Legislature(2009 - 2010)
04/15/2009 05:18 PM RES
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|Confirmation Hearing(s)|| Alaska Board of Fisheries|
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.