HB 191: "An Act relating to the Alaska coastal management program and to policies and procedures for consistency reviews and the rendering of consistency determinations under that program; relating to the functions of coastal resource service areas; creating an Alaska Coastal Program Evaluation Council; eliminating the Alaska Coastal Policy Council; annulling certain regulations relating to the Alaska coastal management program; relating to actions based on private nuisance; relating to zoning within a third class borough covered by the Alaska coastal management program; and providing for effective dates."
00 HOUSE BILL NO. 191 01 "An Act relating to the Alaska coastal management program and to policies and 02 procedures for consistency reviews and the rendering of consistency determinations 03 under that program; relating to the functions of coastal resource service areas; creating 04 an Alaska Coastal Program Evaluation Council; eliminating the Alaska Coastal Policy 05 Council; annulling certain regulations relating to the Alaska coastal management 06 program; relating to actions based on private nuisance; relating to zoning within a third 07 class borough covered by the Alaska coastal management program; and providing for 08 effective dates." 09 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 10 * Section 1. AS 38.05.035(e)(1) is amended to read: 11 (1) with the consent of the commissioner and subject to the director's 12 discretion, for a specific proposed disposal of available land, resources, or property, or
01 of an interest in them, the director, in the written finding, 02 (A) shall establish the scope of the administrative review on 03 which the director's determination is based, and the scope of the written 04 finding supporting that determination; the scope of the administrative review 05 and finding may address only reasonably foreseeable, significant effects of the 06 uses proposed to be authorized by the disposal; 07 (B) may limit the scope of an administrative review and finding 08 for a proposed disposal to 09 (i) applicable statutes and regulations; 10 (ii) the facts pertaining to the land, resources, or 11 property, or interest in them, that the director finds are material to the 12 determination and that are known to the director or knowledge of which 13 is made available to the director during the administrative review; and 14 (iii) issues that, based on the statutes and regulations 15 referred to in (i) of this subparagraph, on the facts as described in (ii) of 16 this subparagraph, and on the nature of the uses sought to be authorized 17 by the disposal, the director finds are material to the determination of 18 whether the proposed disposal will best serve the interests of the state; 19 and 20 (C) may, if the project for which the proposed disposal is 21 sought is a multiphased development, limit the scope of an administrative 22 review and finding for the proposed disposal to the applicable statutes and 23 regulations, facts, and issues identified in (B)(i) - (iii) of this paragraph that 24 pertain solely to the disposal phase of the project when 25 (i) the only uses to be authorized by the proposed 26 disposal are part of that phase; 27 (ii) the disposal is an oil and gas disposal and, before 28 the next phase of the project may proceed, public notice and the 29 opportunity to comment are provided under regulations adopted by the 30 department [UNLESS THE PROJECT IS SUBJECT TO A 31 CONSISTENCY REVIEW UNDER AS 46.40 AND PUBLIC
01 NOTICE AND THE OPPORTUNITY TO COMMENT ARE 02 PROVIDED UNDER AS 46.40.096(c)]; 03 (iii) the department's approval is required before the 04 next phase of the project may proceed; and 05 (iv) the department describes its reasons for a decision 06 to phase; 07 * Sec. 2. AS 38.05.177(c) is amended to read: 08 (c) The director shall give notice under AS 38.05.945 of receipt of the lease 09 application and call for comments from the public. The director's call for public 10 comments must provide opportunity for public comment for a period of not less than 11 60 days. If, after review of information received during the public comment period, 12 the director determines that the discovery of a local source of natural gas would 13 benefit the residents of an area, the director shall execute a lease for the area described 14 in (b) of this section. The director shall execute the lease after completion of a title 15 search and [,] the close of the public comment period [, AND, IF REVIEW IS 16 REQUIRED UNDER AS 46.40, AFTER THE FINAL CONSISTENCY 17 DETERMINATION IS MADE UNDER AS 46.40]. A lease entered into under this 18 subsection gives the lessee the exclusive right to explore for, develop, and produce, for 19 a term of three years, natural gas on the state land described in the lease; the right to 20 explore for, develop, and produce is limited to gas from a field if a part of the field is 21 within 3,000 feet of the surface. 22 * Sec. 3. AS 38.05.825(a) is amended to read: 23 (a) Unless the commissioner finds that the public interest in retaining state 24 ownership of the land clearly outweighs the municipality's interest in obtaining the 25 land, the commissioner shall convey to a municipality tide or submerged land 26 requested by the municipality that is occupied or suitable for occupation and 27 development if the 28 (1) land is within or contiguous to the boundaries of the municipality; 29 (2) use of the land would not unreasonably interfere with navigation or 30 public access; 31 (3) municipality has applied to the commissioner for conveyance of the
01 land under this section; 02 (4) land is not subject to a shore fisheries lease under AS 38.05.082, 03 or, if the land is subject to a shore fisheries lease, the commissioner determines it is in 04 the best interests of the state to convey the land; 05 (5) land is classified for waterfront development or for another use that 06 is consistent or compatible with the use proposed by the municipality, or the proposed 07 use of the land is consistent or compatible with a land use plan adopted by the 08 municipality or [,] the department [, OR THE ALASKA COASTAL POLICY 09 COUNCIL]; and 10 (6) land 11 (A) is required for the accomplishment of a public or private 12 development approved by the municipality; 13 (B) is the subject of a lease from the state to the municipality; 14 or 15 (C) has been approved for lease to the municipality. 16 * Sec. 4. AS 38.05.945(d) is amended to read: 17 (d) Notice at least 30 days before the action under (a)(5) of this section shall 18 be given to appropriate 19 (1) regional fish and game councils established under AS 16.05.260; 20 and 21 (2) coastal resource districts [SERVICE AREAS ORGANIZED 22 UNDER AS 46.40.110 - 46.40.210]. 23 * Sec. 5. AS 38.05.965 is amended by adding a new paragraph to read: 24 (25) "coastal resource district" has the meaning given in AS 46.39.900. 25 * Sec. 6. AS 41.17.900(e) is amended to read: 26 (e) Subject to 16 U.S.C. 1456(f) (Sec. 307(f) of the Coastal Zone Management 27 Act of 1972, P.L. 92-583) as to private land, this chapter and the regulations adopted 28 under this chapter establish the forest management standards, policies, and review 29 processes under AS 46.39 [AS 46.40 (ALASKA COASTAL MANAGEMENT 30 ACT)]. This subsection does not apply to timber harvest activity that requires a state 31 or federal authorization under a provision of law other than this chapter.
