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. ACE's 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 Division's determination that the Airport's 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 Division's 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 Act
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.
ACE appealed the Division's consistency determination to the superior court, arguing that the Airport's 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 Airport's 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 Airport's 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.
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 agency's determination directly; we do not defer to the superior court's decision.
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;
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."
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
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 Airport's 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 Engineers's] Public Notice and information provided subsequent to the initial Public Notice provide[ ] adequate detail to conduct the ACMP review."
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."
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,
Given these cases and the volume of information the Airport submitted, we hold that the Airport's broad proposal for airport expansion was a "project" amenable to ACMP 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 Airport's 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.
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."
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.
The State counters ACE's 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
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, ACE's focus on the Division's 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.
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."
Contrary to ACE's 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.
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 state's 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 permit's 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 Division's decision not to phase its review and instead to limit future uses via conditions and stipulations.
1. Standard of review
The Division's decision as to the applicability of the major energy facility standard, 6 AAC 80.070, involves an agency's interpretation of its own regulations. We review an agency's interpretation of its own regulation under the "reasonable basis" standard, "deferring to the interpretation unless it is `plainly erroneous and inconsistent with the regulation.'"
2. Major energy facility standard
"Major energy facility" is defined at 6 AAC 80.900(22) to include:
The regulation requires that a coastal project involving major energy facilities meet various siting and other criteria where feasible and prudent.
ACE points out that the list of possible uses included in the Division's consistency determination included "fuel storage, transportation and dispensing" as a runway-dependent use and provision of "bulk fuel storage facilities"
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 ACE's 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.
ACE's argument concerning the Division's 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
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 Division's interpretation. The siting criteria for major energy facilities includes considerations of "shipping routes," "spills," and "airborne emissions."
ACE further maintains that the Office of Management and Budget has never adopted the Division's interpretation of the major energy facility standard as a regulation in accordance with the Alaska Administrative Procedure Act, AS 44.62.
"Whether the agency action is a regulation is a question of law that does not involve agency expertise," so we apply our independent judgment.
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."
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.
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)."
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."
"The determination that a significant public need ... exists is exactly the type of `policy decision, involving complex issues that are beyond this court's ability to decide,' to which we give considerable deference. Without evidence that this decision was arbitrary or capricious, we cannot negate this policy decision...."
ACE claims that the Division failed to show public need, much less significant public need, for any particular use or activity on the consistency determination's list of possible uses. ACE maintains that the Division's statements in the consistency determination and the Airport's 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."
ACE's arguments again stem from its view of the specificity needed for a "project." ACE's 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 Society
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 general's 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."
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 Airport's 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 Airport's 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 Airport's application for consistency with the Anchorage CMP, the Municipality's 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 applicant's public need assertions."
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.'"
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)."
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 ACE's 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 Airport's 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.
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 Airport's Master Plan Update acknowledged that West Air Park would eventually become the next runway, and this limitation is also repeated in
ACE also claims that "all non-runway dependent uses" could be located outside the wetlands, pointing to the Airport's 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 Airport's 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 Airport's 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 Airport's] proposed uses and activities, en masse, and that this finding is in" the Anchorage Wetlands Management Plan, which identified the Airport's 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 Municipality's 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 Division's 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 Municipality's consistency review of the Airport's 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 Municipality's 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.'"
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 Airport's project.
c. Maximize conformance
Under the habitats standard, wetlands must be managed "so as to maintain or
The Division determined that the Airport's 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.
[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 facility's storm/runoff water collection and treatment system design plan before any fill placement at that facility's site could occur. Furthermore, the Division had before it the conditions that the Corps would impose with the permit, including conditions for maintaining Turnagain Bog's 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 list's 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 FAA's 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
ACE thus picks out for criticism small parts of the Division's 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, ACE's challenges still leave the vast majority of the Division's rationale intact.
ACE further argues that this criterion of maximizing conformance was not applied for each use and activity on the Airport's list of possible uses. Again, this argument relies on ACE's 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.
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 Airport's project to be consistent with the habitats and coastal development standards.
a. Geophysical hazards standard
Portions of the area subject to the Airport's permit are in the "high/very high" earthquake hazard zone.
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 Division's evaluation of this standard was in error because the final environmental impact statement for the ACMP states that
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 Division's finding on the standard.
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 hazard's 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 court's decision in Trustees for Alaska v. State, Department of Natural Resources.
The logic of the Trustees holding does not necessarily extend to control measures, however, making ACE's 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.
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
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.
ACE disputes the applicability of the UBC to Anchorage International Airport's expansion, pointing to the State's assertion (in response to the Division's 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 ACE's argument by correctly noting that Anchorage International Airport's separate planning and zoning statutes do not exempt the airport from local building codes.
The State's 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 Statesponsored project. While this is true, the Division's consistency determination explicitly states that "[n]o filling for a structure is allowed prior to the tenant's 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
Given the statutory language and the conditions in the Division's consistency determination, we conclude that the UBC applies to Anchorage International Airport's expansion.
b. Anchorage CMP hazardous lands policy
In addition to the geophysical hazards standard, ACE also challenges the Division's 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:
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."
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."
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 airport's 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 airport's 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.'"
The Division thus had a reasonable basis for concluding that the Airport's project was consistent with the Anchorage CMP's enforceable policies, and the Division and the Airport showed adequate consideration of the Anchorage CMP's "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."
ACE charges that although deference is due the Municipality's opinion, the Division erred in completely deferring to the Municipality because the Division still had a duty to independently determine consistency.
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
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
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 Plan's 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 CMP's 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.
The Division of Governmental Coordination was entitled to view the Airport's 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 Division's 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 Division's consistency review and consistency determination in all respects.