HB 106-COASTAL MANAGEMENT PROGRAM  2:08:54 PM CO-CHAIR SEATON announced that the next order of business is 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." CO-CHAIR SEATON noted that the committee had previously asked questions about how the Alaska Coastal Management Program works, and Mr. Gray, a consultant to some of the coastal districts, was asked to provide information from a consultant's perspective. 2:10:11 PM GLENN GRAY, Glenn Gray & Associates, noted that he worked 11 years in the Division of Governmental Coordination coordinating oil and gas reviews, primarily mineral reviews, and for the past 7 years he has worked for coastal districts throughout the state. In response to several questions from Co-Chair Feige, Mr. Gray confirmed that he worked for 11 years for the Division of Governmental Coordination, which at that time was where the Alaska Coastal Management Program (ACMP) was located, but now he is working as a private individual. MR. GRAY began by pointing out that the ACMP is now, and always has been, a development program. It is a way to make projects better; very few projects have ever been stopped through the program. It is a one-size-fits-all process, so a large project such as a huge mine or oil and gas development will follow the same process as is outlined on slide 2. A good part of the program is the pre-application services that the Department of Natural Resources (DNR) gives when requested by the applicant. This service gets everyone around the table at a meeting to try and fix any problems before the applications are even submitted. Once there is a complete packet, which includes all permits except for Department of Environmental Conservation (DEC) permits since they are carved out of the program, the review begins on what is called "Day 1". All reviews will either go through a 30-day review or a 50-day review, which is a little misleading because the reviews can be extended up to 90 days or longer for some types of reviews. 2:12:48 PM MR. GRAY said the first milestone is on day 13 of a 30-day review or day 25 of a 50-day review when one of the review participants can request additional information. Next is the comment deadline on day 17 or day 30, which is the timeframe applicable to all state and federal agencies, coastal districts, and the applicant. [By day 24 or day 44] DNR, or one of the other departments if it is a single agency review, will develop a proposed consistency determination. MR. GRAY said "consistency" means that this review is to determine whether that project is consistent with the statewide standards of the ACMP and the coastal district enforceable policies. He pointed out that very few projects are elevated to the level of the DNR commissioner. Prior to 2003, it would have been the divisions of the three resource agencies first, and then the commissioners. Now, under the new program, it is the DNR commissioner. If there are no elevation requests, the review will go directly to the final consistency determination on day 30 or day 50. 2:14:13 PM CO-CHAIR FEIGE inquired whether projects are not elevated because of the pre-application process, or because things are clearer than they were prior to 2003, or because someone in the Division of Coastal and Ocean Management (DCOM) is choosing not to elevate it. MR. GRAY replied that the review participants decide whether to elevate that proposed decision. He understood that both today and before 2003, less than 1 percent of the projects were elevated or appealed in any way. This number is small because this review process is designed to identify the problems early on and resolve them, even if there are no pre-application meetings. 2:15:13 PM REPRESENTATIVE P. WILSON asked whether "one size fits all" is good or bad. MR. GRAY responded that, in his opinion, a process for large projects would solve a lot of the problems with the program because 95 percent of the projects are not controversial. Those 5 percent that are [controversial] are sometimes the larger projects and it is hard to do a "cookie-cutter" process. In further response to Representative P. Wilson, Mr. Gray related his belief that two different processes would be better. He noted that British Columbia does such. 2:15:58 PM REPRESENTATIVE P. WILSON inquired as to what causes elevation. MR. GRAY explained that the opportunity for elevation could occur when someone believes there are greater impacts to coastal uses and resources and the alternative measures would not mitigate the impacts. REPRESENTATIVE P. WILSON asked if there is a specific amount of time with which the DNR commission has to deal with the [elevation]. MR. GRAY replied yes. In further response to Representative P. Wilson, Mr. Gray explained that the 50- or 30-day timeline stops the day the elevation begins. There is a timeline for the elevation process. He confirmed that sometimes, although rarely, the project is stopped at this point. 