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Alaska Center for the Environment v. State (11/28/2003) sp-5756
Alaska Center for the Environment v. State (11/28/2003) sp-5756
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA CENTER FOR THE )
ENVIRONMENT; ANCHORAGE ) Supreme Court No. S-10870
WATERWAYS COUNCIL; and )
ANCHORAGE AUDUBON ) Superior Court No.
SOCIETY, ) 3AN-00-03737 CI
)
Appellants, ) O P I N I O N
)
v. ) [No. 5756 - November 28, 2003]
)
STATE OF ALASKA, OFFICE OF )
THE GOVERNOR, OFFICE OF )
MANAGEMENT & BUDGET, )
DIVISION OF GOVERNMENTAL )
COORDINATION, )
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Michael J. Frank, Trustees for
Alaska, Anchorage, for Appellants. James E.
Cantor and Blaine H. Hollis, Assistant
Attorneys General, Anchorage, and Gregg D.
Renkes, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
FABE, Justice.
I. INTRODUCTION
The Alaska Center for the Environment (ACE) raises
several challenges to the consistency review performed by the
Division of Governmental Coordination (the Division) under the
Alaska Coastal Management Program (ACMP) for the application by
Ted Stevens Anchorage International Airport (the Airport) to the
U.S. Army Corps of Engineers for permission to fill wetlands in
the process of expanding the airport. ACEs primary contention,
influencing several of its claims, is that the Division could not
review for consistency a project that was a broad plan for
expansion containing hypothetical development scenarios, as
opposed to a specific proposal for particular uses. ACE also
challenges the Divisions determination that the Airports project
satisfied various state and municipal standards. Because a broad
plan can be a project, and because the Division had a reasonable
basis for its finding of consistency, we affirm the Divisions
consistency determination in all respects.
II. FACTS AND PROCEEDINGS
In June 1999 Anchorage International Airport submitted
an application to the U.S. Army Corps of Engineers under Section
404 of the Clean Water Act, 33 U.S.C. 1344, seeking a ten-year
long-term individual permit to dredge and fill 240 acres of
wetlands in Turnagain Bog and Postmark Bog to allow the airport
to expand. Because the permit and expansion involved the coastal
zone and because a federal permit was required, the Alaska
Coastal Management Act1 and its regulations directed the Division
of Governmental Coordination within the Office of Management and
Budget in the Governors Office to review the project for
consistency with the Alaska Coastal Management Program.2
To begin this review process, the applicant must submit
a packet of information including all state and federal permit
applications and a coastal project questionnaire.3 The
information the Airport submitted contained likely development
scenarios for the airport that could occur under the Corps
permit. Upon receiving the Airports information, the Division
initiated an ACMP consistency review. The Division published a
public notice describing the Airports application and soliciting
public comments; the deadline for comments was extended several
times. ACE submitted comments opposing a finding of consistency
and noting that the lack of a specific project description made
it impossible for the Division to perform adequately the
necessary ACMP review. In September 2000 the Division issued its
Final Consistency Determination approving the Airports proposal.
ACE appealed the Divisions consistency determination to
the superior court, arguing that the Airports proposal was not
specific enough for the Division to review it adequately for
consistency with the ACMP, that the lack of specificity meant
that the Division could not and did not correctly evaluate the
proposal against various state and municipal standards, and that
the Division improperly deferred to the Municipality of Anchorage
in assessing consistency with some statewide standards. The
superior court concluded that the Airports proposal was
sufficiently specific for a consistency review and that the
Division adequately considered the state and municipal standards.
ACE appeals to this court, again arguing that the
Airports proposal was not specific enough to be a project
amenable to ACMP consistency review, that the Division failed to
review all uses and activities associated with the proposal, and
that the Division did not correctly apply the state and municipal
standards.
III. DISCUSSION
A. The Airports Proposal Is a Project Amenable to ACMP
Review.
The issue of how specific a proposal must be before it
can be considered a project ready for consistency review under
the ACMP is one that underlies numerous claims in this appeal.
1. Standard of review
When we consider an administrative appeal from a
decision rendered by the superior court acting as an intermediate
appellate tribunal, we review the agencys determination directly;
we do not defer to the superior courts decision.4 We have
identified at least four main standards of review of agency
decisions: the substantial evidence test for questions of fact;
the reasonable basis test for questions of law involving agency
expertise; the substitution of judgment test for questions of law
where no expertise is involved; and the reasonable and not
arbitrary test for review of administrative regulations.5
The extent to which AS 46.40 and its regulations allow
the Division to initiate an ACMP consistency review for a permit
that authorizes a broad range of possible activities is a
question of law and statutory interpretation not meaningfully
implicating agency expertise; we therefore apply the substitution
of judgment standard of review.6
2. A project can encompass a broad proposal.
The long-term wetlands permit application that the
Anchorage International Airport submitted to the Corps and to the
Division described the types of facilities expected to be
developed under the permit: Facilities expected to be required
and developed under this permit include AIA infrastructure
(runways, taxiways, snow disposal sites, field maintenance
facilities, etc.), commercial aviation facilities (cargo
handling, freight forwarding, business aircraft servicing, etc.),
and general aviation facilities (aircraft parts and repair
services, etc.). The application also contained non-exclusive
lists of possible uses divided into three categories (runway-
dependent, aviation and aviation-related commercial and support
use, and uses allowed with special conditions), as well as a
description of prohibited uses. The Airport noted in its
application that [t]he parcel layouts on the [Airport Layout
Plan] are conceptual in that detailed design for each individual
area will occur as specific projects are proposed, and the
Airport included maps showing typical layouts and sections. The
Airport acknowledged that these typical sections are not meant to
be inclusive of all potential projects. The Airport also
included a map illustrating its currently planned projects within
the permit area.
Alaska Statute 46.40.210 defines consistency review to
mean the evaluation of a proposed project against the standards
adopted by the [Alaska Coastal Policy Council] under AS 46.40.040
and a district coastal management program approved by the council
under AS 46.40.060.7 ACE contends that a project must be
specific before it can be reviewed for consistency. ACE notes
that the legislature directed the Council to develop policies and
procedures to determine whether specific proposals for the land
and water uses or activities subject to the district coastal
program shall be allowed.8 The Council approved an Office of
Management and Budget regulation defining project to be
an activity or use that will be located in or
may affect the coastal zone . . . and that is
subject to consistency review under 16 U.S.C.
1456(c), or that requires the issuance of at
least one state permit; project includes each
phase of a project when a land or water
activity is developed or authorized in
discrete phases.[9]
ACE asserts that this regulation and the Coastal Management Act
contemplate that the consistency review process will be invoked
for a specific proposal . . . , i.e., a proposed activity or use,
intended to be located in the coastal zone.
ACE charges that the Airport did not propose a
specific, ready-to-build project, but instead proposed a list of
speculative someday possibilities or a vague, non-binding,
speculative development plan. ACE argues that the Airports
provision of only a hypothetical development scenario and a
virtually open-ended, summarized list of projects meant that the
Division could not identify, evaluate, and prohibit or mitigate
effects since it could only speculate about what these effects
might be. Specifically, ACE asserts that the State could not
perform the required thorough review of a project and its effects
to ensure compliance with the major use and activity standards
codified at 6 AAC 80.040-.140 and that the Division therefore
erred in considering the Airports proposal.
The State counters that the information provided by the
Airport was sufficient for public review. The State notes that
the Airport submitted a 150-page application, including the
coastal project questionnaire, the Corps application, and six
appendices documenting the historical and forecasted activities
at the airport, the [Federal Aviation Administration (FAA)]-
approved layout plan for the airport, the typical sections for
proposed development, wetland assessments, the wetland
debit/credit methodology, and the activities proposed within the
permit area. The State asserts that the permit application
addressed the public need for the project, alternatives to
development, the environmental impacts of the project and how
those would be dealt with, and mitigation to make up for wetlands
loss. The Division also had the benefit of information generated
during years of collaborative permit planning and debate among
the resource agencies, citizen groups, and the Airport.
Essentially, then, the question boils down to whether
the Division of Governmental Coordination can consider a project
to be a Corps permit authorizing dredge and fill activity to
support categories of possible runway-dependent and other
aviation-related uses (in other words, can the project be airport
expansion as a whole), or whether the Division can consider only
specific uses or activities that the airport will definitely
pursue that would be located on that fill as part of the airport
expansion?
