Legislature(2009 - 2010)

04/15/2009 05:18 PM RES


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05:18:50 PM Start
05:19:42 PM Confirmation Hearing(s)|| Alaska Board of Fisheries
07:02:26 PM HB74
07:37:33 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB  74-COASTAL MANAGEMENT PROGRAM                                                                                             
                                                                                                                                
7:02:26 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  NEUMAN announced  that the  next order  of business  is                                                               
HOUSE  BILL  NO. 74,  "An  Act  relating  to the  Alaska  coastal                                                               
management program;  and establishing  the Alaska  Coastal Policy                                                               
Board."  [Before the committee was CSHB 74(CRA).]                                                                               
                                                                                                                                
REPRESENTATIVE REGGIE  JOULE, Alaska State  Legislature, co-prime                                                               
sponsor of HB 74, introduced the bill as follows:                                                                               
                                                                                                                                
     This allows areas of the  state impacted by development                                                                    
     to  have input  early in  the  process.   It creates  a                                                                    
     network of local, state, and  federal oversight so that                                                                    
     all  aspects of  the  project are  considered during  a                                                                    
     single review.  It gives  the local coastal districts a                                                                    
     seat at  the table.   Some of  you may remember  ... in                                                                    
     2003 when House  Bill 191 ... changed what  had been in                                                                    
     place  since  1977 and  took  those  ... seats  at  the                                                                    
     table.   ... This would  allow that those  areas become                                                                    
     part  of the  process again.   Who  better to  know the                                                                    
     needs of  the area and  what is important  than members                                                                    
     of those  districts.  This recognizes  the diversity of                                                                    
     the state and  that one size does not fit  all.  And it                                                                    
     still   leaves   the   ultimate  authority   with   DNR                                                                    
     [Department  of Natural  Resources], since  consistency                                                                    
     review in this legislation would stay with them.                                                                           
                                                                                                                                
REPRESENTATIVE JOULE noted that  there has been rapid development                                                               
in his district  over the past 30-plus years, and  that this area                                                               
will continue  being a large  contributor to the  economic health                                                               
of the  state, whether  it is oil,  gas, or  mineral development.                                                               
People need  to work together to  end up with a  good product and                                                               
local  people,  who  are  mostly   pro-development,  need  to  be                                                               
included in the permitting process.                                                                                             
                                                                                                                                
7:05:24 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE JOULE listed  a number of projects  that have come                                                               
on board since adoption of  the coastal zone management system in                                                               
1977:  Green[s]  Creek Mine; Red Dog Mine;  the outer continental                                                               
shelf  (OCS)  and gas  leases;  all  National Petroleum  Reserve-                                                               
Alaska (NPR-A)  leases; the Alpine, Liberty,  North Star, Badami,                                                               
Prudhoe Bay,  and Kuparuk development projects;  Rock Creek Mine;                                                               
cruise ship docks in Juneau; and the Auke Bay ferry terminal.                                                                   
                                                                                                                                
REPRESENTATIVE  JOULE  pointed  out that  Alaska's  coastal  zone                                                               
includes  more than  44,000  miles of  coastline  and can  extend                                                               
inland along  river drainages  for as  far as  250 miles.   Thus,                                                               
almost all  districts are impacted  by a coastline, making  HB 74                                                               
possibly one  of the  most important  pieces of  legislation that                                                               
should be  looked at as  the state tries to  develop partnerships                                                               
in the areas where development is going to occur.                                                                               
                                                                                                                                
7:07:06 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE JOULE, to provide a  backdrop for why he thinks HB
74  is necessary,  quoted a  statement made  by Mr.  Randy Bates,                                                               
Director  of  DNR's  Division of  Coastal  and  Ocean  Management                                                               
(DCOM),  at  a  January  29,   2008,  meeting  regarding  a  bill                                                               
Representative Joule had introduced prior:                                                                                      
                                                                                                                                
     The   ACMP   [Alaska    Coastal   Management   Program]                                                                    
     regulations  ended  up  more stringent  than  what  was                                                                    
     intended under House Bill 191.   Coastal districts were                                                                    
     limited in their ability  to craft enforceable policies                                                                    
     that  address  coastal  uses and  resources  that  were                                                                    
     important  to the  local  residents.   This  limitation                                                                    
     manifested itself into  severely strained relationships                                                                    
     between the Office of  Project Management & Permitting,                                                                    
     DCOM, and many districts.                                                                                                  
                                                                                                                                
