Legislature(2011 - 2012)HOUSE FINANCE 519
04/11/2011 09:00 AM House FINANCE
| Audio | Topic |
|---|---|
| Start | |
| HB106 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 106 | TELECONFERENCED | |
| + | SB 1 | TELECONFERENCED | |
| + | TELECONFERENCED |
HOUSE FINANCE COMMITTEE
April 11, 2011
9:48 a.m.
9:48:49 AM
CALL TO ORDER
Co-Chair Stoltze called the House Finance Committee meeting
to order at 9:48 a.m.
MEMBERS PRESENT
Representative Bill Stoltze, Co-Chair
Representative Bill Thomas Jr., Co-Chair
Representative Anna Fairclough, Vice-Chair
Representative Mia Costello
Representative Mike Doogan
Representative Bryce Edgmon
Representative Les Gara
Representative David Guttenberg
Representative Reggie Joule
Representative Mark Neuman
Representative Tammie Wilson
MEMBERS ABSENT
None
ALSO PRESENT
Representative Eric Feige, Co-Chair, House Resources
Committee; Representative Bob Herron, Co-Chair, House
Resources Committee; Representative Mike Hawker;
Representative Kyle Johansen; Joseph Balash, Deputy
Commissioner, Department of Natural Resources; John J.
Burns, Attorney General, Department of Law; Michael Satre,
Executive Director, Council of Alaska Producers.
PRESENT VIA TELECONFERENCE
Frank Kelty, Aleutians West Coast Resource Service Area,
Unalaska; Steve Borell, Executive Director, Alaska Miners
Association; Jason Brune, Executive Director, Resource
Development Council; Kara Moriarty, Deputy Director, Alaska
Oil and Gas Association, Anchorage.
SUMMARY
HB 106 COASTAL MANAGEMENT PROGRAM
HB 106 was HEARD and HELD in committee for
further consideration.
SB 1 BD OF ED./EARLY DEVELOPMENT ANNUAL REPORT
CS SB 1 (EDC) was SCHEDULED but not HEARD.
HOUSE BILL NO. 106
"An Act extending the termination date of the Alaska
coastal management program and relating to the
extension; relating to the review of activities of the
Alaska coastal management program; providing for an
effective date by amending the effective date of sec.
22, ch. 31, SLA 2005; and providing for an effective
date."
9:49:42 AM
JOSEPH BALASH, DEPUTY COMMISSIONER, DEPARTMENT OF NATURAL
RESOURCES, reviewed the Alaska Coastal Management Program
(ACMP) and the motivation for HB 106. He explained that the
bill was designed to extend the ACMP for six years. The
program will terminate on July 1, 2011 without legislative
action. He communicated that the governor recognized the
value that the ACMP brings to extend the state's authority
to federal lands and federal activities in the coastal
zone, and incorporate local participation in the permitting
process.
Mr. Balash instructed that the ACMP was a federally
authorized voluntary state program. Participation allows
the state to oversee the responsible development of costal
resources and federal activities within the coastal zone
and outer continental shelf. Proposed development
activities are subject to review for compliance through a
consistency review process. The consistency review process
invited state and federal agencies, coastal districts, and
the public to evaluate a project and help determine
compliance with ACMP statewide standards and district
enforceable policies.
Mr. Balash addressed the size of Alaska's coastal zone. He
noted that the coastal zone was the most expansive in the
country. The zone reaches from anadromous water bodies
several hundred miles inland to the offshore three mile
limit of state jurisdiction.
Mr. Balash pointed out that Alaska was unique in its
structure of the ACMP. Local participation was involved in
both the planning and consistency review process. He
identified 35 coastal districts: 33 districts with approved
plans, 28 districts with revised plans and 25 districts
with plans in effect.
Mr. Balash discussed recommendations by the Division of
Legislative Audit. The division conducted an audit (copy on
file), of the ACMP as part of the sunset provision. The
department believed that the audit represented a
comprehensive and objective review of the program. The
audit concluded that the legislature should reauthorize the
program; the program was operating consistent with
statutes, regulations, and legislative intent. Substantial
revisions were made to the ACMP in 2003. The review
determined that the program changes did not diminish the
states' rights under the Coastal Zone Management Act; the
federal authorizing statute. The audit maintained that the
Department of Natural Resources (DNR) was the appropriate
administrative agency for the ACMP. He reported that the
audit recommended improvements to the program. Certain
aspects of the program could take measures to improve
transparency. Some of the ACMP changes in 2003 resulted in
lessened consensus building among review participants.
