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CSSB 139(RES): "An Act relating to fees for certain uses of state water and to the accounting and appropriation of those fees; relating to authorizations for the temporary use of state water; making other amendments to the Alaska Water Use Act; and providing for an effective date."

00                       CS FOR SENATE BILL NO. 139(RES)                                                                   
01 "An Act relating to fees for certain uses of state water and to the accounting and                                      
02 appropriation of those fees; relating to authorizations for the temporary use of state                                  
03 water; making other amendments to the Alaska Water Use Act; and providing for an                                        
04 effective date."                                                                                                        
05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
06    * Section 1.  The uncodified law of the State of Alaska is amended by adding new sections                          
07 to read:                                                                                                                
08       FINDINGS AND POLICY REGARDING STATE WATER USE FEES.  (a)  The                                                     
09 legislature finds that                                                                                                  
10            (1)  the implementation of a state water rights system by the Department of                                  
11 Natural Resources cannot be accomplished without adequate financing;                                                    
12            (2)  financing to implement the state water rights system has been insufficient,                             
13 which has resulted in                                                                                                   
14                 (A)  delays in the processing of applications for grants of rights and                                  
01       permits for use of state water and amendment of those rights and permits; and                                     
02                 (B)  failure to complete other administrative duties relating to the state                              
03       water rights system;                                                                                              
04            (3)  a long-term financing mechanism must be established to provide for                                      
05 adequate financing and provide for a more predictable appropriation and staffing level at the                           
06 Department of Natural Resources from year to year; and                                                                  
07            (4)  the establishment of an appropriate system of application fees that reflect                             
08 the reasonable direct cost of providing the water management services would provide an                                  
09 adequate method of financing Alaska's water management system.                                                          
10       (b)  It is the policy of the state to authorize the Department of Natural Resources to                            
11 assess a reasonable fee for the services it provides in facilitating the use of state water; the fee                    
12 should reflect the reasonable direct cost of providing the service, but it is the policy of the                         
13 state that the fee not include                                                                                          
14            (1)  the costs and salaries of administrative, support, or supervisory personnel                             
15 who are not directly engaged in providing the service;                                                                  
16            (2)  other budgeted overhead expenses, including rent and utilities;                                         
17            (3)  interagency charges that would not meet the requirements of AS 37.10.052                                
18 - 37.10.058 if those charges had been incurred or invoiced by the agency providing the                                  
19 designated regulatory service;                                                                                          
20            (4)  public consultation costs when the consultation is not required by law;                                 
21            (5)  costs related to an appeal of permit issuance by a person other than the                                
22 applicant for that permit;                                                                                              
23            (6)  expenses that are not reasonably necessary to comply with the law under                                 
24 which the service is provided; or                                                                                       
25            (7)  travel expenses for inspecting businesses having not more than 20                                       
26 employees.                                                                                                              
27       (c)  It is the policy of the state that the Department of Natural Resources not apply a                           
28 charge to the holder of a certificate of appropriation that is not specifically related to services                     
29 provided by the department, except that the department may continue to charge the annual                                
30 $50 administrative service fee currently in use by the department in order to maintain the                              
31 water rights program for the benefit of Alaskans and current water rights holders.                                      
01       (d)  It is the policy of the state that the Department of Natural Resources minimize the                          
02 required costs, including application fees, on individuals and businesses withdrawing less than                         
03 a significant amount of water.                                                                                          
04    * Sec. 2.  The uncodified law of the State of Alaska is amended by adding a new section to                         
05 read:                                                                                                                   
06       FINDINGS, POLICY, AND PURPOSE RELATING TO AUTHORIZATIONS FOR                                                      
07 CERTAIN TEMPORARY USES OF STATE WATER.  (a)  The legislature finds that                                                 
08            (1)  many construction, development, commercial, and private activities                                      
09 require an authorization for the temporary use of the state's water without the need to acquire                         
10 a permanent right to appropriate water;                                                                                 
11            (2)  for many years, in appropriate circumstances, the Department of Natural                                 
12 Resources has issued revocable permits for the temporary use of state water under its                                   
13 authority implied under AS 46.15 but not expressly provided in AS 46.15; and                                            
14            (3)  the legislature validates and affirms that temporary permits authorizing the                            
15 temporary use of state water continue to be appropriate under AS 46.15.                                                 
16       (b)  It is the policy of the state to expressly confirm in the Department of Natural                              
17 Resources the authority to issue authorizations for temporary use of water subject to                                   
18 appropriate conditions and limitations set by the Department of Natural Resources.                                      
