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State proposes changes to ACMP statutes Faced with issues relating to ACMP reforms in 2003 state regulators want to clarify the legal position of district policies Alan Bailey Petroleum News
When in 2003 the state changed the statutes for the Alaska Coastal Management Plan the intention was to streamline the ACMP process by minimizing duplication between local municipal regulation and regulation by state and federal officials. But the changes had the unintended consequences of triggering lawsuits and causing confusion about how the ACMP was being implemented.
As a consequence Alaska’s Division of Coastal and Ocean Management has been engaged in a re-evaluation of the program and, following a public comment period that included a series of public conferences, the division has now published proposed changes to the ACMP statutes and regulations. The idea is to ask the state Legislature to enact statutory changes to the ACMP during the upcoming legislative session, Randy Bates, director of DCOM, told Petroleum News Dec. 8.
In 2003 the Alaska Department of Natural Resources found it impossible to develop regulations that would fully achieve commitments made to the Legislature, Bates said. So, this time around DCOM is ensuring that it has a complete legal package that demonstrates how the regulations would likely reflect the statutes.
“I don’t want to create any surprises or misconceptions six months from now,” Bates said. “I just want to be able to show everybody the full deck of cards.”
Comments on the proposed statutes and regulations must be submitted to DCOM by Dec. 23, so that the division can send the draft material to the governor’s office to seek the governor’s approval before the legislative session begins in January, Bates said.
ACMP consistency reviews Under the terms of the 1972 federal Coastal Zone Management Act, all projects in Alaska’s coastal zone require a review for ACMP consistency, to ensure that policies for environmental protection of coastal areas are met. The ACMP consistency review forms a major permitting component of many projects.
The ACMP process involves several state and federal agencies working with 28 active coastal districts around the state to ensure compliance with enforceable coastal policies. In many cases the coastal districts consist of coastal municipalities. The coastal districts can develop their own coastal management plans for inclusion in the statewide ACMP.
And at the core of the controversy surrounding the 2003 ACMP changes was the extent to which local districts could set their own enforceable environmental policies for projects taking place within their jurisdictions. The 2003 changes prohibited districts from setting enforceable policies that duplicate state or federal regulations.
In addition, a so-called “DEC carve out” provision removed any permitting done by the Alaska Department of Environmental Conservation from the ACMP process, thus in effect eliminating the regulation of air, water and land quality from the program. And although the changes significantly reduced duplication and overlap in the permitting roles of the regulating authorities, the changes also left the coastal districts with a sense that they had been all but excluded from the ACMP process.
Local say The districts want a local say in how projects are conducted within their territories — an inability to enforce local environmental policies has resulted in administrative appeals or litigation since the 2003 ACMP program changes, Bates said.
“The biggest issue that we have faced for the past five years is district enforceable policies. … They are in many ways the trigger behind this re-evaluation,” Bates said.
But, although prior to 2003 the districts enjoyed a high level of discretion to develop their own local policies, DCOM has determined that the method of implementation was probably unconstitutional and illegal because of issues relating to the separation of powers between the legislative and executive branches of government.
The nub of the legal problem is the potential for a district enforceable policy to contravene a state statute, Bates said. You could have a district policy implemented, in effect, as state law but out of compliance with laws passed by state legislators, he said. This situation could arise, for example, if a district wants oversight of project activities in a stream that state law says comes under the management of the Alaska Department of Fish and Game.
“So for DNR to allow the establishment of a district policy which redefines one of these statutes that the Legislature put in place — we couldn’t do it,” Bates said.
On the other hand, the state does recognize the importance to the districts of having their local policies.
“Having policies is critical to the districts,” Bates said. “So we recognize the need and desires for the districts to have policies. … But we have to do it legally correct, so we’re not violating our own rules or the constitution.”
Need state approval So, the new statutes that DCOM is proposing would enable districts to develop enforceable policies, provided those policies fall within the framework of state statutes and regulations. Essentially, when a district develops a new or revised policy, the district would need to obtain state approval of the policy through a specified procedure involving a public process. And in deciding whether to approve the policy, the state would determine whether the policy complies with state statutes and regulations, Bates said.
If the state approves a district policy, the policy would go into effect. If, on the other hand, DNR were to reject the policy, the district would have to take the policy to the state Legislature as a bill for possible enactment, Bates said.
In general, DNR could approve a district policy that is more specific or more stringent than state requirements, but only if the appropriate state agency approves that policy, Bates said. For example, DNR would likely approve a district policy that requires the oil spill containment arrangements for a tank farm to be more stringent than the state’s standard, if DEC were to approve that district policy.
On the other hand, DNR would not approve a policy that goes beyond the authority of a state agency.
And Bates said that he thinks that the majority of the 25 existing approved district coastal management plans would remain approved under the new statutes.
DEC carve out The proposed new statutes and regulations include DEC carve-out provisions, Bates said.
Applications for several of the DEC permits — solid waste permits and oil spill contingency plans, for example — have very long lead times, Bates said.
“Those lead application times just didn’t mesh with the consistency review process timeframes,” Bates said. “What we’re trying to do is make sure that DEC is part of the coordinated review, but we’re not holding up projects that have those kinds of permits.”
Essentially, if a project does not require one of the long-lead-time DEC permits, an ACMP consistency determination would proceed and DCOM would issue the determination within 50 days. If, on the other hand, the project requires DEC permits, DCOM’s proposed regulations would enable an ACMP determination within 50 days for those aspects of the project that do not require the lengthy DEC approvals. That could enable some project activities, ice road construction for example, to proceed while the DEC permits are still being processed.
“DEC’s application process for certain permits is a minimum of 180 days,” Bates said. “… We don’t want to wait that six months to get everything together at the same time, so we’ll carve those things out and process them independently.”
Practical details Bates also said that the regulatory agencies are discussing some other aspects of how the proposed statutes and regulations would be implemented, including practical details such as whether a coastal project questionnaire is needed and how ACMP consistency reviews should be expedited.
Meantime, DCOM was conducting a series of public workshops Dec. 8 to 10, to review and explain the proposals for ACMP revisions. Some districts have strongly criticized the proposals relating to the development of district policies. The objective of the workshops is to make sure that everyone understands what DCOM is trying to accomplish, Bates said.
“The districts are extraordinarily frustrated. … There’s a fair bit of misunderstanding about what the statutes do,” he said.
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