The Division described the project in its letter
initiating the consistency review as a 10-year permit from the
U.S. Corps of Engineers to fill up to 5.8 million cubic yards of
classified fill into 240 acres of wetlands. When responding to
public comments that the Airports proposal was not specific
enough, the Division responded that [t]his project is comparable
to a general permit in which the permit details the allowable
uses and the manner in which they are to be developed. The
[Corps of Engineerss] Public Notice and information provided
subsequent to the initial Public Notice provide[] adequate detail
to conduct the ACMP review.10 Similarly, the superior court held
that a broad definition of activity or use should be applied to
project, relying on several of our oil and gas lease sale cases
and arguing that an oil and gas lease sale is analogous to
airport expansion because it is a very general activity or use
encompassing a wide range of possible activities.
In Trustees for Alaska v. State, Department of Natural
Resources, we held that an oil and gas lease sale constituted a
project and thus required an ACMP consistency review because the
sale involved leases, which counted as permits under the
regulation defining project.11 Similarly, in Ninilchik
Traditional Council v. Noah, we again explained that an oil and
gas lease sale had to comply with the ACMP because all [u]ses and
activities conducted in the coastal zone by state agencies must
be consistent with ACMP standards.12 In Kachemak Bay
Conservation Society v. State, Department of Natural Resources,
we upheld a consistency review that had been phased and quoted
the Departments justification for phasing its review: [i]n oil
and gas leasing, it cannot be determined with any specificity or
definition at the leasing stage if, where, when, how, or what
kind of production might ultimately occur[] as the result of
leasing . . . .13
ACE contends that these cases did not address how much
information is needed before an agency can initiate a thorough
consistency review, but rather involved whether the ACMP applies
at all or whether phasing of the review was permitted. However,
as the superior court noted, if an activity is not a project, it
is not subject to an ACMP consistency determination,14 so Trustees
for Alaska and Ninilchik are relevant in declaring that the ACMP
applies to a broad oil and gas lease sale project. Further,
since we addressed in Kachemak Bay the question whether a review
of the oil and gas lease sale could be phased, that means that a
project existed to be reviewed in that case. We thus have
previously accepted reviews of oil and gas lease sale projects,
which have at least as much uncertainty concerning actual future
development as does Anchorage International Airports expansion
proposal.
Given these cases and the volume of information the
Airport submitted, we hold that the Airports broad proposal for
airport expansion was a project amenable to ACMP review.
B. The Division Adequately Reviewed All Uses and
Activities and Did Not Have To Phase Its Review.
1. Standard of review
The two issues we address here are: (1) did the
Coastal Management Act require the consistency review to consider
each individual possible future use, activity, and permit that
could be part of the airport expansion (in other words,
everything on the Airports non-exclusive lists of possible uses),
and (2) did the Act require the Division to phase its review?
Because these are questions of law and statutory interpretation
and do not meaningfully implicate agency expertise, we apply the
substitution of judgment standard of review.15
2. The Division reviewed all uses and activities for
the broad project.
In Cook Inlet Keeper v. State, we explained that a
consistency determination must encompass the entire project it
covers and should comprehensively consider[] or finally
determine[] the consistency of all permitted uses and activities
included in the whole project at issue.16 We determined that a
consistency review should specifically focus[] on the consistency
of the activities encompassed by all necessary . . . project
permits those already issued and those still to be issued.17
Basing its argument on its view of the specificity
required in a project, ACE alleges that the Division did not
identify all permits needed for each item on the Revised Uses
list in the consistency determination, mentioning only the Corps
permit and the certificate of reasonable assurance from the
Department of Environmental Conservation, and ignoring the
Airport building permit, Airport ground lease, and perhaps other
resource agency permits that any private party using the filled
bogs would need.18 ACE therefore argues that the Division did not
review all uses and activities that might occur in developing the
bogs, did not focus separately on each use or activity on the non-
exclusive lists, and did not identify where any particular
facility on those lists would be located or what its effects
would be. ACE thus contends that the Division could not and did
not evaluate the entire project in the meaningful way that the
ACMP requires.
The State counters ACEs assertions by arguing that the
Division evaluated the probable effects of complete destruction
of wetlands through intensive development of airport-related
facilities, basing its evaluation on the limited uses it would
allow in the bogs and employing a model of the mix of uses that
would constitute intensive development.19 The State maintains
that the Division analyzed the overall and secondary effects that
would result from this worst-case intensive development scenario,
rather than analyzing individually the effects of each use. In
other words, the State views the project holistically, as it is
described in the consistency determination by the Division: a 10-
year permit from the U.S. Corps of Engineers to be issued to
Anchorage International Airport (AIA) to fill up to 5.8 million
cubic yards of classified fill into 240 acres of wetlands in
Turnagain Bog and Postmark Bog.
As explained above, we agree that airport expansion as
a whole is a valid project, and it was the project before the
Division for review. The Airport building permits, ground
leases, and any other permits that private parties using the
filled bogs might need are only for specific developments that
might occur later in expansion, not for expansion as a whole.
Similarly, ACEs focus on the Divisions failure to specify the
location or effects of any particular facility associated with
one of the listed uses incorrectly presumes a high level of
required specificity in the project the Division was evaluating.
Nevertheless, the reviewing agency must consider the
probable cumulative impact of all anticipated activities that
will be part of the project.20 The State asserts that the
Division considered the effects of future leases and permits in
the area by limiting the uses for which such permits could be
issued, studying the cumulative impacts of those uses in an
intensive development model, evaluating secondary effects on
water, air, traffic, and noise related to those uses, imposing
conditions to address unforeseen circumstances, and incorporating
additional stipulations imposed by the Corps and the Department
of Environmental Conservation. The State maintains that
postponing review until each use in the project area was fully
defined was not required and would be less comprehensive. The
State notes that [t]he elements of an airport, and the effects on
people and the environment, are well-known and can be studied as
a whole to allow comprehensive review. The State argues that
adopting a holistic approach here is good policy and is within
the discretion of the agency.
We agree. We have recognized the benefits of
comprehensive evaluation of environmental risks, noting that the
more segmented an assessment of environmental hazards, the
greater the risk that prior permits will compel [the agency] to
approve later, environmentally unsound permits.21 Limiting the
types of development allowed on the filled lands and imposing
conditions and stipulations address the cumulative impacts of
possible future developments.22 Given the broad project at issue
here, we affirm the comprehensive approach taken by the Division.
3. The Division did not have to phase its review.
Contrary to ACEs assertions, the Division did not have
to phase the review over time in accordance with AS 46.40.094.
That statute authorizes the reviewing agency to limit its
consistency review to the current phase of a project (1) if there
is insufficient information at the time the project is initiated
to render a consistency determination for the entire proposed use
or activity, (2) if the project can proceed in discrete phases
based on developing information obtained in the course of a
phase, and (3) if each subsequent phase is subject to discretion
to implement alternative decisions based on the developing
information.23 To phase its review, the Division would have to
condition its consistency determination so that future activities
and uses would also have to be consistent with the ACMP, would
have to expressly explain why it was phasing review, and would
have to carry out a subsequent consistency review before later
phases could proceed.24
ACE argues that leases or permits for specific
activities or facilities in the permit area whether from the
Airport, from state resource agencies (such as state air
pollution permits), or from federal agencies (such as federal oil
spill contingency plan approvals) will trigger the ACMP
consistency review requirement again, and that the Division
therefore violated AS 46.40.094 because it failed to reserve the
states right to undertake consistency reviews triggered by those
permits.
The State responds that phasing was unnecessary. The
State declares that the Division considered the impacts of the
Corps permit and its resulting activities and approved the
permits issuance. As noted, under the permit, no fill or
construction can proceed for any Airport lease proposal until the
Division, other resource agencies, and the public receive notice
and have a chance to review the proposed plan to ensure it is
consistent with the Corps permit. The consistency determination
declares that if the proposed use does not fall within what was
previously authorized or if new permits subject to ACMP review
are needed, the Division would then perform a subsequent review.
We agree that phasing is unnecessary here. The
Division analyzed the effects of the worst-case intensive
development model and placed conditions and stipulations like
those discussed above on future uses and activities to ensure
that those uses comply with the ACMP. To the extent those uses
are not consistent, they would be subject to subsequent
individual review. We therefore affirm the Divisions decision
not to phase its review and instead to limit future uses via
conditions and stipulations.
C. The Division Correctly Applied the Standards of the
ACMP and the Anchorage Coastal Management Plan.
