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Vol. 16, No. 15 Week of April 10, 2011
Providing coverage of Alaska and northern Canada's oil and gas industry

ACMP compromise moving

House Resources, administration, districts find middle way on coastal zone issues

Kristen Nelson

Petroleum News

The administration wanted just an extension; coastal districts and their legislators wanted a complete rewrite; there was even talk that termination would be better than the existing program.

Time was running out in this legislative session for the Alaska Coastal Management Program which sunsets on June 30.

Then the House Resources Committee, working with the administration and districts, produced a bill which both extends and makes substantive changes to the program.

In 2003 the Legislature enacted major changes in ACMP, including removing a board and transferring its authority to the commissioner of the Department of Natural Resources. DNR’s Division of Coastal and Ocean Management, which runs the program, rewrote its regulations and coastal districts were required to submit new plans to correspond to the revised program.

Industry groups supported the 2003 changes and maintain that the existing program is working well, but coastal districts haven’t been happy with the changes and in recent years bills have been floated to reverse many of the changes.

Until this year those efforts didn’t have the traction needed to move through the Legislature. This year there was urgency spurring the process because of the June 30 termination date. Extension requires approval by both the Legislature and the governor. While there was some sentiment reflecting a better nothing than what we’ve got attitude, few really wanted the program to terminate as in addition to giving coastal areas a seat at the table on local developments, it gives communities and the state seats at the table for federally permitted projects.

The Resources substitute that came out of the committee April 4 even addresses the termination issue, providing that if House Bill 106 is not signed into law by the sunset date and the program terminates it can be revived. Committee co-Chair Paul Seaton, R-Homer, said in introducing the amendment that in the event of unforeseen delays in getting the bill to the governor for his signature, the amendment would allow the program to be retroactively revived.

Concerns of districts reflected

Resources co-Chair Eric Feige, R-Chickaloon, said at the April 4 hearing that committee members and Joe Balash, deputy commissioner of the Department of Natural Resources, spent a great deal of time trying to resolve ACMP issues. Feige said it was his belief that amendments to the governor’s extension bill addressed all concerns and kept the program as intact as possible while amending it to reflect concerns of coastal districts.

The 2003 changes eliminated a coastal policy board and coastal districts wanted a board as part of any changes.

The committee substitute for HB 106 (the governor’s bill which was a barebones six-year extension) establish the Alaska Coastal Policy Board with five public members (appointed by the governor from lists submitted by the coastal resource districts) and the commissioners of DNR, the Department of Environmental Conservation, the Department of Fish and Game and the Department of Transportation and Public Facilities.

The board is to meet four times a year (three meetings may be telephonic) and make recommendations to DNR on approval or modification of district coastal plans.

If DNR finds a district coastal management plan not approvable or approvable only in part, it will submit the plan to the board for review and the board will review the plan and recommend to DNR whether the plan should be approved or modified in whole or in part.

After the board makes its recommendations, DNR can require that the plan be amended or revised as appropriate.

There is a 15-day period for reconsideration requests of DNR’s decisions.

The board will also provide a forum for representatives of affected interests to discuss and attempt to resolve issues related to ACMP and Alaska’s coastal uses and resources.

Elevations to resource commissioners

But elevation of consistency reviews — dealing with objections to decisions on projects — which was moved to the DNR commissioner in 2003, is not returning to the board. Instead, elevations will be conducted jointly by the DNR, DEC and F&G commissioners (or deputy commissioners).

Seaton noted that this would put three sets of eyes on issues and also make sure that all the resource agencies are involved in the process. There is a 45-day time limit and a written order is required, signed by at least two commissioners.

The requirement that elevations may occur only at the request of a project applicant, a state resource agency or an affected coastal district is unchanged.

Statewide standards

There is a change in statewide standards wording: Where previously there was a requirement to be in accordance with statewide standards, the wording now reads: “Changes to a district coastal management plan may not conflict with statewide standards.”

There is a language change in the description of district enforceable policies, which are required to be “(1) … clear and concise as to the activities and persons affected by the policies; (2) use prescriptive or performance-based standards that are written in precise and enforceable language; and (3) address a coastal use or resource of concern to the residents of the coastal district as demonstrated by local knowledge or supported by scientific evidence.”

In the section describing requirements for department review and approval of district coastal management plans, the bill says that enforceable policies in a district plan “may establish new standards or requirements that are within the authority of a state or federal agency unless the state or federal agency specifically objects.” The objection must be in writing and must be from the commissioner of a state agency, the head of a federal agency operating in the state, the official responsible for a federal agency’s operations in the state or legal counsel for a federal agency operating in the state.

Balash said the hope was to get rid of subjectivity in the existing statute so it will be possible to move forward in the future was a clear process, people will know the rules “and we can do away with some of the heartburn.”

Annual report required

In requirements for approval of district plans the bill specifies that plans must meet statutory and regulatory standards and not conflict with statewide standards adopted by DNR.

Enforceable policies in a plan cannot “duplicate, restate, incorporate by reference, rephrase, or otherwise modify or adopt state or federal statutes or regulations”; be preempted by state or federal law; and cannot “arbitrarily or unreasonably restrict uses of state concern.”

Among other amendments adopted by the committee, the bill now requires an annual report by DNR to the Legislature on progress in drafting and adopting ACMP regulations.

The Senate Committee on Community and Regional Affairs had been scheduled to hear the governor’s original extension bill and a one-year extension bill by Senate Finance on April 5; that meeting was cancelled.

HB 106 has a referral to House Finance, but had not been scheduled April 6; when the bill left House Resources it was awaiting revised fiscal notes.

Those were needed, Balash told House Resources, to provide for the work DNR would do in supporting the new Alaska Coastal Policy Board. The original fiscal notes reflected the intent of the governor’s bill as introduced, which was to extend the program for six years with no changes.

The House Resources bill retains the governor’s proposed six-year extension.

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