Legislature(2003 - 2004)
04/25/2003 03:32 PM Senate RES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
April 25, 2003
3:32 p.m.
MEMBERS PRESENT
Senator Scott Ogan, Chair
Senator Thomas Wagoner, Vice Chair
Senator Fred Dyson
Senator Ben Stevens
Senator Ralph Seekins
Senator Kim Elton
Senator Georgianna Lincoln
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 143
"An Act relating to the Alaska coastal management program and to
policies and procedures for consistency reviews and the
rendering of consistency determinations under that program;
relating to the functions of coastal resource service areas;
creating an Alaska Coastal Program Evaluation Council;
eliminating the Alaska Coastal Policy Council; annulling certain
regulations relating to the Alaska coastal management program;
relating to actions based on private nuisance; relating to
zoning within a third class borough covered by the Alaska
coastal management program; and providing for effective dates."
HEARD AND HELD
PREVIOUS ACTION
SB 143 - See Resources minutes dated 4/23/03.
WITNESS REGISTER
Ms. Judy Brady
Executive Director
Alaska Oil and Gas Association (AOGA)
121 West Fireweed Lane
Anchorage, Alaska 99503
POSITION STATEMENT: Supports CSSB 143(RES)
Ms. Sara Gilbertson
Policy and Program Coordinator
Alaska Municipal League
217 Second Street
Juneau, Alaska 99801
POSITION STATEMENT: Expressed concerns about CSSB 143(RES)
Mr. Alan Joseph
Association of Village Council Presidents
Bethel, AK
POSITION STATEMENT: Asked questions about tribal councils in
relation to CSSB 143(RES)
Ms. Marty Rutherford
Office of the Commissioner
Department of Natural Resources
400 Willoughby Ave.
Juneau, AK 99801-1724
POSITION STATEMENT: Described the changes made in CSSB 143(RES)
Mr. Pat Gavin
Petroleum Land Manager
Department of Natural Resources
400 Willoughby Ave.
Juneau, AK 99801-1724
POSITION STATEMENT: Answered questions about CSSB 143(RES)
Mr. Wilber Napayonak
Secretary, Koyuk Village Council
PO Box 53029
Koyuk, AK 99753
POSITION STATEMENT: Stated opposition to SB 143
Ms. Kathleen Wasserman
Mayor of the City of Pelican
PO Box 737
Pelican, AK 99832
POSITION STATEMENT: Opposed to CSSB 143(RES)
Mr. Harold Heinze
Juneau, AK
POSITION STATEMENT: Supports CSSB 143(RES)
Mr. Peter Freer
City and Borough of Juneau
155 So. Seward St.
Juneau, AK 99801
POSITION STATEMENT: Expressed concern that CSSB 143(RES) will
override Juneau's current wetlands designations
Mr. Tom Oscar
No address provided
POSITION STATEMENT: Opposed to CSSB 143(RES)
Mr. Jeff Currier
Borough Manager
Lake & Peninsula Borough
PO Box 495
King Salmon, AK 99613
POSITION STATEMENT: Expressed concerns about CSSB 143(RES)
Mr. Doug Mertz
Prince William Sound Regional Citizens Advisory Council
No address provided
POSITION STATEMENT: Cautioned that the legislature's intent in
CSSB 143(RES) is unclear
Senator Gene Therriault
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Responded to concerns expressed about CSSB
143(RES)
ACTION NARRATIVE
TAPE 03-33, SIDE A
CHAIR SCOTT OGAN called the Senate Resources Standing Committee
meeting to order at 3:32 p.m. Senators Wagoner, Dyson, Seekins,
Elton and Chair Ogan were present.
SB 143-COASTAL MANAGEMENT PROGRAMS
CHAIR OGAN announced that a joint session of the House and
Senate was scheduled at 4:30 today so he would give priority to
those who signed up to testify. He noted that he did not intend
to pass SB 143 out of committee today but hoped to do so early
next week.