Mr. Balash furthered that the administration was satisfied
with the current structure of the program. Coastal
districts had expressed dissatisfaction with elements of
the program. The administration requested that sunset
provision legislation travel separately from any proposed
substantive changes to the program.
9:55:42 AM
Mr. Balash continued to discuss HB 106. He pointed out that
the House Resources Committee version included amendments
to the legislation. The department had engaged with members
of the committee to keep the amendments acceptable to the
administration; maintain program operations in a
predictable manner with objective standards and clear lines
of authority. He announced that Attorney General Burns
would speak to the department's concerns regarding CS HB
106 (RES). Mr. Balash concluded that the department
supported extension of the program.
JOHN J. BURNS, ATTORNEY GENERAL, DEPARTMENT OF LAW, spoke
to the administration's concerns with the legal impacts of
CS HB 106 (RES). He recognized the need for coastal
communities to have greater input in the ACMP process. He
discovered a number of issues that required modification or
clarification in the legislation. He highlighted the
significant issues beginning with Section 2, Page 4, Lines
12-14:
(2) in accordance with AS 46.39.040(4), provide a
forum for representatives of affected interests to
discuss and attempt to resolve issues related to this
chapter, AS 46.40, and the coastal uses and resources
of the state.
Mr. Burns assessed that the intent was to create a board
that would provide a forum to resolve issues. He warned
that the phrase, "to discuss and attempt to resolve issues"
would invite litigation if a resolution was not reached.
9:59:51 AM
Mr. Burns moved to, Section 7, Page 6, Lines 6-8:
(d) All reviews and revisions shall be in accordance
with [THE STATEWIDE STANDARDS AND] district plan
criteria adopted under AS 46.40.040. Changes to a
district coastal management plan may not conflict with
statewide standards.
Mr. Burns explained that the passage was particularly
problematic. There was a significant difference between
"conflict with" and adding to statute. It allowed for
adoption of more stringent standards. He exemplified the
Endangered Species Act (ESA), and critical habitat
designations. The state did not possess current standards.
He directed attention to Section 9, Page 8, Lines 4-5:
(F) designating and developing policies for special
management areas [THE USE OF AREAS OF THE COAST THAT
MERIT SPECIAL ATTENTION]; and
Mr. Burns questioned the definition of a "special
management area". He advised that the designation could
entail developing a whole new set of standards or processes
for management. He moved to, Section 10, Page 9, Lines 20-
22:
(d) The superior courts of the state have jurisdiction
to enforce orders of the department or commissioner of
natural resources entered under (c) or (e) of this
section.
Mr. Burns sought to define the groups or individuals that
would gain the right to bring a case to the superior court.
He cautioned that the authority for the superior court to
"enforce orders" could invite increased litigation. He
emphasized that if the intent of the legislation was to
enable costal districts to have greater input the
legislation should limit the opportunity for "other"
parties to bring forward disputes and litigation. He
related that the problem was repeated in line 24:
(e) A person affected by a decision of the department under
this section may
10:04:11 AM
Mr. Burns stressed that "a person" could be anybody and
warned that could open Pandora's Box to additional resource
development litigation.
He addressed Section 12, which related to requirements for
department review and approval. He cited Page 10, Lines 4-
6:
Sec. 46.40.070. Requirements for department review and
approval. (a) The department shall approve a district
coastal management plan submitted for review and
approval if the
The section continued to list the criteria for approval. He
argued that the provision mandates approval of a plan if it
meets the limited criteria. The mandatory provision was a
significant concern because it could add additional layers
of restrictions such as ESA or critical habitat provided it
does not "conflict with" existing standards. He asserted
that a plan submitted for review must be approved if it
does not conflict with the limited criteria in Section 12.
He cited Page 10, Line 10(B):
(B) does not conflict with the statewide standards
adopted by the department; and
Mr. Burns pointed out that the department referred to was
DNR. The Department of Environmental Conservation (DEC) was
statutorily mandated to review ACMP plans and would no
longer have review authority under the provision. He
discussed the intent of Line 18, on Page 10:
(b) The enforceable policies in a district coastal
management plan submitted
Mr. Burns deemed that the intent was if the state or
federal agency objected to a plan that new standards
adopted under Section 12 may not apply. However, Section 12
(a) mandates approval; the plan should not be objected to
by the state. Subsections (a) and (b), in Section 12
required alignment. He added that it was impossible for the
State to mandate that the federal government must object to
a plan within a certain time or they would lose the right
in the future. He explained that that the federal
government retained the right to object at any time.