1. Standard of review
The Divisions decision as to the applicability of the
major energy facility standard, 6 AAC 80.070, involves an agencys
interpretation of its own regulations. We review an agencys
interpretation of its own regulation under the reasonable basis
standard, deferring to the interpretation unless it is plainly
erroneous and inconsistent with the regulation. 25 Whether the
Division correctly applied the ACMP statewide standards and the
Anchorage Coastal Management Plan (Anchorage CMP) policies is
also subject to review under the reasonable basis standard, under
which we must confirm that the agency has taken a hard look at
the salient problems and has genuinely engaged in reasoned
decision making and must verify that the agency has not failed to
consider an important factor in making its decision.26
2. Major energy facility standard
Major energy facility is defined at 6 AAC 80.900(22) to
include:
marine service bases and storage depots,
pipelines and rights-of-way, drilling rigs
and platforms, petroleum or coal separation,
treatment, or storage facilities, liquid
natural gas plants and terminals, oil
terminals and other port development for the
transfer of energy products, petrochemical
plants, refineries and associated facilities,
hydroelectric projects, other electric
generating plants, transmission lines,
uranium enrichment or nuclear fuel processing
facilities, and geothermal facilities; major
energy facility means a development of more
than local concern carried out in, or in
close proximity to, the coastal area, which
meets one or more of the following criteria:
(A) a facility required to support
energy operations for exploration or
production purposes;
(B) a facility used to produce,
convert, process, or store energy
resources or marketable products;
(C) a facility used to transfer,
transport, import, or export energy
resources or marketable products;
(D) a facility used for in-state energy
use; or
(E) a facility used primarily for the
manufacture, production, or assembly of
equipment, machinery, products, or
devices which are involved in any
activity described in (A)-(D) of this
paragraph[.]
The regulation requires that a coastal project involving major
energy facilities meet various siting and other criteria where
feasible and prudent.27 The Division found that the major energy
facility standard was inapplicable to the Airports proposal. ACE
alleges that the Divisions failure to consider the major energy
facility standard rendered the consistency determination
arbitrary, as it failed to consider an important factor.28
a. We defer to the Divisions interpretation of
the standard.
ACE points out that the list of possible uses included
in the Divisions consistency determination included fuel storage,
transportation and dispensing as a runway-dependent use and
provision of bulk fuel storage facilities29 as an aviation-related
use and declares that it is beyond question that [the Airport] is
a development of more than local concern and that the fuel will
be for in-state energy use. ACE contends that the States
argument in the superior court that the court should defer to the
Divisions interpretation of the standard so as to apply to energy-
related facilities, not to businesses that use fuel in daily
operations is faulty. ACE maintains that the Divisions
interpretation is inconsistent with the regulations plain
language and that the Division did not provide in the consistency
determination or in the administrative record a reasoned
justification for reinterpreting the plain language definition of
major energy facility.
The State counters that the Division developed the
major energy facility standard in response to oil and gas
development and that the Division therefore interprets the
standard to apply to facilities that provide energy rather than
developments that use energy incidentally. The State claims that
ACEs definition would absurdly encompass any development of more
than local concern that anywhere within it stored or used energy
products of any amount, including a five-gallon propane tank.
ACEs argument concerning the Divisions interpretation
of the standard must fail. While it is possible that a plain-
language reading of the definition of major energy facility could
apply to the airport expansion since Anchorage International
Airport is a development of more than local concern that will
store energy resources for in-state energy use, we have rejected
the plain meaning rule in favor of a rule wherein [s]tatutory
construction begins with an analysis of the language of the
statute construed in light of its purpose. 30 We have explained
that even when a statutes language meaning seems plain on its
face, ambiguity may arise if applying that meaning would yield
anomalous consequences, and that because plain meaning cannot
exist in a vacuum, ambiguity is necessarily a creature of
context.31 We have therefore concluded that [w]hen a statute or
regulation is part of a larger framework or regulatory scheme,
even a seemingly unambiguous statute must be interpreted in light
of the other portions of the regulatory whole. 32
Reading the entire definition of major energy facility
in 6 AAC 80.900(22) in conjunction with the siting criteria for
such facilities in 6 AAC 80.070 and with the coastal project
questionnaire lends much credence to the Divisions
interpretation. The siting criteria for major energy facilities
includes considerations of shipping routes, spills, and airborne
emissions.33 The coastal project questionnaire asks whether the
applicants project will require or include onshore or offshore
oil facilities with an effective aggregate storage capacity of
greater than 5,000 barrels of crude oil or greater than 10,000
barrels of non-crude oil (to which the Airport answered in the
negative). The inclusion of the word major casts doubt on ACEs
strict interpretation of the definition, since, contrary to ACEs
protestations, its interpretation could include a facility that
has a five-gallon propane tank for in-state energy use.34 ACEs
literal reading . . . strains common sense.35 At the least, the
definition of major energy facility contains ambiguity, and when
the meaning . . . is ambiguous or in doubt, the [agencys]
interpretation is entitled to great weight.36 We therefore
affirm the Divisions interpretation of the major energy facility
standard, as it is neither plainly erroneous nor inconsistent
with the regulation.
b. The Divisions interpretation did not need to
be adopted as a regulation under the
Administrative Procedure Act.
ACE further maintains that the Office of Management and
Budget has never adopted the Divisions interpretation of the
major energy facility standard as a regulation in accordance with
the Alaska Administrative Procedure Act, AS 44.62.37 The State
argues that no additional regulation is needed to define major
energy facility.
Whether the agency action is a regulation is a question
of law that does not involve agency expertise, so we apply our
independent judgment.38 The Divisions interpretation of the
standard does not satisfy the Administrative Procedure Acts
definition of regulation, as it was not an amendment, supplement,
or revision of a rule, regulation, order, or standard39 so much as
it was a common sense interpretation of the regulations
applicability. It neither provided new requirements nor made the
existing ones any more specific.40 The Divisions interpretation
was not an addition to a regulation involving requirements of
substance. Instead, it was the interpretation of the regulation
according to its own terms.41 The Divisions interpretation thus
was not a regulation and did not need to be promulgated in
accordance with the Alaska Administrative Procedure Act.
3. Coastal development and habitats standards
The coastal development standard directs agencies to
prioritize development in coastal areas for water-dependent and
water-related uses, placing third and last in the hierarchy uses
and activities which are neither water-dependent nor water-
related for which there is no feasible and prudent inland
alternative to meet the public need for the use or activity.42
The Division concluded that the Airports proposal was neither
water-dependent nor water-related but that no feasible and
prudent inland alternative to meet the public need for the use or
activity exists.
The habitats standard similarly declares that agencies
may allow uses and activities in coastal zone wetlands that would
not maintain or enhance the . . . characteristics of the habitat
and that would not assure adequate water flow, nutrients, and
oxygen levels and avoid adverse effects on natural drainage
patterns, the destruction of important habitat, and the discharge
of toxic substances if three conditions are met.43 These three
conditions are that there is a significant public need for the
proposed use or activity, that there is no feasible prudent
alternative to meet the public need for the proposed use or
activity which would conform to [the above] standards, and that
all feasible and prudent steps to maximize conformance with the
[above standards] will be taken.44 These three conditions are
stringent and strongly protective.45 The standard is meant to
apply a strict limitation on impacts to the point of prohibition
unless these conditions are met.46 The Division determined that
the Airports project satisfied these three conditions.
a. Public need
A 1982 Informal Attorney General Opinion explained
public need as follows: [t]he proposed activity cannot merely be
convenient, though it need not be indispensable. The need is not
that of an individual or corporation, but that of the community
or some larger element of the public (e.g., state or nation).47
The habitats standard imposes a higher standard than the coastal
development standard, requiring significant public need; [w]hile
the distinction . . . is necessarily somewhat subjective, factors
such as immediacy of the need and the potential for loss of life
or harm to health could assist in the classification.48
Presumably because the showing needed for the habitats
standard is greater, the Division addressed the public need
criterion for both the coastal development and habitats standards
in its discussion of the habitats standard. The Division
referred to the Airport studies, specifically the June 1999 AIA
Master Plan Update in Chapter 3, Facility Requirements,
indicating that additional facilities will be needed for the
airport to remain a viable commercial hub for the State of
Alaska.49 The Division declared that [t]his is not the desire or
need of a few individuals, rather it is meeting a statewide need.
Moreover, it is not just a desire, but is a central part of the
statewide transportation network and [it] is in the public
interest to maintain a viable international airport and seaplane
base in Anchorage. Because the Division identified a significant
public need for a functional international airport in Anchorage,
it found this condition to be satisfied.
The determination that a significant public need . . .
exists is exactly the type of policy decision, involving complex
issues that are beyond this courts ability to decide, to which we
give considerable deference. Without evidence that this decision
was arbitrary or capricious, we cannot negate this policy
decision . . . .50
ACE claims that the Division failed to show public
need, much less significant public need, for any particular use
or activity on the consistency determinations list of possible
uses. ACE maintains that the Divisions statements in the
consistency determination and the Airports statement in its
application that the purpose of the project is to allow [the
Airport] to meet the air transportation needs of Anchorage and
Alaska and the development demands from current and future
aviation operations are merely conclusory generalit[ies] and do
not show that a public need exists for anything, much less
everything, on the [r]evised [u]ses list.
