Legislature(2009 - 2010)BUTROVICH 205

03/16/2009 03:30 PM Senate RESOURCES


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03:40:29 PM Start
03:41:01 PM SB4
05:01:38 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ SB 4 COASTAL MANAGEMENT PROGRAM TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
               SB   4-COASTAL MANAGEMENT PROGRAM                                                                            
                                                                                                                                
3:41:01 PM                                                                                                                    
CO-CHAIR MCGUIRE announced SB 4 to be up for consideration                                                                      
                                                                                                                                
SENATOR DONNY  OLSON, Alaska State Legislature,  sponsor, said SB
4  establishes  the  Alaska  Coastal  Policy  Board  to  exercise                                                               
authority  over  development projects  in  the  coastal zones  of                                                               
Alaska.  He introduced  the legislation  because  of an  apparent                                                               
lack of  compromise in  this area. One  side wants  the authority                                                               
and power concentrated in an  agency of the Department of Natural                                                               
Resources (DNR) and  the other wants authority  shared with local                                                               
district residents and four state commissioners.                                                                                
                                                                                                                                
SB 4 would  establish a nine-member Alaska  Coastal Policy Board,                                                               
comprised of five  public members from the  28 coastal management                                                               
districts   and   the   commissioners   of   natural   resources,                                                               
environmental  conservation, fish  and  game,  and commerce.  The                                                               
public members  will be appointed  by the governor,  which allows                                                               
the state  to maintain  a steady  hand on  the activities  of the                                                               
Coastal Policy  Board. Prior  to the  dramatic program  change in                                                               
2003,  the   former  Coastal  Policy  Council   was  composed  of                                                               
commissioners and local district  residents. They performed their                                                               
duties satisfactorily;  no projects were delayed  or canceled due                                                               
to actions by the council.                                                                                                      
                                                                                                                                
Since the program change in 2003,  DNR has not been successful in                                                               
dealing  with  the issue  of  genuine  participation by  district                                                               
residents in  decision-making about  development in  their areas.                                                               
Nor has  it dealt  with the persistent  negative moral  issues in                                                               
this  arena.  A months-long  process  last  summer and  fall  was                                                               
unsuccessful in  addressing needed changes to  the Alaska Coastal                                                               
Management Plan (ACMP).                                                                                                         
                                                                                                                                
Coastal   district    residents   throughout   the    state   are                                                               
disenfranchised by the process  that governs development activity                                                               
in their home regions, Senator Olson stated.                                                                                    
                                                                                                                                
3:44:22 PM                                                                                                                    
TIM  BENINTENDI, staff  to Senator  Donny Olson,  said that  SB 4                                                               
would establish the Alaska Coastal  Policy Board. Changes in 2003                                                               
to the  ACMP program  eliminated the  Coastal Policy  Council and                                                               
shifted authority for permit  review, compliance, and consistency                                                               
maters  to  the  Department  of Natural  Resources.  Among  other                                                               
things, the new Coastal Policy  Board would have the authority to                                                               
approve district management  plans; approve regulations developed                                                               
by DNR; approve program changes;  apply for and accept grants and                                                               
other monies;  evaluate the effectiveness of  district management                                                               
plans; and settle disputes.                                                                                                     
                                                                                                                                
Concentrating decision-making  in too  few hands within  DNR left                                                               
many to  view the court system  as the only source  of remedy for                                                               
development  project reviews  that  are seen  as abbreviated  and                                                               
non-inclusive. It would be unfortunate  if these actions diverted                                                               
financial  resources  unnecessarily,   he  said.  Moreover,  it's                                                               
likely that such issues would  be addressed by a California court                                                               
rather than in Alaska.                                                                                                          
                                                                                                                                
MR.  BENINTENDI said  the  administration  has cautioned  against                                                               
making changes  to the  current ACMP program  that might  make it                                                               
more cumbersome  and costly for  project developers. To  date, he                                                               
has not  seen a list  of specific development projects  that have                                                               
been  halted, delayed,  or made  more costly  because of  the old                                                               
Coastal Policy  Council. Such a roster  would advance discussion,                                                               
deliberation, and understanding.                                                                                                
                                                                                                                                
After  2003, regulations  adopted  by the  Department of  Natural                                                               
Resources severely  limited the  ability of coastal  districts to                                                               
establish enforceable policies regarding  the eventual effects of                                                               
development  on  coastal resources  and  uses.  Under SB  4,  the                                                               
authority for local policy determination  would be restored. What                                                               
is more, subsistence usage is  specifically identified as a value                                                               
within the ACMP objectives.                                                                                                     
                                                                                                                                
The so-called DEC Carve-Out would  be eliminated under SB 4. This                                                               
basically  says   that  a  project   permit  issued  by   DEC  is                                                               
automatically   considered    "consistent"   within    the   ACMP                                                               
requirements.                                                                                                                   
                                                                                                                                
The legislation  provides for  authority over  development inland                                                               
from the coastal  area should there be significant  impact to the                                                               
coastal  zone.  This includes  activities  in  federal lands  and                                                               
waters and  the Outer  Continental Shelf (OCS).  SB 4  would also                                                               
address  "seismic survey  activity,"  and would  make each  lease                                                               
sale subject to an individual consistency review.                                                                               
                                                                                                                                
3:46:54 PM                                                                                                                    
MR. BENINTENDI said that despite  a well-publicized ACMP outreach                                                               
process  last summer  and fall,  there  has been  no progress  in                                                               
bringing   district  interests   into   the  fold.   Furthermore,                                                               
anticipated improvements from the  administration will not now be                                                               
forthcoming.                                                                                                                    
                                                                                                                                