MS. JUDY BRADY, Executive Director of the Alaska Oil and Gas
Association (AOGA), thanked both the Administration and the
Legislature for their commitment to reform the Alaska Coastal
Management Program. AOGA shares that commitment. She gave the
following testimony:
At the last Senate Resources hearing, three very basic
questions were asked. What are the problems with ACMP?
How serious are these problems? Are they serious
enough to warrant the time, effort and uncertainties
associated with changing a complex program?
We've been asking ourselves these questions for quite
awhile and in the ten years that I've been in the
association, we have been through four regulatory
processes where we tried to - where the attempt was to
change things in the ACMP that people believed needed
changing. That's about seven years out of a ten-year
career. At the end of the last three-year process,
which was last year, we looked at the issues that were
still on the table and we asked ourselves:
· Is it a problem that it is still not possible to
develop a reliable time line for the existing
ACMP permit process?
· Is it a problem that it's not possible for state
agencies to tell a company how long it will take
to get a permit for a proposed project because of
ACMP?
· Is it a problem that the ACMP standards are so
vague that a company has virtually no certainty
as to whether a proposed project is going to be
in or out of a lengthy consistency review
project? We had three companies in that position
last year.
· Is it a problem that ACMP does not require
scheduled discipline and, in practice, has been a
major source of delay?
· Is it a problem that every major oil and gas
development project on the North Slope and in
Cook Inlet has been, at some time, in schedule
limbo because of ACMP and two years ago every
single project on the North Slope was in limbo?
· Is it a problem that there are numerous AG's
opinions, many of them contradictory, attempting
to interpret the ACMP?
· Is it a problem that third party lawsuits,
administrative actions and petitions arising out
of multiple interpretations of ACMP have steadily
increased?
· Is it a problem that every oil and gas company
investing in Alaska with experienced permitting
staff consider the ACMP the single most confusing
and uncertain regulatory program in the state or
in any other oil and gas development state they
have experienced?
I don't know how any of you would answer these
questions but I can tell you how the management of our
17 companies answered these questions. Are there
problems with the ACMP process? Yes. Are these
problems serious enough to warrant the time, effort
and risk of uncertainty to address? Yes. The question
today is does the CS for SB 143 solve these serious
problems and our answer is yes and no. I'll do the
'nos' first.
AOGA's members had preferred a completely self-
implementing coastal program that was originally
envisioned. That is, once a project or activity met
all the requirements for state permits, federal
permits, local ordinances, then it became consistent.
It was automatically consistent. We believe this was a
choice the state could make under the federal program.
We believe it still had a role for the coastal
districts so they could maintain their funding and
their studies and we believed it would work in Alaska
because we have the most comprehensive environmental
laws in the country - in the United States - and we
should be able to rely on our laws for environmental
protection for coastal resources or resources
everywhere, inland or coastal.
However, under the CS, coastal districts are to be
given direct legislative authority to propose
enforceable policies that will have the full effect of
state law for matters of local concern. There will
continue to be consistency reviews. Under the self-
implementing program, there would no longer be
consistency reviews. For a permitted community this
means that in addition to meeting the local ordinance,
state laws and federal laws, which take over a year
and involve multiple opportunities for public comments
and public hearings, we're still going to have to go
through a consistency review.
The CS marks the first time an Alaska statute directly
uses the term 'enforceable policy' and gives those
enforceable policies the same standing as state and
federal law without benefit of the legislative
process. This is a significant grant of authority to
local coastal districts. The oil and gas industry is
already subject to a wide array of local, state and
federal laws, each with its own review, public
comment, and stipulation requirements and we are
necessarily wary of the state formally adopting yet
another layer of requirements. It is puzzling to hear
that coastal districts believe the Administration's
proposal is a taking of local authority. In sharp
contrast to that view, it is our belief that it is
instead a significant grant of power to coastal
districts.
This summarizes our primary concern and disappointment
with the CS. However, while continuing to be concerned
about these two issues, we recognize that this CS
contains solutions to some of the most serious
problems plaguing the coastal management program and
we do recognize the state's interest in the role
coastal districts have with the ACMP - mainly because
Marty Rutherford's just been beating us over the head
with it so we see that that's an important thing.