2:17:20 PM CO-CHAIR FEIGE recalled that less than 1 percent of the entities face elevation after making it through the application process. He recalled that prior to 2003 a small number of entities were elevated. MR. GRAY responded that's correct. In further response to Co- Chair Feige, Mr. Gray recalled that prior to 2003 very few applications were withdrawn from the process. He mentioned that he used to coordinate some of the elevations and could only recall a couple of those he coordinated that were withdrawn. CO-CHAIR FEIGE mentioned that the committee saw some numbers from DCOM that showed a fairly significant amount of applications that had been withdrawn. MR. GRAY suggested that the committee would want to utilize DCOM's figures because he was basing his information on his experience seven years ago. 2:18:41 PM REPRESENTATIVE MUNOZ inquired as to the difference between a 30- day and a 50-day review. MR. GRAY explained that each permit that triggers a consistency review will either have a 30-day or 50-day timeline. An entity that has three permits of which one has a 50-day review and two have 30-day reviews, will follow the 50-day review since it's the lowest common denominator. CO-CHAIR FEIGE asked if that's from the A and B list. MR. GRAY clarified that the projects on the A and B list are those that have minimal impact and are already found consistent. Therefore, activities that are on the A and B list wouldn't even necessitate a consistency review because it has already been performed. 2:19:31 PM CO-CHAIR SEATON characterized the aforementioned as a general permit. He surmised that those activities falling within the same scope and listed within the A and B list because there are not impacts outside the enforceable policies or the statewide standards would not go through the [consistency review] process. MR. GRAY responded that is correct, and added his understanding that general permits are automatically placed on the B list. 2:20:29 PM MR. GRAY, in further response to Representative Munoz's earlier question, clarified that there is a list of permits that will trigger consistency reviews; not every project is reviewed for consistency. The list specifies whether it's a 30-day or 50-day review permit, and thus determines the process that's followed. 2:20:49 PM MR. GRAY, continuing his presentation, opined that one of the primary benefits of the ACMP is that the Coastal Zone Management Act (CZMA) provides states more rights than any other environmental law. The ability to influence federal decisions far surpasses any he can recall. Another primary benefit is that the Act gets everyone around the table. Currently, every state and federal agency has its own permit process that generally operates in isolation. The case is the same with local governments that have a Title 29 permit. Therefore, the potential with ACMP is to bring everyone around the table to identify and solve the issues. Furthermore, once everyone is around the table, folks may discover that they have similar permit stipulations and thus there's the opportunity to work out the issue and have a common requirement for the industry rather than slightly different solutions. Mr. Gray noted that review participants have slightly different status since they can request information specified on the previous slide. The [review participants] include the affected coastal districts, three resource agencies, and any state resource agency that requests participation. Although the process is designed to include DEC, he related his understanding that DEC usually is not part of the process. He noted that the applicant has special status since the applicant drives the process. 2:22:37 PM CO-CHAIR FEIGE inquired as to the advantages for the applicant. MR. GRAY related his understanding that although some applicants prefer to go to each agency individually, having everyone together at once is beneficial to many applicants. He said that he could recall some reviews that did not require an environmental impact statement (EIS). Federal agencies would be present at these meetings because it was their only venue to discuss the project with other state and federal agencies, he noted. CO-CHAIR FEIGE opined that one of the primary advantages for the applicant is the timeline, which encourages completion in a timely manner. Therefore, the timeline can be planned within the process and the economics of the project. MR. GRAY agreed that would be a benefit to the applicant. He then related that although under this system the agencies cannot issue a permit until the review is completed, the legislature established a 90-day timeline to develop a solution. Furthermore, under most circumstances state agencies must issue their permits within five or so days unless there is a disposal of state land interests or something similar. "It also is coordinated with the permit process, although it isn't necessarily coordinating the permits themselves," he stated. 2:24:30 PM REPRESENTATIVE P. WILSON asked whether the current process, with the DEC carveout, is faster than when DEC was included. MR. GRAY responded that he did not know whether the current process is faster or not. However, he related his understanding that the DEC process is independent [of the ACMP] for the permits. In further response to Representative P. Wilson, Mr. Gray said that the DEC process would generally be after the ACMP process. REPRESENTATIVE P. WILSON surmised then that the DEC carveout would result in the entire process being longer. MR. GRAY deferred to industry, but offered his opinion that generally it would be shorter if there was coordination. 2:26:04 PM REPRESENTATIVE MUNOZ inquired as to what happens once a project is through the 30- or 50-day process and it is found that the project has an aspect that is not consistent with one of the departmental requirements. MR. GRAY answered that usually the applicant will voluntarily ask to have the clock stopped. If it is something that cannot be worked out, the project would either be withdrawn or the agency would find that aspect inconsistent. However, usually a measure can be included in the project to make the aspect consistent. Drawing from his experience coordinating elevations, he recalled that most of the withdrawn projects were along the Kenai River because they could not be found consistent since they destroyed king salmon habitat. 