ACEs arguments again stem from its view of the
specificity needed for a project. ACEs proposed methodology of
separately explaining the need for each allowable use is an
acceptable approach but is not the only or the required approach;
addressing the development of uses in the aggregate is also
allowable. In Kachemak Bay Conservation Society51 and Ninilchik
Traditional Council v. Noah,52 we concluded that the agency
reasonably determined that a significant public need existed for
oil and gas lease sales because of the public need for revenues,
jobs, and economic stability benefits that stem from the project
as a whole as opposed to individual uses or activities.53 We
therefore hold that the Division did not act arbitrarily or
unreasonably in considering whether a significant public need
existed for airport expansion as a whole, as opposed to for each
particular potential use or activity.
ACE further asserts that neither the Division nor the
Airport identified anything resembling a factor of immediacy or
any threat of potential loss of life or harm to health that would
indicate a significant public need to satisfy the habitats
standard. These are not the only possible indicators, however;
the attorney generals opinion clearly states that the difference
between public need and significant public need is somewhat
subjective and offered those two factors merely as ones that
could assist in the classification.54
As just noted, the public need we held to be reasonable
in Kachemak Bay and Ninilchik included economic benefits such as
jobs and revenue. Here, the Division pointed to the statewide
need for Anchorage International Airport to remain a viable
commercial hub for the State of Alaska and to the fact that the
Airport is a central part of the statewide transportation
network. The Airports critical role in the state was explained
in its application, including the fact that it was responsible
for one out of every ten jobs in Anchorage. The Division also
had before it the Corps public notice of the Airports permit
application, which cited a study evaluating the economic impacts
of the proposed wetland development and estimating that it could
result in an additional 3,594 jobs in Anchorage. When reviewing
the Airports application for consistency with the Anchorage CMP,
the Municipalitys Department of Community Planning and
Development commented that the Airport has long demonstrated the
tangible and secondary elements of public need for these airport
improvements, specifically airport viability including fund
generation for expansion, public health and safety, and as a
generator of economic impetus for the community. These economic,
transportation, and other benefits could provide a reasonable
basis for a finding of significant public need.
In responding to a citizen petition, the Municipality
also noted that the Anchorage [Coastal] District, along with the
other agencies, spent a lot of time and energy validating the
applicants public need assertions.55 The agencies determination
that a significant public need existed thus stemmed from a hard
look. Given the considerable deference due the Divisions
determination of significant public need and the absence of any
evidence that this decision was arbitrary or capricious, we
cannot negate this policy decision.56
b. Feasible and prudent alternatives
The regulations define feasible and prudent to mean
consistent with sound engineering practice and not causing
environmental, social, or economic problems that outweigh the
public benefit to be derived from compliance with the standard
which is modified by the term feasible and prudent. 57 The final
environmental impact statement prepared under the National
Environmental Policy Act58 for the ACMP indicates that the phrase
is used to describe situations when a normally applicable
standard may be departed from, where forcing compliance with the
standard would be impossible or cause a worse result than non-
compliance.59 The environmental impact statement further
indicates that the Alaska Coastal Policy Councils intent was that
feasible and prudent deviations from the normal standards should
be narrow in interpretation and result only where the public good
outweighs the public costs.60
In addressing the habitats standard, the Division
stated only that [t]he lack of feasible and prudent alternatives
to construct aviation-related development is addressed under the
statewide Coastal Development Standard (6 AAC 80.040).61 In that
discussion, the Division declared that the proposals extensive
analysis indicating a lack of alternatives led to the Airports
decision to seek a long-term permit to accommodate growth, noting
that the Anchorage Wetlands Management Plan acknowledged a lack
of alternatives and included filling of these wetlands as
acceptable for airport-related activities. The Division asserted
that alternative airport locations outside Anchorage would also
be in the coastal zone and faced costs and constraints that
brought their feasibility into question, that expanding onto the
Air National Guards area was not feasible because the Guard is
still using it and probably will be for many years, and that
expanding into the West Air Park area was not feasible because
the area has significant site constraints that led a prior
attempt at development there to fail. The Division also observed
that [a]lternatives for aviation-related support facilities off
airport lands are constrained by the need for proximity to the
airfield to avoid departure delays and to keep aircraft servicing
equipment that is not licensed for operation on public roadways
off the roads. The Division further noted that Anchorage
International Airport provides the only general float plane
facility in the Anchorage area. At present there is no feasible
alternative for float or ski-based general aviation.
ACE argues that the Division erred in treating all uses
and activities on the [r]evised [u]ses list as if they were
functionally equivalent, allowing the Division to conclude that
these wetlands were the only feasible and prudent alternative
location for every single use listed. As with public need,
therefore, ACE contends that the Division failed to address
feasible and prudent alternatives for any and every particular
use or activity. This argument again relies on ACEs view of the
required specificity of a project, and we again conclude that the
Division did not act arbitrarily in considering whether feasible
and prudent alternatives to the wetlands existed for airport
expansion as a whole (with consideration of the likely mix of
future uses), rather than whether alternatives existed for each
individual use.
Furthermore, the agencies did in fact consider whether
alternatives existed for the individual uses, narrowing the list
of allowable uses in the area to those that could not reasonably
be located elsewhere. The Department of Fish and Game, for
instance, concluded that many of the Uses with Special Conditions
included in the Airports application would not meet the habitats
or coastal development standards if placed in wetlands because
they do not require . . . placement within the immediate airport
vicinity and the applicant has not shown whether feasible and
prudent inland alternatives exist. This paring down of uses
indicates that the Division of Governmental Coordination and the
other agencies took a hard look at which uses had feasible and
prudent alternatives and limited the allowable uses accordingly.62
ACE asserts that the Division did not establish that
other approaches or locations, particularly West Air Park, did
not present feasible and prudent alternatives to destroying
wetlands. However, the Airports Master Plan Update acknowledged
that West Air Park would eventually become the next runway, and
this limitation is also repeated in the alternatives analysis in
the Airports permit application and in the Airports 1995 Wetlands
Alternatives Analysis, both of which clearly explained the
numerous deficiencies of the West Air Park site and several other
sites both within and outside Anchorage International Airports
grounds.
ACE also claims that all non-runway dependent uses
could be located outside the wetlands, pointing to the Airports
concession in its Wetlands Alternatives Analysis Land Use Policy
Paper that [b]y their nature, any [aviation or aviation-related
commercial or support] land use that does not need direct access
to the airfield could, if absolutely necessary, be located off
the airport. That paper, however, continued by noting that these
uses benefit from being on the airport, increase operational
efficiency, and improve service to airport users. The Airports
permit application alternatives analysis further establishes that
the aviation-related facilities were most effective and efficient
if located close to the existing airport infrastructure, that not
enough vacant industrial-zoned land exists in Anchorage to
support all the aviation-related activities, that [t]o the extent
activities could theoretically be moved to other locations in
Anchorage, new problems would arise, such as increased traffic to
and from the airport and development in other neighborhoods, and
that moving activities away from the airport would create
operational inefficiencies that could harm Anchorage
International Airports competitiveness and thereby risk jobs and
revenues.
ACE also faults the Division for impl[ying] that the
requisite alternatives finding had already been made for all [the
Airports] proposed uses and activities, en masse, and that this
finding is in the Anchorage Wetlands Management Plan, which
identified the Airports lands as sites where fill might be
required for which there are no other local practicable locations
and stated that permits for these sites should be entertained
subject to guidelines and Clean Water Act regulations. However,
the Division did not defer to the Municipalitys determination;
the Division merely noted as one of the bases for its decision
that the Anchorage Wetlands Management Plan acknowledges a lack
of alternatives.
As an additional matter, ACE takes issue with the
Divisions treatment of the Anchorage CMP policy to discourage
development in Preservation Wetlands except where it would not be
contrary to the public interest and where no alternative areas
exist. ACE notes that this is stricter than the no feasible and
prudent alternative language in the statewide standards, and yet
the Division stated that [p]ublic interest and lack of
alternatives were established previously when addressing the
habitats and coastal development standards. But the
Municipalitys consistency review of the Airports proposal found
that [w]ith the site-specific guidelines and specific runway
dependent/airport-related land uses outlined by the applicant in
the 10-year application, wetland fills are specifically tied to
only those activities for which there are no practical
alternatives and for which [s]pecific and viable alternatives . .