The calendar  that ACMP  released last fall  said, "We  intend to                                                               
strengthen  the  ACMP  as  a  state  program  that  will  benefit                                                               
applicants and  the public in  the coordination of  projects that                                                               
will  enhance  coastal   district  participation  when  reviewing                                                               
activities  occurring  in  the  coastal area  and  on  the  Outer                                                               
Continental Shelf."  Despite the very best  intentions of program                                                               
personnel,  those  objectives  have  not been  met.  The  program                                                               
continues  to  be  unpopular  and divisive.  In  the  absence  of                                                               
moderating  legislation from  the  administration, SB  4 and  the                                                               
House  companion  bill, HB  74,  offer  an inclusive  and  viable                                                               
alternative that  has a  history of success  based on  the former                                                               
program.                                                                                                                        
                                                                                                                                
3:48:05 PM                                                                                                                    
SENATOR STEDMAN joined the committee.                                                                                           
                                                                                                                                
CO-CHAIR MCGUIRE  asked for an  example of a policy  or objective                                                               
that a coastal district has been  unable to get through under the                                                               
current process.                                                                                                                
                                                                                                                                
MR. BENINTENDI replied  the principle issue is  probably the lack                                                               
of ability  for local districts  to generate  locally enforceable                                                               
policies that have support from the Coastal Policy Board.                                                                       
                                                                                                                                
SENATOR  FRENCH  noted that  the  sponsor  statement states,  "So                                                               
dramatic were the changes, that  the federal Office of Oceans and                                                               
Coastal Resource  Management formally reviewed state  actions for                                                               
compliance and took two years  to determine acceptance." He asked                                                               
how that would have differed  under the original program or under                                                               
this bill.                                                                                                                      
                                                                                                                                
MR. BENINTENDI  surmised that the  two-year federal review  is on                                                               
the upper edge of what would be considered a normal time limit.                                                                 
                                                                                                                                
SENATOR FRENCH  said other than the  size of the board,  what are                                                               
the major  differences between the  pre-2003 program and  the one                                                               
that would be established under this bill.                                                                                      
                                                                                                                                
MR. BENINTENDI  replied what comes  to mind is the  provision for                                                               
reviewing projects  inland from  the immediate coastal  area. For                                                               
example,  the  Red  Dog  Mine  is  upland  from  the  coast,  but                                                               
eventually has direct impacts on the coastal zone.                                                                              
                                                                                                                                
3:51:30 PM                                                                                                                    
SENATOR FRENCH  asked for specific  examples of things  that have                                                               
gone wrong in  the last six years that would  have been fixed had                                                               
an ACMP plan been in effect.                                                                                                    
                                                                                                                                
MR. BENINTENDI  replied the people  who will testify  today could                                                               
articulate specific occurrences  better than he, but  there are a                                                               
host.                                                                                                                           
                                                                                                                                
SENATOR OLSON added that the  seismic activity in the Chukchi and                                                               
Beaufort  Sea comes  to  mind. Local  whalers  have voiced  their                                                               
concerns but it's  fallen on deaf ears. There's been  a real lack                                                               
of attentiveness, he said.                                                                                                      
                                                                                                                                
CO-CHAIR WIELECHOWSKI  asked if perhaps  there might not  be more                                                               
development if local communities were  to have the opportunity to                                                               
be  involved  and  give  input versus  locking  in  and  opposing                                                               
something simply because their voices aren't heard.                                                                             
                                                                                                                                
SENATOR  OLSON  replied the  frustration  really  comes from  not                                                               
being  at  the table.  Under  the  old  program  quite a  bit  of                                                               
development took  place on the  North Slope from the  1970s until                                                               
2003. The  2003 legislation eliminated  local input and  that has                                                               
caused frustration. More  important, DNR seems to have  a lack of                                                               
ambition.  The department  is so  busy  it doesn't  have time  to                                                               
address issues that are very  important to people living in these                                                               
coastal areas. That's the source  of both the frustration and the                                                               
call for modifying legislation, he said.                                                                                        
                                                                                                                                
3:54:34 PM                                                                                                                    
CO-CHAIR MCGUIRE asked for an  explanation of the thought process                                                               
for  having five  public members  and four  commissioners on  the                                                               
Coastal  Policy Board.  She worries  that votes  might always  be                                                               
five to four.                                                                                                                   
                                                                                                                                
SENATOR  OLSON  said the  commissioners  likely  won't come  from                                                               
coastal  districts and  the public  members will  provide a  very                                                               
unique and important perspective.                                                                                               
                                                                                                                                
CO-CHAIR  MCGUIRE said  her concern  is that  rather than  making                                                               
decisions  based on  data  and facts  and  science, the  tendency                                                               
would  be  for  the  five  public  members  to  support  whatever                                                               
initiative is impacting  a particular board member.  The votes of                                                               
the four commissioners may be minimized in the process.                                                                         
                                                                                                                                
3:57:32 PM                                                                                                                    
MR. BENINTENDI  observed that the  governor would  have appointed                                                               
all the members so from that  perspective the board could be less                                                               
contentious  than  the present  circumstance.  He  added that  he                                                               
doesn't want it  to be a "we and they"  circumstance and believes                                                               
that the  board that is suggested  in the legislation would  go a                                                               
long way in reducing that contention.                                                                                           
                                                                                                                                
SENATOR  HUGGINS  asked if  he  looked  at  any ways  other  than                                                               
establishing a board to address the issue.                                                                                      
                                                                                                                                
SENATOR  OLSON answered  they took  a historical  look to  see if                                                               
both  the development  and subsistence  points of  view had  been                                                               
satisfied  when the  Coastal Policy  Council was  in place.  They                                                               
found that it  had been open and fair to  all sides. What's going                                                               
on now isn't really controversial,  it's just that everyone isn't                                                               
involved and represented.                                                                                                       
                                                                                                                                
