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Alaska governor asserts state’s rights to manage coastal resources
Alaska Gov. Frank Murkowski is asserting state’s rights in a dispute with the federal government over changes in the state’s coastal zone program, and has said that unless the federal government backs down, Alaska will let its coastal zone management program die this summer.
The governor asked the National Oceanic and Atmospheric Administration in a Feb. 23 letter to abandon new requirements for the Alaska Coastal Management Program. If NOAA’s Office of Ocean and Coastal Resource Management “does not immediately abandon the new requirements and broken promises” in its Jan. 28 decision, the governor said, the Alaska Coastal Management Program will expire in the summer of 2005.
Alaska voluntarily implemented the ACMP program in 1979, but after 25 years, the governor said, the program had become a complex, confusing set of requirements that delayed projects in Alaska without corresponding environmental benefits. Discontent with the program grew, and in 1997 a bill was introduced to repeal it.
In 2003 the Legislature passed a bill which mandated a simplified program. The state then worked with NOAA’s Office of Ocean and Coastal Resource Management to develop an amended program that met Alaska’s needs. The governor said talks proceeded constructively until January, with the federal agency identifying minor changes to the ACMP regulations.
But on Jan. 28, the agency denied Alaska’s amended ACMP and, the governor said, seeks to impose duplicative, complex and burdensome requirements that do not increase environmental protection. State’s right issue “Alaskans deserve a coastal management program that works for Alaska,” Murkowski said, and called the NOAA requirements “another example of the federal government dictating from afar program requirements that don’t make sense in Alaska. I promised to stand up to the federal government when they overreach their authority — and through this action I am upholding that commitment.”
Judy Brady, executive director of the Alaska Oil and Gas Association, agreed with the governor’s state’s rights assessment.
“Governor Murkowski has said ‘no’ to an attempt by a federal agency to literally dictate terms as to how our coastal lands and waters will be regulated,” Brady told Petroleum News in a Feb. 23 statement.
“This is an extremely important state’s rights issue,” she said. “Alaska has the most extensive coastal zone in the United States. It covers our entire coastline, and in many places extends over 20 miles inland. Activities in this zone must go though a consistency review to meet statewide and coastal district standards and policies, plus meet all the federal, state and local regulations. Whoever controls the coastal zone pretty much controls Alaska. By this action, Governor Murkowski has said, in no uncertain terms, that Alaskans will control Alaska.
“If Alaskans read the federal agency’s condescending, gobbledygook ‘our way or the highway’ letter they would know why the governor took the action that he did. The regulated community has been watching this issue very closely. Governor Murkowski’s action gives new hope for state management and local control,” Brady said. Commissioners: ACMP became fragmented A joint letter to Alaskans from the commissioners of the Alaska departments of Natural Resources, Fish and Game, Environmental Conservation and Commerce, Community and Economic Development said the ACMP, “a voluntary program funded and authorized in part by the National Oceanic and Atmospheric Administration (NOAA), had broad authority to address a variety of resource management issues” when Alaska implemented the program in 1979, but “has languished in the past several years without the needed updates to its purpose and policies.
“This resulted in the ACMP becoming fragmented in its implementation, subjective in its application, and an additional regulatory burden within an already comprehensive resource management system. As a result, projects have been unnecessarily delayed without a corresponding environmental benefit,” the commissioners said.
The commissioners said state agencies have worked hard to forge relationships with federal resource agencies operating in Alaska, and said the state actively participates in federal decision-making processes independent of ACMP requirements. “Thus, we are confident that Alaska will continue to be involved and our voice heard in federal activity and authorization processes, even without the formality of the voluntary ACMP consistency tools.” Governor: federal agency retreated from approvals In a letter to the National Oceanic and Atmospheric Administration about the Office of Ocean and Coastal Resource Management decision document, the governor said “the state invited OCRM’s participation and review of the amendments, requesting guidance and recommendations to ensure ultimate and timely program approval by OCRM,” and thought it had received that guidance, “as well as a commitment from OCRM to work jointly to resolve program approval issues at the earliest juncture.”
With guidance from the agency, the governor said, the state worked on a comprehensive program description of the amended Alaska Coastal Management Plan, and the governor said he was “dismayed” to review the Jan. 28 denial decision in which the agency “not only retreated from program approval positions conveyed to state staff during prior discussions, but failed to adequately evaluate the state’s prior submissions against the federal rules, and added entirely new criteria and rationale to justify its denial decision.”
The January decision, the governor said, “adopts a highly prescriptive interpretation of the Coastal Zone Management Act” which extends “well beyond Congress’ mandate when enacting CZMA “to encourage and assist the states to exercise effectively their responsibilities in the coastal zone …” Coastal districts’ role an issue One of the requirements in the Jan. 28 denial decision from OCRM, the governor said, was that the role of coastal districts be expanded. The governor said “… few other states have coastal districts or their equivalent and there is no requirement that Alaska include coastal districts as part of our coastal management program. However, we included districts to supplement existing state and federal authorities where the matter is of local concern.” The governor said that balancing the authority between the state and coastal districts “is a matter within the discretion granted a state in the CZMA, and therefore any specific balance of authority directed by OCRM is inappropriately addressed as a program issue. Again, this is a simple matter of state’s rights.”
The state is also concerned, the governor said, as are federal agencies, with OCRM’s use of “an expansive ‘Geographic Location Description’ … requirement that would impose an ‘effects test’ requirement well beyond what OCRM had previously required, and beyond what the state feels is necessary to adequately protect coastal uses and resources.”
OCRM had suggested amendments to ACMP regulations, the governor said, and that language “would have ensured that enforceable policies would be applicable to federal lands to address any activity (regardless of location) that may affect any coastal use or resource located within the state’s coastal zone.” The state, he said, agreed with the agency’s interpretation and “began preparing, verbatim, the regulatory fix that OCRM had recommended.”
But, he said, the “expanded” geographic location description in the Jan. 28 documents “effectively withdrew OCRM’s agreement on how to capture the federal effects test in the regulations, and is unacceptable.”
Congress left development of appropriate coastal management programs within the broad Coastal Zone Management Act framework “to each state’s judgment of its special priorities and needs.”
Since OCRM “has departed from its original legislative mandate and has not allowed Alaska to implement our amended program utilizing existing regulatory tools and in accordance with Alaska’s priorities and needs,” the governor said, “if OCRM does not immediately abandon the new requirements and broken promises” in its Jan. 28 decision, “the ACMP will expire by operation of law in the summer of 2005.”
—Kristen Nelson
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