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Coastal zone change bills heard and held Proposal to return to more coastal district control over development supported by communities, opposed by administration, industry Kristen Nelson Petroleum News
Alaska’s coastal communities want a change in the Alaska Coastal Management Program to give them more local control over development. The administration and the oil and gas and mining industries want to keep the changes legislated in 2003 which removed a 17-member policy council and moved control of the program into the Department of Natural Resources.
Under the 2003 changes, new district plans were required and local enforceable policies were curtailed.
Coastal districts have been fighting with DNR’s Division of Coastal and Ocean Management over the new district plans and the two largest districts, the North Slope Borough and the Northwest Arctic Borough, have reached an impasse after taking their disputes with the department to mediation.
Bills to return more of a voice in coastal development to local communities and create a new nine-member coastal policy board composed of five members from coastal districts and four commissioners were introduced last year in the Alaska House and Senate. Those bills were heard and moved out of the Community and Regional Affairs committees in both bodies early in 2009, then languished in the Resources committees until March of this year.
In the Senate, the Resources Committee referral was waived March 24 and Senate Bill 4 was heard and held in Senate Finance March 30. House Bill 74 was heard and held in the House Resources Committee March 22.
As of the end of March, neither bill had been scheduled for a further hearing.
The NSB view North Slope Borough Mayor Edward Itta testified on House Bill 74 in Resources, telling legislators that the borough supports the bill because it would restore meaningful participation for coastal districts, bring air and water quality back into project review and restore the state’s rights.
He told the committee that the ACMP has always promoted development and said coastal districts have not used the ACMP to stop projects. All coastal development since 1977 has been approved under the ACMP, he said, and prior to 2003 less than 1 percent of projects were appealed.
HB 74 does not allow citizen or third-party lawsuits, he said, noting that citizen lawsuits under the program were eliminated in 2003 and citizen petitions were eliminated in 2002.
Itta said ACMP is currently broken and has lost its value to review participants because it is no longer what it used to be — a tool to identify and resolve conflicts early in the process.
The bill does not restore things to the way they were before 2003, when the program was essentially gutted, but does restore a local voice in the program through local enforceable policies and a coastal policy board to decide disputes, Itta said.
Doing nothing not an option Itta said that by watering down the coastal management program so that there is virtually no local voice he believes the State of Alaska has effectively abandoned its opportunity to exercise influence in coastal waters and has handed over all the cards to the federal government.
“National environmental groups have jumped all over this vacuum,” he said, and a state program would help dampen that.
Short of having a local voice in ACMP, Itta said local options if the state does nothing could include rewriting local regulations and creating new hoops for projects to jump through or perhaps working with the federal agencies through an Arctic Regional Citizens’ Advisory Council.
Itta said he doesn’t believe a federal program is a good alternative, but said as North Slope Borough mayor, “doing nothing is not an option for me.”
He said districts on the edge of development believe HB 74 reestablishes and refines a process that can give local districts a voice.
The City of Valdez, the Northwest Arctic Borough and the City and Borough of Sitka all testified in House Resources in favor of HB 74.
Administration issues Randy Bates, director of the Division of Coastal and Ocean Management, said the department continues to have significant concerns with the drafting and substance of the bill. He said issues raised last year have not been addressed and identified those issues as related to the authority of coastal district enforceable policies as they relate to state and federal law. He said there also is concern about the creation of a new body to approve local district enforceable policies which override state statute.
He said the bill is specific to the concerns of specific ACMP participants and doesn’t balance all concerns.
Bates said an example of a legal issue is a coastal district wanting to write policy on noise producing projects to address the impact on marine mammals. But the federal Marine Mammal Protection Act prohibits states from developing laws like that and the state has been told it would be illegal to implement such a local policy, he said.
On the legal issue, an attorney with the Department of Law told House Resources that the legal issues are fundamental, adding that the Department of Law has been seeking advice from the federal oversight program but hasn’t received specific answers from them.
Bates said of the 33 coastal districts with plans prior to the legislative changes made in 2003, five voluntarily dropped out. Of the 28 remaining, 25 have coastal plans, one is working toward a plan and two — the North Slope and the Northwest Arctic — pursued mediation with the department and then declared an impasse; their plans remain unapproved. He said that from the department’s point of view significant movement was made during mediation, but there are outstanding issues very critical to those districts remaining.
He said the piece the department is most interested in resolving is the relationship between coastal district enforceable policies and state and federal laws already in existence.
Industry opposition
When Senate Bill 4 was heard in Senate Finance March 30, the committee heard from coastal districts supporting the bill but also heard from industry opposing it.
Steve Borell, executive director of the Alaska Miners Association, told the committee the association believes ACMP doesn’t work well, but doesn’t think that SB 4 would improve that.
In a March 29 letter to the committee Borell said,“this bill would create an administrative quagmire for the state permitting process and would create tremendous uncertainty for all permittees.” Because the five public members must be selected by the governor from coastal district nominees, the coastal districts would control board decisions. The bill would give authority now held by DNR to the new board, not elected by the public and not confirmed by the Legislature, he said.
Marilyn Crockett, executive director of the Alaska Oil and Gas Association, told the committee the bill would take the state back to what she called a “very bumpy permitting” process.
In a detailed letter detailing AOGA’s position, she said the organization strongly opposes the bill. While “many legislators have expressed a desire to create a better environment for investment in Alaska … AOGA members believe that passage of SB 4 would achieve the exact opposite.”
She said SB 4 would “significantly reduce potential production and could cost the state significant revenue, billions of dollars in needed industry investment and consequently thousands of jobs.”
Pete Slaiby, vice president of Shell Alaska, told the committee that stakeholder consultations are important to Shell and said Shell opposes SB 4 because it believes existing legislation at the state and federal level gives stakeholders the opportunity to comment.
In a March 29 letter to the sponsors of the legislation, Slaiby said that key elements of the bills “threaten future investment in offshore oil and gas exploration,” and said those include removal of the Department of Environmental Conservation “carve out,” which would open “extremely technical federal and state air and water permits to contradictory local standards, unnecessarily restrictive requirements, costly last-minute modifications and extended approval timelines.”
The deferral of consistency reviews until all federal and state permits and authorizations are in hand “eliminates all established timelines, which will result in the loss of the short exploration season.”
The end result of key elements of the changes, he said, “effectively establishes a local veto over development of the resources that belong to all the people of Alaska and the Nation.”
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