. either do not exist or are impractical. The Municipality
observed that [l]and uses for which there are practical
alternatives to the subject fill areas are specifically limited
by the language in this permit. The Division is entitled to give
substantial deference to the Municipalitys assessments and can
use them as one of the bases of its own conclusions, since the
Municipality is considered to have expertise in the
interpretation and application of its program. 63
In summary, the Division had a sizeable accumulated
record of information before it that provided substantial support
to the lack of alternatives for airport expansion, and the multi-
year, multi-agency process of narrowing the list of uses that had
no alternatives indicates that the agencies took a hard look at
the existence of alternatives and genuinely engaged in reasoned
decision-making. We therefore conclude that the Division had a
reasonable basis for its conclusion that no feasible and prudent
alternatives existed for the Airports project.
c. Maximize conformance
Under the habitats standard, wetlands must be managed
so as to maintain or enhance the biological, physical, and
chemical characteristics of the habitat and so as to . . . avoid
adverse effects on natural drainage patterns, the destruction of
important habitat, and the discharge of toxic substances.64 To
allow use of the wetlands, the Division had to show that all
feasible and prudent steps to maximize conformance with [these
managerial standards] will be taken.65
The Division determined that the Airports proposal
maximized conformance with the habitats standard. The Division
noted that: (1) the only permissible activities would be those
dependent on proximity to the runway; (2) mitigating measures
incorporated into the permit would attempt to maintain the
wetlands hydrologic functions; (3) permit conditions place
further restraints on fill activity by limiting allowable
activities, requiring best-management practices, and placing
timing restrictions on fill activities; (4) the Department of
Fish and Game imposed a timing restriction to reduce impacts to
nesting birds; (5) the permit requires the Airport to continue
monitoring groundwater levels and to submit reports of fill
activity so that the state can ensure that hydrologic functions
are maintained and development is tracked; (6) meetings with
state and federal agencies must occur before construction can
commence, unless specifically waived by the agency; (7)
stipulations require non-disturbance setbacks around ponds and
buffers around developments to minimize disturbance of wildlife
and habitats; (8) stipulations require additional public notice
for any Airport lease proposal to ensure consistency of new
wetland fill or clearing activity with the permit; (9)
stipulations require screening landscaping for wetland fill
projects abutting uncovered wetlands to ameliorate habitat
impacts and disturbance; (10) the lost habitat and ecological
values will be compensated for via offsite mitigation (in Klatt
Bog), as required by the FAA; and (11) the habitat value of
Turnagain and Postmark Bogs is already compromised because the
FAA requires the Airport to actively haze birds and wildlife
frequenting the areas to prevent them from posing hazards to
planes.
In addition, the Division noted that
[t]o avoid adverse effects on natural
drainage patterns, the [Airport] provided a
hydrologic analysis that provides the best
estimate of how water circulates through the
Turnagain Bog wetlands. The [Airport] 10-
year permit will require discontinuous
development cells between each filled lot to
ensure flow patterns are not altered. [The
Airport] is required to monitor affected
wetlands. The permit is subject to
modification if new information indicates
unacceptable hydrological effects.
The Department of Environmental Conservation also required its
approval of a facilitys storm/runoff water collection and
treatment system design plan before any fill placement at that
facilitys site could occur. Furthermore, the Division had before
it the conditions that the Corps would impose with the permit,
including conditions for maintaining Turnagain Bogs hydrologic
pattern and for controlling the order of development to protect
wetlands should full build-out not occur; the Airport
incorporated these conditions into its description of the
project.
ACE argues that the Division erred in declaring that
only activities dependent on runway proximity would be
permissible, since only one of the Revised Uses lists categories
consists of runway-dependent uses, with the other category being
for aviation and aviation-related commercial and support uses.
ACE is correct. It is likely that the Division meant to say
something like proximity to the airport instead of proximity to
the runway. ACE also maintains that nothing in the text of the
maximize conformance factor indicates that it can be satisfied by
offsite mitigation. This may be, but at the same time, nothing
in the factor indicates that offsite mitigation cannot be one of
several feasible and prudent steps to preserve habitat. ACE
further asserts that even if the FAA could override 6 AAC
80.130(d)(3) to force destruction of wetlands, the FAAs guidance
on hazing birds and wildlife frequenting airport areas
discourages only the creation of wildlife hazards, such as by
siting landfills or other attractants too close to airports, but
not the preservation of existing wetlands. The FAA, however,
recommends that airport expansions that result in unavoidable
wetlands disturbances may require mitigation off-site so as not
to create a wildlife hazard.
ACE thus picks out for criticism small parts of the
Divisions rationale and claims that these challenges show that in
finding maximum conformance [the Division] relied on a false
premise. Only the first of these small criticisms appears to be
accurate, however, and taken together, ACEs challenges still
leave the vast majority of the Divisions rationale intact.
ACE further argues that this criterion of maximizing
conformance was not applied for each use and activity on the
Airports list of possible uses. Again, this argument relies on
ACEs view of the specificity required in a project, and we again
conclude that the Division did not act arbitrarily in considering
airport expansion as a whole (with consideration of the likely
mix of future uses), rather than whether the permit maximized
conformance for each individual use. Given the numerous
conditions and stipulations the Division cited in making its
determination, we conclude that the Division took a hard look at
the maximizing conformance factor and had a reasonable basis for
its decision.66
Since the Division therefore took a hard look at all
three conditions and had a reasonable basis for concluding that
they were satisfied, we hold that the Division did not act
arbitrarily in finding the Airports project to be consistent with
the habitats and coastal development standards.
4. Geophysical hazards standard and corresponding
Anchorage Coastal Management Plan standard
a. Geophysical hazards standard
Portions of the area subject to the Airports permit are
in the high/very high earthquake hazard zone.67 Under the
geophysical hazard areas standard, development in geophysical
hazard areas may not be approved by the appropriate state or
local authority until siting, design, and construction measures
for minimizing property damage and protecting against loss of
life have been provided.68
In its discussion of this standard, the Division stated
that any facilities located in the filled wetlands would have the
siting, design, and construction measures to minimize property
damage and protect against loss of life implemented through the
Anchorage CMP requirement that construction activities comply
with the Uniform Building Code (UBC), since building permits will
be necessary before construction can begin in the filled wetlands
and since the Anchorage Public Works Department reviews all
tenants building permits and applies the UBC requirements for
building in high hazard areas. The Division explained that uses
authorized by the permit tend to be low-density human uses and
with the design and construction measures described above,
minimization of property damage and protection against loss of
life has been provided.
ACE maintains that the Divisions evaluation of this
standard was in error because the final environmental impact
statement for the ACMP states that
[s]ince it will be impossible for districts
to thoroughly assess each hazard area and
devise detailed standards covering any
conceivable use, developers will be obligated
to conduct the surveys and studies needed to
determine exactly what siting, design and
construction measures are needed. The
districts and state agencies will have enough
general data to know when to require such
surveys from the developers.[69]
ACE charges that the Division issued its consistency
determination without any surveys or studies from the Airport on
the siting, design, and construction measures needed to minimize
harm to property and people and that without this data, the
Division could not apply the standard correctly. Since the
Division had no data, ACE contends, no deference is due to the
Divisions finding on the standard.70
The State argues that the Municipality adopted as a
control measure in the Anchorage CMP the UBC sections dealing
with construction in hazard areas, along with other measures and
variations for local hazards. The State thus contends that the
Division addressed the hazards by similarly requiring compliance
with the local building code, as well as by requiring the use of
a central sewerage system, engineering specifications to mitigate
potential damage, and precautions during design and construction
to reduce the hazards effects all Anchorage CMP policies. We
conclude that the Anchorage CMP provided enough data on control
measures for the Division to make its evaluation without further
studies from the Airport.
ACE contends that the Division also erred by relying on
the UBC requirements. ACE charges that the Division improperly
deferred a careful and detailed look at siting, design, and
construction measures to later stages of the development process,
quoting this courts decision in Trustees for Alaska v. State,
Department of Natural Resources.71 What we declared in that case,
however, was that deferring a careful and detailed look at
particularized geophysical hazards to later stages of the
development process . . . entails certain practical risks.72 We
determined that identifying hazards on a lease-site-by-lease-site
basis could mask appreciation of any cumulative environmental
threat that would otherwise be apparent if DNR began with a
detailed and comprehensive identification of those hazards.73
The logic of the Trustees holding does not necessarily
extend to control measures, however, making ACEs substitution of
siting, design, and construction measures for particularized
geophysical hazards potentially inaccurate. In contrast to
Trustees, the geophysical hazards here and the threat they pose
appear to be relatively well understood, as evidenced by a map in
the Anchorage CMP and a map from the Coastal Resource Atlas
showing geophysical hazard areas within and near the airport.74
With the threats generally understood, the risks of applying
specific control measures later in the process are not great.
Looking at the broad scope of the project, the Division
prescribed standards that would be triggered later in the
development process by means of the Anchorage CMP for specific
facilities. The Division did not defer a hard look at this
requirement, nor did it avoid its duty of performing a pre-
decisional analysis of the Geophysical Hazards Standards
application . . . by placing the decision in the hands of the
Municipality to be made after the consistency determination was
rendered. Rather, it ensured that the requirement would be met
during future development via application of the Anchorage CMP.
