Legislature(2003 - 2004)

04/28/2003 03:33 PM RES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
               SB 143-COASTAL MANAGEMENT PROGRAMS                                                                           
CHAIR OGAN  announced that  he intended  to finish  taking public                                                               
testimony today  on SB 143.  He said  he is comfortable  with the                                                               
legislation as  is, but will abide  by the wish of  the committee                                                               
regarding moving it from committee.                                                                                             
SENATOR  WAGONER informed  members that  he planned  to offer  an                                                               
CHAIR OGAN called the first witness.                                                                                            
MR. MARV  SMITH, Community Development  Coordinator for  the Lake                                                               
and Peninsula  Borough, said he  is not  aware of the  change the                                                               
proposed amendment  will make. He  thanked all of  those involved                                                               
for  making significant  changes  to the  bill.  He believes  the                                                               
committee substitute is much better,  however, he still has a few                                                               
concerns about the legislation.                                                                                                 
MR.  SMITH said  Section 14  limits communities  too much.  It is                                                               
questionable  how  many  of  the  Lake  and  Peninsula  Borough's                                                               
policies can  be carried  forward or used  at all.  The Borough's                                                               
specific  concerns  are  protecting  subsistence  and  commercial                                                               
recreational use  of the area.  Another concern is that  DEC will                                                               
have total control over air  and water quality, which he believes                                                               
is too far reaching. The 90-day  limit in Section 22 will put the                                                               
Borough in  jeopardy if it  requests additional  information from                                                               
the contractor and the contractor elects  not to comply.  He said                                                               
holding  public  hearings in  16  villages  within the  Lake  and                                                               
Peninsula  Borough   will  be  very  expensive.   He  hopes  that                                                               
additional funding  will be made  available for that  purpose. He                                                               
asked committee members to "slow this bill down."                                                                               
MS. PAULA  TERRELL, representing  the Alaska  Marine Conservation                                                               
Council (AMCC),  urged the  committee to  consider the  fact that                                                               
the  Coastal  Zone  Management Program  is  very  complex.  While                                                               
changes have been made to  the legislation, problems still exist,                                                               
specifically with  the broadness  and vagueness  of the  bill and                                                               
the impacts  it will  have on the  coastal communities.  She said                                                               
she  does not  doubt  there are  problems  with Alaska's  coastal                                                               
management program,  but to pass  legislation with  such sweeping                                                               
impact is "throwing  the baby out with the  bathwater." She asked                                                               
the  committee  to  bring  a   group  of  stakeholders  together,                                                               
including coastal  communities, industry,  and agencies,  to look                                                               
at some  of the  problems during the  interim. She  believes that                                                               
would  create  a  win-win situation  and  avoid  the  controversy                                                               
surrounding this legislation.                                                                                                   
CHAIR  OGAN said  the  last  Administration promoted  stakeholder                                                               
groups but  he burned out  on that  approach because when  it was                                                               
used  for a  lease  sale  in Cook  Inlet,  it  involved the  most                                                               
extensive public process ever used for a lease sale. He stated:                                                                 
     If somebody  didn't like the  results on it they  had a                                                                    
     stakeholders' process  that was totally outside  of the                                                                    
     bounds  of statute  and regulation  and  the feel  good                                                                    
     thing  that delayed  the project  and cost  everybody a                                                                    
     whole bunch of money and  they ended up doing it anyway                                                                    
     but I'm not a big fan of stakeholder groups.                                                                               
MS.  TERRELL  said there  is  a  difference  in that  the  entire                                                               
purpose  of the  coastal management  program  is to  draw in  and                                                               
coordinate  with people  from diverse  groups and  interests. She                                                               
pointed out  the coastal  communities want  development. However,                                                               
they  want to  be able  to control  their destinies  in how  that                                                               
development is planned.                                                                                                         
CHAIR OGAN  announced that with  no further  participants, public                                                               
testimony  was closed.  He asked  Ms. Rutherford  to address  the                                                               
MS.  MARTY RUTHERFORD,  representing  the  Department of  Natural                                                               
Resources  (DNR) and  the Administration,  told members  that Mr.                                                               
Breck  Tostevin of  the Department  of Law,  Mr. Pat  Galvin, the                                                               
past  director  of  the  Division  of  Governmental  Coordination                                                               
(DGC), and Mr.  Randy Bates, the newly  appointed coastal program                                                               
coordinator  with DNR,  were accompanying  her  and available  to                                                               
answer questions.                                                                                                               
MS. RUTHERFORD told members that a clarifying amendment to                                                                      
Section 11 was distributed.                                                                                                     
SENATOR BEN STEVENS moved to adopt Amendment 1, which reads as                                                                  
                      A M E N D M E N T  1                                                                                  
     OFFERED IN THE SENATE RESOURCES COMMITTEE                                                                                  
     TO: SB 143                                                                                                                 