2:27:04 PM CO-CHAIR FEIGE inquired as to what occurs during the pre- application meetings. He mentioned the complete packet and a lengthy online questionnaire. MR. GRAY clarified that the questionnaire is mostly a checklist to determine what permits might be needed. There is also a certification page that is signed to relate the project is consistent. Most applicants are required to have a consistency analysis, although sometimes a simple checklist is completed. 2:27:54 PM CO-CHAIR FEIGE surmised that there is contact between DCOM and the applicant while the applicant is completing the packet. MR. GRAY answered that it depends on the complexity of the project. For some projects there is no [contact], rather the applicant's coastal zone questionnaire and the application packet are submitted and the review starts. The larger projects normally have a pre-application, which is voluntary on the part of the applicant. He noted that the pre-application process can last up to a year or longer. In further response to Co-Chair Feige, Mr. Gray confirmed that once the application is complete, the clock starts. Although theoretically DCOM would have all the information it requires at the start, there can be a request for additional information if something develops later. 2:29:08 PM REPRESENTATIVE HERRON related his understanding that the DEC permit process is supposed to be concurrent with DNR's process. He then requested that "the record" of the aforementioned be provided to the committee. With regard to the DEC carveout, he asked if the air quality permits, save the prevention of significant deterioration air quality permit, would be appropriate to be included in the consistency review rather than be outside of it. MR. GRAY, drawing from his experience prior to 2003, said [the prevention of significant deterioration air quality permit] was the problem for some major oil and gas developments. He recalled that the application actually had to have drawings of the facilities. The aforementioned, he opined, could be addressed easily by having regulations that specify the review can begin prior to having the prevention of significant deterioration air quality permit. The issues related to the application could still be reviewed without having a complete application. Mr. Gray recalled that the aforementioned application was the only one for which this problem occurred. 2:30:51 PM CO-CHAIR SEATON related his understanding that Representative Herron's question was whether the DEC permit, even with the carveout, occurs concurrently with the consistency review process. REPRESENTATIVE HERRON clarified that his request was for the track record of the aforementioned requirement. 2:31:27 PM REPRESENTATIVE P. WILSON surmised then that it would be appropriate to add DEC for all the permits, save the prevention of significant deterioration air quality permit, to the coordinating agency that meets with the applicant. 2:32:01 PM MR. GRAY, returning to his presentation, referred to slide 4 and the four types of review and timelines. There are reviews that only have state authorizations. An authorization, he offered, can be thought of as a permit, although it may not be a permit but rather something that an applicant has to have before proceeding. When there is a federal authorization, the federal regulations for the CZMA will be in place. There are federal activities for which there is no applicant. Federal activities include oil and gas lease sales, U.S. Army Corps of Engineers dredging, and general permits. Outer Continental Shelf Projects are treated a bit differently because the permit applications are not reviewed, rather the exploration plan or the development and production plan is reviewed. Mr. Gray clarified that although the process is the same, some different factors may be in the mix. 2:33:17 PM CO-CHAIR FEIGE pointed out the note on slide 4 that specifies the following: "The Alaska statutory 90-day timeline for reviews overrides the federal timelines." MR. GRAY responded yes, unless it's regarding one of the exemptions such as the disposal for land use. In further response to Co-Chair Feige, Mr. Gray confirmed that the timeline begins when the application is determined to be complete. 2:33:58 PM MR. GRAY, continuing his presentation, stated the entire gist of the consistency review process is the following: "It's to determine whether or not the project is consistent with the statewide standards, which are in regulation at 11 AAC 112, and the coastal district enforceable policies." At the same time, the agencies coordinate their permit reviews. Technically, the consistency review is only about consistency with these enforceable polices and statewide standards. After 2003 when DNR implement the new regulations, there was a requirement that the enforceable policies "flow from" only one of the statewide ACMP standards or the designated areas listed on slide 5. 