01 * Sec. 7. AS 41.21.492(b) is amended to read: 02 (b) Nothing in AS 41.21.491 - 41.21.495 affects the responsibilities of 03 (1) the Department of Fish and Game, the Board of Fisheries, or the 04 Board of Game under AS 16 and AS 41.99.010; 05 (2) the Department of Environmental Conservation under AS 46.03; or 06 (3) state agencies and municipalities under AS 46.39 [AS 46.39.010 07 AND AS 46.40.100]. 08 * Sec. 8. AS 41.21.504(b) is amended to read: 09 (b) Nothing in AS 41.21.500 - 41.21.514 affects the applicability of 10 (1) AS 41.99.010 and AS 16 regarding the responsibilities of the 11 Department of Fish and Game or the Board of Fisheries or the Board of Game; 12 (2) AS 46.03 regarding the responsibilities of the Department of 13 Environmental Conservation; or 14 (3) AS 46.39 [AS 46.39.010 AND AS 46.40.100] regarding the 15 responsibilities of state agencies and municipalities. 16 * Sec. 9. AS 41.23.420(d) is amended to read: 17 (d) The provisions of AS 41.23.400 - 41.23.510 do not affect the authority of 18 (1) the Department of Fish and Game, the Board of Fisheries, the 19 Board of Game, or the Department of Community and Economic Development under 20 AS 08.54, AS 16, or AS 41.99.010; 21 (2) the Department of Environmental Conservation under AS 46.03; or 22 (3) state agencies and municipalities under AS 46.39 [AS 46.39.010 23 AND AS 46.40.100]. 24 * Sec. 10. AS 44.33.781 is repealed and reenacted to read: 25 Sec. 44.33.781. Assistance to local coastal resource districts. (a) The 26 department shall provide a program of research, training, and technical assistance to 27 coastal resource districts. The technical assistance shall include the direct granting to 28 the coastal resource districts of a portion of any money received by the state from the 29 federal coastal zone management program, in amounts to be individually determined 30 for each coastal resource district by the commissioner of community and economic 31 development. State agencies shall assist the department in carrying out the purposes
01 of this section. 02 (b) In this section, "coastal resource district" has the meaning given in 03 AS 46.39.900. 04 * Sec. 11. AS 44.62.800(1) is amended to read: 05 (1) "agency" means a department, an institution, or a division or other 06 administrative unit of the executive branch of state government authorized or required 07 by law to make regulations, except that "agency" does not include 08 (A) a board, [;] a commission, [;] a council, [EXCEPT THE 09 ALASKA COASTAL POLICY COUNCIL ESTABLISHED IN 10 AS 46.39.020;] an authority, [;] or a public corporation of the executive branch 11 of state government authorized or required by law to make regulations; or 12 (B) the Department of Corrections; 13 * Sec. 12. AS 46.39 is amended by adding a new section to read: 14 Sec. 46.39.007. Declaration of intent. The legislature declares that 15 (1) the Alaska Coastal Management Program (ACMP) is intended to 16 be a networked program that does not grant new permitting or regulatory authority to 17 state agencies or create a new state permit system; 18 (2) the ACMP is intended to function so as to minimize delay, 19 regulatory confusion, costly litigation, and uncertainty regarding the feasibility of new 20 investment; to achieve these goals, statutory reform is needed; 21 (3) the environmental and natural resource protection standards of this 22 state are among the strongest in the nation; by establishing these programs as the 23 enforceable policies of the ACMP, the state will achieve a truly networked coastal 24 management program that relies on existing regulatory authority to manage the coastal 25 zone fairly, efficiently, and predictably; 26 (4) the state has chosen not to enact legislation similar to 42 U.S.C. 27 4321 - 4370f (National Environmental Policy Act of 1969, as amended) and, in 28 furtherance of the legislative findings expressed in sec. 1(7), ch. 38, SLA 1994, the 29 ACMP is not intended to take the place of such a program. 30 * Sec. 13. AS 46.39.010 is repealed and reenacted to read: 31 Sec. 46.39.010. Coastal management duties. (a) As authorized by
01 16 U.S.C. 1456 (sec. 307, Coastal Zone Management Act of 1972) and 15 C.F.R. Part 02 930, the department shall, on behalf of the state, concur with or object to 03 (1) federal agency consistency determinations; and 04 (2) consistency certifications for federal licenses, federal permits, and 05 OCS plans. 06 (b) The department may adopt regulations necessary to implement this 07 chapter. 08 (c) The department shall 09 (1) consult with 10 (A) persons, public or private, that are interested in, affected 11 by, or concerned with coastal area planning and management; and 12 (B) agents and officials of the coastal resource districts of the 13 state, and federal and state agencies concerned with or having jurisdiction over 14 coastal planning and management; and 15 (2) develop and maintain a program of technical and financial 16 assistance to aid coastal resource districts. 17 (d) In conformity with 16 U.S.C. 1451 - 1465 (Coastal Zone Management Act 18 of 1972, as amended), the department shall develop the Alaska Coastal Management 19 Program 20 (1) using the management technique recognized in 16 U.S.C. 21 1455(d)(11)(B); 22 (2) that applies, as authorized by 16 U.S.C. 1456(c), to 23 (A) activities within the coastal zone; and 24 (B) activities on federal lands, including the federal outer 25 continental shelf, that would affect any land or water use or natural resource of 26 the state's coastal zone; for purposes of this subparagraph those activities 27 consist of any activity on the federal outer continental shelf and any activity on 28 federal lands that are within the geographic boundaries of the state's coastal 29 zone notwithstanding the exclusion of federal lands in 16 U.S.C. 1453(1); 30 (3) using appropriate statutes drawn from the following list and 31 appropriate regulations adopted under those statutes as the enforceable policies of the