     Page 8, line 10:                                                                                                           
          Delete "a new subsection"                                                                                             
          Insert "new subsections"                                                                                              
     Page  8, line  13, following  "purposes." through  line                                                                    
          "For those purposes only,                                                                                             
          (1) the issuance of permits, certifications,                                                                          
     approvals,  and  authorizations  by the  Department  of                                                                    
     Environmental   Conservation  establishes   consistency                                                                    
     with the  Alaska coastal  management program  for those                                                                    
     activities  of  a  proposed project  subject  to  those                                                                    
     permits,      certifications,       approvals,      and                                                                    
          (2) for a consistency review of an activity that                                                                      
     does   not  require   a  Department   of  Environmental                                                                    
     Conservation   permit,   certification,  approval,   or                                                                    
     authorization  because   the  activity  is   a  federal                                                                    
     activity or  the activity is  located on  federal lands                                                                    
     or  the federal  outer  continental shelf,  consistency                                                                    
     with AS  46.03, AS  46.04, AS 46.09,  and AS  46.14 and                                                                    
     the regulations  adopted under those statutes  shall be                                                                    
     established on  the basis of whether  the Department of                                                                    
     Environmental  Conservation  finds  that  the  activity                                                                    
     satisfies  the  requirements   of  those  statutes  and                                                                    
          (c) For a consistency review described in (b)(2)                                                                      
     of  this section,  the department,  in addition  to its                                                                    
     review  under AS  46.40.096  of  all other  enforceable                                                                    
     policies  applicable to  the project,  shall coordinate                                                                    
     with the  Department of Environmental  Conservation and                                                                    
     issue  the Department  of Environmental  Conservation's                                                                    
     finding   of  whether   the   activity  satisfies   the                                                                    
     requirements of the statutes and regulations described                                                                     
     in (b)(2) of this section.                                                                                                 
SENATOR DYSON objected for the purpose of discussion.                                                                           
MS.  RUTHERFORD   explained  that  the   Administration  received                                                               
comments  from  several coastal  districts  expressing  a lot  of                                                               
concern about  the third  sentence of  Section 11.  Their concern                                                               
was that  Section 11 prevented any  district enforceable policies                                                               
on the Outer Continental Shelf. That  was not the intent, nor the                                                               
effect of  Section 11 in  the Administration's  opinion. However,                                                               
in order to  clarify that coastal districts  can have enforceable                                                               
policies applicable to federal  activities, activities on federal                                                               
lands,  and  activities  in  the  Outer  Continental  Shelf,  the                                                               
Administration prepared  Amendment 1  to clarify that  DEC's air,                                                               
land and water quality standards  are not the exclusive standards                                                               
that would apply to those types of consistency reviews.                                                                         
CHAIR OGAN asked Mr. Tostevin to testify.                                                                                       
MR. BRECK  TOSTEVIN, Department of  Law (DOL), told  members that                                                               
Amendment 1 amends  Section 11 of the bill.  Section 11 currently                                                               
provides that  AS 46.03, AS  46.04, AS  46.09, AS 46.14,  and the                                                               
regulations   adopted  under   those   statutes  constitute   the                                                               
exclusive enforceable  policies of the Alaska  coastal management                                                               
program  for those  purposes.  The  amendment inserts  additional                                                               
language,  which  states,  "for   those  purposes  only"  and  is                                                               
followed  by  two  paragraphs. The  first  paragraph  deals  with                                                               
activities that DEC  permits. The issuance of a  DEC permit would                                                               
constitute consistency for those purposes for those activities.                                                                 
The second  paragraph discusses projects  that involve  a federal                                                               
activity,  an  activity  on  federal   lands,  or  on  the  Outer                                                               
Continental  Shelf where  DEC has  no  permitting authority.  For                                                               
consistency review purposes, DEC would  apply these air, land and                                                               
water quality  statutes and regulations for  those activities. It                                                               
then  creates a  new section  (c)  that provides  that for  those                                                               
federal  consistency  reviews,  DNR  would, in  addition  to  its                                                               
review  under  the  consistency review  statute  (AS  46.40.096),                                                               
coordinate with DEC  and DEC would make the  finding with respect                                                               
to the more narrow purposes of  the activities subject to the DEC                                                               
standards. He stated this is  a clarifying amendment to make sure                                                               
that district enforceable policies  could be established on Outer                                                               
Continental Shelf activities.                                                                                                   
CHAIR OGAN  asked if (b)(2) is  the language on lines  11 through                                                               
17 of the bill.                                                                                                                 
MR. TOSTEVIN  said the insertion  starts on  line 13 and  ends on                                                               
line 22.                                                                                                                        