2:35:09 PM CO-CHAIR FEIGE asked if there is a topic that is missing. MR. GRAY said that the topic of minerals is missing. He explained that the mineral statewide standard was changed to a sand and gravel extraction standard that only applies to coastal areas near the salt water. He pointed out that the legislative objectives specified in AS 45.40.020 are much broader than the objectives [listed on slide 5], and therefore there is likely quite a bit missing. REPRESENTATIVE GARDNER asked then if the regulations limited what the legislation permitted. MR. GRAY replied, "That would be what I would assert." He then relayed, "DNR has said that the regulations are more stringent than what the legislature intended and I'm not sure that has ever been clarified, but at least in my understanding this would be one of the reasons why it's more stringent." Directing attention to the yellow paper in the committee packet entitled "Alaska Coastal Management Program Approved Coastal District Enforceable Policies, March 16, 2011," Mr. Gray highlighted that the two topics of recreation and coastal development account for 63 percent of the total percentage of topics for enforceable policies. However, there are very few enforceable policies for some of the topics, such as important habitat, natural hazards, and subsistence, which are of the biggest concern for residents throughout the state. 2:37:15 PM CO-CHAIR FEIGE, referring to the yellow paper's notation that [an enforceable policy] can't be written for mining, related his understanding that mining is very heavily regulated at the state and federal levels. MR. GRAY clarified that he did not mean to imply that mining is not regulated, rather through the ACMP a coastal district is not able to develop a policy specific to mining for a local concern. He acknowledged that other agencies have regulations, but pointed out that the regulations or statutes that would apply depend upon who the landowner is. "It's not anything uniform," he remarked. CO-CHAIR FEIGE interjected his understanding that mining regulations are uniform across the state. MR. GRAY related his understanding that it depends on who the landowner, the state or the federal government, is as to the regulations followed. Some state permits, he noted, apply to federal land and some do not. 2:38:30 PM MR. GRAY, moving on to slide 6 of his presentation, reviewed the statutory requirements for enforceable policies. He characterized the statutory requirement to be prescriptive as problematic. For example, he recalled the following prescriptive enforceable policy that specified that floating facilities must be moored in a minimum of 12 feet of water during mean low or low water or 0.0 tide stage. Although such a policy may work, sometimes industry prefers performance-based policies, such as that floating facilities shall be designed so that they do not ground in tidal areas. The aforementioned achieves the objective. Mr. Gray suggested that the idea behind the performance-based policy is that sometimes industry may have a better way of reaching the objective than a prescriptive policy. He reiterated that the statutory requirement that the enforceable policy must be prescriptive is problematic, but he added that the other statutory requirements would not be problematic if they were implemented with a simple common interpretation of the statute. 2:39:52 PM REPRESENTATIVE MUNOZ, returning to the topic of mining, stated that mining projects go through the ACMP process, but local coastal districts cannot establish enforceable policies pertaining to those projects. MR. GRAY clarified that coastal districts can establish a policy that specifically addresses impacts from mining. A coastal district might have a policy on subsistence, if allowed, or one of the other matters and that would apply to the mining project if those activities fit the enforceable policy. 2:40:28 PM MR. GRAY returned to his presentation and directed attention to the statutory requirement that an enforceable policy must address a local concern that is sensitive to development, of unique concern to the coastal district, and not adequately addressed by state or federal law. The problem has been in regard to the interpretation of the language "not adequately addressed by state or federal law." He said he understood DNR is interpreting the aforementioned language to mean that policies cannot address a matter that a state or federal agency could address, regardless of whether there is a regulation that addresses it. The audit of the ACMP said the same thing. However, the 2005 ACMP program description approved by the federal government specified that [enforceable] policies can address a matter as long as it's not addressed specifically in a regulation. In fact, a 2004 memorandum from the attorney general basically says the same, specifically regarding DNR area plans. The aforementioned memorandum says that a coastal district can address the same matter in the area plan so long as the area plan is not incorporated into regulation. "If it's not enforceable, then a district can have a policy," he said. Therefore, he opined that there's confusion and misinformation regarding this statutory requirement. 2:42:07 PM CO-CHAIR FEIGE posed a scenario in which an agency is already regulating a particular activity statewide, and surmised that under the ACMP subdivisions of the state cannot "step on the toes" of the state agency already regulating a particular activity. He referred to the note at the bottom of slide 7, which in part says: "... districts may establish policies for matters not addressed in a regulation." MR. GRAY said the "hinge" would be the definition of the term "matter." He then reiterated his interpretation of the program description to be that the regulation must specifically address that [matter], not merely that it could address it. "And unless it's preempted by federal or state law, I believe according to what the statute says and even the regulation that a district would be able to address that as long as they met the other district plan criteria," he offered. 