03/16/2009 03:30 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| SB4 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 4 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
SENATE RESOURCES STANDING COMMITTEE
March 16, 2009
3:40 p.m.
MEMBERS PRESENT
Senator Lesil McGuire, Co-Chair
Senator Bill Wielechowski, Co-Chair
Senator Charlie Huggins, Vice Chair
Senator Hollis French
Senator Bert Stedman
Senator Gary Stevens
Senator Thomas Wagoner
MEMBERS ABSENT
All members present
OTHER LEGISLATORS PRESENT
Senator Gene Therriault
Representative Jay Ramras
COMMITTEE CALENDAR
SENATE BILL NO. 4
"An Act relating to the Alaska coastal management program; and
establishing the Alaska Coastal Policy Board."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 4
SHORT TITLE: COASTAL MANAGEMENT PROGRAM
SPONSOR(s): SENATOR(s) OLSON
01/21/09 (S) PREFILE RELEASED 1/9/09
01/21/09 (S) READ THE FIRST TIME - REFERRALS
01/21/09 (S) CRA, RES, FIN
02/05/09 (S) CRA AT 3:30 PM BELTZ 211
02/05/09 (S) Moved CSSB 4(CRA) Out of Committee
02/05/09 (S) MINUTE(CRA)
02/06/09 (S) CRA RPT CS 3DP 2NR SAME TITLE
02/06/09 (S) DP: OLSON, THOMAS, KOOKESH
02/06/09 (S) NR: FRENCH, MENARD
03/16/09 (S) RES AT 3:30 PM BUTROVICH 205
WITNESS REGISTER
SENATOR DONNY OLSON
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Sponsor of SB 4.
TIM BENINTENDI, Staff
to Senator Olson
Alaska Capitol Building
Juneau, AK
POSITION STATEMENT: Provided introduction to SB 4.
JOHNNY AIKEN, Planning Director
North Slope Borough
Barrow, AK
POSITION STATEMENT: Testified in support of SB 4.
MARILYN CROCKETT, Executive Director
Alaska Oil and Gas Association
Anchorage, AK
POSITION STATEMENT: Testified in opposition to SB 4
RANDY BATES, Director
Division of Coastal and Ocean Management
Department of Natural Resources
Juneau, AK
POSITION STATEMENT: Testified that DNR does not support SB 4.
TERRY CAMERY, Planner
City and Borough of Juneau
Juneau, AK
POSITION STATEMENT: Testified in support of SB 4.
TIM JONES, Mayor
City of Cordova
Cordova, AK
POSITION STATEMENT: Testified in support of SB 4.
JENNIFER GIBBINS, Executive Director
Prince Williams Sound Keeper
Cordova, AK
POSITION STATEMENT: Testified in support of SB 4.
GARY WILLIAMS, Coastal District Coordinator
Kenai Peninsula Borough
Soldotna, AK
POSITION STATEMENT: Testified in support of SB 4.
LINDSAY WOLTER, Attorney
Civil Division
Environmental Section
Department of Law,
POSITION STATEMENT:
PAUL LAIRD, General Manager
Alaska Support Industry Alliance
Anchorage, AK
POSITION STATEMENT: Testified in opposition to SB 4.
BUD CASSIDY, Director
Community Development Department
Kodiak, AK
POSITION STATEMENT: Testified in support of SB 4.
MARLENE CAMPBELL, Coastal Management Coordinator
City and Borough of Sitka
Sitka, AK
POSITION STATEMENT: Testified in support of SB 4.
BARRETT RISTROF, Attorney
North Slope Borough
Barrow, AK
POSITION STATEMENT: Testified in support of SB 4.
JACK OMALACK
Kawerak Incorporated
Nome, AK
POSITION STATEMENT: Testified in support of SB 4.
STEVE TOBISH, Senior Planner
Municipality of Anchorage
Anchorage, AK
POSITION STATEMENT: Testified in support of SB 4.
MAUREEN MCCRAIG
POSITION STATEMENT: Testified in support of SB 4.
ACTION NARRATIVE
3:40:29 PM
CO-CHAIR LESIL MCGUIRE called the Senate Resources Standing
Committee meeting to order at 3:40 p.m. Present at the call to
order were Senators Huggins, Stevens, Wagoner, French,
Wielechowski and McGuire.