Here's why we are going to support this CS. It
establishes a timeline to complete the required
consistency review. It's a 90-day timeline with a
possible subsequent review of 45 days and that adds
about five months. It could add as much as five months
or more to a permitting process but that's better than
an open-ended loop. We do note that the current
timeline is supposed to be 50 days so this is an
additional 30-60-90 days. It eliminates inconsistent
and duplicative application of state and federal law
by local districts.
Last year the legislature passed SB 308, stating the
legislature's decision that coastal district
enforceable policies could not duplicate state law and
regulation. Local districts had a year to rewrite
their policies to avoid this duplication. This CS
reiterates that decision and further directs that
local enforceable policies cannot duplicate either
state or federal laws or regulations so right now many
of the coastal districts are or should be working on
their enforceable policies so they do not duplicate
state law. [Indisc.]
It establishes a clear line as to where ACMP applies
and where it does not. If a project is inside the
coastal zone, the ACMP applies. If it's outside, it
does not. Right now we're being told by ACMP managers
on occasion they don't know if a project's in or out
so we should go ahead and do the coastal review so
they don't get sued and we don't get sued. Well a
coastal review takes up to a year. It recognizes that
DEC air, land and water permits are inherently
consistent. This was actually the intent of the
original ACMP statute and it was in the first set of
regulations - it was just never implemented.
The DEC air, land and water permits are comprehensive
and technically complex permits with statutory
timelines and public comment periods. The
Administration's current proposal recognizes that DEC
statutes and regulations are on their face
sufficiently comprehensive to protect coastal
resources and do not need additional consistency
review. The new CS also requires state and local
enforceable standards be clear, precise,
understandable and not open to subjective
interpretation and we believe that's fair. It replaces
the coastal policy council with the Department of
Natural Resources, a line agency that is directly
accountable to the legislature and to the
Administration and is charged with balancing local and
statewide interests.
And, finally, the proposed legislation lays out a work
plan that will involve public participation by all of
the stakeholders over the next two years. We were very
concerned at first that this was going to move so fast
that people would not be able to sit down and talk
about how this was going to go forward. DNR now has a
year, from the time this legislation passes, to come
up with new state standards that will be a public
process and to have new direction to the coastal
districts about how to come up with their plan. That
will be a public process. Then the districts have
another year to come up with theirs so we believe that
the two years, with all of the experience we have had
with coastal zone since 1980 will be sufficient for
all of the public stakeholders to be involved and move
forward with a good program.
Because the significant improvements outweigh our
concerns, the Alaska Oil and Gas Association in
general supports the Administration's proposal and we
support this bill going forward. I would, just for a
second, like to say it's worth reflecting on the
concept of coastal district enforceable policies. As
Alaskans, we have always prided ourselves on the
comprehensiveness of our state environmental laws and
regulations. Legislators represent both their local
areas and the statewide concern since we've had
statehood. The real expectation should be that there
will be no need for many, if any, local enforceable
policies. A perfect environmental report card for
Alaska and a compliment to all past legislators
representing the coastal districts would be if each
coastal district can conclude that their local
concerns are protected under existing state law and
federal law. Each new enforceable standard should be
viewed as a heads up to the legislature that an
important environmental concern is not now protected
by state statutes.
Thank you for your time. We urge that this legislation
be passed this session so work on the state standards
and the local district plans can begin and be
concluded within the next three years. I cannot
overemphasize how important fixing this program is to
the companies that do business here and I thank you
very much for your consideration.
SENATOR ELTON pointed out the Juneau Assembly worked with the
U.S. Corps of Engineers over a long period of time to come up
with a flexible local policy rather than a rigid federal policy.
The Juneau Assembly policy designated four different categories
of wetlands that enabled Juneau to accomplish development and
expand the tax base in an environmentally sensitive way. That
policy sped up development. He expressed concern that this
legislation will preclude the use of a similar, flexible,
innovative process to speed development. He asked Ms. Brady if
she agrees.