SENATOR STEVENS asked how this bill affects subsistence.                                                                        
                                                                                                                                
MR. BENINTENDI replied the bill  makes it formal that subsistence                                                               
activities  in the  coastal districts  are a  value that  will be                                                               
given consideration in the process.                                                                                             
                                                                                                                                
4:00:56 PM                                                                                                                    
JOHNNY  AIKEN, Planning  Director, North  Slope Borough,  said he                                                               
has  11 years  experience  with  the ACMP.  He  said  SB 4  would                                                               
restore   the  ability   of   coastal   districts  to   establish                                                               
enforceable polices;  improve district and  agency participation;                                                               
bring air  and water quality  back into the program;  and restore                                                               
the state's rights. Furthermore, he  said, this bill will restore                                                               
our faith in the state governmental process.                                                                                    
                                                                                                                                
MR.  AIKEN said  that district  enforceable policies  provide the                                                               
foundation for the ACMP. They  address local concerns by allowing                                                               
development. DNR  in 2003 assured the  Legislature that districts                                                               
would retain  the ability to have  enforceable policies. However,                                                               
when  approving  district  plans   the  rules  changed  and  most                                                               
policies  were   denied.  For  example,  proposed   policies  for                                                               
subsistence, habitat,  mining, and oil and  gas were disapproved.                                                               
Last year DNR testified its  regulations were more stringent than                                                               
the  Legislature  intended,  but  it  has no  plans  to  fix  the                                                               
problem.                                                                                                                        
                                                                                                                                
The  2003 legislation  eliminated  checks and  balances when  all                                                               
decision-making power was shifted to  DNR. SB 4 would restore the                                                               
partnership  originally  envisioned  for the  Coastal  Management                                                               
Program by  establishing a Coastal  Policy Board  that represents                                                               
districts  and state  agencies.  District participation  fulfills                                                               
the  goal of  Article 10  of the  state constitution  for maximum                                                               
local  self  government.  The  bill would  bring  air  and  water                                                               
quality  back into  the program.  Removing DEC  permits from  the                                                               
consistency  review process  was  a bold  experiment that  didn't                                                               
work. Even DNR  proposed to eliminate the DEC  Carve-Out in draft                                                               
legislation. SB 4 would restore  rights given the state under the                                                               
federal Coastal Zone Management Act.                                                                                            
                                                                                                                                
4:05:13 PM                                                                                                                    
MR.  AIKEN clarified  three issues.  1)  The ACMP  does not  stop                                                               
development.  It gives  state agencies  and coastal  districts an                                                               
opportunity  to promote  development while  minimizing associated                                                               
impacts. 2) The ACMP provides  an excellent way to resolve issues                                                               
early in  the process  thereby helping  to prevent  permit delays                                                               
and  lawsuits. 3)  Prior  to  2003 less  than  1  percent of  all                                                               
projects in the state were  appealed. Because citizen appeals are                                                               
no longer allowed, that figure would be even lower under SB 4.                                                                  
                                                                                                                                
MR. AIKEN referenced a map showing  oil and gas activities on the                                                               
North Slope  and noted  that most of  the projects  were approved                                                               
prior to  2003. The  North Slope  Borough depends  on development                                                               
for revenue and does not stand in its way, he said.                                                                             
                                                                                                                                
4:07:47 PM                                                                                                                    
MARILYN  CROCKETT,   Executive  Director,  Alaska  Oil   and  Gas                                                               
Association  (AOGA), said  that  since 1977  AOGA  has been  very                                                               
actively  involved with  the ACMP.  In the  late 1990s  it became                                                               
clear that  the scope and process  of the ACMP led  to confusion,                                                               
misinterpretations    and   delays    without   any    additional                                                               
environmental   protection  or   benefit.  Legislation   in  2003                                                               
resolved these challenges by instituting  a program that provides                                                               
certainty  to  the  state, local  districts,  and  the  regulated                                                               
community. Unfortunately, SB 4 eliminates that certainty.                                                                       
                                                                                                                                
MS.  CROCKETT said  elimination of  the DEC  Carve-Out is  a most                                                               
problematic  provision  in  this legislation.  The  provision  in                                                               
existing law  implements the original  intent of the  ACMP, which                                                               
is  that  the  state  administered   standards  and  permits  are                                                               
inherently   consistent   with   the  program.   Therefore,   the                                                               
additional  requirement of  securing a  consistency determination                                                               
is  not necessary  or  required  and falls  outside  of the  ACMP                                                               
review  schedule.  The  DEC  Carve-Out in  no  way  diminishes  a                                                               
coastal district's opportunity to comment  and provide input on a                                                               
particular DEC permit application.                                                                                              
                                                                                                                                
MS.  CROCKETT expressed  concern about  establishing the  Coastal                                                               
Policy Board  and the powers  vested in it. She  highlighted that                                                               
DNR  would  be able  to  adopt  regulations,  but only  with  the                                                               
approval of the board. AOGA  believes this will result in endless                                                               
back-and-forths  between  the  agency and  local  entities.  AOGA                                                               
further  believes that  insertion of  a board  into this  process                                                               
would  lengthen   processing  times  given  the   infrequency  of                                                               
meetings.                                                                                                                       
                                                                                                                                
MS. CROCKETT  pointed out  that a  permit timeline  is absolutely                                                               
critical to any permitting entity.  She said that SB 4 eliminates                                                               
timelines  for federally  permitted activities  or actions.  This                                                               
will certainly impact  oil and gas activity, but  it could impact                                                               
something as  simple as putting in  a pad in a  coastal community                                                               
where the  developer needs a  404 permit  from the Army  Corps of                                                               
Engineers.  AOGA believes  that the  elimination of  the deadline                                                               
for action  for a consistency  determination on a  federal permit                                                               
is very serious.                                                                                                                
                                                                                                                                