SB 4-COASTAL MANAGEMENT PROGRAM
3:41:01 PM
CO-CHAIR MCGUIRE announced SB 4 to be up for consideration
SENATOR DONNY OLSON, Alaska State Legislature, sponsor, said SB
4 establishes the Alaska Coastal Policy Board to exercise
authority over development projects in the coastal zones of
Alaska. He introduced the legislation because of an apparent
lack of compromise in this area. One side wants the authority
and power concentrated in an agency of the Department of Natural
Resources (DNR) and the other wants authority shared with local
district residents and four state commissioners.
SB 4 would establish a nine-member Alaska Coastal Policy Board,
comprised of five public members from the 28 coastal management
districts and the commissioners of natural resources,
environmental conservation, fish and game, and commerce. The
public members will be appointed by the governor, which allows
the state to maintain a steady hand on the activities of the
Coastal Policy Board. Prior to the dramatic program change in
2003, the former Coastal Policy Council was composed of
commissioners and local district residents. They performed their
duties satisfactorily; no projects were delayed or canceled due
to actions by the council.
Since the program change in 2003, DNR has not been successful in
dealing with the issue of genuine participation by district
residents in decision-making about development in their areas.
Nor has it dealt with the persistent negative moral issues in
this arena. A months-long process last summer and fall was
unsuccessful in addressing needed changes to the Alaska Coastal
Management Plan (ACMP).
Coastal district residents throughout the state are
disenfranchised by the process that governs development activity
in their home regions, Senator Olson stated.
3:44:22 PM
TIM BENINTENDI, staff to Senator Donny Olson, said that SB 4
would establish the Alaska Coastal Policy Board. Changes in 2003
to the ACMP program eliminated the Coastal Policy Council and
shifted authority for permit review, compliance, and consistency
maters to the Department of Natural Resources. Among other
things, the new Coastal Policy Board would have the authority to
approve district management plans; approve regulations developed
by DNR; approve program changes; apply for and accept grants and
other monies; evaluate the effectiveness of district management
plans; and settle disputes.
Concentrating decision-making in too few hands within DNR left
many to view the court system as the only source of remedy for
development project reviews that are seen as abbreviated and
non-inclusive. It would be unfortunate if these actions diverted
financial resources unnecessarily, he said. Moreover, it's
likely that such issues would be addressed by a California court
rather than in Alaska.
MR. BENINTENDI said the administration has cautioned against
making changes to the current ACMP program that might make it
more cumbersome and costly for project developers. To date, he
has not seen a list of specific development projects that have
been halted, delayed, or made more costly because of the old
Coastal Policy Council. Such a roster would advance discussion,
deliberation, and understanding.
After 2003, regulations adopted by the Department of Natural
Resources severely limited the ability of coastal districts to
establish enforceable policies regarding the eventual effects of
development on coastal resources and uses. Under SB 4, the
authority for local policy determination would be restored. What
is more, subsistence usage is specifically identified as a value
within the ACMP objectives.
The so-called DEC Carve-Out would be eliminated under SB 4. This
basically says that a project permit issued by DEC is
automatically considered "consistent" within the ACMP
requirements.
The legislation provides for authority over development inland
from the coastal area should there be significant impact to the
coastal zone. This includes activities in federal lands and
waters and the Outer Continental Shelf (OCS). SB 4 would also
address "seismic survey activity," and would make each lease
sale subject to an individual consistency review.
3:46:54 PM
MR. BENINTENDI said that despite a well-publicized ACMP outreach
process last summer and fall, there has been no progress in
bringing district interests into the fold. Furthermore,
anticipated improvements from the administration will not now be
forthcoming.
The calendar that ACMP released last fall said, "We intend to
strengthen the ACMP as a state program that will benefit
applicants and the public in the coordination of projects that
will enhance coastal district participation when reviewing
activities occurring in the coastal area and on the Outer
Continental Shelf." Despite the very best intentions of program
personnel, those objectives have not been met. The program
continues to be unpopular and divisive. In the absence of
moderating legislation from the administration, SB 4 and the
House companion bill, HB 74, offer an inclusive and viable
alternative that has a history of success based on the former
program.
3:48:05 PM
SENATOR STEDMAN joined the committee.
CO-CHAIR MCGUIRE asked for an example of a policy or objective
that a coastal district has been unable to get through under the
current process.
MR. BENINTENDI replied the principle issue is probably the lack
of ability for local districts to generate locally enforceable
policies that have support from the Coastal Policy Board.