01 ACMP: 02 (A) Department of Fish and Game: 03 (i) AS 16.05.840, 16.05.850, 16.05.870, and 16.05.890; 04 (ii) AS 16.20 (Conservation and Protection of Alaskan 05 Wildlife); 06 (iii) AS 16.40.100 - 16.40.199 (Aquatic Farming); 07 (iv) AS 16.40.210 (Finfish Farming); 08 (B) Department of Natural Resources: 09 (i) AS 27.19 (Reclamation); 10 (ii) AS 27.21 (Alaska Surface Coal Mining Control and 11 Reclamation Act); 12 (iii) AS 38.04 (Policy for Use and Classification of 13 State Land Surface); 14 (iv) AS 38.05 (Alaska Land Act); 15 (v) AS 38.35 (Right-of-Way Leasing Act); 16 (vi) AS 41.06 (Geothermal Resources); 17 (vii) AS 41.14 (Rivers, Lakes, and Streams); 18 (viii) AS 41.17 (Forest Resources and Practices); 19 (ix) AS 41.21 (Parks and Recreational Facilities); 20 (x) AS 41.23 (Multiple Use Management of Public 21 Resources); 22 (xi) AS 41.35.010 - 41.35.240 (Alaska Historic 23 Preservation Act); 24 (xii) AS 46.15 (Alaska Water Use Act); 25 (C) Department of Environmental Conservation: 26 (i) AS 16.10.010 - 16.10.050 (functions related to 27 permit and licensing concerning interference with streams and waters); 28 (ii) AS 46.03 (Environmental Conservation); 29 (iii) AS 46.04 (Oil and Hazardous Substance Pollution 30 Control); 31 (iv) AS 46.09 (Hazardous Substance Release Control);
01 (v) AS 46.14 (Air Quality Control); 02 (4) using local policies adopted under (e) of this section as additional 03 enforceable policies of the ACMP for federal consistency reviews authorized by 04 16 U.S.C. 1456(c)(1) and (2) and federal consistency certifications under 16 U.S.C. 05 1456(c)(3)(B); 06 (5) using local policies included in (f) of this section as additional 07 enforceable policies of the ACMP for federal consistency reviews authorized by 08 16 U.S.C. 1456(c)(1) and (2) on the outer continental shelf and for federal consistency 09 certifications under 16 U.S.C. 1456(c)(3)(B); and 10 (6) that for consistency reviews, implements the enforceable policies 11 listed in (3) of this subsection only by complying with the permit requirements under 12 the statutes and regulations listed as the enforceable policies for the activities for 13 which approval is sought. 14 (e) Upon nomination of the ordinance by the municipality and after public 15 notice and an opportunity for comment, the department may include local ordinances 16 adopted by a municipality under AS 29 as enforceable policies, within or seaward of 17 the municipality, for federal consistency reviews authorized by 16 U.S.C. 1456(c)(1) 18 and (2) and federal consistency certifications under 16 U.S.C. 1456(c)(3)(B) if the 19 local ordinances do not duplicate existing state requirements or unreasonably restrict 20 uses of state concern. Once a local ordinance is adopted as an enforceable state policy 21 by the department, the department shall, in consultation with the municipality, 22 interpret and apply the ordinance as a part of federal consistency reviews authorized 23 by 16 U.S.C. 1456(c)(1) and (2) and federal consistency certifications under 16 U.S.C. 24 1456(c)(3)(B). If an ordinance adopted by the department as a state enforceable 25 policy is implemented through a local permit, consistency with the enforceable policy 26 shall be conclusively presumed by the granting of the permit by the municipality. 27 Unless readopted by the department as amended, a local ordinance ceases to be an 28 enforceable state policy if the local ordinance is amended or repealed. 29 (f) The following former district coastal management program enforceable 30 policies that were approved by the Alaska Coastal Policy Council are adopted as 31 enforceable policies, within or seaward of the corresponding district, for federal
01 consistency reviews authorized by 16 U.S.C. 1456(c)(1) and (2) on the federal outer 02 continental shelf and for federal consistency certifications under 16 U.S.C. 03 1456(c)(3)(B), except that the department may, upon petition of a borough whose 04 policy is listed in this subsection, delete that policy as an enforceable policy of the 05 ACMP: 06 (1) North Slope Borough enforceable policies 2.4.3(a)-(d); 2.4.4(b), 07 (h); 2.4.5; 22.214.171.124(a), (c), dated May 6, 1988; 08 (2) Aleutians East Borough enforceable policies 7.2 A-7, G-3, G-4, G- 09 5, dated November 16, 1992; 10 (3) Aleutians West Coastal Resource Service Area enforceable policies 11 B-7, J-2, dated August 30, 1991; 12 (4) Bering Straits Coastal Resource Service Area enforceable policies 13 A-1, B-3, B-14, dated December 22, 1989; 14 (5) Bristol Bay Borough enforceable policy 1.1, dated January 3, 1984; 15 (6) Bristol Bay Coastal Resource Service Area enforceable policies 16 4.2 - 4.7, dated February 17, 1987; 17 (7) Cenaliulriit Coastal Resource Service Area enforceable policies B- 18 9, C-4, C-5, I-6, dated September 24, 1999; 19 (8) Northwest Arctic Borough enforceable policies 6.3.3(1), (2), (10), 20 dated January 7, 1998; 21 (9) City of St. Paul enforceable policy 11.1, dated April 14, 2000; 22 (10) Kenai Peninsula Borough enforceable policies 5.6, 5.7. 5.9, 6.4c, 23 12.6, dated July 3, 1990; 24 (11) Lake and Peninsula Borough enforceable policies B-8, J-2, dated 25 October 31, 1996; 26 (12) City and Borough of Yakutat enforceable policies 5.2, 5.3, 5.5, 27 6.4c, dated May 13, 1999; 28 (13) City and Borough of Sitka enforceable policy 9.1, dated May 31, 29 1989; 30 (14) Kodiak Island Borough enforceable policies 5 and 11 for Energy 31 Facilities, dated March 15, 1984.