4:12:20 PM                                                                                                                    
RANDY BATES, Director, Division  of Coastal and Ocean Management,                                                               
Department of Natural Resources,  stated that the department does                                                               
not  support SB  4. DNR  has two  substantive concerns  with this                                                               
legislation. First, it creates a  new oversight body and vests it                                                               
with  the   ability  to  approve  coastal   district  enforceable                                                               
policies. This  would override  agency authority  and effectively                                                               
render  moot the  legislative establishment  of laws  relative to                                                               
resource  management  and  protection.  Second,  SB  4  does  not                                                               
balance or represent  the interests of all  ACMP participants and                                                               
stakeholders. It addresses  the issues of just one  group of ACMP                                                               
participants.  He  added that  DNR  has  additional and  specific                                                               
concerns with SB 4 that he will not address at this point.                                                                      
                                                                                                                                
MR.  BATES said  that the  program that  was implemented  in 2003                                                               
respects  existing   state  and  federal  agency   authority.  It                                                               
solicits coastal  district input  and perspective and  balances a                                                               
development  economy with  protections  to the  coastal uses  and                                                               
resources. However,  DNR recognizes  that there is  a significant                                                               
difference  of opinion  as to  the success  of the  program since                                                               
2003;  the  influence  coastal  districts  have  regarding  state                                                               
permitting decisions; and the improvements  that could be made to                                                               
strengthen the  coastal program. At  this point DNR  does believe                                                               
that some change to the coastal  program is necessary, but it has                                                               
not concluded that statutory change is warranted.                                                                               
                                                                                                                                
DNR believes that the voice,  perspective, and influence of rural                                                               
Alaska and the  coastal communities are critical  to the function                                                               
of the department and the state.  DNR values that input, but does                                                               
not  believe  it  should  supplant  the  state's  decision-making                                                               
process  on  issues that  are  important  to  the state  and  the                                                               
residents.                                                                                                                      
                                                                                                                                
MR. BATES said a fundamental concern  is that SB 4 allows coastal                                                               
districts to modify  the standards and authority  of the resource                                                               
agencies  thereby making  enforceable policies  more restrictive,                                                               
stringent,   and  prescriptive.   Furthermore,   it  allows   the                                                               
districts to write policies without  required science and without                                                               
enforcement  capability. These  substantive  changes are  largely                                                               
the reason  that DNR has  not been able  to reach a  consensus or                                                               
conclusion  as to  the changes  that could  be made  to the  ACMP                                                               
statutes                                                                                                                        
                                                                                                                                
4:16:42 PM                                                                                                                    
CO-CHAIR  WIELECHOWSKI  asked  if  he brought  some  examples  of                                                               
development projects  that were slowed by  the consistency review                                                               
process.                                                                                                                        
                                                                                                                                
MR. BATES  replied he  did not bring  examples because  there are                                                               
always reasons to rationalize why  a project was delayed or costs                                                               
were increased, which  is not to say it has  or has not happened.                                                               
He suggested that it is more  appropriate to pose the question to                                                               
industry. He  offered to continue  to work on some  examples, but                                                               
cautioned that each one would have at least a page of caveats.                                                                  
                                                                                                                                
4:18:00 PM                                                                                                                    
SENATOR  WAGONER  asked  if  all  the  district  plans  had  been                                                               
rewritten and accepted. Last year they hadn't been.                                                                             
                                                                                                                                
MR. BATES  replied 25 of  the 28 coastal districts  that actively                                                               
worked on plan  revisions have had their  district plans approved                                                               
and they are  now in effect. The 3 outstanding  plans include the                                                               
North  Slope  Borough,  the Northwest  Arctic  Borough,  and  the                                                               
Bering Straits Coastal Resource Service Area.                                                                                   
                                                                                                                                
CO-CHAIR MCGUIRE  recognized that  Senator Therriault  had joined                                                               
the committee.                                                                                                                  
                                                                                                                                
4:18:45 PM                                                                                                                    
SENATOR FRENCH noted  that sections 3 and 9  provide evidence for                                                               
DNR's  argument  that  the  bill  allows  the  coastal  board  to                                                               
override DNR. He asked if any other sections do that.                                                                           
                                                                                                                                
MR.  BATES  replied DNR  focused  on  sections  9 and  14.  Their                                                               
reading  is   that  those   sections  substantially   change  the                                                               
authority and purview of coastal district enforceable policies.                                                                 
                                                                                                                                
SENATOR HUGGINS  asked how the coastal  communities provide input                                                               
to DNR under the present system.                                                                                                
                                                                                                                                
MR. BATES  replied the structure  of the coastal program  has not                                                               
changed  since  1979. The  networked  coastal  program relies  on                                                               
implementation through  the sister  agencies of mining,  land and                                                               
water, oil  and gas,  habitat, fish  and game,  and environmental                                                               
conservation.  There is  also a  local implementation  technique,                                                               
which  is  the  coastal  district role.  During  the  consistency                                                               
review process,  which is akin  to a permitting  process, coastal                                                               
districts  have  the  opportunity  to review  and  comment  on  a                                                               
project.  Based on  those comments,  the project  is modified  as                                                               
appropriate. Coastal  districts continue to have  the opportunity                                                               
to comment.  At issue is  whether they have  district enforceable                                                               
policies that  they can apply. It's  a matter of who  has control                                                               
to determine compliance of the project.                                                                                         
                                                                                                                                
SENATOR HUGGINS asked  if holding public hearings is  part of the                                                               
process.                                                                                                                        
                                                                                                                                