SENATOR FRENCH noted that the sponsor statement states, "So
dramatic were the changes, that the federal Office of Oceans and
Coastal Resource Management formally reviewed state actions for
compliance and took two years to determine acceptance." He asked
how that would have differed under the original program or under
this bill.
MR. BENINTENDI surmised that the two-year federal review is on
the upper edge of what would be considered a normal time limit.
SENATOR FRENCH said other than the size of the board, what are
the major differences between the pre-2003 program and the one
that would be established under this bill.
MR. BENINTENDI replied what comes to mind is the provision for
reviewing projects inland from the immediate coastal area. For
example, the Red Dog Mine is upland from the coast, but
eventually has direct impacts on the coastal zone.
3:51:30 PM
SENATOR FRENCH asked for specific examples of things that have
gone wrong in the last six years that would have been fixed had
an ACMP plan been in effect.
MR. BENINTENDI replied the people who will testify today could
articulate specific occurrences better than he, but there are a
host.
SENATOR OLSON added that the seismic activity in the Chukchi and
Beaufort Sea comes to mind. Local whalers have voiced their
concerns but it's fallen on deaf ears. There's been a real lack
of attentiveness, he said.
CO-CHAIR WIELECHOWSKI asked if perhaps there might not be more
development if local communities were to have the opportunity to
be involved and give input versus locking in and opposing
something simply because their voices aren't heard.
SENATOR OLSON replied the frustration really comes from not
being at the table. Under the old program quite a bit of
development took place on the North Slope from the 1970s until
2003. The 2003 legislation eliminated local input and that has
caused frustration. More important, DNR seems to have a lack of
ambition. The department is so busy it doesn't have time to
address issues that are very important to people living in these
coastal areas. That's the source of both the frustration and the
call for modifying legislation, he said.
3:54:34 PM
CO-CHAIR MCGUIRE asked for an explanation of the thought process
for having five public members and four commissioners on the
Coastal Policy Board. She worries that votes might always be
five to four.
SENATOR OLSON said the commissioners likely won't come from
coastal districts and the public members will provide a very
unique and important perspective.
CO-CHAIR MCGUIRE said her concern is that rather than making
decisions based on data and facts and science, the tendency
would be for the five public members to support whatever
initiative is impacting a particular board member. The votes of
the four commissioners may be minimized in the process.
3:57:32 PM
MR. BENINTENDI observed that the governor would have appointed
all the members so from that perspective the board could be less
contentious than the present circumstance. He added that he
doesn't want it to be a "we and they" circumstance and believes
that the board that is suggested in the legislation would go a
long way in reducing that contention.
SENATOR HUGGINS asked if he looked at any ways other than
establishing a board to address the issue.
SENATOR OLSON answered they took a historical look to see if
both the development and subsistence points of view had been
satisfied when the Coastal Policy Council was in place. They
found that it had been open and fair to all sides. What's going
on now isn't really controversial, it's just that everyone isn't
involved and represented.
SENATOR STEVENS asked how this bill affects subsistence.
MR. BENINTENDI replied the bill makes it formal that subsistence
activities in the coastal districts are a value that will be
given consideration in the process.
4:00:56 PM
JOHNNY AIKEN, Planning Director, North Slope Borough, said he
has 11 years experience with the ACMP. He said SB 4 would
restore the ability of coastal districts to establish
enforceable polices; improve district and agency participation;
bring air and water quality back into the program; and restore
the state's rights. Furthermore, he said, this bill will restore
our faith in the state governmental process.
MR. AIKEN said that district enforceable policies provide the
foundation for the ACMP. They address local concerns by allowing
development. DNR in 2003 assured the Legislature that districts
would retain the ability to have enforceable policies. However,
when approving district plans the rules changed and most
policies were denied. For example, proposed policies for
subsistence, habitat, mining, and oil and gas were disapproved.
Last year DNR testified its regulations were more stringent than
the Legislature intended, but it has no plans to fix the
problem.
The 2003 legislation eliminated checks and balances when all
decision-making power was shifted to DNR. SB 4 would restore the
partnership originally envisioned for the Coastal Management
Program by establishing a Coastal Policy Board that represents
districts and state agencies. District participation fulfills
the goal of Article 10 of the state constitution for maximum
local self government. The bill would bring air and water
quality back into the program. Removing DEC permits from the
consistency review process was a bold experiment that didn't
work. Even DNR proposed to eliminate the DEC Carve-Out in draft
legislation. SB 4 would restore rights given the state under the
federal Coastal Zone Management Act.