SENATOR LINCOLN asked Ms. Rutherford  if Amendment 1 will address                                                               
Mr. Smith's  concerns about Section  14 in regard to  it limiting                                                               
subsistence and recreational activities too much.                                                                               
MS. RUTHERFORD said she does not  believe it will. She said other                                                               
districts  indicated  they  want surety  that  local  enforceable                                                               
policies  could  be  applied  to  federal  lands  and  the  Outer                                                               
Continental Shelf.  She said  she would speak  to what  is within                                                               
the parameters  of Section  14, the  test, for  local enforceable                                                               
CHAIR  OGAN  interrupted  Ms.  Rutherford   and  asked  that  the                                                               
discussion be  kept to Amendment  1 at  this time. He  noted that                                                               
with  no  further  discussion  or   objection,  Amendment  1  was                                                               
MS. RUTHERFORD said Senator Lincoln's  question brings her to the                                                               
next item  she wanted  to discuss, that  being the  parameters of                                                               
the Section  14 test for  developing local  enforceable policies.                                                               
She  was asked  by the  House  Resources Committee  last week  to                                                               
provide six  examples of some district  enforceable policies that                                                               
met the  requirement of that  test. She said she  provided Senate                                                               
Resources Committee  members with  nine examples.  Those examples                                                               
meet  the requirements  of  Section 14  but  where applicable,  a                                                               
district  may need  to provide  some  support -  an analysis  and                                                               
justification within that  district plan on how  the policy meets                                                               
the matter  of local  concern. As is  the current  situation, the                                                               
local policy  cannot unreasonably  restrict or  exclude a  use of                                                               
state concern,  for example oil  and gas activities. She  said it                                                               
is also important  to note that these example  policies are based                                                               
upon  existing   district  enforceable  policies.  Some   of  the                                                               
language  in  them was  changed  to  meet  the test  embedded  in                                                               
Section  14. Those  policies were  also selected  based upon  the                                                               
current  state and  federal regulatory  regime, recognizing  that                                                               
they  currently  fill areas  that  are  not otherwise  adequately                                                               
addressed by  state or federal  law. Should the state  or federal                                                               
law  ever   expand  to  address  those   issues,  those  district                                                               
enforceable policies  would have to  be repealed. She  said those                                                               
policies  were  developed   by  the  team  who   worked  on  this                                                               
legislation and they  were reviewed by the Department  of Law and                                                               
the Governor's Office.                                                                                                          
MS. RUTHERFORD  added the  Murkowski Administration  feels, after                                                               
looking  at   these  district  enforceable  policies,   that  the                                                               
districts put a great deal  of effort into establishing them. The                                                               
Administration's  strategy  is  to  have  the  resource  agencies                                                               
review all  of the local  enforceable policies as they  are being                                                               
rewritten to be  more concise and non-duplicative, as  well as to                                                               
see  if any  should be  developed into  statewide standards.  She                                                               
said the  policies demonstrate that  districts have a  great deal                                                               
of  room  to  develop  policies  that  address  issues  of  local                                                               
CHAIR OGAN  referred to Section  14(2)(A) and (B),  which require                                                               
plans to  be clear and  concise and to use  precise, prescriptive                                                               
and enforceable  language and  asked if that  is an  oxymoron. He                                                               
noted that is a major departure from current statute.                                                                           
MS. RUTHERFORD  said she understood  Chair Ogan's point  but that                                                               
is the goal.                                                                                                                    
CHAIR OGAN asked  what will happen if the plan  is not "sensitive                                                               
to development" [language on page 10, line 24].                                                                                 
MS. RUTHERFORD said  the intent is to have the  policies focus on                                                               
areas  of   specific  concern  about   the  negative   impact  of                                                               
development on a resource.                                                                                                      
CHAIR OGAN  referred to  language on  page 10,  lines 27  and 28,                                                               
which reads, "of unique concern  to the coastal resource district                                                               
as demonstrated by local usage  or scientific evidence," and said                                                               
he  interprets  that   to  mean  we  need  to   be  sensitive  to                                                               
development and sensitive to local concerns and balance the two.                                                                
MS. RUTHERFORD agreed  and added the district also has  to make a                                                               
case that the  concern is specific to that  district, for example                                                               
around an area used for subsistence egg gathering.                                                                              
SENATOR DYSON  said he personally  believes it is always  good to                                                               
have the  stakeholders involved  in the  process. He  thought the                                                               
Chair was  speaking to an  elaborate process,  sometimes referred                                                               
to  as  a  stakeholder  process,   that  adds  a  great  deal  of                                                               
complexity. He asked  Ms. Rutherford for assurance  that the bill                                                               
as amended gives all of the  relevant parties who live or work in                                                               
the area a place and time to  have a voice in the decision making                                                               