REPRESENTATIVE  JOULE  charged that  this  is  a clear  admission                                                               
[DNR] overstepped its bounds.   He said there have been countless                                                               
meetings with the  department where people were  told that either                                                               
legislation  was going  to be  introduced  or regulation  changes                                                               
were going to be made, but  neither has been forthcoming which is                                                               
why HB 74 is before the committee.                                                                                              
                                                                                                                                
7:09:03 PM                                                                                                                    
                                                                                                                                
CO-CHAIR NEUMAN opened public testimony.                                                                                        
                                                                                                                                
TOM  LOHMAN,  Department  of  Wildlife  Management,  North  Slope                                                               
Borough, stated that the borough's  district plan was approved in                                                               
1988.   He explained that the  ACMP is not like  other regulatory                                                               
schemes -  it was crafted  by the  legislature to be  a step-down                                                               
program with  a significant role  vested in the  local districts.                                                               
He continued:                                                                                                                   
                                                                                                                                
     DNR should  stop trying  to make  the ACMP  a one-size-                                                                    
     fits-all  statewide program  like most  other statutory                                                                    
     and regulatory  programs.  DNR  has been wrong  when it                                                                    
     has  testified that  the  districts  are seeking  local                                                                    
     control  that   would  usurp  state  powers.     It  is                                                                    
     important  to   distinguish  between  the   ability  of                                                                    
     districts  to  adopt  local  policies  and  have  those                                                                    
     policies   approved  at   the  state   level  and   the                                                                    
     districts' role in project reviews.   DNR testimony has                                                                    
     mixed the two,  as it has done with  the question about                                                                    
     traditional and  contemporary local knowledge.   At the                                                                    
     district  plan approval  level, districts  ought to  be                                                                    
     able to bring any relevant  information in support of a                                                                    
     proposed  policy   to  the  attention  of   the  board,                                                                    
     including  any information  understood by  local people                                                                    
     that  may not  yet have  been formalized  in a  Western                                                                    
     scientific report.   Sometimes this can  be traditional                                                                    
     knowledge    passed     down    through    generations.                                                                    
     Increasingly,  it is  critical information  about local                                                                    
     environmental conditions  and trends in  the ecosystem.                                                                    
     The board members will not  be sheep.  They should, and                                                                    
     will,   critically  probe   the   credibility  of   all                                                                    
     information presented  in favor and against  a proposed                                                                    
     policy  and  will  render their  judgment  accordingly.                                                                    
     This kind of  thing occurs all the time  in the context                                                                    
     of game  board decisions, for example,  where differing                                                                    
     local    conditions   require    differing   management                                                                    
     prescriptions. ... We are talking  about the ability of                                                                    
     districts  to   apply  useful,  local   information  to                                                                    
     proposed   development   under   the   specific   local                                                                    
     environmental and other conditions  of their areas.  In                                                                    
     most cases,  this would improve the  design of projects                                                                    
     and reduce conflicts earlier in planning processes.                                                                        
                                                                                                                                
7:13:04 PM                                                                                                                    
                                                                                                                                
MR. LOHMAN  stressed that districts are  not anti-development and                                                               
are not  trying to obtain more  influence than they had  for most                                                               
of the pre-2003  history of the ACMP.  He  contended that DNR has                                                               
so  far failed  to  provide specific  examples,  as requested  by                                                               
districts and the legislature, of  districts using their pre-2003                                                               
policies  to significantly  delay or  halt problem-free  projects                                                               
that were not  also being delayed or halted by  some other agency                                                               
under some other  regulatory scheme, and of  policies proposed by                                                               
districts that  DNR sees as  being impediments to  development in                                                               
the state.  He charged  that DNR has offered misleading testimony                                                               
regarding  districts'   implementation  of  their   plans  during                                                               
individual project reviews  should HB 74 pass.   He refuted DNR's                                                               
allegation  that industry  will lack  the certainty  it needs  to                                                               
operate  if different  rules apply  in different  areas, pointing                                                               
out that  this is  already the  case for  the oil  industry which                                                               
operates on both state and federal lands and waters.                                                                            
                                                                                                                                
7:14:14 PM                                                                                                                    
                                                                                                                                
MR.  LOHMAN noted  that the  proposed Coastal  Policy Board  will                                                               
play  no role  in individual  project reviews.   He  said nothing                                                               
currently  in  HB  74  reverses previous  actions  taken  by  the                                                               
legislature to solve earlier problems  solved by the legislature.                                                               
The bill  corrects some of  the damage  done to the  program when                                                               
House Bill  191 passed in 2003.   He expressed frustration  at no                                                               
action being  taken by DNR  or the current administration  to fix                                                               
the  problems, even  though DNR  has admitted  in testimony  that                                                               
problems  do   exist.    Districts  participated   in  DNR's  re-                                                               
evaluation process in  which the goal was for DNR  to file a bill                                                               
at the start of the 2009 session, but that did not happen.                                                                      
                                                                                                                                