4:05:13 PM
MR. AIKEN clarified three issues. 1) The ACMP does not stop
development. It gives state agencies and coastal districts an
opportunity to promote development while minimizing associated
impacts. 2) The ACMP provides an excellent way to resolve issues
early in the process thereby helping to prevent permit delays
and lawsuits. 3) Prior to 2003 less than 1 percent of all
projects in the state were appealed. Because citizen appeals are
no longer allowed, that figure would be even lower under SB 4.
MR. AIKEN referenced a map showing oil and gas activities on the
North Slope and noted that most of the projects were approved
prior to 2003. The North Slope Borough depends on development
for revenue and does not stand in its way, he said.
4:07:47 PM
MARILYN CROCKETT, Executive Director, Alaska Oil and Gas
Association (AOGA), said that since 1977 AOGA has been very
actively involved with the ACMP. In the late 1990s it became
clear that the scope and process of the ACMP led to confusion,
misinterpretations and delays without any additional
environmental protection or benefit. Legislation in 2003
resolved these challenges by instituting a program that provides
certainty to the state, local districts, and the regulated
community. Unfortunately, SB 4 eliminates that certainty.
MS. CROCKETT said elimination of the DEC Carve-Out is a most
problematic provision in this legislation. The provision in
existing law implements the original intent of the ACMP, which
is that the state administered standards and permits are
inherently consistent with the program. Therefore, the
additional requirement of securing a consistency determination
is not necessary or required and falls outside of the ACMP
review schedule. The DEC Carve-Out in no way diminishes a
coastal district's opportunity to comment and provide input on a
particular DEC permit application.
MS. CROCKETT expressed concern about establishing the Coastal
Policy Board and the powers vested in it. She highlighted that
DNR would be able to adopt regulations, but only with the
approval of the board. AOGA believes this will result in endless
back-and-forths between the agency and local entities. AOGA
further believes that insertion of a board into this process
would lengthen processing times given the infrequency of
meetings.
MS. CROCKETT pointed out that a permit timeline is absolutely
critical to any permitting entity. She said that SB 4 eliminates
timelines for federally permitted activities or actions. This
will certainly impact oil and gas activity, but it could impact
something as simple as putting in a pad in a coastal community
where the developer needs a 404 permit from the Army Corps of
Engineers. AOGA believes that the elimination of the deadline
for action for a consistency determination on a federal permit
is very serious.
4:12:20 PM
RANDY BATES, Director, Division of Coastal and Ocean Management,
Department of Natural Resources, stated that the department does
not support SB 4. DNR has two substantive concerns with this
legislation. First, it creates a new oversight body and vests it
with the ability to approve coastal district enforceable
policies. This would override agency authority and effectively
render moot the legislative establishment of laws relative to
resource management and protection. Second, SB 4 does not
balance or represent the interests of all ACMP participants and
stakeholders. It addresses the issues of just one group of ACMP
participants. He added that DNR has additional and specific
concerns with SB 4 that he will not address at this point.
MR. BATES said that the program that was implemented in 2003
respects existing state and federal agency authority. It
solicits coastal district input and perspective and balances a
development economy with protections to the coastal uses and
resources. However, DNR recognizes that there is a significant
difference of opinion as to the success of the program since
2003; the influence coastal districts have regarding state
permitting decisions; and the improvements that could be made to
strengthen the coastal program. At this point DNR does believe
that some change to the coastal program is necessary, but it has
not concluded that statutory change is warranted.
DNR believes that the voice, perspective, and influence of rural
Alaska and the coastal communities are critical to the function
of the department and the state. DNR values that input, but does
not believe it should supplant the state's decision-making
process on issues that are important to the state and the
residents.
MR. BATES said a fundamental concern is that SB 4 allows coastal
districts to modify the standards and authority of the resource
agencies thereby making enforceable policies more restrictive,
stringent, and prescriptive. Furthermore, it allows the
districts to write policies without required science and without
enforcement capability. These substantive changes are largely
the reason that DNR has not been able to reach a consensus or
conclusion as to the changes that could be made to the ACMP
statutes
4:16:42 PM
CO-CHAIR WIELECHOWSKI asked if he brought some examples of
development projects that were slowed by the consistency review
process.
