Laws imposed by local governments in the interest of safety, economic development and a healthy environment soon could be waived with the stroke of the pen if state resource managers determined they would interfere with development of shallow natural gas deposits.
That would be one effect of House Bill 69 now being considered by state lawmakers. Sponsored by Rep. Vic Kohring, R-Wasilla, and a host of others, HB 69 is meant to encourage development of shallow gas deposits, defined as coal bed methane, natural gas drilled under existing shallow-deposit statutes, or gas drilled in a well of less than 4,000 vertical feet.
The aim, say supporters, is to remove impediments to development of shallow natural gas. Among other things, it would give the Alaska Department of Natural Resources the authority to adopt regulatory practices appropriate to shallow gas wells. Permit requirements applicable to deep oil and gas wells are ill suited to shallow gas projects, proponents say.
Two provisions, however, could be used to waive local planning authority and local ordinances and regulations that might get in the way of shallow-deposit development projects. The discretion to waive local laws would be given to one person the commissioner of the Alaska Department of Natural Resources. The provisions were contained in two Senate amendments added in February.
In a House vote Thursday, Rep. Paul Seaton, R-Homer, and others opposed the Senate amendments, sending the measure temporarily back to the Senate. Seaton questioned the wisdom of giving such authority over municipal law to an appointed administrative officer.
"It sets a bad precedent," he said.
Under the controversial language, if the resources department "clearly demonstrates an overriding state interest," the commissioner could waive application of local laws. But exactly what would constitute an overriding state interest?
In an interviewed Monday, Kohring said defining what might be included under the term "would be speculating," at this point. However, the provisions included in the two sections added by Senate lawmakers, would give the commissioner "an extra tool" to further streamline the permit process, allowing him to waive local regulations and ordinances if he deemed them "an unreasonable control or restriction," Kohring said.
Under the proposed bill, the commissioner would have authority to bypass other regulatory provisions as well. For instance, where shallow gas well drilling penetrated a formation from which oil could flow, which normally would require an oil discharge prevention and contingency plan, the commissioner of DNR could waive that requirement. Under certain circumstances, the commissioner also could approve variances to regulations without public notice of hearings.
The state has a constitutional mandate to promote resource development that outweighs local laws, Kohring said.
"It is a state primacy issue. Local regulations should not have control over the state," he said. "Partly, we are clarifying what the Alaska Constitution already says."
Members of the Alaska Municipal League worked with the Senate Resources Committee to draft the two provisions to replace earlier language deemed even more limiting to local resources input. In an April 30 letter to Kohring thanking him and other lawmakers for the amended language, Sarah Gilbertson, AML policy and program coordinator, said the old language "essentially eliminated a community's right to exercise areawide planning, platting and land-use regulation functions."
The new language requiring the resources department to provide a clear demonstration of an overriding state interest, and the commissioner to provide specific written findings, "strikes the necessary balance between economic development and local authority," she said.
Kevin Ritchie, executive director of AML, said local control was a key concept of the Alaska Constitution and AML policy. As with most legislation, AML adds its two cents to the legislative debate with the aim of mitigating any reduction of local control. He acknowledged that the language was somewhat vague.
"Obviously, this is not a clear standard," he said Monday, regarding the provisions under which a resources commissioner could waive local regulations. "It does allow local officials to go to the commissioner and say, This is not an overriding interest.' Then it can be played out in the administrative, the legislative and public arenas."
Thursday, Seaton and Rep. Kelly Wolf, R-Kenai, joined several other Republicans and all the House Democrats in voting against the Senate amendments. Rep. Mike Chenault, R-Nikiski, supported the new language.
"It's still an issue," Seaton said late Monday, shortly before the House returned for an evening session. "My main objection is that this is the first time that state statute allows an nonelected administrative official to override local planning and zoning and ordinances."
Wolf said he voted no on the amendments due to pressure from his district over concerns about the effects it would have in the cities.
"When it comes back, I will vote Yes' to confirm it because those concerns have been resolved," he said Monday.
Chenault said he voted for the amendments "simply because I don't believe a commissioner would use that authority willy-nilly. If he was to exercise the authority, it would be in a far-and-few between basis."
Sen. Tom Wagoner, R-Kenai, agreed. He said he doesn't think any commissioner would abuse the authority to override local laws. But the issue was state control.
"We didn't want to strip the state of its authority to go in and get shallow gas," he said.
Kohring said no DNR commissioner would override local laws without very good cause.
"I don't believe the commissioner would be careless," he said. "I'm convinced things will be done carefully and prudently."
Those who disagree with a commissioner's decision to waive local say would have recourse in state court, he said.
The failure of the Senate amendment language in the House sent the bill temporarily back to the Senate and then back to the House, where it sat Monday as unfinished business. Chenault said late Monday afternoon that HB 69 might come up for another vote as early as Monday evening or during today's session. If the House concurs with the Senate language, the bill goes to the governor.
HB 69 is just one of several bills seeking to amend state resource permitting laws. Opponents say they amount to an effort to dismantle environmental protections and eliminate local input into resource development projects.
"In my opinion, for years the pendulum has swung more to the environmental side," he said. HB 69 will help in "drawing the pendulum more to the center."
Shallow gas development is important to building the state's economy, he said.
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