MS.  RUTHERFORD said  the simple  answer is  yes. The  CS assures                                                               
that  the current  structure of  the  coastal management  program                                                               
will continue. That  means the districts will be  able to propose                                                               
to the commissioner  of DNR local enforceable  policies that meet                                                               
this  test, with  the exception  of those  activities within  the                                                               
permitting  purview  of DEC  for  air,  land, and  water  quality                                                               
standards. This bill sets those  aside as being deemed consistent                                                               
once  DEC  determines  those projects  have  met  DEC's  standard                                                               
SENATOR  DYSON  asked  Ms.  Rutherford to  review  what  the  DEC                                                               
process allows for air and water  control. He added that he wants                                                               
to make  sure that  everyone is  clear that  public input  is not                                                               
diminished in any way.                                                                                                          
MS. RUTHERFORD said the DEC  permitting authorization process has                                                               
regular intervals for public participation.                                                                                     
SENATOR DYSON  asked for  a description  of the  intervals during                                                               
which relevant stakeholders have an  opportunity for input and to                                                               
challenge or appeal.                                                                                                            
MR. BRECK  TOSTEVIN said all  DEC permits require  public notice.                                                               
When an  applicant applies for  a permit, DEC publishes  a notice                                                               
and the public has an opportunity  to comment. Once the permit is                                                               
issued,  the public  can request  an administrative  adjudicatory                                                               
hearing concerning  the permit.  If a  party is  still aggrieved,                                                               
that party can appeal to the court.                                                                                             
SENATOR DYSON  asked if, in  theory, this  legislation eliminates                                                               
duplication  in the  process.  He also  asked  Ms. Rutherford  to                                                               
describe the remainder of the process.                                                                                          
[CHAIR OGAN interjected to note  that Representative Kerttula had                                                               
joined the committee.]                                                                                                          
MS.  RUTHERFORD  said  the  intent   of  the  legislation  is  to                                                               
eliminate  the  duplication  that  currently  exists  within  the                                                               
program and  the often very  elongated timeframe  associated with                                                               
the  more  complex  DEC  permits, such  as  air  and  contingency                                                               
planning. She then said, regarding  the remainder of the process,                                                               
once a  district goes through  its own process to  determine what                                                               
it wants  to propose to DNR  as a local enforceable  policy, that                                                               
triggers DNR's  review process.  Like DEC,  that process  is laid                                                               
out  in statute  and  regulation and  contains  a very  extensive                                                               
public  notice process.  That is  followed  by an  administrative                                                               
appeal process and judicial review.                                                                                             
SENATOR DYSON commented the notification  process is worrisome to                                                               
him. Unless  someone is paying attention  to the fine print  in a                                                               
newspaper  and knows  where  and  when to  look,  it  is easy  to                                                               
overlook. He  asked if DNR will  use the best media  available in                                                               
an  area, sometimes  AM radio,  to let  the public  know that  an                                                               
application is in process.                                                                                                      
MS. RUTHERFORD  said DNR  does not always  use public  radio, but                                                               
its  notices have  a large  circulation  through newspapers.  She                                                               
said  in  this case,  DNR  would  be  working directly  with  the                                                               
districts. In  her experience,  the districts  have been  good at                                                               
assuring that their residents are  aware of what is happening and                                                               
that they have input.                                                                                                           
SENATOR DYSON  asked if  DNR keeps the  information updated  on a                                                               
web  page  or   through  electronic  media.  He   also  asked  if                                                               
stakeholder groups  could ask in  advance to be notified  if they                                                               
were particularly interested in activities in a particular area.                                                                
MS.  RUTHERFORD said  DNR and  DGC use  the web  extensively; DNR                                                               
accepts comments  through the web and  has extensive distribution                                                               
lists for notification purposes.                                                                                                
CHAIR  OGAN   acknowledged  that   DNR  does   a  great   job  of                                                               
SENATOR SEEKINS  said he assumes  there is always  an opportunity                                                               
for any  interested party to  comment but not  to have a  vote or                                                               
veto  power.  He  said  that is  where  the  stakeholder  process                                                               
concerns him.  The state has  a statutory and  regulatory process                                                               
designed to  gather public comment  in the best possible  way. In                                                               
addition, he  pointed out the stakeholder  process sometimes ends                                                               
up being a non-statutory process  where people are invited to the                                                               
table because:                                                                                                                  
     ...they are  concerned about Mother Earth  in total and                                                                    
     think that at  that point by being able  to not partake                                                                    
     in the public process that  is statutory, to be able to                                                                    
     have a  vote in  a non-statutory  process and  what I'm                                                                    
     hoping  is that  we  don't  have any  of  that in  this                                                                    