MR. BARES explained  that the public process is  a cornerstone of                                                               
the  federal Coastal  Zone Management  Act. Alaska  complies with                                                               
that federal law. Every consistency  review that DNR conducts has                                                               
a public  process that allows coastal  districts, state agencies,                                                               
and other residents of the state the opportunity to comment.                                                                    
                                                                                                                                
4:22:20 PM                                                                                                                    
TERRY CAMERY, Planner,  City and Borough of  Juneau (CBJ), stated                                                               
that  CBJ  supports SB  4.  The  bill  would allow  districts  to                                                               
establish  meaningful and  enforceable  polices;  it would  bring                                                               
back basic checks and balances  through the Coastal Policy Board,                                                               
and it would bring DEC back into the review process.                                                                            
                                                                                                                                
MS. CAMERY  said she respectfully  disagrees with DNR  on several                                                               
points. First,  the bill does  not override state  authority. The                                                               
Coastal Policy Board does not  conduct project reviews. The board                                                               
would  approve   local  district  coastal   management  programs,                                                               
approve regulations, and approve  the grant program. Furthermore,                                                               
districts cannot  write policies that  are preempted by  state or                                                               
federal law  or that  interfere with an  issue of  state concern.                                                               
Second, it's a  gross exaggeration to say that  the provisions in                                                               
SB  4 push  local control  because every  policy that  a district                                                               
pushes has to be thoroughly and scientifically documented.                                                                      
                                                                                                                                
Among  other purposes,  coastal management  is used  to establish                                                               
areas  that  are  set  aside  for  development  as  well  as  for                                                               
protection.  For example,  Juneau  has  special waterfront  areas                                                               
that have lower habitat standards.  These were pushed through the                                                               
ACMP specifically  to develop waterfront areas  for cruise ships,                                                               
seafood processing,  and marine  cargo. Also, the  Juneau Wetland                                                               
Management  Plan categorizes  low-value wetlands  and gives  them                                                               
less  restrictive policies  to  actively  promote development  in                                                               
those areas.                                                                                                                    
                                                                                                                                
In 2003 the district role  was drastically reduced. After lengthy                                                               
mediation,  the  Juneau  Coastal   Management  Program  Plan  was                                                               
reduced from  93 policies to  16. The Anchorage plan  was reduced                                                               
from 100 policies to 5.                                                                                                         
                                                                                                                                
MS. CAMERY  said it  is a  shame that  nothing resulted  from the                                                               
reevaluation effort this fall because  districts and industry put                                                               
forth a  very strong  good-faith effort.  It speaks  volumes that                                                               
the ACMP  reevaluation effort was not  even on the agenda  in the                                                               
recent  three-day statewide  coastal  management conference  that                                                               
was held in Juneau, she said.                                                                                                   
                                                                                                                                
SB 4  was introduced because there  has been no sign  that DNR is                                                               
going forward with changes.                                                                                                     
                                                                                                                                
4:26:39 PM                                                                                                                    
TIM JONES, Mayor,  City of Cordova, stated support for  SB 4. The                                                               
bill, which  establishes the Alaska  Coastal Policy  Board, would                                                               
allow coastal districts  to provide input on policies  as long as                                                               
they are  not specifically  barred by state  or federal  law. The                                                               
state should go in this direction, he said.                                                                                     
                                                                                                                                
4:27:41 PM                                                                                                                    
JENNIFER  GIBBINS,  Executive  Director,  Prince  Williams  Sound                                                               
Keeper,  Cordova,   said  SB  4   restores  authority   to  local                                                               
government to  develop enforceable  policies and brings  DEC back                                                               
into the process.  However, she said, the bill  still falls short                                                               
of realizing a comprehensive policy.                                                                                            
                                                                                                                                
First,  there is  no  resolution  as to  how  DNR implements  the                                                               
program.  She suggested  that it  might help  to write  statewide                                                               
standards into the statutes thereby  ensuring that DNR implements                                                               
the  program according  to legislative  intent. Second,  the bill                                                               
does not  restore the citizens'  right for judicial  review. This                                                               
is critical,  she said.  While SB 4  gives local  government more                                                               
control, local  government cannot always represent  the interests                                                               
of the public.  A third disappointment is that the  bill does not                                                               
elevate subsistence to the level  of a stated priority within the                                                               
program.  This is  particularly disappointing  to Alaska  Natives                                                               
who  depend  upon  subsistence for  their  livelihood  and  their                                                               
culture.                                                                                                                        
                                                                                                                                
MS. GIBBINS  said that as  a participant in the  eight-month DNR-                                                               
led  stakeholder   process,  she  was  frustrated.   Many  people                                                               
invested enormous  amounts of time and  money in the hope  that a                                                               
positive outcome  would result,  but this was  not the  case. She                                                               
suggested looking at the directives  that were given by the staff                                                               
because this has been a problem before.                                                                                         
                                                                                                                                
MS. GIBBINS expressed doubt that  a comprehensive ACMP policy can                                                               
be realized within DNR, but  SB 4 represents tangible progress on                                                               
the issue.                                                                                                                      
                                                                                                                                
4:30:54 PM                                                                                                                    
GARY  WILLIAMS,  Coastal  District Coordinator,  Kenai  Peninsula                                                               
Borough,  said  SB  4  reinstitutes a  coastal  policy  board  to                                                               
provide modest oversight  to the ACMP, which is  a positive step.                                                               
The  2003   legislation  provides   too  little   flexibility  to                                                               
accommodate  the differing  needs  of coastal  areas. Without  an                                                               
oversight board there  is no opportunity for  districts to appeal                                                               
agency decisions. This has been a problem for all districts.                                                                    
                                                                                                                                