MR. LOHMAN said  it is baffling why, after so  much effort by the                                                               
districts, that  DNR cannot clearly  explain its  intentions with                                                               
respect to the ACMP.   Additionally, in vague explanations of its                                                               
opposition  to  HB  74,  DNR   has  argued  that  there  is  some                                                               
mysterious legal  constraint on  the executive  branch's ability,                                                               
either through  the agency  itself or  the newly  created Coastal                                                               
Policy  Board,  to  approve  district   policies  that  are  more                                                               
specific than laws  passed by the legislature.   Despite requests                                                               
to see  specific legal interpretation of  the position, districts                                                               
have  received nothing.   He  commended Representative  Joule and                                                               
the  other  co-sponsors of  HB  74  and  urged its  passage  from                                                               
committee.                                                                                                                      
                                                                                                                                
7:16:43 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON asked whether  DNR is still requiring there                                                               
be  specific  scientific knowledge  on  each  particular cove  or                                                               
place, rather than a coastal policy based on habitat types.                                                                     
                                                                                                                                
MR. LOHMAN responded yes.  He  added that the North Slope Borough                                                               
does not currently  have an approved coastal district  plan.  The                                                               
borough entered mediation after  the required revision process of                                                               
its  local plan  and  agreement could  not  reached.   Tremendous                                                               
hurdles in the current state  law preclude districts from passing                                                               
really meaningful local policies on  issues that for years before                                                               
2003  brought   developers  and   local  communities   and  other                                                               
stakeholders  together to  solve problems.   The  current process                                                               
does not work and DNR has acknowledged that.                                                                                    
                                                                                                                                
7:18:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  inquired whether  the North  Slope Borough                                                               
has embodied its local policies as borough code.                                                                                
                                                                                                                                
MR. LOHMAN  replied the borough has  done some of them,  but some                                                               
of  the  borough's  greatest  concerns on  the  North  Slope  are                                                               
subsistence and  issues dealing with the  outer continental shelf                                                               
(OCS).   There is  a question about  how extensively  the borough                                                               
can  impose  its local  land  management  regulations on  federal                                                               
lands  within the  NPR-A and  the borough  cannot craft  policies                                                               
dealing with the OCS under the current state program.                                                                           
                                                                                                                                
7:19:20 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  asked whether borough land  use policy has                                                               
been  incorporated  on  non-federal  lands  so  development  must                                                               
comply with permits by local ordinance.                                                                                         
                                                                                                                                
MR. LOHMAN  answered that to  some extent  this is correct.   The                                                               
borough has attempted  to use its land  management regulations to                                                               
govern development on  state lands, but there are  some issues as                                                               
to   whether  the   borough  can   impose  its   land  management                                                               
regulations fully on federal land.                                                                                              
                                                                                                                                
7:20:25 PM                                                                                                                    
                                                                                                                                
JOHNNY AIKEN,  Director, Planning  and Community  Services, North                                                               
Slope  Borough, related  that  HB  74 is  important  to the  many                                                               
coastal  districts dissatisfied  with  the way  things have  been                                                               
going over  the past  4-5 years  regarding their  district plans.                                                               
He  said he  is from  the  North Slope  Borough Coastal  District                                                               
which does  not yet  have an  approved plan  and will  likely not                                                               
unless HB 74 is passed.  The most  important part of HB 74 is the                                                               
placement  of   a  Coastal  Policy  Board   comprised  of  agency                                                               
representatives  and coastal  district representatives  who would                                                               
review  and approve  or disapprove  the  coastal district  plans.                                                               
For  the past  few  years, DNR  has been  the  only reviewer  and                                                               
approver of district plans.   Many districts have not agreed with                                                               
how DNR has evaluated these  plans, as well as contributing their                                                               
own  rules  and   regulations.    The  district   has  been  very                                                               
frustrated with how things have been handled to date.                                                                           
                                                                                                                                