     legislation, that  the statutory public process  is all                                                                    
     that  we have  and that  we  don't come  in with  these                                                                    
     delay tactics  called -  so called  stakeholder groups.                                                                    
     Is there  any chance  that under these  regulations and                                                                    
     this bill we're  going to see the ability  for the non-                                                                    
     statutory process to come up?                                                                                              
MS. RUTHERFORD  said she  believes the  Senator can  rest assured                                                               
this program will  rely upon the statutory  and regulatory public                                                               
process  that will  allow for  an extensive  and adequate  public                                                               
process but it  does not embed any kind of  a stakeholder process                                                               
into the decision-making.                                                                                                       
CHAIR OGAN commented that a  future administration could do that,                                                               
as has been done in the past.                                                                                                   
SENATOR SEEKINS  said that is  why he  was trying to  assure that                                                               
discretion is  eliminated as much  as possible. He then  asked if                                                               
the   other  political   subdivisions   of  the   state  have   a                                                               
responsibility to notify their residents.                                                                                       
MS. RUTHERFORD  said every municipality,  as well as  the coastal                                                               
resource service  areas, has requirements for  public notice. She                                                               
said  the  process  is  a  "ground-up"  process.  She  added  the                                                               
redundancy  is appropriate  because it  allows the  districts the                                                               
opportunity to have  a dialog with their own  constituents. As it                                                               
moves  up  to  the  decision-making level  in  state  government,                                                               
another public process allows for broader participation.                                                                        
MS.  RUTHERFORD  then  said  she   would  like  to  clarify  some                                                               
confusion expressed  about whether this legislation  will require                                                               
a rewrite  of a  lot of  different standards.  The reality  is it                                                               
does  not require  a  rewrite  of any  standards  other than  the                                                               
coastal management  statewide standards and local  plans. It does                                                               
not  require  a  rewrite  of  DEC air,  land  and  water  quality                                                               
standards.  It  does   not  require  a  rewrite   of  DNR's  land                                                               
management  regulations.   She  noted   this  bill   retains  the                                                               
program's  basic structure,  including the  coordination function                                                               
when  a  project   is  proposed.  It  allows   the  districts  to                                                               
coordinate  decision-making through  the  consistency review.  It                                                               
also retains  the districts at  the table. With the  exception of                                                               
DEC's  air, land  and water  quality standards,  it allows  local                                                               
enforceable  policies.  It  does  not  diminish  an  incorporated                                                               
municipality's Title 29 planning  and zoning authorities. Section                                                               
28 contains a clause to that effect.                                                                                            
CHAIR OGAN thanked Ms. Rutherford for her review.                                                                               
SENATOR ELTON asked  if local communities will  have a diminished                                                               
voice in  some areas because,  with the  removal of DEC  from the                                                               
purview, their voices  cannot speak in the same way  they have in                                                               
the past to the DEC component.                                                                                                  
MS.  RUTHERFORD said  that is  a good  question and  acknowledged                                                               
that a  lot of confusion  remains on this issue.  The elimination                                                               
of  activities under  the purview  of DEC's  air, land  and water                                                               
quality  standards  are  outside  of the  districts'  ability  to                                                               
develop local  enforceable policies that increase  the air, land,                                                               
and water quality  standards in some fashion.  However, this bill                                                               
does   not   in   any  way   restrict   incorporated   Title   29                                                               
municipalities  from  developing  ordinances that  address  that,                                                               
much   like   the  CBJ   has   wetlands   ordinances.  Title   29                                                               
municipalities  are completely  free to  develop ordinances  that                                                               
deal with  wetlands policies.  The only  distinction is  that the                                                               
municipalities cannot  then take those ordinances,  embed them in                                                               
local  enforceable   policies  that  are  part   of  the  coastal                                                               
management program, and impose those on federal lands.                                                                          
SENATOR  ELTON  said the  wetlands  policy  issue is  of  special                                                               
concern to the CBJ. He sees  this bill as preempting the tortuous                                                               
process the CBJ  went through to establish  wetland categories if                                                               
federal agencies are involved.                                                                                                  
MS. RUTHERFORD  said the CBJ  adopted those policies  through its                                                               
ordinance  process   so  its  Title  29   authorities  are  still                                                               
retained. The only thing the CBJ  could not do under this bill is                                                               
to embed  those air, land,  and water quality standards.  Many of                                                               
those  might be  siting standards,  which are  somewhat different                                                               
than those  activities within the  purview of the  DEC standards.                                                               
The CBJ  is not  allowed to  take those  ordinances, if  they are                                                               
pertinent to activities managed by  DEC, and make them into local                                                               
enforceable policies.  The only place  where there may then  be a                                                               