MS. BRADY said she discussed that matter with Peter Freer of the
City and Borough of Juneau an hour ago. She said her
understanding is the issue is about situations in which both the
local district and the state have identical regulations but
interpret them differently for the same project. She said she
believes what Senator Elton is referring to is a situation where
there has been a delegation of authority to the local district
from the U.S. Corps of Engineers and that is different
altogether. She said she would check to make sure her
understanding is correct.
CHAIR OGAN announced that all members were in attendance.
SENATOR ELTON said he believes there is confusion surrounding
the definition of an enforceable policy and asked Ms. Brady to
provide AOGA's interpretation.
MS. BRADY said she believes everyone is coming to an
understanding of that term right now. AOGA understands an
enforceable policy to have the same effect as a state law. It
will bind a private developer on state or federal land, on or
offshore. In that sense, it has the same power and authority as
a state or federal law. A proposal for an enforceable policy
must be made to and approved by DNR. Whether a project meets the
consistency determination will depend upon it meeting the
requirements in the enforceable policy. An enforceable policy
must be very specific about what must be protected. It cannot
cover the same area as one covered by state law. The local
district will have to successfully argue that state or federal
law does not already protect a matter of local concern.
SENATOR ELTON asked if that argument would be made to DNR rather
than a coastal policy council.
MS. BRADY said that is her understanding.
CHAIR OGAN thanked Ms. Brady and asked Ms. Gilbertson to
testify.
MS. SARA GILBERTSON, Policy and Program Coordinator for the
Alaska Municipal League (AML), said all AML members support
permit streamlining and economic development in Alaska. The AML
sees companies like BP investing in Russia and wants that to
occur in Alaska, but feels it is necessary to create an
appropriate balance between local government participation and
authority and economic development. The AML has been working
with the Administration on SB 143 since it was introduced. The
Administration extended some of the timelines at the AML's
request. Although the AML believes the CS is a marked
improvement over the original bill, AML continues to have
concerns.
MS. GILBERTSON explained that AML's first concern is separating
DEC from the consistency review process. Under this move, the
issuance of a DEC permit will equal consistency with the ACMP
program. Despite AOGA's statement about local government
participation, the AML believes the CS will diminish local
government involvement in the process. The AML's second concern
with SB 143 is funding. Communities will have to rewrite their
local enforceable policies to meet criteria laid out in Section
14. That section contains three benchmarks: the policies must be
clear, concise, and non-duplicative. It will take communities a
lot of time and effort to rewrite their policies. Some districts
must hold hearings in 8 to 10 villages. The AML would like the
legislature to provide some funds to help with this process. In
addition, the local match has been increased. Many communities
have said they understand that changes need to be made but if
this legislation passes, they will be paying more and getting
less. Some communities feel the criteria in Section 14 are too
restrictive and will be difficult to meet, leaving some
communities without local enforceable policies.
MS. GILBERTSON said the AML's last and most important concern is
language in Section 22 that says if a consistency review is not
completed within 90 days, the activity subject to review is
presumed consistent. The AML sees that provision as a huge
loophole that will allow industry to stall the process. She
pointed out a problem could arise when more information is
requested by a community. In that circumstance, the clock on the
consistency review can stop but the 90-day clock does not stop.
She discussed this matter with Administration officials who said
their intent is that if a community does not receive the
necessary information or an appropriate response, the review
should be terminated. She expects the Administration to testify
about its intent today. She questioned the outcome if a
community sued over that language in court and said the fact is,
the language in Section 22 is very clear so even if a judge went
to the legislative record to find the legislative intent, the
judge might hear the Administration's intent but not the
Legislature's intent.
CHAIR OGAN noted that he spent 25 years in a private sector
contracting business and found the job always takes the amount
of time given, no matter how much time that is. He said if he
did not finish a job, he paid a penalty, so he finished many
jobs at the 11th hour. He said industry wants a linear process
and has expressed frustration that the coastal management
process is an open book with many delaying tactics. He asked Ms.
Gilbertson to clarify her statement that applicants might
intentionally drag the process to the very end.