MR. BATES replied he did not bring examples because there are
always reasons to rationalize why a project was delayed or costs
were increased, which is not to say it has or has not happened.
He suggested that it is more appropriate to pose the question to
industry. He offered to continue to work on some examples, but
cautioned that each one would have at least a page of caveats.
4:18:00 PM
SENATOR WAGONER asked if all the district plans had been
rewritten and accepted. Last year they hadn't been.
MR. BATES replied 25 of the 28 coastal districts that actively
worked on plan revisions have had their district plans approved
and they are now in effect. The 3 outstanding plans include the
North Slope Borough, the Northwest Arctic Borough, and the
Bering Straits Coastal Resource Service Area.
CO-CHAIR MCGUIRE recognized that Senator Therriault had joined
the committee.
4:18:45 PM
SENATOR FRENCH noted that sections 3 and 9 provide evidence for
DNR's argument that the bill allows the coastal board to
override DNR. He asked if any other sections do that.
MR. BATES replied DNR focused on sections 9 and 14. Their
reading is that those sections substantially change the
authority and purview of coastal district enforceable policies.
SENATOR HUGGINS asked how the coastal communities provide input
to DNR under the present system.
MR. BATES replied the structure of the coastal program has not
changed since 1979. The networked coastal program relies on
implementation through the sister agencies of mining, land and
water, oil and gas, habitat, fish and game, and environmental
conservation. There is also a local implementation technique,
which is the coastal district role. During the consistency
review process, which is akin to a permitting process, coastal
districts have the opportunity to review and comment on a
project. Based on those comments, the project is modified as
appropriate. Coastal districts continue to have the opportunity
to comment. At issue is whether they have district enforceable
policies that they can apply. It's a matter of who has control
to determine compliance of the project.
SENATOR HUGGINS asked if holding public hearings is part of the
process.
MR. BARES explained that the public process is a cornerstone of
the federal Coastal Zone Management Act. Alaska complies with
that federal law. Every consistency review that DNR conducts has
a public process that allows coastal districts, state agencies,
and other residents of the state the opportunity to comment.
4:22:20 PM
TERRY CAMERY, Planner, City and Borough of Juneau (CBJ), stated
that CBJ supports SB 4. The bill would allow districts to
establish meaningful and enforceable polices; it would bring
back basic checks and balances through the Coastal Policy Board,
and it would bring DEC back into the review process.
MS. CAMERY said she respectfully disagrees with DNR on several
points. First, the bill does not override state authority. The
Coastal Policy Board does not conduct project reviews. The board
would approve local district coastal management programs,
approve regulations, and approve the grant program. Furthermore,
districts cannot write policies that are preempted by state or
federal law or that interfere with an issue of state concern.
Second, it's a gross exaggeration to say that the provisions in
SB 4 push local control because every policy that a district
pushes has to be thoroughly and scientifically documented.
Among other purposes, coastal management is used to establish
areas that are set aside for development as well as for
protection. For example, Juneau has special waterfront areas
that have lower habitat standards. These were pushed through the
ACMP specifically to develop waterfront areas for cruise ships,
seafood processing, and marine cargo. Also, the Juneau Wetland
Management Plan categorizes low-value wetlands and gives them
less restrictive policies to actively promote development in
those areas.
In 2003 the district role was drastically reduced. After lengthy
mediation, the Juneau Coastal Management Program Plan was
reduced from 93 policies to 16. The Anchorage plan was reduced
from 100 policies to 5.
MS. CAMERY said it is a shame that nothing resulted from the
reevaluation effort this fall because districts and industry put
forth a very strong good-faith effort. It speaks volumes that
the ACMP reevaluation effort was not even on the agenda in the
recent three-day statewide coastal management conference that
was held in Juneau, she said.
SB 4 was introduced because there has been no sign that DNR is
going forward with changes.
4:26:39 PM
TIM JONES, Mayor, City of Cordova, stated support for SB 4. The
bill, which establishes the Alaska Coastal Policy Board, would
allow coastal districts to provide input on policies as long as
they are not specifically barred by state or federal law. The
state should go in this direction, he said.
4:27:41 PM
JENNIFER GIBBINS, Executive Director, Prince Williams Sound
Keeper, Cordova, said SB 4 restores authority to local
government to develop enforceable policies and brings DEC back
into the process. However, she said, the bill still falls short
of realizing a comprehensive policy.