10:08:37 AM
Mr. Burns directed attention to Section 14 related to the
review process. He referenced Page 12, Lines 15-18:
(C) "shall be completed with the issuance of a written
order signed by at least two of the commissioners of
the resource agencies [DEPARTMENT] within 45 days
after the initial request for an elevation [SUBSEQUENT
REVIEW] under this paragraph
Mr. Burns considered the repercussion if a consistency
determination was not rendered within 45 days.
10:10:57 AM
REPRESENTATIVE ERIC FEIGE, CO-CHAIR, HOUSE RESOURCES
COMMITTEE, delineated the Resources Committee process that
lead to CS HB 106 (RES). He communicated that the committee
held nine meetings over several weeks. The committee had
worked with the administration, DNR, coastal districts, and
industry representatives. The committee reviewed documents
including the legislative audit. He explained that the
committee attempted to work within the parameters that the
governor outlined for the ACMP: maintain predictability,
maintain existing authorities and structure, and value
participant input. They maintained the current standards
and ensured that coastal districts had a meaningful role in
the process but were not granted veto rights. He assured
that the coastal districts were not seeking veto powers.
The process had been long and difficult at times but he
believed the committee had developed a workable compromise.
He emphasized the considerable discussions with the
committee, representatives from coastal districts, and DNR.
REPRESENTATIVE BOB HERRON, CO-CHAIR, HOUSE RESOURCES
COMMITTEE, concurred with Representative Feige. He believed
that the legislation was still a work in progress. The
process would yield a good product in the end. He added
that not all parties approved of the Resource Committee's
version. He agreed with many of the attorney general's
opinions.
10:15:22 AM
Representative Herron referred to Page 12, Line 17:
[Department] within 45 days after the initial request
for an elevation
Representative Herron voiced support for the 45 day limit
to ensure predictability in the process. He stressed the
Resources Committee collaboration with the administration.
He embraced the evolving process and would continue to help
his constituents. He advocated for a process that protected
the state from "outsiders." He believed that the House
Finance Committee would need to develop a CS and offered
his support.
Co-Chair Stoltze interjected that due to the sharp
differences of opinion the process was potentially divisive
but not unsolvable. Representative Herron believed that the
legislature and involved parties were very close to
resolving the issues and wanted the program to continue.
Representative Feige explained two sections of the bill. He
reported that Section 1 would extend the ACMP for six years.
Section 2 established the Alaska Coastal Policy Board. The
board would be comprised of nine members: five public
members from coastal districts appointed by the governor,
and the commissioners of DEC, DNR, Department of Fish and
Game (DFG), and Department of Transportation and Public
Facilities (DOT).
10:20:31 AM
Co-Chair Stoltze opened public testimony.
MICHAEL SATRE, EXECUTIVE DIRECTOR, COUNCIL OF ALASKA
PRODUCERS, shared that the council represented large metal
mines and developmental projects in the state. He stated
that the council supported a simple sunset extension of the
ACMP but understood the coastal districts desire to
contribute meaningful local input. The council supported
the elimination of Section 12 from the bill. The council
surmised that the consequences of Section 12 would
establish more restrictive and unpredictable standards and
requirements. The council worried that the provisions could
potentially allow coastal districts to mandate restrictive
requirements "through the back door." He hypothesized that
a coastal district could create new habitat regulations via
the Endangered Species Act. The council believed
enforcement policies should be uniform and based on
science. Section 12 provides for ad hoc enforceable
policies. In addition, the council proposed that if an
order was not signed within 45 days the commissioner of DNR
would decide the outcome and ensure that industry members
have a seat on the Alaska Coastal Policy Board.
10:24:09 AM
FRANK KELTY, ALEUTIANS WEST COAST RESOURCE SERVICE AREA,
UNALASKA (via teleconference), related that his district
was in support of the legislation. They did not have an
opinion on the CS. The district supported the provision to
eliminate designated areas. He referred to the DEC "carve
out" and expressed concerns. The Aleutians West district
went form 60 enforceable policies down to 10. He felt that
the coastal districts should have a voice in air, water and
land issues. The district supported the re-formation of the
Alaska Coastal Policy Board; although it was considerably
weakened in the CS.