ACE further alleges that the UBC involves only design
and construction, not the siting of facilities. The State
responds that the issue of siting within the 240-acre site will
be addressed by requiring appropriate design and construction to
minimize damage, but ACE counters that no approval of development
is allowed under the geophysical hazards standard until siting
measures have been provided, meaning that siting measures cannot
be provided after the consistency determination. The States
argument is correct, however. For earthquake design, the UBC
provides that [t]he procedures and the limitations for the design
of structures shall be determined considering seismic zoning,
site characteristics, occupancy, configuration, structural system
and height; specifically, the UBC directs that [s]eismic hazard
characteristics for the site shall be established based on the
seismic zone and proximity of the site to active seismic sources,
site soil profile characteristics and the structures importance
factor.75 The UBC thus does factor siting into its design and
construction standards for geophysical hazard areas. The
Division therefore provided for siting measures in its
consistency determination.
ACE further claims that the Division failed to discuss
whether the UBC requirements actually contain measures that are .
. . sufficiently protective against geophysical hazards in very
high hazard areas, making it impossible to determine whether the
standard was met.76 However, the Division specifically referred
to the specific UBC requirements for building in high/very high
hazard areas. The UBC provides highly technical structural
design and construction requirements for seismic zones,77 which
the Municipality and the Anchorage CMP rely upon as a control
measure for hazardous lands.78 The Division did not act
unreasonably or arbitrarily in determining that the UBC standards
were sufficiently protective.
ACE disputes the applicability of the UBC to Anchorage
International Airports expansion, pointing to the States
assertion (in response to the Divisions draft consistency
finding) that the Airport has no authority to submit to [the
Municipality of Anchorage] approval of land use decisions or
development on AIA. The State Attorney General has issued an
opinion that AIA is not subject to [Municipality] land laws and
[the Department of Transportation] has directed AIA to comply
with the AG opinion. ACE reasons that the Division could not
therefore rely on the UBC to provide the protections that the
geophysical hazards standard mandates. The State counters ACEs
argument by correctly noting that Anchorage International
Airports separate planning and zoning statutes do not exempt the
airport from local building codes.79 The State also points to AS
35.10.025, which dictates that [a] public building shall be built
in accordance with applicable local building codes including the
obtaining of required permits. This section applies to all
buildings of the state and corporate authorities of the state.80
These statutes indicate that the Airport is subject to
Municipality building codes.
The States most persuasive argument, however, is that
the UBC applies to the airport expansion because that is a
condition of the permit. ACE counters by noting that the Corps
permit requires evidence of either a Municipality building
permit, a fill permit, or listing in an annual report as a State-
sponsored project. While this is true, the Divisions consistency
determination explicitly states that [n]o filling for a structure
is allowed prior to the tenants receipt of a building permit from
the Municipality of Anchorage. The Division also noted that
[b]uilding permits are necessary before tenants are authorized
under the [Airport] 10-year permit to place fill in the Turnagain
Bog wetlands. Fill may be placed without a building permit in
the Postmark Drive portion of the permit; however, a building
permit still is needed before construction of any facility can
begin. The consistency determination
represents a consensus reached between you as
the project applicant and the reviewing
agencies listed above, regarding the
conditions necessary to ensure the proposed
project is consistent with the ACMP. We are
informing the federal agency responsible for
approving a federal authorization for your
project that your original proposal has been
modified subject to the conditions in this
consistency determination.
Given the statutory language and the conditions in the Divisions
consistency determination, we conclude that the UBC applies to
Anchorage International Airports expansion.
b. Anchorage CMP hazardous lands policy
In addition to the geophysical hazards standard, ACE
also challenges the Divisions finding of consistency with the
Anchorage CMP policy for hazardous lands. The values listed in
the Anchorage CMP for these lands include open space, recreation,
parks, greenbelts, aesthetics, development where feasible and
safe, and development when no other alternative area exists. The
policies associated with these lands are as follows:
1. Discourage development in areas
designated high hazard.
2. Encourage the Municipality to adopt
adequate regulations and ordinances in these
areas.
3. Require the use of central sewerage
systems and engineering specifications
sufficient to mitigate potential loss of life
and property.
4. Assure that all appropriate precautions
are taken during design, construction, and
landscape modification to reduce the effects
of the hazard.
The Division declared that [d]evelopment in these areas is not
prohibited and the State of Alaska and the [Municipality] believe
[the Airport] has demonstrated practicable alternative sites are
not available, and then referred to its discussion of the
geophysical hazards standard.
Federal regulations applicable to state plans require
the project applicant to show consistency with the enforceable,
mandatory policies of the management program and to demonstrate
adequate consideration of policies which are in the nature of
recommendations.81 ACE claims that the Divisions decision was
arbitrary because the Division never discussed how the Airports
proposal would protect the values listed above, nor how the
Airports project would meet the policy of discouraging
development in high hazard areas. ACE contends that values are
the building blocks for the policies, so they provide direction
for management, yet instead of showing that no other alternative
area exists, the Division only claimed that the Airport has
demonstrated that practicable alternative sites are not
available, which, according to ACE, is more lenient.
The federal regulation ACE cites lists the information
a project applicant must provide, not what a reviewing agency
must do. Alaska regulations define the ACMP to include the
enforceable policies of approved programs of districts and direct
that a project is consistent when it is in compliance with . . .
the enforceable policies of an approved program for an affected
coastal resource district.82 The enforceable elements of the
Anchorage CMP for hazardous lands are the policies, not the
values. The consistency review addresses the relevant policies,
noting that a central sewerage system will be required and that
the UBC standards assure that appropriate precautions are in
place to minimize the hazard. Although one of the policies is to
discourage development in high hazard areas, the Division was
correct in noting that development in these areas is not
prohibited, as is clear from the term discourage and the stated
goal of assuring that development in areas designated as
hazardous lands occurs in a manner consistent with [the
geophysical hazards standard] in order to protect human life and
ensure public safety and welfare.
Assuming that the values can be considered policies
which are in the nature of recommendations, the Division and the
Airport demonstrated adequate consideration of them. The
Division specifically addressed recreation, the feasibility and
safety of development, and the lack of alternatives in its
consistency determination. The Airport also removed part of
Connors Bog from the permit application and rejected other
Airport lands as expansion possibilities due to public concern
about their use as recreation areas, and it considered aesthetics
and open space in proposing a 300-foot buffer along the airports
east boundary to provide noise and visual mitigation. Also, as
noted earlier, the Municipality in conducting its consistency
review noted that the Municipality and the resource agencies have
acknowledged the airports need for expansion and the fact that
there are no alternatives other than within the airport boundary
to accomplish these needs, and that [s]pecific and viable
alternatives for all of the runway dependent/airport related land
uses spelled out in this application either do not exist or are
impractical. Reviewing agencies give substantial deference to
and can use as a basis for their own conclusions the assessments
of the affected district, which is considered to have expertise
in the interpretation and application of its program. 83
The Division thus had a reasonable basis for concluding
that the Airports project was consistent with the Anchorage CMPs
enforceable policies, and the Division and the Airport showed
adequate consideration of the Anchorage CMPs values associated
with hazardous lands.
We therefore conclude that the Division reasonably and
not arbitrarily determined that both the geophysical hazards
standard and the Anchorage CMP policies were met.
5. Transportation and utilities standard
The transportation and utilities standard dictates that
[t]ransportation and utility routes and facilities in the coastal
area must be sited, designed, and constructed so as to be
compatible with district programs.84 The Division noted the
Municipalitys determination that the proposed uses and associated
safeguards would allow development of the transportation
facilities in a manner that is compatible with the [Anchorage]
CMP.
ACE charges that although deference is due the
Municipalitys opinion, the Division erred in completely deferring
to the Municipality because the Division still had a duty to
independently determine consistency.85 In Ninilchik, we stated
that despite the deference due to districts in interpreting their
own coastal management programs, [t]his deference does not . . .
relieve [the reviewing agency] of the duty to independently
determine that the [project] is consistent with the affected
[programs].86
The State responds by claiming that the local coastal
district does not have specific standards to review for
consistency with this standard and that instead, the district
reviews the program as a whole and so transportation and utility
routes were reviewed in the context of the project as a whole.
Specifically, the State contends that the Division considered the
transportation and utilities standard through its consideration
of whether the project was consistent with the coastal
development, geophysical hazard, habitats, air, land and water
quality standards and related coastal district policies.
