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Work on ACMP regs done; districts have seat at table in scope determination After discussion, revision, more discussion and more revision, Alaska Coastal Policy Council approves revised consistency determination regulations Kristen Nelson PNA Editor-in-Chief
Who won and who lost and how it will all work is still up in the air, but late in the day July 24 the Alaska Coastal Policy Council unanimously approved a new regulations governing how projects are reviewed under the Alaska Coastal Management Program. This is close, industry said When the council took public comment on an earlier draft of the regulations in June, industry characterized the draft as “fatally flawed” and the environmental community was equally opposed.
But the proposal the Division of Governmental Coordination had on the table this time around got a different kind of response: this is close, industry told the council, it just needs fixes in a few areas. Bob Shavelson of Cook Inlet Keeper, the only representative of the environmental community commenting July 24, told the council that it had failed to address the concerns the environmental community had expressed about the regulations.
The council took the most public comment — from local and borough governments and regulated industries — and spent the most time discussing two parameters of the program: applicability, how the coastal zone is defined, and scope, the breadth of what is subject to review. Applicability of the program Discussion of applicability of the ACMP consistency review process at the July council meeting focused on permit notification areas, an addition to the July 8 version of the regulations, defined as — “an area inland of the coastal zone boundary, within a coastal district’s political boundary, and approved by the council, in which an activity may have a reasonably foreseeable effect on marine coastal waters.”
For a project in such an area, a coastal resource district would have 30 days after notice of a permit for an activity to indicate that the activity would likely have a direct and significant impact on marine coastal waters.
AOGA opposed the addition of permit notification areas, saying it “would institutionalize application of the ACMP to potentially vast non-coastal zone areas…” It also would mean that an applicant wouldn’t know whether or not a project was subject to ACMP review. AOGA told DGC its members were asking four questions when they looked at proposed regulations and with permit notification areas in the regulations they couldn’t answer the first question: does the ACMP apply to my project? Strong council opposition The proposal was appealing to council members representing coastal districts, but not to members from state government.
“We’re playing a shell game here if we really look at permit notification areas,” said Pat Poland, director of the Division of Community and Business Development in the Department of Community and Economic Development. The council has to approve them, he said, and the standard is the same as for districts: “I don’t see a significant difference between expanding a district and a permit notification area.”
Kurt Fredriksson, deputy commissioner of the Department of Environmental Conservation, said dropping the permit notification area provision from the regulations doesn’t change what the coastal districts can do: “local districts will continue to enjoy the authority they’ve always had,” he said.
Charlotte Brower, representing the North Slope Borough, said the borough was concerned about the Colville River — not in its current coastal zone — and said the borough is looking at where its coastal zone boundaries can be expanded as part of revisions of the borough coastal management plan.
Permit notification areas were dropped from the proposal by a vote of eight to three. Scope still a problem The second major point of contention at the July council meeting was scope: how much of the project is subject to a consistency review. The new regulations already have a change in this area: coastal resource districts now have a seat at the table when the scope of a project subject to ACMP consistency review is discussed.
Regulations specify that the coordinating agency will determine the scope of the project subject to a consistency review in consultation with the applicant, any resource agency that requires an authorization and any potentially affected coastal resource district.
The July 8 version of the proposed regulations had new language which specified that activities associated with a project can be included in the consistency review they “occur in close proximate time and location to the activities subject to review,” meet coastal zone location requirements and “are the express subject of an enforceable policy contained in a potentially affected coastal resource district’s coastal management plan.” Unfettered local authority AOGA said these new provisions for associated activities would allow “‘potentially affected’ coastal resource districts to selectively bootstrap new issues into consistency reviews.
“The limits of this uncertain expansion of scope are unknowable,” AOGA said in written comments. “We do know that the Legislature never intended for local districts to be granted unfettered authority to expand the scope of the ACMP to undefined collateral activities, for which there are no qualifying or controlling criteria.”
Fredriksson said DEC was concerned about “undefined associated activities” — other than those regulated by state or federal agencies. If DEC doesn’t regulate home heating oil tanks, he said, DGC shouldn’t be allowed to bring in home heating oil tanks and cause DEC to regulate them. If coastal districts want to regulate home heating oil tanks, Fredriksson said, it would be under local authority.
Marty Rutherford, deputy commissioner of the Department of Natural Resources, said the coordinating agency already determines what’s in a project. The additional language could limit districts, she said.
DGC Director Pat Galvin said the language was his, and that he had been trying to clarify something, but after listening to the discussion he said he was afraid that the clarifying language “will do nothing more than just put handcuffs on districts that weren’t there before.” Without the clarification language, he said, the coordinating agency will be able to include things without those things being part of the local district’s enforceable policy.
The additional provisions were defeated. Three years in the works The Division of Governmental Coordination has been working on this revision for three years. DGC Director Pat Galvin, who is leaving DGC for the Division of Oil and Gas effective July 31, told the council in June that the goal was to complete the regulations and have them in effect by the end of the Knowles administration. To make that deadline, the council had to approve the regulations by the end of July so that they could go to the Department of Law for final review, to the federal agency responsible for federal coastal policy program review and then to the lieutenant governor’s office.
The council spent the better part of its two-day meeting in June taking public testimony on the proposed regulations and discussing changes. DGC took proposed changes back to Juneau and produced a revision for council and public review July 8.
The July 8 version — with 18 amendments — was unanimously approved by the council at the end of a July 23-24 meeting at which the council again took public testimony and then discussed and voted on changes to the proposed amendments.
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