gap for  Juneau would be  if, in  fact, there were  federal lands                                                               
within its  boundaries where  the CBJ  imposes the  standard that                                                               
does capture an air, land, and water quality managed activity.                                                                  
SENATOR ELTON asked,  "...so, if, in fact, this  was happening on                                                               
Tongass  National  Forest  land,   then  Corps  trumps  municipal                                                               
MS. RUTHERFORD  said DEC trumps.  DEC standards will  continue to                                                               
apply to activities on federal  lands within state boundaries and                                                               
the Outer Continental Shelf.   A local district could not develop                                                               
a standard  that goes beyond  DEC's air, land, and  water quality                                                               
SENATOR ELTON  asked Ms. Rutherford  if she has spoken  to anyone                                                               
at the  CBJ about that.  He said  her interpretation seems  to be                                                               
"rosier" than the CBJ's interpretation.                                                                                         
MS. RUTHERFORD said she spoke  to the planning director about two                                                               
hours ago and gave him  her interpretation and drew his attention                                                               
to the section  of the bill that she believes  is applicable. She                                                               
suggested that he review that with  the CBJ Department of Law and                                                               
offered to discuss it further.                                                                                                  
SENATOR ELTON  asked what Forest  Practices Act  activities would                                                               
be excluded from consistency review.                                                                                            
MS.  RUTHERFORD  said  under  the  current  program,  the  Forest                                                               
Practices Act  standards and permit authorities  are stand-alone.                                                               
Once those  best management practices  and standards  embedded in                                                               
the act  are met, the  project is deemed consistent  with coastal                                                               
management.  She explained,  "So,  basically what  we've done  is                                                               
we've taken the Forest Practices  Act model and simply imposed it                                                               
on the DEC air, land and water quality standards...."                                                                           
SENATOR  ELTON  asked if  the  regimes  for  DEC and  the  Forest                                                               
Practices Act are essentially the same.                                                                                         
MS. RUTHERFORD said that is correct.                                                                                            
SENATOR  ELTON  asked  Ms.  Rutherford  if  she  anticipates  any                                                               
problems in  looking at  projects in  total. He  said one  of his                                                               
concerns is that  if the state uses a bifurcated  DEC process and                                                               
then a consistency  review process, it will only look  at a piece                                                               
of the pie.                                                                                                                     
MS. RUTHERFORD said  if DEC has a single agency  review that only                                                               
regards  its  standards, it  will  make  the sole  determination.                                                               
However, normally  there are multiple permits  that include other                                                               
agencies and, because local enforceable  policies will be able to                                                               
address activities  of a project so  that even if the  DEC permit                                                               
is the  only one, DEC  will have  to review for  consistency with                                                               
the local  enforceable policy. Amendment 1  clarifies that issue.                                                               
She said most of the time multiple permit agencies are involved.                                                                
SENATOR ELTON  questioned whether  an amendment has  been drafted                                                               
to deal  with the 90-day issue  that is causing angst  among many                                                               
MS.  RUTHERFORD  said  she  believes  Senator  Wagoner  plans  to                                                               
propose such an amendment. She  said the Administration has taken                                                               
a look at it and is comfortable with it.                                                                                        
SENATOR ELTON  asked Ms. Rutherford  if she has spoken  to anyone                                                               
from the municipalities who supports this legislation.                                                                          
MS. RUTHERFORD  said she has  heard from  a lot of  the districts                                                               
that  they are  pleased with  the progression  from the  original                                                               
legislation to the committee substitute  but she does not believe                                                               
it is  fair to say any  of them are happy  about the legislation.                                                               
They are comfortable  with the current program.   Conversely, she                                                               
has  heard a  lot  of criticism  from  the development  community                                                               
about the  complexity and  vagueness of  the program  and because                                                               
the DEC permitting process is  lengthy and within the consistency                                                               
review. She said  it is her opinion that while  this bill neither                                                               
satisfies  any  of  the  districts   nor  satisfies  all  of  the                                                               
development community,  it is  in the middle  of the  spectrum of                                                               
what is acceptable.                                                                                                             
CHAIR  OGAN  said he  believes  that  municipalities need  to  be                                                               
mindful of  the fact that  revenue sharing is decreasing  and the                                                               
state's revenue stream will be diminished in the future.                                                                        
MS.  RUTHERFORD said  that  is  an excellent  point.  One of  the                                                               
criticisms by  the development community  is that  new investment                                                               
has been slow  in coming because the state is  viewed as having a                                                               
very uncertain, lengthy and complex permitting system.                                                                          
TAPE 03-34, SIDE B                                                                                                            
MS.  RUTHERFORD  said  the  intent  of  this  legislation  is  to                                                               
streamline  that process  to make  it  clearer and  to provide  a                                                               
SENATOR ELTON  commented that a  lot of people listening  to this                                                               