ACE counters that there is a specific standard for
review of the transportation and utilities standard, since the
Anchorage CMPs policies for coastal wetlands and preservation
freshwater wetlands include a policy to [a]void or minimize, any
identified adverse impacts to coastal or freshwater marshes and
wetlands (as identified in Anchorage [Wetlands Management Plan])
from public works activities such as transportation projects and
utility, sewer and drainage activities. ACE charges that since
the Division did not discuss this policy, its decision is
arbitrary.
ACE is correct in identifying the existence and
applicability of this policy, but the State is correct in arguing
that the Division established that the policy was satisfied in
its discussions of other standards. The Division explicitly
addressed the Anchorage CMP policies for coastal and preservation
wetlands, noting that
[f]eatures of the permit that ensure the
wetland values are assessed appropriately and
necessary protection is incorporated into the
project have been discussed previously under
A and B Wetlands policies of the [Anchorage
Wetlands Management Plan] and the
Development, Habitats, and Air, Land, and
Water Quality statewide standards of the
ACMP.
These analyses addressed the concerns about minimizing adverse
impacts to wetlands. The Division noted the numerous conditions
and stipulations designed to maximize conformance with the
requirements of the habitats standard and the air, land, and
water quality standard to maintain habitat characteristics and
protect water quality and patterns. The Division also discussed
the measures taken to meet the policies for various types of
wetlands under the Anchorage Wetlands Management Plan,
specifically mentioning the Plans explicit acknowledgment that
use of Airport wetlands for airport-dependent activities is
allowable due to the lack of practicable alternatives.
The Division thus took a hard look at the Anchorage
CMPs policies, even if it failed to mention them explicitly in
its discussion of the transportation and utilities standard.
Accordingly, we conclude that the Division had a reasonable basis
for finding that standard to be satisfied.
IV. CONCLUSION
The Division of Governmental Coordination was entitled
to view the Airports project holistically instead of in a
piecemeal manner. The numerous conditions and stipulations
imposed by various agencies ensured that all uses, activities,
and permits were considered, so phasing was unnecessary. The
Divisions interpretation of its major energy facility regulation
was neither erroneous nor inconsistent with the regulation and
did not need to be promulgated as a regulation under the Alaska
Administrative Procedure Act. The Division took a hard look at
the various statewide and municipal standards, genuinely engaged
in reasoned decision-making, and did not fail to consider any
important factors.
We therefore AFFIRM the Divisions consistency review
and consistency determination in all respects.
_______________________________
1 AS 46.40.010-.210 (1977, 1994) (amended 2003). Many
amendments to the Coastal Management Act and its regulations at 6
AAC 50 took effect in 2003. All references in this opinion are
to the statutes and regulations in effect when the Division
issued its consistency determination in 2000.
2 See AS 44.19.145(a)(11) (providing that Office of
Management and Budget within Office of the Governor is to render,
on behalf of the state, all federal consistency determinations
and certifications authorized by 16 U.S.C. 1456 (Sec. 307,
Coastal Zone Management Act of 1972), and each conclusive state
consistency determination when a project requires a permit,
lease, or authorization from two or more state resource
agencies); 6 AAC 50.030(a) (repealed 2003) (directing the
Division to coordinate the review and render a determination for
a project which requires the permits of two or more state
agencies or a federal permit).
3 6 AAC 50.070(a)-(c) (repealed 2003).
4 Cook Inlet Keeper v. State, 46 P.3d 957, 961 (Alaska
2002); Kachemak Bay Conservation Socy v. State, Dept of Natural
Res., 6 P.3d 270, 275 (Alaska 2000).
5 Jager v. State, 537 P.2d 1100, 1107 n.23 (Alaska 1975).
6 Kachemak Bay, 6 P.3d at 275 (noting that extent to
which law allows dividing proposal into discrete parts and
examining each part rather than whole for compliance is matter of
statutory interpretation not involving agency expertise); Miners
Advocacy Council, Inc. v. State, Dept of Envtl. Conservation, 778
P.2d 1126, 1131-32 (Alaska 1989) (Whether the federal Clean Water
Act and [Department of Environmental Conservation] regulations
require the state to certify [National Pollutant Discharge
Elimination System] permits on an individual, site-specific basis
or allow the state to issue a blanket certification covering many
individual permits without performing site-specific evaluations
is a question of law, which this court reviews under the
substitution of judgment standard.); Matanuska-Susitna Borough v.
Hammond, 726 P.2d 166, 175 (Alaska 1986) (The independent
judgment standard, under which the court makes its own
interpretation of the statute at issue, is applied where the
agencys specialized knowledge and experience would not be
particularly probative on the meaning of the statute.).
7 AS 46.40.210(3).
8 AS 46.40.040(1)(E) (emphasis added). Similarly, the
Anchorage Wetlands Management Plan defines an individual 404
permit as a permit that may be issued following a case-by-case
evaluation of a specific project involving the proposed
discharge.
9 6 AAC 50.990(22) (amended 2003). In the new amended
version (not applicable to this case), project is defined at
.990(30) to mean all activities that will be part of a proposed
development.
10 See also Alaska Ctr. for the Envt v. West, 157 F.3d
680, 683-84 (9th Cir. 1998) (upholding Corpss general permit
authorizing a broad range of potential activities). When the
Corps issued the permit to the Airport, it analogized to a permit
for a subdivision or planned community development, where the
general layout and impacts can be specified but the specific
details are determined later, subject to restrictions and to
subsequent local planning or zoning reviews.
11 795 P.2d 805, 811-12 (Alaska 1990).
12 928 P.2d 1206, 1209 (Alaska 1996).
13 6 P.3d 270, 280, 294 (Alaska 2000). Phasing involves
dividing a proposal into discrete parts . . . and examining each
of these parts individually for compliance rather than examining
the project as a whole. Id. at 274 n.1.
14 AS 46.40.210(3).
15 Hammond, 726 P.2d at 175.
16 46 P.3d 957, 963, 965 (Alaska 2002).
17 Id. at 965.
18 See 17 AAC 42.210, .280.
19 This model explicitly states that it is not a guarantee
of what level of development will occur in each area. It is one
of the many possible development scenarios that might occur.
20 Trustees for Alaska v. State, Dept of Natural Res., 851
P.2d 1340, 1344 n.8 (Alaska 1993) (quoting Trustees for Alaska v.
Gorsuch, 835 P.2d 1239, 1246 (Alaska 1992)).
21 Id. at 1344 (citing Gorsuch, 835 P.2d at 1246 n.6).
22 For instance, one stipulation mandates public notice
for any Airport lease proposal so as to ensure that the proposed
use is consistent with the ten-year Corps permit.
23 AS 46.40.094(a).
24 AS 46.40.094(b)(1)(A), (1)(B), (3).
25 Lauth v. State, 12 P.3d 181, 184 (Alaska 2000) (quoting
Board of Trade, Inc. v. State, Dept of Labor, Wage & Hour Admin.,
968 P.2d 86, 89 (Alaska 1998)).
26 Trustees for Alaska v. State, Dept of Natural Res., 795
P.2d 805, 809 (Alaska 1990) (quotations omitted).
27 6 AAC 80.070(b).
28 See Southeast Alaska Conservation Council, Inc. v.
State, 665 P.2d 544, 548-49 (Alaska 1983) (Where an agency fails
to consider an important factor in making its decision, the
decision will be regarded as arbitrary.).
29 Bulk fuel storage was deleted from the final Corps
permit. The State argues that this deletion, although after the
Divisions review, makes that particular activity functionally
moot. ACE correctly responds that the State cites no authority
for the proposition that the Corps permit, issued under federal
law, somehow modifies the consistency determination issued under
state law so as to make ACEs challenge of the Divisions review
under the ACMP moot. ACE notes that the permit can always be
modified to allow bulk fuel storage, 33 C.F.R. 325.7(a)-(b),
meaning that the issue could recur and evade future review. Cook
Inlet Keeper, 46 P.3d at 960 n.11. In addition, fuel storage,
transportation, and dispensing remained as a runway-dependent
use. Furthermore, the superior court rejected this mootness
claim and the State did not cross-appeal, so we decline to
consider the issue. See Kodiak Seafood Processors Assn v. State,
900 P.2d 1191, 1195 n.5 (Alaska 1995); Andersen v. Edwards, 625
P.2d 282, 285 (Alaska 1981).
30 Bullock v. State, Dept of Cmty. & Regl Affairs, 19 P.3d
1209, 1214 (Alaska 2001) (quoting Borg-Warner Corp. v. Avco
Corp., 850 P.2d 628, 633 n.12 (Alaska 1993)).
31 Federal Deposit Ins. Corp. v. Laidlaw Transit, Inc., 21
P.3d 344, 351 (Alaska 2001).
32 Id. (quoting Millman v. State, 841 P.2d 190, 194
(Alaska App. 1992)).
33 6 AAC 80.070(b)(8), (11), (14).