MS. GILBERTSON said she understands the need for a timeline and
believes it is reasonable to require the process to be finished
in 90 days. However, communities are faced with the fact that
the clock will not stop even though they encounter a problem
during that time. If the process is intentionally or
unintentionally stalled, AML is concerned the activity will
automatically be deemed consistent after 90 days.
CHAIR OGAN asked what would happen if the community says the
activity is not consistent.
MS. GILBERTSON said a community's comments would count, insomuch
as it has a local enforceable policy and a seat at the table,
but a problem could arise if a community has questions and asks
for more information from the applicant. Nothing is built in to
the 90-day timeline to allow that clock to stop.
4:00 p.m.
SENATOR BEN STEVENS asserted that Section 22 requires that a
position be taken in 90 days; otherwise the time to take a
position runs out. He asked Ms. Gilbertson if the AML is asking
for an unlimited time in which to declare a position.
MS. GILBERTSON said it is her understanding that after 90 days,
regardless of what happens during those 90 days, the activity
subject to review will be considered to be consistent. She
repeated that AML members feel that is a problem.
CHAIR OGAN said at the end of 90 days, a community could
recommend the activity not be approved because all necessary
information is not available. He stated the applicant should be
motivated to cooperate so that it does not get a negative
response from the community.
MS. GILBERTSON asked that either Bill Jeffers or Randy Bates
comment on how that would work.
SENATOR BEN STEVENS noted subsection (0)(2) provides an
exception that says, "if the applicant has requested additional
time to complete the review."
MS. GILBERTSON said she is advocating for the communities.
SENATOR BEN STEVENS stated that Ms. Gilbertson is making the
assumption that the applicant will not be working with the
community.
MS. GILBERTSON said in some cases, the community and applicant
have different interests.
SENATOR BEN STEVENS said he would take the position the language
will force the community to work in cooperation with the
applicant and, if a problem arises, the applicant would request
an extension of the deadline. He said it has been the other way
around in the past. He then noted that Ms. Gilbertson stated
earlier that the CS diminishes local involvement and that
communities feel they will pay more and get less. He asked her
to clarify what the communities will get less of.
MS. GILBERTSON said she was referring to the fact that
communities were notified this week of an increase in the local
match amount. Her point was that some communities are upset
about this bill. They understand they will not have as many
local enforceable policies as they currently have because they
will have to meet a set of criteria that is outlined in Section
14. They will not have the same role they had in DEC permitting.
In those two instances, local government participation will be
somewhat diminished. Some AML members are questioning why they
will be paying more and not getting as much as they did.
SENATOR BEN STEVENS said under the present scenario the state is
paying the local governments to put on more onerous regulations
than the state has already imposed. The state already pays to
impose state and federal regulations, and local communities are
asking the state to pay for them to impose additional
regulations. He said he believes that is a waste of money from
the state's standpoint.
MS. GILBERTSON stated it is a fact that local participation in
the Coastal Zone Management Program as it currently exists will
be diminished if this bill passes. The local communities are
only saying that they are being asked to rewrite these local
enforceable policies and will need help. She noted this is a
federal, state and local partnership and everyone contributes to
the "pot." This week, local communities found out the local
match increased. The match increase was unrelated but, in
conjunction with this bill, some communities feel they would be
paying more yet will have less involvement.
SENATOR BEN STEVENS asked Ms. Gilbertson if she is representing
all municipal governments.
MS. GILBERTSON said the AML represents 140 communities. The
communities she has been in contact with about this legislation
are coastal service areas.
CHAIR OGAN said he recognizes local involvement will be
diminished but he does not believe that will be a bad thing. He
said the state has an interest in protecting subsurface rights
and has allowed local communities to become regulators of oil
and gas. He believes this bill reflects a shift in policy that
allows local communities to have a say but not to regulate and
harm the state's ability to access subsurface rights.
SENATOR BEN STEVENS said he does not see this legislation as
diminishing local participation because the bill allows two
years for the process, including public participation. However,
after that time during which everyone comes to agreement, the
policies cannot be changed. He said he and industry are
frustrated that the process changes and there is no consistency
review. He said he strongly disagrees that local control will
not play a part.