First, there is no resolution as to how DNR implements the
program. She suggested that it might help to write statewide
standards into the statutes thereby ensuring that DNR implements
the program according to legislative intent. Second, the bill
does not restore the citizens' right for judicial review. This
is critical, she said. While SB 4 gives local government more
control, local government cannot always represent the interests
of the public. A third disappointment is that the bill does not
elevate subsistence to the level of a stated priority within the
program. This is particularly disappointing to Alaska Natives
who depend upon subsistence for their livelihood and their
culture.
MS. GIBBINS said that as a participant in the eight-month DNR-
led stakeholder process, she was frustrated. Many people
invested enormous amounts of time and money in the hope that a
positive outcome would result, but this was not the case. She
suggested looking at the directives that were given by the staff
because this has been a problem before.
MS. GIBBINS expressed doubt that a comprehensive ACMP policy can
be realized within DNR, but SB 4 represents tangible progress on
the issue.
4:30:54 PM
GARY WILLIAMS, Coastal District Coordinator, Kenai Peninsula
Borough, said SB 4 reinstitutes a coastal policy board to
provide modest oversight to the ACMP, which is a positive step.
The 2003 legislation provides too little flexibility to
accommodate the differing needs of coastal areas. Without an
oversight board there is no opportunity for districts to appeal
agency decisions. This has been a problem for all districts.
The language on page 7, lines 14-23, provides valuable guidance
on the development of coastal management plan enforceable
policies. This is an important provision if coastal districts
are to have a meaningful role in the implementation of the ACMP.
Under the current program, DNR does not allow coastal district
policy that touches on activity regulated by federal or state
agencies whether or not that agency effectively monitors or
enforces the regulated activity. State agencies seem to fear
that giving coastal districts enforceable policy in areas the
state has regulatory authority, will cede their authority, but
that is not the case. Coastal districts seek only to implement
the objectives of the ACMP as clearly delineated in state
statute. These objectives are described on page 8. Within the
objectives is the recognition of the need for energy
development, commercial and industrial enterprise development,
and orderly balanced use and protection of resources.
The guidance in this bill will provide for meaningful local
input. In the more than 20 years of partnership, coastal
districts have not used the ACMP to stop projects.
4:33:29 PM
The proposed language on page 13, lines 9-10 is extremely
important to the implementation of a resource management
program. It calls for consideration of the impacts of activities
that would cause direct and significant impact to coastal uses
or resources. Under current law, a coastal district cannot
consider the cumulative impact of activities that would cause
damage to a resource if the activity occurs outside the
boundaries of coastal resources. For example, an activity in an
upland that has a clear potential to damage a nearby wetland may
not be considered in a district consistency review. The language
proposed in this section must by part of any rational management
program.
4:34:20 PM
MR. WILLIAMS said the Kenai Peninsula Borough Coastal Program is
part of the Kenai River Center, a multi agency one-stop
permitting entity where borough, state, and federal resource
managers work together to process permit applications. When they
disagree, they talk. Bright lines of authority don't always
exist so it's valuable to have some overlap in regulations. It's
also important that this legislation seeks to be inclusive in
interagency and intergovernmental relationships and seeks to
communicate common concerns and understanding. SB 4 is a firm
step in the direction of facilitating local entities and state
agencies to work as partners to ensure that development and
resource protection are in balance.
4:35:41 PM
LINDSAY WOLTER, Attorney, Department of Law, said she is
available to answer questions.
PAUL LAIRD, General Manager, Alaska Support Industry Alliance
(ASIA), stated opposition to SB 4. The program was reformed in
2003 to address inconsistencies, ambiguities, and redundancies
that hampered resource development projects and discouraged
investment in Alaska. The reforms work and have not compromised
environmental standards.
ASIA membership includes more than 460 organizations that
provide goods and services to Alaska's oil, gas, and mining
industries. Investments by these industries are the backbone of
the state's economy, and these industries are the most
susceptible to the regulatory roadblocks embodied in SB 4.
Already the industry has reduced investments because of the
economic downturn, lower oil and gas prices, and an
uncompetitive state tax structure for oil and gas. Recently
hundreds of industry workers have been laid off and thousands
more are vulnerable. Alaska contractor and supplier margins are
being squeezed as oil companies seek to reduce operating and
capital costs. Don't jeopardize more Alaska jobs and businesses
by again creating regulatory and permitting obstacles in the
ACMP, he said. This would make Alaska even less attractive for
investment.
