 
  that  would move  through  the  consistency review  process.                 
  These  were  approximately  equally divided  between  ADF&G,                 
  Environmental  Coordination,  and   DNR.    The  bill   also                 
  incorporated the ability  of the  Coastal Policy Council  to                 
  set the level of public notice to match the level of project                 
  impact within the  coastal zone.   It was  not necessary  to                 
  provide a maximum level of public notice and distribution of                 
  information  on every single  review.  As  a consequence, it                 
                                                                               
                                                                               
  was estimated that roughly 200 of the 400 projects that were                 
  not public noticed now,  would require a public notice  in a                 
  newspaper format.   That  would impact  the present  program                 
  roughly  by $20,000.   The remaining  200 projects  could be                 
  covered   by   district    notification,   posting,    radio                 
  announcements and other forms of  public notification.  That                 
  impact was estimated  to be about  $2,000.  The increase  of                 
  public  notice cost  would  be  approximately  $22,000  over                 
  present activities but by moving out  of the APA process and                 
  allowing informal hearings, it was expected to save $30,000,                 
  making a net savings of $8,000.                                              
                                                                               
  Dr. Rusanowski said he had two amendments to speak to.                       
                                                                               
  In answer to Senator Rieger,  Dr. Rusanowski said the Alaska                 
  Coastal  Policy  Council  was  the  policy body  within  the                 
  Coastal Zone  Management Program  for the  state of  Alaska.                 
  The  Division of  Governmental  Coordination supported  that                 
  group and conducted the consistency reviews on behalf of the                 
  Coastal Policy Council.  In  conducting those reviews, there                 
  was a petition process built  into the program that  allowed                 
  an aggrieved party to petition to the Coastal Policy Council                 
  for actions  that were  inconsistent with  the Coastal  Zone                 
  Management  Program.   Such  petitions  were not  limited to                 
  policy  matters  only  but could  cover  any  aspect of  the                 
  Coastal Zone Management Program.  The Coastal Policy Council                 
  was the board that made the decision as to whether it was or                 
  was  not  consistent   and  what  change  was  needed.    It                 
  authorized all  district programs  that were  in place.   In                 
  order for a program to be  consistent, it must be consistent                 
  with  the program  and  the  enforceable policies,  district                 
  specific.  When a  consistency review was conducted, it  was                 
  the consideration of adopting a  program (a coastal district                 
  program,  an area  meriting special attention,  some special                 
  management unit), or  a project  proposed by an  individual,                 
  the federal government or the state that was being conducted                 
  within a district or within the coastal zone of the state of                 
  Alaska.                                                                      
                                                                               
  Dr. Rusanowski said the program was hierarchial.  There  was                 
  a  federal Coastal  Zone Management  Program in place.   The                 
  state  of  Alaska had  an  approved Coastal  Zone Management                 
  Program under this federal umbrella that  was state wide for                 
  the entire  coast line of  Alaska.   Underneath that  level,                 
  districts or coastal resource service areas could be formed.                 
  Those  districts  had  their  own   programs  that  must  be                 
  consistent with state programs.                                              
                                                                               
  In  answer  to  Senator  Rieger,  Dr.  Rusanowski  said  the                 
  Division  of Governmental  Coordination  was  staff  to  the                 
  Coastal Policy Council.  The  program was originally written                 
  by the legislature  in 1977.   If a district  was formed  to                 
  develop a coastal management program, that district must get                 
  the  approval  of the  Coastal  Policy Council  before their                 
                                                                               
                                                                               
  district  program  could  be adopted.    The  Coastal Policy                 
  Council made the determination that the plan as proposed was                 
  or was not consistent with  the state program and  submitted                 
  it to the federal program for their review.                                  
                                                                               
  Dr.   Rusanowski  said   there  were  seven   state  members                 
  (representatives of the various resource  agencies) and nine                 
  public members (different regions throughout the state) that                 
  made up the Coastal Policy Council.                                          
                                                                               
  BETH KERTTULA  said that  in 1997,  when Alaska  created its                 
  Coastal Management  Program, it  created the  Coastal Policy                 
  Council to be  the body, or  overseer of the whole  program.                 
  It was the authority body in place in the statutes.  It also                 
  created  the  avenue  for  the petition,  so  if  a  coastal                 
  district citizen did not like a  project or an activity that                 
  was taking place, they could petition to the  Alaska Coastal                 
  Policy Council.  This was the  process until 1984, and there                 
  were no regulations  around the petition process.   Governor                 
  Sheffield  did  a permit  reform.   Then  a body  within the                 
  Division  of  Governmental Coordination  was  created  to do                 
  reviews of all  the permits  that required consistency  with                 
  coastal  management  programs.   She  pointed  out  that the                 
  permit process along side the  regulation system created due                 
  process problems.  It made the Commissioner the final judge.                 
  She went on to explain the effect of SB 238.                                 
                                                                               