01 (g) In selecting enforceable policies under (d)(3) of this section, the 02 department may, for purposes of the ACMP, limit the applicability of an enforceable 03 policy to appropriate activities or to appropriate sectors of the area described in (d)(2) 04 of this section. 05 (h) The department may apply for and accept grants, contributions, and other 06 sources of money, including application for and acceptance of federal money that may 07 become available under 16 U.S.C. 1451 - 1465. The department and the Department 08 of Community and Economic Development may provide grants to coastal resource 09 districts consistent with 16 U.S.C. 1451 - 1465. 10 * Sec. 14. AS 46.39 is amended by adding new sections to article 2 to read: 11 Sec. 46.39.055. Duties of resource agencies. The resource agencies shall 12 coordinate and cooperate with the department in the administration of this chapter. 13 Sec. 46.39.060. State consistency review. (a) For activities in the coastal 14 zone that only require state permits, the issuance of the applicable state permits 15 implementing the enforceable policies in AS 46.39.010 constitutes consistency with 16 the ACMP. 17 (b) Those activities subject to consistency review under this chapter that are 18 not federal activities subject to 16 U.S.C. 1456, are not OCS plans, do not require a 19 federal permit listed in AS 46.39.080, and do not require a state permit implementing 20 the enforceable policies in AS 46.39.010 are conclusively determined to be consistent 21 with the ACMP. 22 Sec. 46.39.065. Consistency review for federally administered permits. (a) 23 If a person requests a federally-administered permit listed in AS 46.39.080 for an 24 activity within an area described in AS 46.39.010(d)(2), the person shall provide a 25 copy of the consistency certification submitted under 16 U.S.C. 1456(c) and 15 C.F.R. 26 930.57 to the department. The consistency certification must identify the activity for 27 which approval is sought and the federal agencies from which approval is sought, and 28 must set out which state permits are required for the proposed activity. 29 (b) The department shall coordinate with the other state resource agencies 30 responsible for issuance of any required state permits implementing the state's 31 enforceable policies in AS 46.39.010(d)(3) and, within five days after issuance of the
01 required permits, issue a written concurrence to the federal agencies identified in the 02 consistency certification. 03 (c) If a required state permit is denied, the department shall issue an objection 04 and further proceedings regarding the objection are governed by 16 U.S.C. 1456 and 05 15 C.F.R. 930.110 - 131. 06 (d) Except for an activity conducted by the federal government, an activity on 07 federal land that is not subject to a federal permit listed in AS 46.39.080 and that does 08 not require a state permit is conclusively determined to be consistent with the 09 enforceable policies of the ACMP. 10 (e) Except for an activity conducted by the federal government, an activity on 11 federal land that is subject solely to a federally administered permit, including a 12 nationwide or general permit, and that does not require a state permit is conclusively 13 determined to be consistent with the enforceable policies of the ACMP. 14 Sec. 46.39.070. Consistency review for federal activities and outer 15 continental shelf plans. (a) If a federal activity is proposed within an area described 16 in AS 46.39.010(d)(2), the federal agency proposing the activity shall submit to the 17 department a determination of consistency as required by 16 U.S.C. 1456 and 18 15 C.F.R. Part 930. 19 (b) If a person requests approval of an OCS plan, the person shall submit to 20 the department a consistency certification in the manner provided in AS 46.39.065(a). 21 (c) For federal activities that, absent federal consistency review provided in 22 16 U.S.C. 1456, are not subject to an enforceable policy of AS 46.39.010(d)(3), and 23 for OCS plans, the department shall coordinate with the resource agency administering 24 the enforceable policy to determine whether the proposed activity would meet the state 25 permit requirements implementing the enforceable policy. For federal activities that, 26 absent federal consistency review provided in 16 U.S.C. 1456, are not subject to an 27 enforceable policy of AS 46.39.010(d)(4) - (5), and for OCS plans, the department 28 shall apply the enforceable policy in accordance with AS 46.39.010(e) and (f) to 29 determine whether the proposed activity is consistent with the enforceable policy. 30 (d) If each resource agency determines that the proposed federal activity or 31 OCS plan meets that agency's enforceable policy permit requirements under