MS. GILBERTSON said her point about Section 14 was that if a
community has 100 local enforceable policies, it will have to
make sure those policies meet the criteria if this bill passes.
If only five of those policies meet the criteria, local
participation will be diminished because the state is telling
communities how those local enforceable policies should be
structured.
SENATOR BEN STEVENS said maybe 95 of those local enforceable
policies are encompassed in federal or state requirements.
SENATOR ELTON commented that he finds Section 14 and the
definition of "local enforceable policy" to be confusing and
asked if local governments are as confused as he is.
MS. GILBERTSON said they are somewhat confused. It is unclear to
them how to scientifically demonstrate that a local enforceable
policy is of local concern and they are concerned about how to
pay for a scientist to do that. She said she believes the
Administration will expand upon that language as it promulgates
regulations.
SENATOR SEEKINS referred to a chart of the current process and
said its circular action is a good reason for the 90-day
timeline.
MS. GILBERTSON said she understands everyone's frustration with
the fact that there is no timeline, however, the problem is that
after 90 days, the activity will automatically become
consistent.
SENATOR SEEKINS said unless AML can say what timeline is
appropriate, he plans to support the 90 day provision because it
will spur a decision within a time certain.
CHAIR OGAN noted that Senator Seekins was referring to a chart
provided by AOGA about the ACMP regulatory process.
SENATOR LINCOLN stated she does not want to rely on a chart that
DNR did not submit and that others have not seen or agreed with.
CHAIR OGAN thanked Ms. Gilbertson and took teleconference
testimony.
MR. ALAN JOSEPH, Association of Village Council Presidents
(AVCP) in Bethel, asked how communities that are governed by
tribal councils will be provided for in the legislation.
MR. PAT GAVIN, former director of the Division of Governmental
Coordination, stated the program has never included tribal
governments as a recognized part of the program. He clarified
that the coastal resource service area that encompasses the
Yukon Kuskokwim area is intended to speak for all of the
residents of the area, not just the municipalities.
MR. JOSEPH said communities that are run by tribal councils will
continue to voice opinions on projects.
TAPE 03-33, SIDE B
MR. WILBER NAPAYONAK, Secretary of the Koyuk City Council, said
right now rural areas do not have revenue generating resources
available to draw from for the increase to the local match.
Rural communities are struggling to survive. The City of Koyuk
is struggling to secure funds to operate and maintain city
business. He pointed out that all local concerns are derived
from residents of the community. He said the elders of the
community address local concerns and he does not see any reason
to spend a lot of money on a [scientist] from out of town who
does not know the country. His third concern is that DEC is an
essential part of the consistency review process. To remove DEC
will leave rural communities vulnerable. He said taking away the
community voice will hurt. He stated opposition to SB 143.
4:25 p.m.
MS. KATHLEEN WASSERMAN, Mayor of the City of Pelican, told
members most of the coastal communities in the state are in
economic decline due to problems encountered by the fishing
industry. The City of Pelican will find it very difficult to
rewrite its policies due to the increased local match. She is
especially concerned with the 90-day timeline. She understands
the concerns of industry but, from the communities' standpoint,
she has seen many instances where there is no working
relationship between the applicant and community. She feels the
90-day clock could be dangerous to a community that feels a
project does not fit its planning policies. She also expressed
concern that it will be quite difficult for the City of Pelican
to pay for a scientific review. She noted that as Ms. Brady
said, companies need better ways to operate in the state, but
those companies also depend on healthy communities that are able
to plan effectively.
CHAIR OGAN asked Ms. Wasserman if she prefers the original bill.
MS. WASSERMAN said the public comment process that has been used
for the last few years has worked very well. What she finds
bothersome is that an application is automatically found to be
consistent after 90 days when the community may have some
problems with the project. She said either the community or the
applicant could delay it, so there are risks on either side. She
noted as a community representative, she will weigh in more
heavily on the side of the communities.
