HB 106-COASTAL MANAGEMENT PROGRAM  2:42:20 PM CO-CHAIR SEATON announced that the final 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 today's witness [Glenn Gray] was invited to make a presentation from the districts' perspective and is not representing any particular district. Next week the Department of Natural Resources (DNR) will present its responses for any issues on which it has a difference of opinion. 2:43:51 PM GLENN GRAY, Glenn Gray & Associates, first corrected a March 16 statement about hard rock mining in which he had said that it was up to each individual landowner to have the restrictions. However, he continued, Representative Feige was correct in saying that there are some uniform provisions throughout the state - a hard rock mine development project must obtain a plan of operations and a reclamation plan from DNR no matter who the land owner. 2:44:33 PM MR. GRAY turned to the remaining three slides from his 3/16/11 PowerPoint presentation, explaining that [slide 13] is a summary of some of the effects that he thinks are of concern to many of the coastal districts. A top concern is the inability to have meaningful enforceable policies. The coastal program as it was set up in 1977, as well as the 2003 changes, is a cooperative program between the State of Alaska and the coastal districts. Thus, the coastal districts are not just another stakeholder because, with the state agencies, the districts implement the program. A second concern of many people is the Department of Environmental Conservation (DEC) carve-out. The carve-out is very confusing to almost everyone. The scope of review is not always clear, especially if there is a federal permit involved. Almost every coastal resource or use is affected in some way by water quality, which adds to the confusion. Another concern is the centralized decision-making that is the result of having moved the program to one agency and having all decisions made by one agency. The legislative audit stated that this has led to a lack of opportunities for consensus building during project reviews. 2:46:00 PM MR. GRAY, based on his talks with some of the districts, offered suggestions for possible statutory changes (slide 14). He recommended a clarification of the enforceable policy statutes because there have been some differences in opinion of what the statutes actually mean. In his opinion, the proposed work draft [Version B, moved 3/16/11] would provide that clarification. He said none of the districts are asking to remove some of the other provisions; for example, districts cannot arbitrarily or unreasonably affect uses of state concern. Regarding statutes for the centralization of power, things can be done to provide checks and balances. The proposed work draft appears to include an appeals board/regulatory board and that might be one way to do it; another idea might be to have a third impartial agency. Elevations could be decided by all three resources commissioners as was done in the past, or they could be decided by the appeals board as written in the proposed work draft. Another change is elimination of the DEC carve-out. He said he thinks this is something that would be supported by the federal 3/12/2008 evaluation and he believes the legislative audit recommended that DNR look into some options to eliminate the carve-out, and DNR's own draft bill in 2008 would have eliminated the carve- out. While likely not a purposeful change, the 2003 carve-out eliminated all possibilities for public comment on the DEC finding when it does not have a permit; for example, outer continental shelf (OCS) reviews or federal activities. While DEC did come up with a good process, there is nothing in regulation that would require the department to do so. Regarding the timeline, he said it seems that the 90-day timeline is a problem when there is a large project with a lot of unresolved issues. The proposed work draft would address that by making an exemption for projects with an Environmental Impact Statement (EIS), which most large projects will have. 2:48:41 PM MR. GRAY recommended possible regulatory changes (slide 15). He pointed out that statutes are not necessarily needed to make regulatory changes, but unless there is some commitment on DNR there is no guarantee that suggested regulatory changes will be made. He said one regulatory change would be to eliminate the designated area requirement. Whether this is done in statute or regulation, there would still be the opportunity for designated areas if a district wanted a special management area, but this eliminates that tie between the enforceable policies having to have a designated area first. A tremendous amount of funds have been spent on these designated areas and mapping, as well as state time to review them, and they were the topic of several of the mediations. Regarding enforceable policies, he said he believes that some of the problems could be fixed just by a different interpretation of the regulatory language or changing some of that language. Regarding statewide standards, one example is the habitat standard which used to cover the entire coastal zone but now only covers a small part of the coastal zone, and that is the same for several other standards. That could easily be fixed in regulation. A minerals standard could be reinstated to look at mining impacts under its own standard. 