01 AS 46.39.010(d)(3) made applicable by the ACMP, and if the department determines 02 that the proposed federal activity or OCS plan is consistent with the enforceable 03 policies of AS 46.39.010(d)(4) - (5), the department shall concur with the consistency 04 determination. If one of the resource agencies determines that the proposed federal 05 activity or OCS plan does not satisfy that resource agency's enforceable policy permit 06 requirements under AS 46.39.010(d)(3), or if the department determines that the 07 proposed federal activity or OCS plan is inconsistent with an enforceable policy of 08 AS 46.39.010(d)(4) - (5) made applicable by the ACMP, the department shall, if 09 feasible, issue a conditional concurrence under 15 C.F.R. 930.4 setting out conditions 10 that would render the proposed federal activity or OCS plan consistent. If the 11 proposed federal activity or OCS plan cannot be rendered consistent, the department 12 shall object to the consistency determination. 13 (e) If the department objects to the consistency determination, or if the 14 department's conditional concurrence is deemed an objection under 15 C.F.R. 15 930.4(b), further proceedings on the objection are governed by 16 U.S.C. 1456 and 15 16 C.F.R. 930.110 - 131. 17 Sec. 46.39.072. Construction with other laws. Nothing in this chapter shall 18 be construed to 19 (1) diminish state jurisdiction, responsibility, or rights in the field of 20 planning, development, or control of land or water resources, submerged lands, or 21 navigable waters; 22 (2) affect in any way any state requirement imposed under a federal 23 authorization or federal waiver of sovereign immunity; or 24 (3) diminish the zoning or planning authority of municipalities under 25 AS 29. 26 Sec. 46.39.075. Scope of review. (a) The scope of a consistency review 27 under this chapter is limited to the discrete activities proposed by the applicant for 28 which approval is sought, regardless of whether the activity is part of a larger project 29 or development that includes additional activities that may be subject to separate 30 consistency reviews. 31 (b) Except as provided in (c) of this section, an activity is subject to no more
01 than one consistency review under this chapter. 02 (c) If an applicant seeks the renewal or reissuance of an authorization for an 03 existing activity that has previously been subject to consistency review under 04 AS 46.39.060 - 46.39.070 or under former AS 46.40, or the issuance of an 05 authorization to replace an expired authorization for an existing activity that has 06 previously been subject to consistency review under AS 46.39.060 - 46.39.070 or 07 under former AS 46.40, the activity is conclusively determined to be consistent with 08 the ACMP unless the applicant proposes a modification. If an applicant proposes a 09 modification to an existing activity, the consistency review procedures of 10 AS 46.39.060 - 46.39.070 apply to the modification. 11 Sec. 46.39.080. Identification of federally administered permits. (a) For 12 purposes of 16 U.S.C. 1456 and 15 C.F.R. 930.53(a), the following federal 13 authorizations are subject to consistency review under this chapter: 14 (1) a United States Department of Agriculture, United States Forest 15 Service permit 16 (A) required under 36 C.F.R. Part 251 for outfitter and guide 17 operations for freshwater boat trips that include a designated area for exclusive 18 commercial use by the permit holder; 19 (B) for mining plans of operation required under 36 C.F.R. 20 228.4 - 228.8, and that require an environmental assessment or environmental 21 impact statement under 42 U.S.C. 4332 (National Environmental Policy Act); 22 (C) required under 36 C.F.R. 228.58 - 228.61 for mineral 23 material sales and sites, if those sales and sites are greater than five acres or not 24 previously reviewed; 25 (D) required under 36 C.F.R. Part 251 for a hotel, a motel, a 26 resort, a service station, a fish hatchery, mariculture, a liquid waste disposal 27 area, a sewage transmission line, hydroelectric projects, oil and gas pipelines, 28 an airport, a heliport, a dam, a reservoir, water transmission, a fish ladder, 29 power lines, telephone lines, or a water easement; or 30 (E) for ground-disturbing construction that requires one or 31 more of the following:
01 (i) an environmental assessment or environmental 02 impact statement under 42 U.S.C. 4332 (National Environmental 03 Policy Act); 04 (ii) a permit from the United States Environmental 05 Protection Agency under 33 U.S.C. 1342 (sec. 402 of the Clean Water 06 Act); 07 (iii) a permit from the United States Department of 08 Defense, Army Corps of Engineers, under 33 U.S.C. 1344 (sec. 404 of 09 the Clean Water Act); 10 (iv) an authorization from the Department of 11 Environmental Conservation under 18 AAC 50, 18 AAC 60, 18 AAC 12 70, or 18 AAC 72 with respect to air emissions, solid waste, or 13 wastewater; 14 (v) an authorization from the department under 15 AS 41.14, or from the Department of Fish and Game under 16 AS 16.05.840 or 16.05.870; 17 (vi) a department water rights or tidelands authorization 18 under AS 46.15.010 - 46.15.160 and regulations adopted under those 19 statutes; 20 (2) a permit from the United States Secretary of Commerce under 21 33 U.S.C. 1441, for activities in a national marine sanctuary; 22 (3) a permit from the United States Department of Defense, Army 23 Corps of Engineers, 24 (A) under 33 U.S.C. 401 and 403 (secs. 9 and 10 of the Rivers 25 and Harbors Act), authorizing the construction of bridges, causeways, dams, 26 and dikes, and the obstruction of navigable waters; 27 (B) under 43 U.S.C. 1333 (sec. 4 of the Outer Continental Shelf 28 Lands Act), authorizing artificial islands or fixed structures on the outer 29 continental shelf; 30 (C) under 33 U.S.C. 1413 (sec. 103 of the Marine Protection 31 Research and Sanctuaries Act), authorizing ocean dumping outside the limits