debate believe it involves  municipalities against developers. He                                                               
said he  does not believe  any coastal communities want  to delay                                                               
development   projects.  The   coastal   communities  have   been                                                               
especially  "hammered"  by  changes  in the  fishing  and  timber                                                               
industries.  He   said  he  believes   the  bigger   concern  for                                                               
municipalities is to  decide what kind of  development they want.                                                               
They  want to  be involved  in changes  that fit  their long-term                                                               
CHAIR OGAN suggested that there is  already a process in place to                                                               
get permits through agencies so the CZM process is redundant.                                                                   
MS.  RUTHERFORD  said  she  was not  suggesting  that  the  local                                                               
municipalities  or   coastal  resource  areas  were   opposed  to                                                               
development.  She said  the development  community is  saying the                                                               
coastal management program is overly complex.                                                                                   
4:25 p.m.                                                                                                                     
SENATOR  LINCOLN  referred to  an  e-mail  from the  Port  Graham                                                               
Village Council in which Chief  Patrick Norman questioned whether                                                               
the  language in  Section 37  places a  limit on  villages. Chief                                                               
Norman wrote:                                                                                                                   
     There is a  limit placed on our villages  that we could                                                                    
     only express our concerns only  within 2 miles from our                                                                    
     village.  Currently  our  village  is  within  an  area                                                                    
     meriting  special attention  under the  Kenai Peninsula                                                                    
     Coastal Management  Plan. The  area encompasses  all of                                                                    
     our  subsistence  use  areas  and  this  language  will                                                                    
     restrict us way too much.                                                                                                  
She asked Ms. Rutherford to speak to that concern.                                                                              
MS. RUTHERFORD  pointed out  the only  amendment to  the existing                                                               
program in  Section 37  changes the term  "program" to  "plan" so                                                               
this limitation  is already in  the existing program. It  is only                                                               
pertinent to coastal resource service  areas, not to incorporated                                                               
districts.  Port Graham  is located  within  the Kenai  Peninsula                                                               
SENATOR LINCOLN said  the Port Graham Village  Council reads that                                                               
to say  it is  outside of  the two-mile limit.  She asked  if the                                                               
council will have a voice in the management plan.                                                                               
MS. RUTHERFORD said she believes  it does not affect them because                                                               
they  are within  an incorporated  area, not  a coastal  resource                                                               
service area.                                                                                                                   
SENATOR  LINCOLN  referred  to  a  letter  from  the  village  of                                                               
Mekoryuk. That letter expresses  concern that this bill threatens                                                               
traditional subsistence  hunting and  fishing areas.  The village                                                               
questions whether traditional  primary governments are recognized                                                               
under this legislation.                                                                                                         
MS. RUTHERFORD said  there are several answers  to that question.                                                               
First, unlike the  original SB 143, the CS  maintains the current                                                               
program,  including  the  statewide  standards  that  embody  the                                                               
habitat standard.  Therefore, a  statewide habitat  standard will                                                               
apply.  Second,  this  bill  makes  no changes  to  the  role  of                                                               
traditional IRAs  or traditional  councils. She asked  Mr. Galvin                                                               
to explain their current role.                                                                                                  
MR.  PATRICK  GALVIN,  former  director   of  DGC,  told  members                                                               
Mekoryuk is located  within a coastal resource  service area. The                                                               
section  Senator  Lincoln referred  to  in  the bill  is  current                                                               
statute, regarding  the role  the village  plays in  the planning                                                               
for  that  area.  When  the  coastal  resource  service  area  is                                                               
developing a  plan for the  entire region, the tribal  council is                                                               
specifically allowed  to voice  its desired  enforceable policies                                                               
within  the village.  If  a village  has  been incorporated,  the                                                               
state recognizes  the municipality  - either  the borough  or the                                                               
SENATOR LINCOLN asked if a village  is not in a municipality or a                                                               
borough,  the short  answer is  the traditional  council will  be                                                               
recognized. She asked if that is addressed in this bill.                                                                        
MR. GALVIN  said that is  correct. He noted the  language Senator                                                               
Lincoln read  from the letter  is the section in  current statute                                                               
that recognizes  the traditional  council as the  decision making                                                               
CHAIR OGAN  noted that he planned  to hold the bill  in committee                                                               
for  another  hearing  to  accommodate the  people  who  want  to                                                               
SENATOR BEN  STEVENS referred to Section  12 on page 8  and asked                                                               
if under the new proposals there  will be a plan review every ten                                                               
years, while the existing language has no review process.                                                                       
MS. RUTHERFORD  said that  languages that  plans be  reviewed and                                                               
resubmitted  every ten  years.  She explained  there  is no  such                                                               