MR. HAROLD HEINZE told members he is representing himself but
wanted to share his experiences in the ACMP process as a former
commissioner of DNR. He reminded members that ACMP was
established in the 1970s to solve a federal problem other states
were experiencing. At that time, Alaska took advantage of the
available federal funds to undergo a local planning process in
the 1980s. When he became involved in the process in the early
1990s, the program was up and running. His exposure to ACMP was
very disappointing and he sees the changes before the committee
to be positive in terms of getting back to a more workable
program for Alaska.
MR. HEINZE recalled two decisions that were made during his
tenure as commissioner: an oil lease sale on the North Slope
east of Barrow and an offshore mining project in the area of
Goodnews Bay. Those decisions were made using two very different
approaches. An extraordinarily elaborate process was used for
the Goodnews Bay decision yet nothing from that process improved
the quality of the decision. The decision on the Prudhoe Bay
east lease sale was his to make so he did not go through an
elaborate process. He traveled to Barrow to talk to the people
and solicit input. He believes that led to a better decision. It
was not subject to a lot of other people making decisions; one
person was accountable for the decision.
MR. HEINZE said what he dislikes about the ACMP program is that
it becomes very diffuse and litigious and he is not sure it adds
anything to the quality at all. He believes this is an
appropriate time to make changes to that program. He said the
counterpoint to some of the earlier discussion is that it is
true that a number of coastal communities are in trouble
economically. But, as a commissioner, he worried about how to
use state resources to build an economic base to benefit
communities. He said communities that are having trouble should
encourage the state to take that kind of an attitude rather than
get bogged down by considering the economic problem to be local
only. He said the changes in this legislation reflect a change
in attitude about using state resources to help.
MR. PETER FREER, a planner with the City and Borough of Juneau
(CBJ), informed members he submitted a letter from the CBJ that
addresses the CBJ's more global concerns. He said he would focus
his testimony on two elements of the Juneau coastal management
program, which the CBJ has come to rely on as an important local
development tool. The CBJ hopes that program will not
inadvertently be jeopardized by this legislation.
MR. FREER said the Juneau Wetlands Management Plan has been
incorporated as an element of the Juneau coastal management
plan. This wetlands plan grew out of the CBJ's frustration
during the 1980s caused by its inability to obtain U.S. Army
Corps of Engineers 404 permits for activities in wetlands. The
Juneau Wetlands Management Plan was developed to classify
wetlands in the urban area into high and low value wetlands. On
the low value wetlands, the CBJ has general permit authority to
issue permits for construction and development activities. That
greatly simplified development within the borough and on
marginal wetlands where the permit process had previously been
cumbersome. The Juneau Wetlands Management Plan also identifies
eight special waterfront development districts. Those special
districts were adopted as elements of the coastal management
program. In those areas, coastal marine, industrial and
commercial development can take place. These designated coastal
areas have been very important in promoting economic development
and in easing the development process. The resource agencies
approved these through the adoption of the Juneau Coastal
Management Program in the late 1980s.
MR. FREER said he wanted to bring the committee's attention to
the important elements of Juneau's coastal program and the role
they play in the rational development of Juneau's coastal areas.
They represent important local authority and local control that
the CBJ wants to retain. The CBJ believes it would be a very
unhappy consequence if its local authorities were inadvertently
lost as a result of the revisions made in CSSB 143(RES).
SENATOR ELTON commented the unhappy circumstance Mr. Freer
referred to would be the inability of the CBJ to promote
economic development in the coastal area.
MR. FREER said the CBJ believes the approvals it has for the
development of the waterfront districts and the general permit
authority it has in low value wetlands expedites and simplifies
the local development process. Ceding these authorities back to
the state and federal government would complicate development.
CHAIR OGAN asked participants to provide brief testimony and
said the committee would hear the bill again on Monday.
MR. TOM OSCAR, a member of the coastal resource area serving the
Yukon Kuskokwim area, concurred with Mr. Alan Joseph's comments
about the tribal council communities. In the 44 communities he
serves, 15 are traditional primary governments. He would like to
see clarification in the bill as to whether those governments
are to be included. The 44 villages will not be able to rewrite
their programs in one year. That process will be costly and time
consuming. Third, the villages are in the process of mapping
customary use areas to protect resources. He sees no guarantee
to protect traditional hunting and fishing areas in the bill.
