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ACMP hearings begin in Legislature Alaska Coastal Management Program terminates July 1 without action; bill to extend program heard; audit reviews program since changes Kristen Nelson Petroleum News
The governor’s bill to extend the Alaska Coastal Management Program beyond its July 1 statutory termination came up for a first hearing in House Resources.
The March 7 meeting was an overview of the program — and an opportunity for legislators to express their displeasure to Randy Bates, director of the Division of Coastal and Ocean Management, which runs the coastal management program.
Local coastal districts have been unhappy with changes the Legislature made to the program under the Murkowski administration, and legislators from coastal areas have been trying to get consensus to make changes in the program for several years.
Bills which have been introduced so far this session — the governor’s House Bill 106 and its companion Senate Bill 45, and SB 56 by the Senate Finance Committee, address only extending ACMP. The Senate Finance bill proposes a one-year extension; the governor proposes a six-year extension; and a recently completed audit by the Division of Legislative Audit recommends a four-year extension.
Alaska participates voluntarily in the federal coastal zone management program through ACMP, allowing the state a voice in federal permitting activities within the state’s coastal zone and on the outer continental shelf.
Statutory revisions to the ACMP in 2003 and 2005, and regulatory revisions in 2004, made substantial changes in the way the program operates. Local enforceable policies were limited, the Coastal Policy Council was eliminated and the program was moved from the governor’s office the Department of Natural Resources.
Local policies an audit issue In its findings and recommendations the Division of Legislative Audit recommended that the Legislature reauthorize ACMP. The division said it found a demonstrated public need for the program’s continued existence and recommended either the repeal of the sunset now in statute or, “if another program evaluation is preferred,” a four-year extension of the program.
In the first part of the audit, released in December, the division said regulatory changes have limited the ability of coastal resource districts to establish enforceable policies for local concerns.
“Under the former ACMP,” the division said, “if a district program addressed the same subject as a statewide standard, the district program governed. Now a coastal resource district must demonstrate that a matter is not adequately addressed by state or federal law for its enforceable policy to be approved. A matter can be adequately addressed if an agency has the authority to regulate, whether or not it has regulations concerning the matter.”
Of some 490 local enforceable policies submitted, approximately 35 percent were disapproved at least partly because the district did not show matters were of local concern, and more than half of the coastal resource districts surveyed by the division said they “believed they had enforceable policies disallowed even though they met the statutory requirement.”
In a Feb. 24 letter to Reps. Neal Foster, D-Nome, and Bob Herron, D-Bethel, responding to questions raised in a January meeting, DCOM Director Bates addressed the issue of district enforceable policies, noting that they “must be consistent with the state standards and are meant to clarify or add specificity to the state standards without being more stringent.” He said that under Alaska statutes local standards cannot duplicate, restate or incorporate by reference state or federal statutes or regulations.
District enforceable policies cannot “address a matter regulated or authorized by state or federal law unless the enforceable policies relate to a matter of local concern,” Bates said, adding that districts often want to address matters, such as marine mammals, which “are already highly regulated through the federal Marine Mammal Protection Act and other applicable laws.”
Designated areas Legislative Audit cited designated area requirements as limiting the ability of coastal districts to establish enforceable policies for subsistence uses and important habitats.
Bates noted in his Feb. 24 letter that the federal Coastal Zone Management Act does not require that states consider subsistence uses, but said the ACMP voluntarily considers and evaluates impacts to subsistence uses during reviews of proposed projects in coastal areas.
He said that designated areas of subsistence use must be specific locations and must be documented. Two coastal resource service areas had enforceable policies and designated areas denied and Bates said DCOM recommended denial because the designated areas did not meet regulatory requirements that subsistence is an important use. And the areas designated were broad and not well documented, he said.
The audit noted that clarifying standards and policies and reducing redundancy were the Legislature’s intent in its statutory changes, specifically: reducing delays and avoiding regulatory confusion; updating and reforming ACMP standards; updating and reforming district plans so enforceable policies are “clear, concise, more uniform, related to local concerns, and non-duplicative of state and federal laws”; and that DNR should develop and implement the reforms.
The audit also found that district plan requirements in regulations are “more stringent” than in the legislation.
DEC carve out an issue In its changes the Legislature intended that Department of Environmental Conservation air, land and water quality issues were excluded from ACMP reviews, the audit said, streamlining the process by allowing ACMP review and DEC permitting to occur concurrently rather than consecutively.
The audit found that this has been a positive change from the perspective of industry, but has disadvantages from the perspective of coastal resource districts, which are concerned that gaps in DEC statutes and regulations “cannot be resolved due to the revised ACMP statutes and regulations prohibiting coastal resource districts from creating enforceable policies over air, land, and water quality issues under the authority of DEC.”
Coastal resource districts also said that DEC control of land, air and water quality issues “eliminates the collaborative opportunities among coastal resource districts, applicants, and resource agencies to determine if an activity will have an adverse impact on coastal uses and resources.”
The audit recommended that DNR “develop proposals to reintegrate DEC permitting processes into the ACMP process while maintaining the benefits of allowing the processing of complex DEC permits to run concurrently with the ACMP consistency review.”
The December portion of the audit concluded that the 2003 statutory and 2004 regulatory changes to ACMP “have not reduced Alaska’s rights under the CZMA. The State still has and does take advantage of its rights to weigh in on federal decisions through the consistency review process,” but noted that “regulatory changes may have affected the purview of the consistency review.”
Transparency In part 2 of its audit, released in January, the Division of Legislative Audit said ACMP “is operated openly and transparently in many ways, but is lacking in certain aspects.”
DCOM does not generally record working group meetings and does not keep participants actively informed about the status of the ACMP reevaluation, the audit said.
In a Feb. 4 response to the audit, DNR Commissioner Dan Sullivan said participating working group members and coastal district coordinators had agreed to the policy of not recording working group or coastal district meetings and said the meetings are not subject to the same public notice and meeting minute requirements as prior to the 2003 legislative changes when the Division of Governmental Coordination (in the Office of the Governor) was performing functions on behalf of the Coastal Policy Council.
Sullivan said the assertion that DCOM has not kept participants informed is inaccurate.
“DCOM has held monthly meetings of the working group and coastal districts to address any issue a participant would like addressed,” he said, adding that DCOM actively advised meeting participants of the status of the reevaluation, while DCOM staff made individual and personal contacts with various ACMP participants including all active district coordinators.
The consultants issue The audit said DCOM’s policy regarding consultants disregards coastal district autonomy.
This is an issue that Bates discussed in some detail in his Feb. 24 letter to Reps. Foster and Herron.
He said that for DCOM to successfully implement ACMP requires direct contact with each of the participating entities, and while DCOM encourages districts to employ consultants for many tasks it “does not allow a consultant to be a district’s official point of contact during a consistency review.”
Bates said this has been an issue in one of the four coastal resource service areas.
The audit concluded that DNR is an appropriate agency to manage ACMP, but said that the ACMP’s other two resource agencies, DEC and the Department of Fish and Game, have missions similar to DNR and “could be appropriate agencies as well.” And, because of the coordination functions that are critical to ACMP, “the Office of the Governor could also be considered an appropriate location for the ACMP.” The agency was formerly housed in the governor’s office.
The audit found that in general changes to the ACMP have centralized decision making and lessened consensus building among review participants.
Since the elimination of the Coastal Policy Council, the DNR commissioner now has sole responsibility for approving coastal district management plans and reviewing consistency determinations elevated to him.
“This centralized decision-making has been criticized for lacking impartiality and local representation,” the audit said. “However, a perceived weakness of the CPC was that sometimes the local members well not well-informed.”
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