2:43:21 PM CO-CHAIR FEIGE asked if it is in an agency's authority to decide not to regulate something. MR. GRAY agreed that it is within the agency's authority, but he understood the law to say the district would still be able to address the matter unless the district was preempted from doing so for some other reason. He then provided the following example in which it is not within a coastal districts power to set game limits for fish and game as that's the purview of ADF&G and thus the coastal districts would be preempted from addressing such a matter. 2:44:10 PM CO-CHAIR FEIGE clarified that the discussion is in reference to municipalities and coastal districts trying to regulate matters that are under the authority of another agency. MR. GRAY agreed and added that his example was to illustrate that a coastal district could not have a policy on fish and game take because it is preempted from doing so. However, for matters such as impacts to habitat, which he opined the coastal districts and municipalities are not preempted from addressing, a coastal district would be able to have [an enforceable] policy on fish habitat, for example. He pointed out that there are only two statutes regarding fish habitat, unless it's a special area, and they are limited statutes that don't address the fish habitat. Therefore, he opined that it would be allowable for a coastal district to have an [enforceable] policy so long as it did not conflict with a state or federal law. 2:45:08 PM REPRESENTATIVE P. WILSON, referring to slide 5, asked if the areas listed are the only subjects that can be covered. MR. GRAY responded yes, through a district enforceable policy or the consistency review, although there are a few additional standards that aren't listed in the statewide ACMP standards column. The statewide ACMP standards and the district enforceable policies are the parameters for what can [be addressed] in a consistency review. 2:45:46 PM REPRESENTATIVE P. WILSON, recalling the example Mr. Gray provided with regard to important habitat, asked if important habitat could be put under that subject area. MR. GRAY answered yes, if one could get the important habitat areas approved. He related his understanding that statewide only three districts, Juneau, Craig, and Thorne Bay, have very small [important habitat] areas. Juneau has perhaps the largest of these areas with 11 [enforceable] policies while Craig and Thorne Bay have one each. The aforementioned is all there is for important habitat in the state in so far as what a district has been approved to designate. In further response to Representative P. Wilson, Mr. Gray recalled that the designated area in Craig is around eel grass beds, in Thorne Bay the designated area is a buffer around five or six rivers, and in Juneau the designated area is part of the Juneau Wetlands Management Plan and some of the wetlands type is considered an important habitat area. 2:47:02 PM REPRESENTATIVE P. WILSON surmised that the reason Juneau has an important habitat area designated is because Juneau has a general permit for the wetlands. MR. GRAY added that Juneau, through this ACMP review, has important habitat designated and 11 of the 13 policies have been approved for important habitat. Therefore, if it goes through a review, it would be reviewed for consistency with those policies. 2:47:33 PM REPRESENTATIVE P. WILSON asked if the communities with the designated areas received those early in the state's history and that in more recent times designated areas have not been approved. MR. GRAY related his understanding that the Juneau wetlands management plan is fairly old and predates the changes to 2003. Therefore, the objective was to make the wetlands management plan part of the ACMP. Although it did not quite fit and it was originally disapproved, through mediation there was agreement. In further response to Representative P. Wilson, Mr. Gray explained that there are very few important habitat designations in the state because DNR made a ruling that the other areas did not meet DNR's requirements for the important habitat designation and thus they were disapproved. 2:49:13 PM CO-CHAIR SEATON reminded the committee that 490 [enforceable policies] were developed under the guidelines of which 210 were approved. He said that the committee would obtain a listing of those disallowed [enforceable policies] and why they were disallowed. 2:49:50 PM CO-CHAIR FEIGE surmised that the agencies with the authority to manage these particular matters are staffed with individuals who have expertise, history, and academic credentials to make decisions. He asked if the coastal districts have the same kind of staff with the expertise to address these matters. MR. GRAY answered that it depends upon the municipality. For instance, the North Slope Borough has one of the best wildlife departments in the world and thus would have expertise. However, small communities with Coastal Resource Service Area (CRSAs) may not have staff with the [expertise, history, and academic credentials], although they would have local knowledge. 