The language on  page 7, lines 14-23,  provides valuable guidance                                                               
on  the  development  of   coastal  management  plan  enforceable                                                               
policies.  This is  an important  provision if  coastal districts                                                               
are to have a meaningful role  in the implementation of the ACMP.                                                               
Under the  current program, DNR  does not allow  coastal district                                                               
policy that  touches on  activity regulated  by federal  or state                                                               
agencies  whether  or not  that  agency  effectively monitors  or                                                               
enforces  the regulated  activity.  State agencies  seem to  fear                                                               
that  giving coastal  districts enforceable  policy in  areas the                                                               
state has  regulatory authority,  will cede their  authority, but                                                               
that is  not the case.  Coastal districts seek only  to implement                                                               
the  objectives  of  the  ACMP as  clearly  delineated  in  state                                                               
statute. These  objectives are  described on  page 8.  Within the                                                               
objectives   is  the   recognition   of  the   need  for   energy                                                               
development,  commercial and  industrial enterprise  development,                                                               
and orderly balanced use and protection of resources.                                                                           
                                                                                                                                
The  guidance in  this  bill will  provide  for meaningful  local                                                               
input.  In  the  more  than  20  years  of  partnership,  coastal                                                               
districts have not used the ACMP to stop projects.                                                                              
                                                                                                                                
4:33:29 PM                                                                                                                    
The  proposed  language  on  page 13,  lines  9-10  is  extremely                                                               
important  to   the  implementation  of  a   resource  management                                                               
program. It calls for consideration  of the impacts of activities                                                               
that would  cause direct and  significant impact to  coastal uses                                                               
or  resources.  Under  current law,  a  coastal  district  cannot                                                               
consider  the cumulative  impact of  activities that  would cause                                                               
damage  to  a  resource  if   the  activity  occurs  outside  the                                                               
boundaries of coastal  resources. For example, an  activity in an                                                               
upland that has a clear potential  to damage a nearby wetland may                                                               
not be considered in a  district consistency review. The language                                                               
proposed in this section must  by part of any rational management                                                               
program.                                                                                                                        
                                                                                                                                
4:34:20 PM                                                                                                                    
MR. WILLIAMS said the Kenai  Peninsula Borough Coastal Program is                                                               
part  of  the  Kenai  River   Center,  a  multi  agency  one-stop                                                               
permitting  entity where  borough,  state,  and federal  resource                                                               
managers work together to process  permit applications. When they                                                               
disagree,  they  talk. Bright  lines  of  authority don't  always                                                               
exist so it's valuable to  have some overlap in regulations. It's                                                               
also important  that this  legislation seeks  to be  inclusive in                                                               
interagency  and  intergovernmental  relationships and  seeks  to                                                               
communicate common  concerns and  understanding. SB  4 is  a firm                                                               
step in  the direction of  facilitating local entities  and state                                                               
agencies  to work  as  partners to  ensure  that development  and                                                               
resource protection are in balance.                                                                                             
                                                                                                                                
4:35:41 PM                                                                                                                    
LINDSAY  WOLTER,  Attorney,  Department   of  Law,  said  she  is                                                               
available to answer questions.                                                                                                  
                                                                                                                                
PAUL  LAIRD, General  Manager, Alaska  Support Industry  Alliance                                                               
(ASIA), stated  opposition to SB  4. The program was  reformed in                                                               
2003  to address  inconsistencies, ambiguities,  and redundancies                                                               
that  hampered  resource  development  projects  and  discouraged                                                               
investment in Alaska.  The reforms work and  have not compromised                                                               
environmental standards.                                                                                                        
                                                                                                                                
ASIA  membership  includes  more   than  460  organizations  that                                                               
provide  goods and  services  to Alaska's  oil,  gas, and  mining                                                               
industries. Investments  by these industries are  the backbone of                                                               
the  state's   economy,  and  these   industries  are   the  most                                                               
susceptible  to  the  regulatory  roadblocks embodied  in  SB  4.                                                               
Already  the  industry has  reduced  investments  because of  the                                                               
economic   downturn,   lower  oil   and   gas   prices,  and   an                                                               
uncompetitive  state  tax structure  for  oil  and gas.  Recently                                                               
hundreds of  industry workers  have been  laid off  and thousands                                                               
more are  vulnerable. Alaska contractor and  supplier margins are                                                               
being  squeezed as  oil companies  seek to  reduce operating  and                                                               
capital costs.  Don't jeopardize more Alaska  jobs and businesses                                                               
by  again creating  regulatory and  permitting  obstacles in  the                                                               
ACMP, he  said. This would  make Alaska even less  attractive for                                                               
investment.                                                                                                                     
                                                                                                                                
4:37:55 PM                                                                                                                    
SENATOR  FRENCH asked  about provisions  of the  bill that  could                                                               
arguably allow local override of DNR.  He can see the argument in                                                               
section  9, but  he'd like  DOL's view  about whether  section 14                                                               
allows for a  coastal zone management plan adopted under  SB 4 to                                                               
override DNR.                                                                                                                   
                                                                                                                                
MS. WOLTER  replied sections  14 and  19 go  hand in  hand. Under                                                               
section 14  the board would not  be able to approve  any policies                                                               
that  did  not also  meet  requirements  under section  9.  While                                                               
language  in  section 14  does  not  speak specifically  to  what                                                               
happens  if enforceable  policies are  stricter or  more specific                                                               
than  state or  federal statutes,  that  would still  need to  be                                                               
addressed because of section 9.                                                                                                 
                                                                                                                                
4:40:03 PM                                                                                                                    
SENATOR  FRENCH  said  essentially  that is  a  borough  or  city                                                               
overriding the  state to  adopt a  35 mile  per hour  speed limit                                                               
when the state allowed a 45 mph speed limit.                                                                                    
                                                                                                                                