34 Cf. Ober v. Whitman, 243 F.3d 1190, 1194-95 (9th Cir.
2001) (allowing Environmental Protection Agency to exempt de
minimis sources of pollution from Clean Air Act controls because
statutory language did not prohibit it and because [c]ourts
should be reluctant to apply the literal terms of a statute to
mandate pointless expenditures of effort).
35 Federal Deposit Ins. Corp., 21 P.3d at 351.
36 Bullock v. State, Dept of Cmty. & Regl Affairs, 19 P.3d
1209, 1215 (Alaska 2001) (internal quotations omitted).
37 AS 44.62.640(a)(3) defines regulation as:
every rule, regulation, order, or standard of
general application or the amendment,
supplement, or revision of a rule,
regulation, order, or standard adopted by a
state agency to implement, interpret, or make
specific the law enforced or administered by
it, or to govern its procedure, except one
that relates only to the internal management
of a state agency; . . . regulation includes
manuals, policies, instructions, guides to
enforcement, interpretive bulletins,
interpretations and the like, that have the
effect of rules, orders, regulations, or
standards of general application, and this
and similar phraseology may not be used to
avoid or circumvent this chapter; whether a
regulation, regardless of its name, is
covered by this chapter depends in part on
whether it affects the public or is used by
the agency in dealing with the public[.]
38 Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816, 821,
825 (Alaska 1997); Jerrel v. State, Dept of Natural Res., 999
P.2d 138, 141 (Alaska 2000).
39 AS 44.62.640(a)(3).
40 This distinguishes the present case from Jerrel, in
which we held that a rule by the Department of Natural Resources
requiring horses to be marked in a permanent manner that would be
visible from twenty feet away was not an interpretation of the
existing marking regulation but rather was a new substantive
requirement that made that regulation more specific and thus a
new regulation, necessitating compliance with the Administrative
Procedure Act. 999 P.2d at 143, 144.
41 Usibelli Coal Mine, Inc. v. State, Dept of Natural
Res., 921 P.2d 1134, 1149 n.24 (Alaska 1996).
42 6 AAC 80.040(a)(3).
43 6 AAC 80.130(b)-(d).
44 Id.
45 Trustees for Alaska v. State, Dept of Natural Res., 851
P.2d 1340, 1344 (Alaska 1993).
46 Kachemak Bay, 6 P.3d at 288 n.61 (quoting Office of
Coastal Mgmt., State of Alaska & Office of Coastal Zone Mgmt.,
U.S. Dept of Commerce, State of Alaska Coastal Management Program
and Final Environmental Impact Statement 72 (1979) [hereinafter
FEIS] (available at http://unicorn.csc.noaa.gov/docs/czic/
TC224.A4_F5_1979/89A4FB.pdf)).
47 Meaning of Public Need As Used in ACMP Regulations,
1982 Informal Op. Atty Gen. 953, 956.
48 Id. While opinions of the attorney general are
entitled to some deference, they are not controlling on matters
of statutory interpretation. Cissna v. Stout, 931 P.2d 363, 368
(Alaska 1996).
49 ACE maintains that the Division erred in claiming that
the Airport had conducted studies indicating a need for
additional facilities if the airport was to remain a viable
commercial hub for Alaska, because those studies were largely
updated growth projections that did not identify particular
facilities for which there is a public need. Chapter 3 of the
Airports Master Plan Update does indeed involve aviation demand
forecasts, but it appears that the Division merely cited the
wrong chapter, as Chapter 4 deals with facility requirements
based on those projections. Furthermore, the Division cited the
Airports Update only as an example of these studies, not as the
sum total of the studies conducted.
50 Kachemak Bay, 6 P.3d at 287-88 (quoting Hammond v. N.
Slope Borough, 645 P.2d 750, 758-59 (Alaska 1982)).
51 6 P.3d at 287-88.
52 928 P.2d 1206, 1213 (Alaska 1996).
53 ACE responds that the revenue from the oil and gas
lease sales in Ninilchik and Kachemak Bay was certain, whereas
the Division never analyzed whether any use or activity on the
Airports list would generate a net revenue stream for the state.
As noted above, however, in Kachemak Bay we quoted the Department
of Natural Resourcess justification for phasing its review, which
noted that there is no certainty in oil and gas leasing: [i]n oil
and gas leasing, it cannot be determined with any specificity or
definition at the leasing stage if, where, when, how, or what
kind of production might ultimately occur[] as the result of
leasing . . . . 6 P.3d at 280.
54 Meaning of Public Need As Used in ACMP Regulations,
1982 Informal Op. Atty Gen. 953, 956.
55 The Municipality of Anchorage is a coastal resource
district since it is a unified municipalit[y] that contains a
portion of the coastal area of the state. AS 46.40.210(2).
56 Kachemak Bay, 6 P.3d at 287-88 (quoting Hammond, 645
P.2d at 758-59).
57 6 AAC 80.900(20).
58 42 U.S.C. 4321-47 (1994); FEIS, supra note 46, at 1.
59 FEIS, supra note 46, at 79 (1979). The FEIS represents
a source of guidance, not binding authority. We cited it in
Kachemak Bay, 6 P.3d at 288 n.61, and in Ninilchik, 928 P.2d at
1211 n.8, as clarifying the purpose of the ACMP.
60 FEIS, supra note 46, at 537 (underlining in original).
61 ACE argues that construction is not at issue, but
rather whether there is no feasible and prudent alternative . . .
for the proposed use or activity . . . . 6 AAC 80.130(d)(2).
This is a pointless argument. Airport expansion will require
construction in order for any dredge and fill activity to occur
and for any of the permitted uses on the Revised Uses list to
come into being.
62 See Kachemak Bay, 6 P.3d at 288 (Examination of the
record reveals that DNRs decision that there were no prudent and
feasible alternatives to Sale 85A was not arbitrary nor
capricious. In fact, as DNR points out, the sale area was pared
down by 40,000 acres in direct response to concerns of residents
of Homer. This indicates that DNR took the requisite hard look
at the sale area before issuing its consistency determination.).
63 Ninilchik, 928 P.2d at 1215 (quoting 6 AAC 50.120(a)).
64 6 AAC 80.130(b), (c)(3).
65 6 AAC 80.130(d)(3).
66 See Ninilchik, 928 P.2d at 1215 (It is clear from the
detailed and particular nature of these stipulations that DNR
took a hard look at the feasible and prudent steps necessary to
minimize the impact of the Sale on the habitat. Therefore, we
hold that DNRs analysis demonstrates a reasonable basis for its
finding that all feasible and prudent steps to maximize
conformance with the habitats standard have been taken.).
67 Oddly, the Airport answered no on the coastal project
questionnaire to the question concerning whether the proposed
project is located within a known geophysical hazard area.
68 6 AAC 80.050(b).
69 FEIS, supra note 46, at 59.
70 See Natural Res. Def. Council, Inc. v. U.S. Envtl.
Prot. Agency, 966 F.2d 1292, 1306 (9th Cir. 1992) (Without data
supporting the expanded exemption, we owe no deference to EPAs
line-drawing.).
71 851 P.2d 1340, 1344 (Alaska 1993).
72 Id. at 1344 (emphasis added).
73 Id.
74 The Anchorage CMP map depicting hazard areas is meant
to be a general guide and not an accurate depiction of the
individual resource policy units, but the Coastal Resource Atlas
map provides [m]ore specific information.
75 1997 Uniform Building Code, Vol. 2, 1629.1, 1629.4, at
2-11.
76 See Hammond, 645 P.2d at 762 n.7 (In order for a court
to review the consistency finding of the Commissioner required by
the ACMP, the Commissioner must at a minimum establish a record
which reflects the basis for his decision.).
77 1997 Uniform Building Code, Vols. 2 & 3, 1626-35, 1654-
65, 1809, 1921, 2210-14, 2220.
78 Anchorage Municipal Code (AMC) 23.05.010.
79 AS 35.10.025; 1996 Inf. Op. Atty. Gen. (October 24,
1996; 661-97-0228) (aviation zoning).
80 AS 35.95.100(6) defines public building as a building
owned or controlled and held by the state for government or
public use.
81 15 C.F.R. 930.58(a)(4) (2000).
82 6 AAC 50.990(a)(1), (8) (repealed 2003).
83 Ninilchik, 928 P.2d at 1215 (quoting 6 AAC 50.120(a)).
84 6 AAC 80.080(a).
85 ACE argues that such deference was particularly
inappropriate since the Municipality had no specific information
about the siting, design, or construction of any particular
facility on the Revised Uses list when it made its compatibility
determination. Again, as discussed numerous times previously,
this argument fails because it relies on a different conception
of the specificity required in the project.
86 Ninilchik, 928 P.2d at 1215.