2:50:13 PM CO-CHAIR SEATON requested Mr. Gray to review prescriptive requirements for enforceable policies and how that would differ from a performance-based standard. MR. GRAY replied that one way to look at this might be to look at the current statewide standards - almost every statewide standard is performance based or some kind of a process. CO-CHAIR SEATON asked whether Mr. Gray is saying performance based or prescriptive based. MR. GRAY responded that he is saying either a performance-based or a process-based statewide standard because that would provide flexibility in how to meet that standard. He recalled the example of a floating facility that he gave on 3/16/11 for which an actual enforceable district policy stated exactly how many feet the tide would be, which would be prescriptive. A performance base would state that the floating facility can never ground on the bottom, and it would be up to the applicant to decide how to do that; there might be more ways to do that than might be in the prescription. Another example is a proposed policy on the North Slope for avoiding impacts to bowhead whales, in which a specific decibel level could not be exceeded when measured at a specific number of miles from the activity. This is prescriptive, and the company absolutely has to do that no matter what. A performance base would specify that at a specific number of miles from the source of the noise there shall be no deflection of whales, and then it would be up to the industry as to how to meet that. He said that, generally, when he was working with the oil industry, the industry liked these performance-based stipulations or policies because that gave them some flexibility to meet the intent of the policy without having to meet an actual prescription. 2:53:16 PM CO-CHAIR SEATON understood Mr. Gray to have earlier said that the statewide standards are almost all performance based. MR. GRAY answered yes, performance based or process based. CO-CHAIR SEATON further understood that the local district policies are required to be prescriptive. MR. GRAY replied, "Exactly." 2:53:40 PM CO-CHAIR SEATON requested Mr. Gray to provide citations regarding the issues depicted on slide 7. MR. GRAY agreed to do so. CO-CHAIR SEATON, regarding slide 9, referenced a March 17 document about the Alaska Coastal Management Program's changing requirements for subsistence use designations. He surmised that the examples in the March 17 document relate to the arrows and changes outlined on the slide. MR. GRAY replied he has the actual documentation in his records and aforementioned is a summary of the documents. He pointed out that many of the meetings were not taped and a lot of the direction was oral, so there was no written record unless a district sent a follow-up e-mail stating its understanding of the direction given in a meeting. On several occasions as a consultant he did that to make sure he understood the meeting correctly, and the response he got [from DNR] on at least two occasions was that it would not go back and clarify whether he had interpreted the various points correctly. He said he provided to the committee what he could find in some document or another, but a lot of this was verbal in its original record, other than notes. 2:56:20 PM CO-CHAIR FEIGE inquired why it is unreasonable to expect the Division of Coastal and Ocean Management (DCOM) to not change its regulations. It seems that a natural evolution of regulations would be expected in the normal process of regulating things like the coastal management program. MR. GRAY responded that he did not mean to give that impression. While not speaking for any specific district, he said he thinks the districts would have welcomed some changes to the regulations for a while now. However, personally, he has not heard any commitment to make any changes other than to the consistency review regulations. 2:56:59 PM CO-CHAIR FEIGE, regarding DCOM asking for more and more detail in terms of larger and larger map scales, said that does not seem unreasonable to him. While such maps may cost money, the boroughs are not destitute. MR. GRAY related that he received a call from DCOM yesterday saying that it is in the process of changing that map scale. He said his personal opinion is that it is unreasonable because such maps would cost hundreds of thousands of dollars for some of these boroughs, which is significant even for the North Slope Borough. The Bering Strait district, which is the third largest, receives an annual grant of $75,000 and this must cover everything from travel to employment of the program director. CO-CHAIR SEATON commented that he does not have any problems with going through a regulatory process and making changes. However, what is being looked at here is that the districts were told how to write their enforceable policies to make them consistent with the statewide standards and requirement for enforceable policies. But over time, as they went through the process of creating an enforceable policy, the requirements for writing the enforceable policy changed and the districts are therefore always trying to develop a plan that is required and a policy that is required, but the requirements for that policy keep changing. This is where much of the frustration has come from numerous districts over the past several years. 2:59:49 PM CO-CHAIR FEIGE asked whether Mr. Gray has been working actively to make statutory changes to the Alaska Coastal Management Plan. MR. GRAY responded that he has no means to do that. Occasionally an aide will give him a call and he will give his opinion, but he did not prepare this bill. CO-CHAIR FEIGE said that was not what he asked; he said he asked whether Mr. Gray has actively lobbied for changes to the Alaska Coastal Management Plan regulations. MR. GRAY answered he is not a lobbyist so he does not lobby, but that, yes, he has been promoting changes. CO-CHAIR FEIGE inquired how much time Mr. Gray has dedicated to that. MR. GRAY replied he does not know how to make a guess at that. He said it is a small part of what he does and that currently he has seven different contracts with coastal communities, not all on coastal zone issues, so his day is pretty full. 3:00:50 PM CO-CHAIR SEATON held over HB 106, noting that the committee packets include bullet points on the proposed committee work draft for HB 106 as well as a sectional analysis on the proposed work draft [Version B, moved 3/16/11]. He urged members to review these documents.