7:22:46 PM                                                                                                                    
                                                                                                                                
MR. AIKEN  pointed out that  lease sales have been  occurring for                                                               
the  Chukchi and  Beaufort seas,  the seas  closest to  the North                                                               
Slope Borough; yet,  there is no approved district plan.   Why is                                                               
that,  he  asked.     The  North  Slope  Borough   has  not  been                                                               
unreasonable and  has tried hard to  work with DNR in  good faith                                                               
to come  up with a plan.   There needs  to be a process  in place                                                               
for the  borough to participate  in a meaningful  way, especially                                                               
before development  occurs in  the Arctic  Ocean.   The Northwest                                                               
Arctic Borough, the  next closed district, also does  not have an                                                               
approved plan, he related.                                                                                                      
                                                                                                                                
MR.  AIKEN  said  HB  74 would  provide  the  borough  meaningful                                                               
participation  and  an  avenue  to   take  part  in  the  state's                                                               
decision-making  process  through  a  seat at  the  table.    The                                                               
process  is  broken and  it  is  up  to  legislators to  fix  the                                                               
problems because  DNR has  not done  so and  did not  introduce a                                                               
bill as  promised.  He  stated that  the borough has  not stopped                                                               
any  projects previously  and  does  not intend  to;  it is  only                                                               
asking  that  development  be done  in  an  environmentally  safe                                                               
manner.   This bill  would ensure  the borough has  a voice.   He                                                               
noted that residents depend on  the revenue development brings to                                                               
the North Slope Borough, but  that revenue has been declining for                                                               
the past decade.                                                                                                                
                                                                                                                                
7:25:33 PM                                                                                                                    
                                                                                                                                
GORDON  BROWER, Land  Manager, Planning  and Community  Services,                                                               
North Slope Borough,  agreed with all of  the previous statements                                                               
in  support of  HB 74.    He said  he  has worked  on the  Alaska                                                               
Coastal Management  Program for  many years  for the  North Slope                                                               
Borough and  he participated in DNR's  re-evaluation process, but                                                               
DNR did  not come  up with  a legislative  fix.   Local districts                                                               
have not  had meaningful roles  in project reviews over  the past                                                               
several years and HB 74 would provide that avenue.                                                                              
                                                                                                                                
7:27:53 PM                                                                                                                    
                                                                                                                                
MR.  BROWER said  he is  especially concerned  by OCS  activities                                                               
where he  believes state's  rights have  been cut  off by  DNR in                                                               
regard  to  the "carve-out"  and  policies  concerning oil  spill                                                               
matters.  He is also  concerned about open water seismic activity                                                               
because  both science  and  traditional  knowledge indicate  that                                                               
whales  migrating  along the  near  shore  are pregnant  or  have                                                               
newborn  calves  and this  is  a  very  delicate period  for  the                                                               
whales.  Satellite  tagging over the last four  years shows major                                                               
deflections of hundreds of miles  for these migrating whales when                                                               
seismic activity is  going on.  Mr. Brower  concluded by offering                                                               
his support for HB 74.                                                                                                          
                                                                                                                                
7:29:52 PM                                                                                                                    
                                                                                                                                
GARY  WILLIAMS,  Coastal  District Coordinator,  Kenai  Peninsula                                                               
Borough  Coastal  District,  Kenai Peninsula  Borough,  spoke  in                                                               
favor of the provisions in HB 74:                                                                                               
                                                                                                                                
     Reinstitution of a Coastal Policy  Board as provided in                                                                    
     Section  1  as a  means  to  offer  a modest  level  of                                                                    
     oversight  to the  [Alaska] Coastal  Management Program                                                                    
     is a  positive step.   The legislation adopted  in 2003                                                                    
     placed  the  program in  DNR  and  provided too  little                                                                    
     flexibility  in the  law to  accommodate the  differing                                                                    
     needs  of  our  various  coastal  areas.    Without  an                                                                    
     oversight  board there  is no  opportunity for  coastal                                                                    
     districts  to appeal  agency decisions  when there  are                                                                    
     disagreements over  the interpretation of  statutes and                                                                    
     DNR regulations.   This was  a problem that  was common                                                                    
     to all districts during the  re-write of coast district                                                                    
     plans as required by [House Bill] 191.                                                                                     
                                                                                                                                
