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State agencies weigh in on proposed coastal management program regs
Steve Sutherlin
Three state agencies filed comments with the state Division of Governmental Coordination on the second draft of DGC’s proposed Alaska Coastal Management Program regulations. In some cases agency comments mirrored concerns of the Alaska Oil and Gas Association and other stakeholders (see story in the Jan. 6 issue of Petroleum News Alaska). In other cases the comments of the Department of Environmental Conservation, Department of Natural Resources and Department of Fish and Game support proposed regulations to which stakeholders strongly object.
In a Dec. 13 letter, AOGA told DGC that the second draft of the ACMP regulations was unclear, undisciplined, unfair and illegal. Other stakeholders from the regulated community such as Chugach Alaska Corp. and Sealaska Corp. echoed similar concerns.
Although changes to the proposed ACMP regulations were recommended, state agency comments were more supportive of the draft regs.
“The Division of Governmental Coordination is commended for its effort to work with resource agencies throughout the revision,” DEC said in its cover letter.
AOGA identified four questions it said the proposed regulations should, but do not, address for every project applicant:
1. Does the ACMP apply to my project?
2. What information must I submit for my application to be complete?
3. What standards will be applied to the consistency review of my project?
4. How long will it take to obtain a consistency determination? Does ACMP apply to my project? AOGA said the Legislature intended ACMP only to address projects with “direct and significant impacts” on coastal resources, and said DGC’s proposed regulations expand the reach of ACMP to lands beyond that intent. Language in the proposed regulations expands the program to include activity that “may affect any coastal use or resource” or activity that “may have a reasonably foreseeable direct or indirect affect on any coastal uses or resources.”
DEC supports the latter phrase, “may have reasonably foreseeable direct or indirect effect on any coastal uses or resources,” because it says the term “reasonably foreseeable direct or indirect effect” is more specific than the statement “may affect.”
DNR proposed a number of changes it said would more clearly define the bounds of ACMP, and said regulations should define, list or provide examples that clarify “environmentally sensitive areas,” such as legislatively designated areas, critical habitat areas, wildlife refuges, or eelgrass beds.
DNR supported the section that defines the scope of projects subject to consistency review saying current regulations are vague: “The lack of clear definition leads to subjective interpretation and decisions.” What information? Agencies generally agreed that applicants need more guidance on what information is required to complete an ACMP application.
DNR asked DGC to identify, list or provide examples of what is meant by “comprehensive data” for applicants. The agency said DGC must clarify the level of data needed, “otherwise an applicant does not know what they need to provide.”
DNR also called for clarification of what is necessary for a consistency review packet, the packet an applicant must turn in to DGC and the consulting agencies in order to get the ball rolling on ACMP review.
DEC suggested that the packet need not be entirely complete before a review is started. DEC said the packet need only be “sufficient” to begin a review, rather than “complete” and asked that the word “sufficient” replace the word “complete” in this section, to accurately identify the level of information the state requires for review start up and notice.
DEC also said it is impossible for an applicant to know that their “project complies with and will be conducted in a manner consistent with the ACMP” prior to review, yet the proposed regulations direct applicants to sign a certification that the project is consistent. DEC asked instead for language saying the applicant “will comply with policies of ACMP.” What standards? AOGA said the draft regulations would “institutionalize” illegal requirements known as “homeless stipulations” on permits for oil and gas projects. AOGA said homeless stipulations impose new obligations on oil and gas projects, yet have no basis in statute or regulation.
The proposed regulations continue to allow state resource agencies to attach stipulations from the ACMP consistency determination as a requirement of permit approval, AOGA said.
None of the responding agencies opposed continuing the practice of adding stipulations to permits by the alternative measures route. But for a variety of reasons the agencies took care to differentiate permit conditions from homeless stipulations.
DNR said it is concerned that its ability to impose or modify permit conditions authorized by statute or regulation would be jeopardized if resource agencies were required to provide conditions during the consistency review comment period. If that proposed regulation was enacted, DNR said it fears the conditions provided during the process would be cast in stone if listed on the final consistency determination.
It said the provision in the draft regulations that allows a resource agency to modify conditions after the final consistency is untested.
“It is unclear whether or not an agency may incur legal exposure by changing a condition after it appears on a final consistency determination,” DNR said, asking that it instead be optional for agencies to provide such conditions. How long ? AOGA said it is impossible to predict how long the ACMP review will take, that there are no clear timeframes for completion of many of the steps, and that too many extensions and other avenues exist to fudge the timeframe of the review.
Commenting agencies said their workloads might hamper attempts to shorten the process.
In the parts of the plan with clear timeframes and where DCG tried to trim time limits, workload issues factored into agency protests. In several instances where the proposed regulations shortened timeframes for agency review, public review, comments, or deadlines for agencies to request additional information from the applicant, DF&G and DEC objected. DF&G said shortened review times might result in less thorough, less complete reviews. The agency said the number of projects it can review could be reduced as a result of the shorter review period.
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