2:51:16 PM CO-CHAIR FEIGE noted his appreciation for the coastal district's local knowledge for which there is an opportunity to provide to the ACMP. However, he questioned why they should be given the authority to write policies when they do not have the staff to fully evaluate those in the coastal districts. MR. GRAY said that is a question for the legislature to answer, although current law does provide coastal districts that ability. However, there are many restrictions and if the coastal district misses any one of these, the [plan] would be disapproved. Prior to the approval of a plan, it passes through many layers of review and one cannot arbitrarily or unreasonably restrict a use of state concern, for example. Mr. Gray emphasized that it has to be a local concern prior to an [enforceable] policy being approved. 2:53:05 PM MR. GRAY, continuing his presentation, moved on to slide 8. He then highlighted the stringent requirement that in order to have some policies a coastal district must establish a designated area and many of the coastal districts have had difficulty getting those areas approved. With regard to the subsistence areas, Mr. Gray pointed out that of the total coastal district acreage the three largest are 52 percent of that coastal area and there hasn't been one subsistence use area approved in those areas. The aforementioned coastal district is located from the Yukon Kuskokwim area north, which are areas heavily interested in subsistence. Since the subsistence areas weren't approved, these areas are not able to bring forth an issue regarding an impact or potential impact to a subsistence use area during a review. Again, this is a case in which Mr. Gray opined that the regulations are more stringent than the legislature intended. Mr. Gray clarified further that when the review begins a coastal area without an approved designated area cannot even submit a comment regarding potential impacts to subsistence. 2:54:38 PM REPRESENTATIVE P. WILSON related her understanding that the aforementioned three districts were denied a subsistence area designation while all the other districts have received such a designation. MR. GRAY pointed out that not every district asked for subsistence either because the district doesn't have concerns or gave up early on. Four of the largest coastal districts have no [designated] subsistence areas. In further response to Representative P. Wilson, Mr. Gray confirmed that during the pre-application phase [the designated areas] are approved or disapproved. If the [designated area request] is disapproved, it cannot be mentioned. Although a subsistence use area can be designated during a [consistency] review, it has occurred very few times. In fact, some of those subsistence use area requests have been denied during the [consistency] review. 2:55:39 PM CO-CHAIR FEIGE noted that slide 8 specifies that only three subsistence policies have been approved. He inquired as to the location of those three areas. MR. GRAY responded that there is a special management area in the Kenai and an area in the Lake and Peninsula Borough. However, he could not recall the third area. 2:56:13 PM CO-CHAIR FEIGE highlighted that there are subsistence areas that have been approved, and thus areas have been able to rise to the requirements of the ACMP. He then inquired as to the areas that have been denied [a subsistence use designation]. MR. GRAY specified that the areas that have been denied are some of the largest coastal districts. For example, the North Slope district, which is the size of the state of Minnesota, is required to identify every type of subsistence and the location that it occurs. He mentioned that he will delve deeper into this matter later in the presentation. 2:56:53 PM MR. GRAY, returning to slide 8 of his presentation, related that the audit found that the designated areas reduced the ability of the state to influence federal decisions because the designated areas only apply to nonfederal land. Without a designated area, the [CZMA] allows the state to discuss impacts to coastal resources and uses even when on federal lands or waters. The designated area requirement reduces the state's rights because it limits the consideration of impacts to nonfederal land. 2:57:30 PM CO-CHAIR FEIGE emphasized that what bothers him is that subsistence areas have been approved, so there does not appear to be anything wrong with the system. The three areas Mr. Gray is discussing are the Northwest Arctic Borough, the North Slope, and the Bering Straits. MR. GRAY related that the largest coastal district is the Yukon- Kuskokwim River. In response to Co-Chair Feige, Mr. Gray opined that those areas haven't been able to get a plan approved because the restrictions are too onerous. He recalled working on the Bering Straits plan when ADF&G said it did not even have the information that was being required of the district to gain approval. CO-CHAIR FEIGE asked if there is an effort to obtain that information for the coastal districts. MR. GRAY replied that Bering Straits has requested funding to [obtain the necessary information], but has been denied each time. He offered his belief that since the Bering Straits program just got up and running, it might request funding again. 2:58:38 PM MR. GRAY, continuing with slide 8, pointed out that the 2008 federal ACMP evaluation recommended DNR reevaluate the designated area requirement. The 2011 legislative audit did as well. Furthermore, DNR's own draft regulations in 2008 would have eliminated that designated area requirement. Therefore, there seems to be general recognition that the designated area requirement is not working. 