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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. 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.