  Senator Rieger pointed  out the Commissioner would  still be                 
  involved  twice.   Ms.  Kerttula agreed  but  said it  was a                 
  different decision.   She and  Senator Rieger discussed  the                 
  definition of a "hard look."                                                 
                                                                               
  In answer to Senator Kerttula, Dr. Rusanowski said the state                 
  members were the Director  of Office of Management  & Budget                 
  or an alternate,  the Commissioners  of Commerce &  Economic                 
  Development,  Fish  &  Game, Community  &  Regional Affairs,                 
  Environmental   Conservation,    Natural   Resources,    and                 
  Transportation & Public Facilities.  He said they had to sit                 
  and could  not appoint  alternates.   Co-chair Pearce  added                 
  that the nine public members were appointed by the  Governor                 
  from a list of nominees from each district.                                  
                                                                               
  Co-chair Pearce gave some  history to the problems  that had                 
  been on-going for years.                                                     
                                                                               
  In  answer  to  Senator Kerttula,  Dr.  Rusanowski  said the                 
  public members had to be elected officials of some kind.                     
                                                                               
  Senator  Kerttula  MOVED   amendment  1.    Dr.   Rusanowski                 
  explained  that  amendment 1  addressed  a concern  that was                 
  expressed  that  a   reasonable  period   of  time  was   an                 
  appropriate  designation  but  too  vague  to  allow  speedy                 
  resolution.   It  had  not been  resolved  in the  consensus                 
  process  and this amendment inserted the words "But not more                 
                                                                               
                                                                               
  than 30 days shall elapse between the filing of the petition                 
  and  the decision  of the Council"  on page  4, line 6.   In                 
  answer to Senator Rieger, Dr.  Rusanowski felt that 30  days                 
  was reasonable.   No objection being heard,  amendment 1 was                 
  ADOPTED.                                                                     
                                                                               
  End SFC-94 #23, Side 1                                                       
  Begin SFC-94 #23, Side 2                                                     
                                                                               
  Senator  Kerttula   MOVED  amendment  2.     Dr.  Rusanowski                 
  explained amendment  2 was a  technical amendment.   He said                 
  anyone could  petition  on a  policy  issue to  the  Coastal                 
  Policy Council.  In  the petition process of taking  a "hard                 
  look" it was restricted to the  public that had commented on                 
  the project during the public comment period.  Because these                 
  two different groups  occurred, both  need to be  referenced                 
  and that  was what amendment 2  did.  Discussion was  had by                 
  Senator Rieger and Dr. Rusanowski  regarding amendment 2 and                 
  the parties  involved.   No further  objection being  heard,                 
  amendment 2 was ADOPTED.                                                     
                                                                               
  Co-chair  Pearce announced  the teleconference  part  of the                 
  meeting   would  begin  and   introduced  Steve   Porter  in                 
  Anchorage.                                                                   
                                                                               
  STEVE PORTER, Arco Alaska, testified via teleconference from                 
  Anchorage in support of SB 238 as amended.  He said he was a                 
  member  of the  advisory committee,  and the  bill  had been                 
  under review for  at least four years.  He felt the bill was                 
  a consensus document most people could support.                              
                                                                               
  WILLIE GOODWIN, former member of the Coastal Policy Council,                 
  testified via teleconference from Kotzebue.   He said he was                 
  one of the strongest  advocates for the ordinary  citizen in                 
  this process.  He  pointed out several of his  concerns that                 
  he had raised previously at the  Council level.  First, this                 
  bill took away the public assurance that there was one final                 
  appeal process  before going to  court and that  was through                 
  the Coastal  Policy Council.   The  other point  was when  a                 
  concern was  "fairly considered" what guarantee  would there                 
  be that  it would be truly considered before a determination                 
  was made.  Finally, every administration had different views                 
  on resource management, and with SB  238, the final decision                 
  would be  in the administration's  hands.   He had  concerns                 
  about  certain Commissioners  in this  administration making                 
  those  final determinations because of  their views.  And if                 
  the  appeal  process was  taken away,  he  did not  see much                 
  chance for anything  to change.   In regard to due  process,                 
  that  had never been challenged.  He  did not see the reason                 
  to  change the  way it was  at present.   He was  afraid the                 
  ordinary citizen would be given less chance to be heard.                     
                                                                               
  Senator  Kerttula  MOVED  CSSB  238(FIN)  as  amended   from                 
  committee  with individual  recommendations.   No  objection                 
                                                                               
                                                                               
  being   heard,   it   was  REPORTED   OUT   with  individual                 
  recommendations, and  a zero fiscal  note for the  Office of                 
  the Governor showing a revenue of $(7.9).   Co-chairs Pearce                 
  and Frank, Senators  Jacko, and  Kerttula signed "do  pass."                 
  Senators Rieger and Sharp signed "no recommendation."                        
                                                                               
  ADJOURNMENT                                                                  
                                                                               
  The meeting was adjourned at approximately 10:30 a.m.                        

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