MS. WOLTER agreed; although the  Coastal Management Program tries                                                               
to  maintain  consistency  from district  to  district,  a  local                                                               
district  that wants  to be  more stringent  might do  so through                                                               
their municipal code.                                                                                                           
                                                                                                                                
4:41:44 PM                                                                                                                    
BUD CASSIDY, Director,  Community Development Department, Kodiak,                                                               
said that as  one of the largest and  most diversified commercial                                                               
fishing  ports in  the nation,  coastal resources  are critically                                                               
important to Kodiak's economic wellbeing  as well as its physical                                                               
and social wellbeing through  subsistence uses. Equally important                                                               
to the economy are the  processing and transportation industries,                                                               
both of which are built along the coast.                                                                                        
                                                                                                                                
Past  experience with  the ACMP  shows  that commercial  fishing,                                                               
subsistence, and  development support  one another when  there is                                                               
meaningful  dialog.   The  old   ACMP  worked  well   because  it                                                               
encouraged  local input  and  sought  coordination between  local                                                               
entities and state agencies. Kodiak  residents and fishermen feel                                                               
that  the  collaboration  between  agencies  with  expertise  and                                                               
entities  with local  knowledge results  in reduced  conflict and                                                               
makes for  better decisions that  are more generally  accepted by                                                               
all parties.  Mr. Cassidy said  the key word is  "coordinate" and                                                               
he doesn't see in the  current program. Many citizens have become                                                               
disengaged  from  the  coastal management  process,  because  the                                                               
community has a very limited role.                                                                                              
                                                                                                                                
MR.  CASSIDY  said  that  as  residents they  may  not  have  the                                                               
expertise  to determine  water and  air  quality or  to know  the                                                               
science behind managing fish and  game resources, but their local                                                               
expertise and  experience should be considered  and included when                                                               
decisions are  made. The  Kodiak Borough  Assembly supports  SB 4                                                               
and has passed a resolution to that effect.                                                                                     
                                                                                                                                
4:44:48 PM                                                                                                                    
MARLENE  CAMPBELL,  Coastal   Management  Coordinator,  City  and                                                               
Borough  of  Sitka,  said  the   Assembly  adopted  a  resolution                                                               
supporting SB  4. Prior to  the 2003  revisions to the  ACMP, the                                                               
model  Sitka   plan  enabled  the  community   to  protect  local                                                               
resources  and  activities   while  also  permitting  responsible                                                               
development. As a  result of the 2003 revisions,  Sitka lost more                                                               
than half of its enforceable policies  as well as its seat at the                                                               
table  for   permit  and  management   decision-making  affecting                                                               
coastal   communities.  SB   4   would  restore   that  seat   by                                                               
establishing  the  Coastal Policy  Board,  which  will have  high                                                               
level  representation from  agencies and  coastal districts.  All                                                               
interests will be represented and  a more coordinated review will                                                               
result as  opposed to the  current unilateral  decision-making by                                                               
only DNR.  This legislation will also  streamline project reviews                                                               
by including  DEC in  the review  process rather  than separately                                                               
through the dysfunctional DEC Carve-Out.                                                                                        
                                                                                                                                
MS.  CAMPBELL  restated  that  the 2003  revisions  to  the  ACMP                                                               
damaged the formerly strong and  effective Sitka program. SB 4 is                                                               
a step forward to reinstate the best features of the ACMP.                                                                      
                                                                                                                                
4:47:35 PM                                                                                                                    
BARRETT  RISTROF,   Attorney,  North  Slope  Borough,   said  she                                                               
participated  in   the  mediation  and  ACMP   reevaluation.  She                                                               
disagrees with the DNR testimony  that SB 4 would override agency                                                               
authority to  address natural resource  issues. The  bill doesn't                                                               
do that  because the  Legislature has the  power to  delegate its                                                               
authority  and  determine which  actions  each  agency will  take                                                               
regarding state  coastal management.  Contrary to  DNR testimony,                                                               
SB 4 requires policies to  be supported by scientific evidence or                                                               
by  contemporary  or  traditional   local  knowledge  that  would                                                               
justify the policies.                                                                                                           
                                                                                                                                
The state  constitution empowers municipalities to  enact laws on                                                               
management concerns provided they do  not conflict with state and                                                               
federal law.  SB 4  does not  change this. DNR  has said  that if                                                               
municipalities  want stricter  laws this  would need  to be  done                                                               
through  municipal  codes  and  they  cannot  regulate  the  OCS.                                                               
However,  she said,  with the  exception of  AS 29.35.020,  which                                                               
deals   with    extraterritorial   jurisdiction,   municipalities                                                               
generally  cannot use  their municipal  code to  regulate outside                                                               
their bounds. The  ACMP is a unique chance for  local entities to                                                               
work in partnership  with the state and federal  government to do                                                               
things they  wouldn't ordinarily  deal with  when they  work with                                                               
municipal  codes. When  the state  says it  cannot make  policies                                                               
that  deal with  marine  mammals because  the federal  government                                                               
would preempt  it through the  Marine Mammal Protection  Act, the                                                               
state  is ceding  its  power  to do  something  the Coastal  Zone                                                               
Management Act would allow, she said.                                                                                           
                                                                                                                                
MS.  RISTROF said  that  in  April 2007  DNR  announced it  would                                                               
reevaluate the ACMP yet it took  more than a year to initiate the                                                               
process. Participants worked  hard to craft a  bill that everyone                                                               
could agree  on, but DNR  chose not to continue  the reevaluation                                                               
stating  that  it  was  unable  to obtain  a  consensus.  At  the                                                               
conference  in December  DNR  indicated  it wouldn't  necessarily                                                               
submit modifying  legislation even with 99  percent consensus. SB
4  may not  have  99  percent consensus,  but  it  does strike  a                                                               
balance. It  would not  stop development  or jeopardize  jobs. It                                                               
would streamline development  of oil and gas  resources and allow                                                               
Alaskans to preserve renewable resources.                                                                                       
                                                                                                                                
