Legislature(2003 - 2004)
04/11/2003 03:33 PM RES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
SB 142-DNR LEAD RESOURCE DEVELOPMENT PROJECTS CHAIR OGAN said that most of the questions he raised about SB 142 at the April 9 hearing have been answered. At that hearing, Senator Lincoln suggested putting a sunset date in the legislation. He supports that suggestion and would like to see the program reviewed by the legislature in the second year of the next administration. He asked Ms. Burleson-Baxter if she would like to testify. MS. JANET BURLESON-BAXTER, Department of Natural Resources (DNR), told members that she, Dick Lefebvre, Bob Loeffler and Cam Leonard were available to answer questions. SENATOR ELTON thanked the representatives from DNR and DEC for bringing him up to speed on this legislation, as he was absent from the last hearing. He then said he had several questions to ask on behalf of Senator Lincoln, who was excused. The first question was about the appeal process under the new system. He noted Senator Lincoln was concerned that the new permitting office would be in charge of issuing permits while the individual agencies would hear the appeals. MS. BURLESON-BAXTER said none of the agencies would lose their authority over appeals of their respective permits. An appeal could be brought to the DNR project office but if the issue surrounded an individual permit, the adjudicatory process would be dealt with through the existing appeal procedure of the particular agency. MS. MARY SIROKY, Department of Environmental Conservation (DEC), affirmed Ms. Burleson-Baxter's explanation. SENATOR ELTON then asked, on behalf of Senator Lincoln, if the cost of the new office would be minimal because the cost will be transferred to the permittee. He questioned whether the cost will be difficult to estimate until DNR knows how many major permit applications it will have. MS. BURLESON-BAXTER nodded affirmatively. CHAIR OGAN pointed out the fiscal notes are zero but the funds for this legislation are included in the Governor's operating budget request. He commented that approach keeps the number of committee referrals down but questioned what will happen if no new positions are funded in the budget. He said putting the actual cost of the positions on the fiscal note would be clearer. MR. DICK LEFEBVRE, Acting Deputy Commissioner, DNR, said DNR has a number of large projects in the queue already. DNR anticipates that the reimbursable services lined up for this year will continue into next year. The component in the budget recognizes some of those funds. Whether SB 142 passes or not, DNR will need authorization to receive and expend those funds, which is why DNR used the budget as the main vehicle to carry the funding request. CHAIR OGAN asked if DNR could be the lead agency if the funding request in the operating budget is not met. MR. LEFEBVRE said it could. SENATOR ELTON commented that when the legislature directs departments to make an unallocated budget reduction, the legislature does not know where that reduction will take place. He agreed the bill should have a fiscal note that reflects the source of the funds and how those funds will be spent. SENATOR STEVENS said his interpretation of the section being repealed on page 3, AS 46.35.070, is that a state agency still has the responsibility to issue the permit but the coordinator is being changed, which is the reason for the zero fiscal note. MR. LEFEBVRE said that is correct. SENATOR ELTON offered a conceptual amendment to include a sunset date that takes effect two years into the next administration. SENATOR STEVENS objected for the purpose of discussion. He then asked the department to comment on the sunset provision and how the three-phase team concept would be implemented with a sunset provision. He also asked what program the state would revert to if the sunset took place, and whether it would be the program in existing Section 4. CHAIR OGAN pointed out that Section 4 is not being used at this time. SENATOR STEVENS asked DNR staff to comment on the sunset concept. MS. BURLESON-BAXTER said DNR likes the concept of the bill. She pointed out the concept of the lead agency began during the Hickel Administration and was continued through the Knowles Administration to this one. She said if a sunset provision is included, she believes DNR would try to carry on with the team concept as best as it could because it has been successful for DNR in the past. SENATOR STEVENS pointed out that DNR would have no authority to continue as the lead agency if a sunset took place. MS. BURLESON-BAXTER said DNR would not have prescriptive statutory authority but it might engage in a memorandum of understanding. SENATOR ELTON said his understanding is that a sunset would require the state agencies to revert to the ad hoc process used now. He said the argument for a sunset review is that it would set in motion a process to answer some of the questions, i.e., is the new office charging the permittees an appropriate amount. A sunset review would give the legislature the opportunity to review the definition of a large natural resource project and tweak or eliminate aspects of the program that are problematic. A sunset also reminds the department that the program will be reviewed, which induces good behavior. MR. LEFEBVRE told members one benefit of having clear statutory authority is that the federal agencies, when preparing environmental impact statements (EIS), would know who they have to deal with. Right now, they must deal with state agencies individually unless state agencies agree amongst themselves prior to the start of a project. SENATOR STEVENS said in his opinion, some of the annual sunset reviews undertaken by the legislature are routine reauthorizations. The legislature has the authority to make changes to a program at any time, if need be. He said while a sunset review forces the legislature to review a program, there is a dividing line between a reauthorization and a review and evaluation. He said DNR's annual report to the legislature should keep legislators informed about how DNR's authority as lead agency is being utilized. SENATOR WAGONER said he planned to support the amendment but would prefer an annual review because sunset reviews are very time consuming. He believes this legislation is one of the most important before the legislature this year. SENATOR STEVENS said he believes in putting the onus on DNR to describe how this concept is working by requiring it to present an annual report to the legislature. MR. LEFEBVRE pointed out that one of the benefits of the lead agency concept is that it is voluntary on the part of the permit applicant. If the applicant is not satisfied with the project process, the legislature will know about it well in advance of the next legislative session. SENATOR DYSON said inherent in the missions and measures process is an annual review by the Legislative Finance committees. He said he believes most sunset review time lengths should be doubled because they are very time consuming. However, because this is a new concept, he feels a sunset provision is valid so that the legislature makes sure an annual review takes place every year. SENATOR ELTON said he prefers the formalized process of a [sunset] review. CHAIR OGAN pointed out the next DNR commissioner could be very anti-development and a lot of power has been consolidated within that position. He advised that it might be prudent to take a formal look at this change in a few years as a check and balance measure. SENATOR WAGONER said his concern with a sunset review is that the legislature has the right to review this piece of legislation any time it deems it necessary but he feels the legislature should watch this program change closely because it is new. He expressed concern that 2008 is a long time from now so he proposed a sunset review in two years. SENATOR ELTON accepted Senator Wagoner's proposal as an amendment to his amendment. SENATOR DYSON objected. The motion to adopt the amendment to the amendment, to change the date of the sunset review from 2008 to two years, carried with Senators Stevens, Wagoner and Elton in favor, and Senators Dyson and Ogan opposed. MS. SIROKY told members that from the agencies' perspective, a longer time frame for a sunset review would be better. She expressed concern that projects take a significant amount of time from start to finish so a two-year window might not be long enough to see whether the process is working. She suggested a four or six year window. CHAIR OGAN moved to amend the amendment to require a sunset review in four years. There being no objection, the motion carried. The committee then voted on the amended amendment, that being whether to include a sunset provision [to take effect in four years]. The motion carried with Senators Dyson, Elton, and Ogan in favor, and Senators Wagoner and Stevens opposed. There being no further testimony, SENATOR WAGONER moved SB 142 as amended from committee with individual recommendations and its accompanying fiscal notes. There being no objection, the motion carried.