[The remainder of Mr. Oscar's testimony was indiscernible.]
CHAIR OGAN said he would get back to Mr. Oscar with answers to
his questions.
MR. JEFF COURIER, Lake and Peninsula Borough, told members he
has not heard a lot of support for the proposed changes from
people representing communities. He understands a lot of work
has been done on this bill, but he still hears a lot of concern.
He urged members to slow down and do this right because changes
will cause a lot of problems for communities around the state.
He said the timing will not work for the 17 communities in the
Lake & Peninsula Borough. The 90-day clause is a major concern
because if an applicant holds up the process intentionally, that
will soon become the trend.
MR. DOUG MERTZ, representing the Prince William Sound Regional
Citizens Advisory Council, told members the Council is made up
of numerous entities, including a number of local communities
affected by the Exxon Valdez oil spill. Those communities know
what it is like to have their local economies, commercial
fishing resources and subsistence way of life disrupted by
outside events out of their control. Hence, they are very
concerned about what SB 143 will do to them and their degree of
control over their local communities. He said the Council is
hearing Administration officials say local enforceable policies
will be able to continue pretty much unchanged. However, the
language of the bill gives a completely different impression. He
said part of the problem may be a matter of how the bill was
drafted but it is very important that the Legislature make sure
its policy call is stated unequivocally and clearly in the bill.
He cautioned that the language of the bill excludes from the
jurisdiction of local enforceable policies any number of vital
matters to local communities in Sections 11, 14 and 21. He
stated:
Basically, if it comes within the jurisdiction of [the
Department of] Environmental Conservation, they can't
do it. If it comes within the Forest Practices Act,
they can't do it. If it's something that's not unique
to that particular coastal resource area, they can't
do it. For instance, if the local resource area is
concerned about the impact on an eel grass bed, what
the next resource area over has the same concern about
eel grass beds, then, by definition, it becomes a
matter of state concern, not local concern and they
can't have a local enforceable policy. [Indisc.]
addressed by federal or state law, even if it doesn't
duplicate it, but it's addressed by them, the locals
can't do it.
MR. MERTZ said the Legislature needs to make the basic policy
call as to whether it wants local enforceable policies to
continue as they are, whether it wants them to continue with
some tweaking, or whether it does not want local entities to do
local enforceable policies. If it does not want any local
involvement, the current bill will do that. However, if it wants
either of the first two, a lot of work needs to be done on the
bill because the language does not reflect that intention at
all. He noted this legislation was drafted by the Administration
and suggested having the legislature's drafters review the
measure.
CHAIR OGAN asked Mr. Mertz if he could submit his suggestions in
writing.
MR. MERTZ agreed to do so.
CHAIR OGAN asked Senate President Therriault to testify.
SENATOR GENE THERRIAULT said he wanted to respond to some of the
concerns expressed in earlier testimony. Regarding the local
match, nothing in the bill impacts that; the decision to
increase the match was a separate budgetary decision. Either
state funds or a combination of state and local funds must match
the federal funds. The state no longer has the funds to continue
its level of match. If communities want to continue to receive
federal funds, the local governments will have to pick up more
of the required match. With regard to the 90-day clock, that
language contains an exception [on page 15, line 2] that refers
to (d)(3). That subsection provides that an affected coastal
resource district can request a subsequent review. He said on
the issue of the expense of re-writing local enforceable
policies, the legislature passed SB 308 last year. As a result
of that legislation, many of the coastal resource areas should
currently be undergoing a review of their enforceable policies.
However, he does not believe the outgoing administration
impressed upon the coastal resource areas the enactment of that
legislation and their need to comply. The timeline for SB 308
was one year. If those changes are not made, the Coastal Policy
Council has the authority to delete those enforceable policies
that were just references or adoptions of state statutes and
regulations.
CHAIR OGAN thanked all participants and adjourned the meeting at
4:55 p.m.
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