01 of the territorial sea; or 02 (D) under 33 U.S.C. 1344 (sec. 404 of the Clean Water Act), 03 authorizing discharges of dredged or fill material into navigable waters; 04 (4) a United States Department of Energy, Federal Energy Regulatory 05 Commission 06 (A) license for the construction and operation of non-federal 07 hydroelectric projects and associated transmission lines under 16 U.S.C. 797(e) 08 and 808 (secs. 4(e) and 15 of the Federal Power Act); 09 (B) order for interconnection of electric transmission facilities 10 under 16 U.S.C. 824a(b) (sec. 202(b) of the Federal Power Act); 11 (C) permission and approval for the abandonment of natural 12 gas pipeline facilities under 15 U.S.C. 717f(b) (sec. 7(b) of the Natural Gas 13 Act); or 14 (D) certificate of public convenience and necessity for the 15 construction and operation of natural gas pipeline facilities, including both 16 interstate pipeline and liquified natural gas terminal facilities under 15 U.S.C. 17 717f(c) (sec. 7(c) of the Natural Gas Act); 18 (5) a United States Environmental Protection Agency 19 (A) permit required under 33 U.S.C. 1342 (sec. 402 of the 20 Clean Water Act), authorizing discharge of pollutants into navigable waters; 21 (B) permit required under 33 U.S.C. 1345 (sec. 405 of the 22 Clean Water Act), authorizing disposal of sewage sludge; 23 (C) permit under 40 C.F.R. Part 63 for new sources or for 24 modification of existing sources, or a waiver of compliance allowing 25 extensions of time to meet air quality standards under 42 U.S.C. 7412(c)(1) 26 (sec. 112(c)(1) of the Clean Air Act); or 27 (D) air quality exemption granted under 40 C.F.R. 60.14 or 28 40 C.F.R. 64.2 for stationary sources; 29 (6) a United States Department of the Interior, 30 (A) Bureau of Land Management permit and license under 31 43 C.F.R. Part 2920, for drilling and mining and related facilities on public
01 lands; 02 (B) Bureau of Land Management permit under 43 C.F.R. 03 2800.0-1 - 2808.6, for pipeline rights-of-way on public lands; 04 (C) Bureau of Land Management permit and license under 05 43 C.F.R. 2800.0-1 - 2808.6, for rights-of-way on public lands; 06 (D) Minerals Management Service OCS plans within the 07 meaning given in 15 C.F.R. 930.73; 08 (E) National Park Service right-of-way permit under 36 C.F.R. 09 14.1-14.96; or 10 (F) Bureau of Land Management, Mineral Management 11 Service, and United States Fish and Wildlife Service right-of-way permit under 12 43 C.F.R. Part 2880; 13 (7) a United States Nuclear Regulatory Commission permit and license 14 for the 15 (A) siting of nuclear facilities under 10 C.F.R. Part 52; 16 (B) construction of nuclear facilities under 10 C.F.R. Part 52; 17 or 18 (C) operation of nuclear facilities under 10 C.F.R. Parts 54 - 19 55; 20 (8) a United States Department of Transportation, United States Coast 21 Guard permit under 22 (A) 33 U.S.C. 401 (sec. 9 of the Rivers and Harbors Act) and 23 33 C.F.R. Part 321, for construction or modification of bridge structures and 24 causeways across navigable waters; 25 (B) 33 U.S.C. 1501 - 1524, for siting, construction, and 26 operation of deepwater ports; or 27 (C) 33 U.S.C. 401 (sec. 9 of the Rivers and Harbors Act), 28 authorizing the obstruction of navigable waters. 29 (b) An activity not conducted by the federal government that requires a 30 federally administered nationwide or general permit and does not require a state or 31 municipal permit implementing the enforceable policies in AS 46.39.010 is
01 conclusively determined to be consistent with the enforceable policies of the ACMP. 02 Sec. 46.39.085. Public participation. The department shall ensure that any 03 public notice issued by a state resource agency complies with the requirements of 04 15 C.F.R. 930.42 or 15 C.F.R. 930.61, as applicable. For federal activities and OCS 05 plans, the department shall ensure public notice as required by 15 C.F.R. 930.61. 06 * Sec. 15. AS 46.39.900 is repealed and reenacted to read: 07 Sec. 46.39.900. Definitions. In this chapter, unless the context requires 08 otherwise, 09 (1) "ACMP" means the Alaska Coastal Management Program; 10 (2) "coastal resource district" means each of the following that 11 contains a portion of the coastal zone of the state: 12 (A) unified municipalities; 13 (B) organized boroughs of any class that exercise planning and 14 zoning authority; 15 (C) home rule, first class, and second class cities within 16 boroughs that do not exercise planning and zoning authority; 17 (D) home rule, first class, and second class cities of the 18 unorganized borough; 19 (3) "coastal zone" means the coastal waters including lands within and 20 under those waters, and adjacent shorelands, including the waters within and under 21 those shorelands, within the boundaries approved by the Alaska Coastal Policy 22 Council and the federal Office of Ocean and Coastal Resource Management as of 23 July 1, 2003; "coastal zone" includes areas added as a result of any boundary changes 24 by the department after July 1, 2003, in conformance with 16 U.S.C. 1451 - 1465 25 (Coastal Zone Management Act of 1972, as amended); "coastal zone" does not include 26 (A) those lands excluded under 16 U.S.C. 1453(1); or 27 (B) areas deleted as a result of any boundary changes by the 28 department after July 1, 2003 in conformance with 16 U.S.C. 1451 - 1465 29 (Coastal Zone Management Act of 1972, as amended); 30 (4) "department" means the Department of Natural Resources; 31 (5) "OCS plan" has the meaning given in 15 C.F.R. 930.71 and 930.73;