4:37:55 PM
SENATOR FRENCH asked about provisions of the bill that could
arguably allow local override of DNR. He can see the argument in
section 9, but he'd like DOL's view about whether section 14
allows for a coastal zone management plan adopted under SB 4 to
override DNR.
MS. WOLTER replied sections 14 and 19 go hand in hand. Under
section 14 the board would not be able to approve any policies
that did not also meet requirements under section 9. While
language in section 14 does not speak specifically to what
happens if enforceable policies are stricter or more specific
than state or federal statutes, that would still need to be
addressed because of section 9.
4:40:03 PM
SENATOR FRENCH said essentially that is a borough or city
overriding the state to adopt a 35 mile per hour speed limit
when the state allowed a 45 mph speed limit.
MS. WOLTER agreed; although the Coastal Management Program tries
to maintain consistency from district to district, a local
district that wants to be more stringent might do so through
their municipal code.
4:41:44 PM
BUD CASSIDY, Director, Community Development Department, Kodiak,
said that as one of the largest and most diversified commercial
fishing ports in the nation, coastal resources are critically
important to Kodiak's economic wellbeing as well as its physical
and social wellbeing through subsistence uses. Equally important
to the economy are the processing and transportation industries,
both of which are built along the coast.
Past experience with the ACMP shows that commercial fishing,
subsistence, and development support one another when there is
meaningful dialog. The old ACMP worked well because it
encouraged local input and sought coordination between local
entities and state agencies. Kodiak residents and fishermen feel
that the collaboration between agencies with expertise and
entities with local knowledge results in reduced conflict and
makes for better decisions that are more generally accepted by
all parties. Mr. Cassidy said the key word is "coordinate" and
he doesn't see in the current program. Many citizens have become
disengaged from the coastal management process, because the
community has a very limited role.
MR. CASSIDY said that as residents they may not have the
expertise to determine water and air quality or to know the
science behind managing fish and game resources, but their local
expertise and experience should be considered and included when
decisions are made. The Kodiak Borough Assembly supports SB 4
and has passed a resolution to that effect.
4:44:48 PM
MARLENE CAMPBELL, Coastal Management Coordinator, City and
Borough of Sitka, said the Assembly adopted a resolution
supporting SB 4. Prior to the 2003 revisions to the ACMP, the
model Sitka plan enabled the community to protect local
resources and activities while also permitting responsible
development. As a result of the 2003 revisions, Sitka lost more
than half of its enforceable policies as well as its seat at the
table for permit and management decision-making affecting
coastal communities. SB 4 would restore that seat by
establishing the Coastal Policy Board, which will have high
level representation from agencies and coastal districts. All
interests will be represented and a more coordinated review will
result as opposed to the current unilateral decision-making by
only DNR. This legislation will also streamline project reviews
by including DEC in the review process rather than separately
through the dysfunctional DEC Carve-Out.
MS. CAMPBELL restated that the 2003 revisions to the ACMP
damaged the formerly strong and effective Sitka program. SB 4 is
a step forward to reinstate the best features of the ACMP.
4:47:35 PM
BARRETT RISTROF, Attorney, North Slope Borough, said she
participated in the mediation and ACMP reevaluation. She
disagrees with the DNR testimony that SB 4 would override agency
authority to address natural resource issues. The bill doesn't
do that because the Legislature has the power to delegate its
authority and determine which actions each agency will take
regarding state coastal management. Contrary to DNR testimony,
SB 4 requires policies to be supported by scientific evidence or
by contemporary or traditional local knowledge that would
justify the policies.
The state constitution empowers municipalities to enact laws on
management concerns provided they do not conflict with state and
federal law. SB 4 does not change this. DNR has said that if
municipalities want stricter laws this would need to be done
through municipal codes and they cannot regulate the OCS.
However, she said, with the exception of AS 29.35.020, which
deals with extraterritorial jurisdiction, municipalities
generally cannot use their municipal code to regulate outside
their bounds. The ACMP is a unique chance for local entities to
work in partnership with the state and federal government to do
things they wouldn't ordinarily deal with when they work with
municipal codes. When the state says it cannot make policies
that deal with marine mammals because the federal government
would preempt it through the Marine Mammal Protection Act, the
state is ceding its power to do something the Coastal Zone
Management Act would allow, she said.