2:59:04 PM MR. GRAY then directed attention to slide 9, which is an example of how the rules for subsistence areas have changed over time. In 2005, it was very clear that an entire coastal district may be designated as a subsistence area. Although the regulations did not change, at some point the interpretation of that regulation changed and thus the rules changed such that each type of subsistence use had to be designated. He noted that most of this information isn't written anywhere and one would be lucky to obtain it in an email. At this point it was clear that the coastal district could determine the types of subsistence use to designate. However, as time passed DNR said it had to approve the subsistence types, although there was no list of subsistence types. Coastal districts had to submit a list of subsistence types and the types of areas must reflect the species' "life history," and then DNR would determine what was approvable. He remarked that to this day he does not what this means. There was the ability to map the area so long as the scale was 1:250,000. Therefore, the Northwest Arctic Borough would require 68 maps. Later, DNR determined there were too many different types of subsistence uses on one map and then required four maps per quadrangle. Just last year, DNR developed a new rule, without consulting the districts, such that the new map scale would be 1:63,360. The new map scale would require the Northwest Arctic Borough to have 2,108 new maps. He related that the last time he checked it cost about $40 a map to merely print a map. Therefore, the cost is astronomical and unreasonable. Mr. Gray opined that this is merely one thing that has changed over time, although the regulations remain the same. 3:01:20 PM MR. GRAY, moving on to slide 10, stated that the statewide standards were weakened in both the scope of what could be covered and the geographic coverage. For example, with regard to the habitat for offshore areas as currently written the impacts to habitat can't be discussed, only impacts to competing uses, such as subsistence fishing and commercial fishing, can be discussed. He noted that the mining standard was changed to a sand and gravel standard in the saltwater area. Mr. Gray then directed attention to the diagrams on slide 11. He informed the committee that prior to 2003 habitat impacts throughout the coastal zone could be addressed. However, through regulation changes the habitat standard results in a much smaller area in which habitat impacts can be considered. The area that can now be considered is along the coast where wetlands drain directly to salt water and a 100 foot buffer on the upper rivers and a 500 foot buffer in the delta. Mr. Gray opined, "This is pretty dramatic." Only areas with important habitat areas can address impacts to habitat inland of the aforementioned areas. Again, only three districts have very small areas approved. 3:03:07 PM MR. GRAY continued on to slide 12, regarding the DEC carveout. He related that some coastal districts would say that everything is related to air and water quality. The DEC carveout has made this confusing to everyone. He then posed an example of an oil and gas offshore project in which coastal districts may be interested in the impacts of an oil spill on subsistence. To his knowledge, there are no laws about the aforementioned and thus through the DEC review [the coastal district] would not be able to address that. Moreover, [the coastal districts] would not be able to address it at all during the ACMP review. He then directed attention to slide 13, which reviews the summary of effects. He highlighted that now there is centralized decision-making such that one person in DNR makes the ultimate decisions. The audit found the aforementioned to be a lack of consensus building during the reviews. Moving on to slide 14 regarding possible statutory changes, he opined that the criteria could be clarified in statute. In terms of the possible checks and balances, there has been some suggestion of establishing a coastal policy board, moving the agency, or with elevations have all three resource agency commissioners make the decision rather than just DNR's commissioner. He then addressed the DEC carveout and related that when this was explained to the legislature in 2003, the administration clearly stated that coastal districts could have policies to fill the gaps in DEC's regulations and statutes. In fact, he recalled the language "for those purposes" was added for the aforementioned purpose. However, no air or water quality policies have been approved regardless of whether there is a DEC regulation. With regard to the 90-day timeline, Mr. Gray opined that although it is not workable for very large projects, it is probably workable for most of the other projects. 3:05:08 PM MR. GRAY referred to slide 15, which provides possible regulatory changes. While these changes could be done through regulation, he said he hasn't heard any political will to do so other than to revise the ABC list and change the consistency review regulations. 3:05:28 PM CO-CHAIR SEATON moved that the proposed committee substitute for HB 106, Version 27-GH1965\B, Bullock/Bullard, 3/16/11, be adopted as the work draft. REPRESENTATIVE P. WILSON objected for discussion purposes. CO-CHAIR SEATON explained that the proposed work draft will be taken up at a later meeting and thus folks will have time to study it. 3:06:30 PM REPRESENTATIVE P. WILSON requested that the [Department of Natural Resources] address the committee about Version B [at a subsequent hearing]. CO-CHAIR SEATON confirmed that is the intention. He then held over HB 106.