     Second, the  proposed language on page  7, lines 14-23,                                                                    
     provides  valuable guidance  regarding the  development                                                                    
     of coastal  plan enforceable  policies.   This language                                                                    
     is  important  if  coastal  districts  are  to  have  a                                                                    
     meaningful role in the  effective implementation of the                                                                    
     ACMP.    At  present, DNR  disallows  coastal  district                                                                    
     policies  that   touch  upon   any  activity   that  is                                                                    
     regulated by federal or state  agencies, whether or not                                                                    
     that  agency  effectively  monitors  or  enforces  that                                                                    
     regulated  activity.   State  agencies apparently  fear                                                                    
     that   by  giving   up  coastal   district  enforceable                                                                    
     policies in  areas the  state has  regulatory authority                                                                    
     that they will  be giving up their  authority or giving                                                                    
     it  away.   Well, this  is not  what coastal  districts                                                                    
     seek  in  this  proposed  change.    We  only  seek  to                                                                    
     implement  the  objectives of  the  ACMP  which are  to                                                                    
     balance the development of our  resources with care for                                                                    
     our land and air and water.                                                                                                
                                                                                                                                
     Third, the proposed  ... language on page  13, lines 9-                                                                    
     11, [is]  extremely important in the  implementation of                                                                    
     a  resource management  program.   This language  calls                                                                    
     for  consideration of  the impacts  of activities  that                                                                    
     would cause  direct and  significant impact  to coastal                                                                    
     uses or  to resources.   Under  current law,  a coastal                                                                    
     district  cannot  consider  the  cumulative  impact  of                                                                    
     activities  that would  cause damage  to a  resource if                                                                    
     the activity  occurs outside the boundaries  of coastal                                                                    
     resources.    The  effect  is  that,  for  example,  an                                                                    
     activity in an  upland that has the  clear potential to                                                                    
     damage  a nearby  wetland may  not be  considered in  a                                                                    
     district consistency review.   The proposed language in                                                                    
     this section  must be part  of any  rational management                                                                    
     program.                                                                                                                   
                                                                                                                                
MR. WILLIAMS  said he  has forwarded to  the committee  the Kenai                                                               
Peninsula Borough  Assembly Resolution 2009-30,  supporting these                                                               
and other comments that HB 74 addresses.                                                                                        
                                                                                                                                
7:33:40 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  NEUMAN noted  that in  a conversation  today, Mr.                                                               
Bates  told  him  DNR  has  surveyed  the  coastal  districts  to                                                               
identify  the  highest  issues   in  order  to  determine  common                                                               
identifiers that  would provide a  starting place to  start focus                                                               
on.  He offered to get  the results to committee members once the                                                               
department has finished compiling the surveys.                                                                                  
                                                                                                                                
REPRESENTATIVE SEATON asked  what the timing would  be because he                                                               
thought this had been done a year and a half ago.                                                                               
                                                                                                                                
CO-CHAIR  NEUMAN agreed  it could  have been  that long  ago, but                                                               
that Mr.  Bates told him DNR  is in the process  of compiling the                                                               
information.   He  asked whether  Representative  Joule knew  the                                                               
answer.                                                                                                                         
                                                                                                                                
REPRESENTATIVE JOULE  responded he  is unsure,  but it  makes him                                                               
wonder what DNR has been doing  if it has had the information for                                                               
a year and a half.                                                                                                              
                                                                                                                                
7:35:28 PM                                                                                                                    
                                                                                                                                
RANDY BATES, Director, Division  of Coastal and Ocean Management,                                                               
Department   of  Natural   Resources,   stated   that  in   their                                                               
discussion, Co-Chair Neuman requested a  letter be drafted to the                                                               
districts  to identify  the top  ten items  of interest  from the                                                               
districts' perspective.   He said he responded he  would be happy                                                               
to  do so,  but  that  DNR has  conducted  the re-evaluation  and                                                               
probably has  the districts'  top 10  issues captured  within the                                                               
comments that  were submitted  and therefore  he could  put those                                                               
together in a summary to share with the committee.                                                                              
                                                                                                                                
MR. BATES,  in response to Representative  Seaton, explained that                                                               
DNR conducted  two rounds  of comment  solicitation, one  in July                                                               
2008 and  one in October or  November 2008.  Thus,  there are two                                                               
sets of different comments based  on a general discussion of what                                                               
could be done  with the coastal program and then  a more specific                                                               
focused effort on  some of the language as draft  that was shared                                                               
with folks.  These two sets  of comments could be shared with the                                                               
committee  immediately, he  said.   It  is also  DNR's intent  to                                                               
compile a  response to  comments, compile  the issues,  and share                                                               
that with committee members as well.                                                                                            
                                                                                                                                
REPRESENTATIVE  SEATON said  he would  appreciate receiving  this                                                               
information.                                                                                                                    
                                                                                                                                
7:37:33 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE NEUMAN closed  public testimony on HB  74 and held                                                               
over the bill.                                                                                                                  
                                                                                                                                

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