STEVE BORELL, EXECUTIVE DIRECTOR, ALASKA MINERS ASSOCIATION
(via teleconference), expressed concerns that the bill was
forced through at the end of session. He relayed that the
association was not familiar with all of the various items
that needed to be addressed in the legislation. He
commented on the Alaska Costal Policy Board. He recommended
that representatives from regulated industry should be
included on the board as the at large member.
JASON BRUNE, EXECUTIVE DIRECTOR, RESOURCE DEVELOPMENT
COUNCIL (via teleconference), voiced support for the
original legislation. He explained that his organization
did support changes to ACMP to enhance local input and
increase coastal district participation. He did not believe
there was enough time to deal with the issue in the
remaining days of session. He referred to provisions in the
CS as ambiguous. He cited Page 13, Line 20:
district plan criteria, and is not inconsistent with
the statewide standards, adopted
Mr. Brune queried why the words "is consistent" were not
used. He underscored concerns related to Sections 12, 14,
and 18 of the legislation. The council recommended the
deletion of lines 20-21, subsections (b) on Page 10:
within the authority of a state or federal agency
unless the state or federal agency specifically
objects.
Mr. Brune added that the council also recommended the
deletion of lines 25-31, subsections (d) on Page 10:
(d) In this section, "specifically objects" means that
a written objection to the enforceable policy that
establishes the new standards or requirements is filed
with the department by
(1) the commissioner of a state agency;
(2) the head of a federal agency operating in
the state;
(3) the official responsible for a federal
agency's operations in the state; or
(4) legal counsel for a federal agency operating
in the state.
Mr. Brune recommended specific language changes to Section
14, page 12, subsection (C) as follows: "shall be
considered by the commissioners of the resource agencies
within 45 days after the initial request for an elevation
under this paragraph. If the decision is not rendered
within 45 days the commissioner of the department will have
10 days to render the final consistency determination and
certification"
10:31:15 AM
Mr. Brune furthered that the designation "special
management areas" (Section 18) needed a precise definition.
He concluded that the Alaska Coastal Policy Board members
should include members from industry and structured similar
to the Board of Forestry.
KARA MORIARTY, DEPUTY DIRECTOR, ALASKA OIL AND GAS
ASSOCIATION, ANCHORAGE (via teleconference), stated that
the association did not support the current CS. She shared
that the association had been actively engaged in the ACMP
program since its inception. She indicated that several of
the association's concerns had been mentioned in prior
testimony including the attorney general's comments. The
association believed that the concerns related to the
composition of the board could be easily addressed. She
reiterated concerns expressed with Section 12.
HB 106 was HEARD and HELD in committee for further
consideration.
CS FOR SENATE BILL NO. 1(EDC)
"An Act requiring the state Board of Education and
Early Development to provide an annual report to the
legislature."
CS SB 1 (EDC) was SCHEDULED but not HEARD.
ADJOURNMENT
The meeting was adjourned at 10:36 AM.
10:36:28 AM
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 106 - ACMP Audit, Part 1.pdf |
HFIN 4/11/2011 9:00:00 AM |
HB 106 |
| HB 106 - ACMP Transmittal Letter.pdf |
HFIN 4/11/2011 9:00:00 AM |
HB 106 |
| HB 106 - ACMP Audit, Part 2.pdf |
HFIN 4/11/2011 9:00:00 AM |
HB 106 |
| CSSB 1(EDC) Sponsor Statement rev.4-1-2011.pdf |
HFIN 4/11/2011 9:00:00 AM |
SB 1 |
| CSSB 1(EDC) Explanation of Changes.pdf |
HFIN 4/11/2011 9:00:00 AM |
SB 1 |
| HB106CS(RES)-DEC-WQ-04-08-11.pdf |
HFIN 4/11/2011 9:00:00 AM |
HB 106 |
| HB106CS(RES)-DEC-CO-04-08-11.pdf |
HFIN 4/11/2011 9:00:00 AM |
HB 106 |
| HB106CS(RES)-DEC-AQ-04-08-11.pdf |
HFIN 4/11/2011 9:00:00 AM |
HB 106 |
| CSHB106(RES)-DNR-DCOM-4-6-11.pdf |
HFIN 4/11/2011 9:00:00 AM |
HB 106 |
| CSHB 106 (RES) Sectional by Leg. Legal.PDF |
HFIN 4/11/2011 9:00:00 AM |
HB 106 |