01 (6) "resource agency" means the Department of Environmental 02 Conservation, the Department of Fish and Game, or the Department of Natural 03 Resources; 04 (7) "state permit" means a permit, authorization, certification, 05 approval, or other form of permission that a state resource agency is authorized to 06 issue, and the requirements of which are adopted as the enforceable policies under 07 AS 46.39.010(d)(3); 08 (8) "uses of state concern" means those land and water uses that would 09 significantly affect the long-term public interest; "uses of state concern" include 10 (A) uses of national interest, including the use of resources for 11 the siting of ports and major facilities that contribute to meeting national 12 energy needs, construction and maintenance of navigational facilities and 13 systems, resource development of federal land, and national defense and 14 related security facilities that are dependent upon coastal locations; 15 (B) uses of more than local concern, including those land and 16 water uses that confer significant environmental, social, cultural, or economic 17 benefits or burdens beyond a single coastal resource district; 18 (C) the siting of major energy facilities, activities pursuant to a 19 state or federal oil and gas lease, or large-scale industrial or commercial 20 development activities that are dependent on a coastal location and that, 21 because of their magnitude or the magnitude of their effect on the economy of 22 the state or the surrounding area, are reasonably likely to present issues of 23 more than local significance; 24 (D) facilities serving statewide or interregional transportation 25 and communication needs; and 26 (E) uses in areas established as state parks or recreational areas 27 under AS 41.21 or as state game refuges, game sanctuaries, or critical habitat 28 areas under AS 16.20. 29 * Sec. 16. AS 09.45.230(b)(2)(B)(iv); AS 38.05.037(b)(2); AS 39.50.200(b)(38); 30 AS 44.33.844(5); AS 44.62.800(2)(B); AS 46.39.020, 46.39.030, 46.39.040, 46.39.050; 31 AS 46.40.010, 46.40.020, 46.40.030, 46.40.040, 46.40.050, 46.40.060, 46.40.070, 46.40.080,
01 46.40.090, 46.40.094, 46.40.096, 46.40.100, 46.40.110, 46.40.120, 46.40.130, 46.40.140, 02 46.40.150, 46.40.160, 46.40.170, 46.40.180, 46.40.190, 46.40.200, and 46.40.210 are 03 repealed. 04 * Sec. 17. Section 19 of this Act is repealed. 05 * Sec. 18. The following regulations are annulled: 06 (1) 6 AAC 50.005 - 6 AAC 50.990; 07 (2) 6 AAC 80.010 - 6 AAC 80.900; 08 (3) 6 AAC 85.020 - 6 AAC 85.900. 09 * Sec. 19. The uncodified law of the State of Alaska is amended by adding new sections to 10 read: 11 TRANSITION: ALASKA COASTAL PROGRAM EVALUATION COUNCIL. (a) 12 There is created in the Department of Natural Resources the Alaska Coastal Program 13 Evaluation Council. The council shall wind up its affairs before July 1, 2005. The council 14 consists of 14 members comprised of the commissioners of environmental conservation, fish 15 and game, and natural resources, four industry representatives, and seven public members. 16 The four industry representatives shall be appointed by the governor and drawn from four 17 separate industries. Each industry representative must have at least 10 years of experience in 18 commercial fishing, mining, oil and gas, or timber harvesting. The seven public members 19 shall be appointed by the governor from a list comprised of at least three names from each 20 region, nominated by the municipalities of each region. The public member nominees must 21 be the mayor or member of the assembly or council of a municipality. One public member 22 shall be appointed from each of the following general regions: 23 (1) northwest Alaska, including, generally, the area of the North Slope 24 Borough and the Northwest Arctic Borough; 25 (2) Bering Straits, including, generally, the area of the Bering Straits regional 26 educational attendance area; 27 (3) southwest Alaska, including, generally, the area within the Lower Yukon, 28 Lower Kuskokwim, and Southwest regional educational attendance areas and the Lake and 29 Peninsula and Bristol Bay Boroughs; 30 (4) Kodiak-Aleutians, including the area of the Kodiak Island and Aleutian 31 East Boroughs and the Aleutian, Adak, and Pribilof regional educational attendance areas;