requirement under the current program.                                                                                          
SENATOR  BEN  STEVENS  asked  if   there  has  been  any  coastal                                                               
management plan review since 1981.                                                                                              
MS. RUTHERFORD said no review  requirement exists but many of the                                                               
districts  updated  their  plans  multiple  times  at  their  own                                                               
request since they were initially implemented.                                                                                  
SENATOR BEN STEVENS said he  applauds Ms. Rutherford's attempt to                                                               
rewrite definitive standards for review and approval.                                                                           
SENATOR  WAGONER  moved to  adopt  Amendment  2, which  reads  as                                                               
                      A M E N D M E N T  2                                                                                  
     On Page 15, line 3                                                                                                         
        (4) if the applicant fails to respond in writing                                                                        
     to a written request for additional information within                                                                     
     14 days of receipt of such request;                                                                                        
SENATOR ELTON objected for the purpose of discussion.                                                                           
MS.  RUTHERFORD  said  the  Administration  is  comfortable  with                                                               
Amendment 2. During  the 90-day review, if an  applicant fails to                                                               
respond in writing  to a request for information  within 14 days,                                                               
it  allows  the  timeline  to   be  tolled  until  the  applicant                                                               
responds. In  other words,  if an applicant  chooses to  ignore a                                                               
request  for   additional  information,   the  permit   will  not                                                               
automatically be deemed consistent.                                                                                             
CHAIR OGAN  noted that an Alaska  Municipal League representative                                                               
nodded affirmatively in support of Amendment 2.                                                                                 
SENATOR ELTON  said the amendment may  need to go a  step further                                                               
and say if the applicant fails to respond completely.                                                                           
MS.  RUTHERFORD said,  in her  opinion, the  bill already  allows                                                               
inherent discretion  to determine whether a  response is adequate                                                               
to the request.  This simply allows the agency to  toll it should                                                               
it choose to.                                                                                                                   
SENATOR ELTON suggested the Chair  speak to the Department of Law                                                               
about that  matter. He  then asked if  "tolled" means  a deadline                                                               
will be suspended until a response is received.                                                                                 
MS. RUTHERFORD said that is correct.                                                                                            
SENATOR ELTON questioned  how that will work  since the amendment                                                               
is  placed in  the legislation  so  that the  90-day timeline  is                                                               
MS. RUTHERFORD said under Section  22(o)(2), an applicant can ask                                                               
that  the clock  be held  while additional  information is  being                                                               
prepared.  The project  does not  have to  be terminated  and the                                                               
process restarted.   The new  section (4) just allows  the agency                                                               
to also  stop the clock so  that the entire review  does not have                                                               
to  be  restarted  if  an applicant  has  not  provided  adequate                                                               
CHAIR OGAN  asked if this  can be used in  a dilatory way  if the                                                               
amendment is adopted.                                                                                                           
MS. RUTHERFORD  said she supposes  it is possible that  DNR could                                                               
choose to  use it in  some inappropriate fashion but  the reality                                                               
is everyone is  trying to get project reviews off  of their desks                                                               
as quickly as possible to prevent a backlog.                                                                                    
CHAIR OGAN  asked, using the "evil  commissioner theory," whether                                                               
protections can  be put into  that bill  so that theory  does not                                                               
play out and delay projects.                                                                                                    
MS. RUTHERFORD said that same  commissioner could determine every                                                               
project  inconsistent and  that  would be  worse  than tolling  a                                                               
project so the danger exists anyway.                                                                                            
SENATOR ELTON said it seems clear  to him that the amendment does                                                               
not address  tolling. The  language in  (o) on  page 14  says the                                                               
time  limitations in  (n)  of  this section  do  not  apply to  a                                                               
consistency  review. It  does not  say the  time limitations  are                                                               
suspended or tolled. The 90-day provision is in (n).                                                                            
MS. RUTHERFORD said the intent was to  have (2) and (3) be a toll                                                               
but she would look into it.                                                                                                     
SENATOR BEN  STEVENS said according  to the language on  page 12,                                                               
lines 28-31, it  says the project applicant,  the resource agency                                                               
or the  affected coastal resource  district can make  the inquiry                                                               
for the  14-day response.  He asked  how many  times they  can do                                                               
MS. RUTHERFORD said  she believes the reference to  (d)(3) is the                                                               
request for an elevation. If  someone does not like the decision,                                                               
that  person  has  the  opportunity  for  a  hearing  to  discuss                                                               
concerns. It  is a process  embedded in the program  to hopefully                                                               
prevent litigation.                                                                                                             
CHAIR  OGAN noted  he would  leave Amendment  2 on  the table  to                                                               
await an answer to Senator Elton's question.                                                                                    

Document Name Date/Time Subjects