MS. RISTROF said that in April 2007 DNR announced it would
reevaluate the ACMP yet it took more than a year to initiate the
process. Participants worked hard to craft a bill that everyone
could agree on, but DNR chose not to continue the reevaluation
stating that it was unable to obtain a consensus. At the
conference in December DNR indicated it wouldn't necessarily
submit modifying legislation even with 99 percent consensus. SB
4 may not have 99 percent consensus, but it does strike a
balance. It would not stop development or jeopardize jobs. It
would streamline development of oil and gas resources and allow
Alaskans to preserve renewable resources.
CO-CHAIR WIELECHOWSKI assumed the gavel.
4:51:01 PM
JACK OMALACK, Kawerak Incorporated, said the 20 regional
villages that Kawerak represents all support SB 4. It would
reestablish local participation in the management policies of
the ACMP. Recent efforts to impart crucial and knowledgeable
local information regarding coastal management strategies often
have been lost within the DNR coastal management plan process.
Local communities became disenfranchised by inefficient policies
and procedures. They believe that establishing a Coastal Policy
Board would alleviate some of the problems inherent in having a
single agency oversee this large and intricate program. They
further believe that local communities have the right to have a
meaningful influence in the decision-making processes concerning
resources within their local management districts. SB 4 would
address such concerns.
4:52:57 PM
STEVE TOBISH, Senior Planner, Municipality of Anchorage, said
the municipality supports SB 4. The 2003 changes to the ACMP
reduced the role of the municipality in coastal activities
particularly in environmental permit reviews. The municipality
lost its ability to craft enforceable policies that could be
used to shape local projects and guide federal and state
reviews. Initially their plan had 82 primary enforceable
policies and now it has 5 rather generic policies that are
little used. The old plan also incorporated the Anchorage
Coastal Management Plan, which meant that their enforceable
policies could be carried as conditions on state consistency
findings, particularly for Corps permits. The state's review was
a vehicle for their policies and it's safe to say that Anchorage
would not have developed the way it did in the booming '80s and
'90s without the policies that in some cases nearly superceded
federal regulations.
MR. TOBISH said the Knik Arm ferry is an example of how the
current changes have negatively affected the municipality. The
original plan had 5 or 6 policies that would have helped guide
MatSu in locating their ferry terminal at the Port of Anchorage.
Without that guidance MatSu has languished for more than a year
trying to identify a landing site, and is currently looking at a
site that the municipality does not support.
SB 4 addresses and resolves problematic sections of the current
legislation. The suggested changes would allow coastal districts
and communities to customize enforceable policies in ways that
maximize local control. Districts would be guaranteed an active
seat at the table during state and federal permit reviews. Right
now this is missing. The Coastal Policy Board will bring back a
well represented nearly adjudicatory body that balances program
administration and decision-making.
MR. TOBISH said that SB 4 better represents what Alaska wanted
in the original program. It's what enabled communities to
initially accept the ACMP.
4:56:37 PM
MAUREEN MCCRAIG, said three significant problems in the current
coastal program that are addressed by SB 4 include: the ability
of coastal districts to have enforceable policies that address
specific district needs; the return of DEC permits to the
consolidated ACMP consistency review; and the formation of a
Coastal Policy Board.
In 2003 the Legislature restructured the coastal program and
district policies are now missing. Coastal districts only
received deference in the interpretation of their own policies.
By denying coastal districts their policies, DNR was able to
effectively diminish the deference it was supposed to give.
MS. MCCRAIG opined that removing DEC permits from the
coordinated review has led to delay and dysfunction. For
example, federal permits from the Corps of Engineers wetland
program cannot be issued without both the DEC water quality
certificate and the ACMP consistency decision. Prior to 2003
both decisions came together and that is no longer the case.
MS. MCCRAIG said she supports creation of the Coastal Policy
Board. Participants would reflect diversity and decisions would
only focus on policies.
SB 4 would provide an effective district voice to diverse
coastal areas. It would restore DEC to the integrated review
process and establish a policy board to ensure balanced
decisions.
CO-CHAIR WIELECHOWSKI announced he would hold SB 4 in committee
to provide additional opportunity to testify.
5:01:38 PM
There being no further business to come before the committee,
Co-Chair Wielechowski adjourned the Senate Resources Standing
Committee at 5:01 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 4 Bill Packet.pdf |
SRES 3/16/2009 3:30:00 PM |
SB 4 |