01 (5) Cook Inlet, including the Kenai Peninsula Borough, the Municipality of 02 Anchorage, and the Matanuska-Susitna Borough; 03 (6) Prince William Sound, including, generally, the area east of the Kenai 04 Peninsula Borough to 141 W. longitude; 05 (7) southeast Alaska, including the area southeast of 141 W. longitude. 06 (b) Each member appointed under (a) of this section serves until July 1, 2005, unless 07 removed for cause by the governor. 08 (c) Each member of the council shall select one person to serve as a permanent 09 alternate at meetings of the council. If a member of the council is unable to attend, the 10 member shall advise the alternate, who may attend and act in place of the member. The 11 names of alternates shall be filed with the council. 12 (d) Eight members of the council constitute a quorum. All decisions of the council 13 shall be by a majority vote of the members present and voting. The meetings are subject to 14 AS 44.62.310 - 44.62.312 (Open Meetings of Governmental Bodies). The council may use 15 teleconferencing to conduct its meetings. 16 (e) Members of the council are entitled to per diem and travel expenses authorized by 17 law for members of boards and commissions. 18 (f) A member must meet the qualifications set out in (a) of this section for nomination 19 in order to continue to serve on the council. If a member fails to meet those qualifications or 20 if a vacancy exists among the members for any other reason, the governor shall, within 30 21 days after the establishment of the vacancy by lack of qualification or other reason, make an 22 appointment, to be immediately effective, for the unexpired portion of the life of the council. 23 An appointment by the governor made under this subsection to fill an unexpired term of a 24 member shall comply with the requirements of (a) of this section. However, the governor 25 may appoint from qualified persons without soliciting from municipalities nominations of 26 persons to fill the unexpired portion of the term. 27 (g) The council may 28 (1) consult with 29 (A) persons, public or private, that are interested in, affected by, or 30 concerned with coastal area planning and management; 31 (B) agents and officials of the coastal resource districts of the state,
01 and federal and state agencies concerned with or having jurisdiction over coastal 02 planning and management; and 03 (2) take any reasonable action necessary to carry out the provisions of this 04 section. 05 (h) The council shall 06 (1) review the effectiveness of the Alaska Coastal Management Program 07 contained in AS 46.39; 08 (2) no later than April 15, 2005, report to the governor concerning the 09 performance of the program. 10 (i) The council shall use the staff of the Department of Natural Resources in 11 discharging its powers and duties. 12 * Sec. 20. The uncodified law of the State of Alaska is amended by adding a new section to 13 read: 14 TRANSITION. (a) The Department of Natural Resources may proceed to adopt 15 regulations necessary to implement this Act. The regulations take effect under AS 44.62 16 (Administrative Procedure Act), but not before the effective date of the respective provisions 17 of this Act. 18 (b) The Department of Natural Resources, Department of Fish and Game, and 19 Department of Environmental Conservation shall review the categorically consistent 20 approvals and general concurrence determinations under the former Alaska coastal 21 management program as it existed on February 1, 2003, and no later than January 1, 2004, 22 shall, to the extent feasible, create general permits similar to the categorically consistent 23 approvals and general concurrence determinations that were available under the former 24 Alaska coastal management program as it existed on February 1, 2003, with appropriate 25 modifications reflecting the changes in law made by this Act. 26 (c) Consistency reviews initiated under former AS 46.40.096, AS 44.19.145(a)(11), or 27 AS 46.39.010 before July 1, 2003, may at the applicant's option exercised no later than July 1, 28 2003, be continued and completed under the procedures and enforceable policies under 29 former AS 46.39 and 46.40 as they existed on June 30, 2003. 30 (d) Except as provided in (c) of this section, contracts, rights, liabilities, and 31 obligations created by or under a law repealed or a regulation abrogated by this Act, and in
01 effect on the day before the effective date of this Act, remain in effect notwithstanding this 02 Act's taking effect. 03 * Sec. 21. The uncodified law of the State of Alaska is amended by adding a new section to 04 read: 05 REVISOR'S INSTRUCTIONS. (a) The revisor of statutes is instructed to change the 06 heading of 07 (1) AS 46.39 from "Coastal Management Administration; Alaska Coastal 08 Policy Council" to "The Alaska Coastal Management Program"; 09 (2) article 1 of AS 46.39 from "Coastal Management Administration" to 10 "Development of the Alaska Coastal Management Program"; 11 (3) article 2 of AS 46.39 from "Alaska Coastal Policy Council" to "Alaska 12 Coastal Management Program Consistency Reviews." 13 (b) Wherever in the Alaska Administrative Code the terms "division of governmental 14 coordination of the office of management and budget," "DGC," or "director of the division of 15 governmental coordination" are used, the regulations attorney is instructed to change those 16 terms to read, respectively, as "Department of Natural Resources," "DNR," or "commissioner 17 of natural resources" when to do so would be consistent with AS 44.62.125(b)(6) and the 18 changes made by this Act. 19 * Sec. 22. The uncodified law of the State of Alaska is amended by adding a new section to 20 read: 21 CONDITIONAL EFFECT. This Act takes effect only if Executive Order 106 takes 22 effect. 23 * Sec. 23. If this Act takes effect, sec. 20 of this Act takes effect immediately under 24 AS 01.10.070(c). 25 * Sec. 24. If this Act takes effect, sec. 17 of this Act takes effect July 1, 2005. 26 * Sec. 25. If this Act takes effect, except as provided in secs. 23 and 24 of this Act, this Act 27 takes effect July 1, 2003.