CO-CHAIR WIELECHOWSKI assumed the gavel.                                                                                        
                                                                                                                                
4:51:01 PM                                                                                                                    
JACK  OMALACK,   Kawerak  Incorporated,  said  the   20  regional                                                               
villages  that Kawerak  represents  all support  SB  4. It  would                                                               
reestablish  local participation  in the  management policies  of                                                               
the  ACMP. Recent  efforts to  impart  crucial and  knowledgeable                                                               
local information  regarding coastal management  strategies often                                                               
have been  lost within the  DNR coastal management  plan process.                                                               
Local communities became  disenfranchised by inefficient policies                                                               
and procedures.  They believe that establishing  a Coastal Policy                                                               
Board would alleviate  some of the problems inherent  in having a                                                               
single  agency oversee  this large  and  intricate program.  They                                                               
further believe that  local communities have the right  to have a                                                               
meaningful influence in  the decision-making processes concerning                                                               
resources  within their  local management  districts. SB  4 would                                                               
address such concerns.                                                                                                          
                                                                                                                                
4:52:57 PM                                                                                                                    
STEVE  TOBISH, Senior  Planner, Municipality  of Anchorage,  said                                                               
the  municipality supports  SB 4.  The 2003  changes to  the ACMP                                                               
reduced  the  role  of the  municipality  in  coastal  activities                                                               
particularly  in environmental  permit reviews.  The municipality                                                               
lost  its ability  to craft  enforceable policies  that could  be                                                               
used  to  shape  local  projects  and  guide  federal  and  state                                                               
reviews.  Initially   their  plan  had  82   primary  enforceable                                                               
policies  and now  it  has  5 rather  generic  policies that  are                                                               
little  used.  The  old  plan  also  incorporated  the  Anchorage                                                               
Coastal  Management  Plan,  which meant  that  their  enforceable                                                               
policies  could be  carried as  conditions  on state  consistency                                                               
findings, particularly for Corps  permits. The state's review was                                                               
a vehicle for their policies and  it's safe to say that Anchorage                                                               
would not have  developed the way it did in  the booming '80s and                                                               
'90s without  the policies that  in some cases  nearly superceded                                                               
federal regulations.                                                                                                            
                                                                                                                                
MR.  TOBISH said  the Knik  Arm ferry  is an  example of  how the                                                               
current changes  have negatively  affected the  municipality. The                                                               
original plan  had 5 or 6  policies that would have  helped guide                                                               
MatSu in locating their ferry  terminal at the Port of Anchorage.                                                               
Without that guidance  MatSu has languished for more  than a year                                                               
trying to identify a landing site,  and is currently looking at a                                                               
site that the municipality does not support.                                                                                    
                                                                                                                                
SB 4 addresses  and resolves problematic sections  of the current                                                               
legislation. The suggested changes  would allow coastal districts                                                               
and communities  to customize enforceable  policies in  ways that                                                               
maximize local  control. Districts would be  guaranteed an active                                                               
seat at the table during  state and federal permit reviews. Right                                                               
now this is  missing. The Coastal Policy Board will  bring back a                                                               
well represented  nearly adjudicatory body that  balances program                                                               
administration and decision-making.                                                                                             
                                                                                                                                
MR. TOBISH  said that SB  4 better represents what  Alaska wanted                                                               
in  the  original  program.  It's  what  enabled  communities  to                                                               
initially accept the ACMP.                                                                                                      
                                                                                                                                
4:56:37 PM                                                                                                                    
MAUREEN MCCRAIG,  said three significant problems  in the current                                                               
coastal program that  are addressed by SB 4  include: the ability                                                               
of coastal  districts to have  enforceable policies  that address                                                               
specific  district  needs;  the  return of  DEC  permits  to  the                                                               
consolidated  ACMP consistency  review;  and the  formation of  a                                                               
Coastal Policy Board.                                                                                                           
                                                                                                                                
In  2003 the  Legislature  restructured the  coastal program  and                                                               
district  policies  are  now   missing.  Coastal  districts  only                                                               
received deference  in the interpretation of  their own policies.                                                               
By  denying coastal  districts their  policies, DNR  was able  to                                                               
effectively diminish the deference it was supposed to give.                                                                     
                                                                                                                                
MS.   MCCRAIG  opined   that  removing   DEC  permits   from  the                                                               
coordinated  review  has  led  to   delay  and  dysfunction.  For                                                               
example,  federal permits  from  the Corps  of Engineers  wetland                                                               
program  cannot be  issued  without both  the  DEC water  quality                                                               
certificate  and the  ACMP consistency  decision.  Prior to  2003                                                               
both decisions came together and that is no longer the case.                                                                    
                                                                                                                                
MS.  MCCRAIG said  she supports  creation of  the Coastal  Policy                                                               
Board. Participants  would reflect diversity and  decisions would                                                               
only focus on policies.                                                                                                         
                                                                                                                                
SB  4  would  provide  an effective  district  voice  to  diverse                                                               
coastal  areas. It  would restore  DEC to  the integrated  review                                                               
process  and   establish  a  policy  board   to  ensure  balanced                                                               
decisions.                                                                                                                      
                                                                                                                                
CO-CHAIR WIELECHOWSKI announced  he would hold SB  4 in committee                                                               
to provide additional opportunity to testify.                                                                                   
                                                                                                                                

Document Name Date/Time Subjects
SB 4 Bill Packet.pdf SRES 3/16/2009 3:30:00 PM
SB 4