19       (c)  The purpose of the enactment of AS 46.15.155 in sec. 6 of this Act is to                                     
20            (1)  confirm the authority of the Department of Natural Resources to issue                                   
21 authorizations for temporary use of water; and                                                                          
22            (2)  affirm the validity of existing temporary permits for the use of state water                            
23 issued before the effective date of this Act that may have been called into question by the                             
24 rationale used by the court in Greenpeace v. Alaska Department of Natural Resources, 3AN-                               
25 00-3415 Civil.                                                                                                          
26    * Sec. 3.  AS 37.10.058(2) is amended to read:                                                                     
27                 (2)  "designated regulatory service" means a regulatory service                                         
28       provided under the following regulatory programs:                                                                 
29                      (A)  regulation of the disposal of waste into waters of the state                                  
30            under AS 46.03.100;                                                                                          
31                      (B)  certification of federal permits or authorizations under 33                                   
01            U.S.C. 1341 (sec. 401, Clean Water Act); [AND]                                                               
02                      (C)  a coastal management consistency determination relating to                                    
03            a permit or authorization issued under a program listed in (A) or (B) of this                                
04            paragraph, if the determination is made by the agency issuing the permit or                                  
05            authorization; and                                                                                       
06                      (D)  any authorization for the use or appropriation of water                                   
07            under AS 46.15.                                                                                          
08    * Sec. 4.  AS 46.15.020(b)(4) is amended to read:                                                                  
09                 (4)  prescribe fees or service charges for any public service rendered                                  
10       consistent with AS 37.10.050 - 37.10.058, except that the department may charge                               
11       under regulations adopted by the department an annual $50 administrative                                      
12       service fee to maintain the water management program;                                                         
13    * Sec. 5.  AS 46.15.035(e)(2) is amended to read:                                                                  
14                 (2)  "hydrologic unit" means a hydrologic subregion established by the                                  
15       United States Department of the Interior, Geological Survey, on the "Hydrologic Unit                              
16       Map-1987, State of Alaska"; "hydrologic unit" includes the water of an ocean that                             
17       is adjacent to a hydrologic subregion of the state. ["]                                                       
18    * Sec. 6.  AS 46.15 is amended by adding a new section to read:                                                    
19            Sec. 46.15.155.  Authorization for temporary use of water.  (a)                                            
20       Notwithstanding any contrary provision of this chapter, the commissioner may                                      
21       authorize the temporary use of a significant amount of water, as determined by the                                
22       department by regulation, for a period of time not to exceed five consecutive years, if                           
23       the water applied for has not been appropriated in accordance with this chapter.  The                             
24       commissioner may extend an authorization under this section for one additional term                               
25       of five consecutive years.                                                                                        
26            (b)  Notwithstanding any contrary provision of this chapter, an authorization                                
27       for a temporary use of less than a significant amount of water is not required under                              
28       this section unless the commissioner has determined by regulation that the use may                                
29       have an adverse effect on other water uses and that an authorization must be obtained                             
30       from the department.                                                                                              
31            (c)  The issuance of an authorization for temporary use of water under this                                  
01       section does not establish a right to appropriate water.  The temporary use of water                              
02       under an authorization remains subject to appropriation under this chapter.                                       
03            (d)  Notwithstanding any contrary provision of this chapter, the commissioner                                
04       is not required to provide public notice under AS 46.15.133 of a proposed                                         
05       authorization for temporary use of water; however, the commissioner shall request                                 
06       comment on an application for temporary use of water from the Department of Fish                                  
07       and Game and the Department of Environmental Conservation.                                                        
08            (e)  The provisions of AS 46.15.080 do not apply to the issuance or extension                                
09       under this section of an authorization for temporary use of water.                                                
10            (f)  The commissioner may impose reasonable conditions or limitations on an                                  
11       authorization for temporary use of water to protect the water rights of other persons or                          
12       to protect fish and wildlife habitat, public health, or other public interests.                                   
13            (g)  Upon approval by the department, an authorization under this section may                                
14       be transferred to another person under the same conditions and limitations under                                  
15       which the authorization was issued.                                                                               
16            (h)  A person to whom an authorization for temporary use of water was issued                                 
17       under this section may allow another person to use the authorization, consistent with                             
18       the conditions and limitations of the authorization.                                                              
19            (i)  The commissioner may modify, suspend, or revoke an authorization issued                                 
20       under this section if the commissioner determines it necessary to protect the water                               
21       rights of other persons or the public interest.                                                                   
22    * Sec. 7.  AS 46.15.180(a) is amended to read:                                                                     
23            (a)  A person may not                                                                                        
24                 (1)  construct works for an appropriation, or divert, impound, withdraw,                                
25       or use a significant amount of water from any source without a permit, [OR] certificate                       
26       of appropriation, or authorization issued under this chapter;                                                 
27                 (2)  violate an order of the commissioner to cease and desist from                                      
28       preventing any water from moving to a person having a prior right to use it;                                      
29                 (3)  disobey an order of the commissioner requiring the person to take                                  
30       steps to cause the water to move to a person having a prior right to use it;                                      
31                 (4)  fail or refuse to install meters, gauges, or other measuring devices                               
01       or control works;                                                                                                 
02                 (5)  violate an order establishing corrective controls for an area or for a                             
03       source of water;                                                                                                  
04                 (6)  knowingly make a false or misleading statement in a declaration of                                 
05       existing right.                                                                                                   
06    * Sec. 8.  The uncodified law of the State of Alaska is amended by adding a new section to                         
07 read:                                                                                                                   
08       VALIDITY OF EXISTING TEMPORARY PERMITS ISSUED BEFORE THE                                                          
09 EFFECTIVE DATE OF THIS ACT.  (a)  A temporary permit issued before the effective date                                   
10 of this Act by the Department of Natural Resources under AS 46.15 authorizing the temporary                             
11 use of water is valid and remains in effect, notwithstanding that public notice was not                                 
12 provided under AS 46.15.133 or the criteria set out in AS 46.15.080 were not applied before                             
13 the temporary permit was issued.                                                                                        
14       (b)  A temporary permit described in (a) of this section shall be considered to be an                             
15 authorization for temporary use of water under AS 46.15.155, enacted by sec. 6 of this Act, as                          
16 if AS 46.15.155 had been in effect at the time the temporary permit was issued.  A temporary                            
17 permit described in this subsection is subject to the terms and conditions set out in the                               
18 temporary permit and is subject to the requirements of AS 46.15.155, enacted by sec. 6 of this                          
19 Act.                                                                                                                    
20    * Sec. 9.  The uncodified law of the State of Alaska is amended by adding a new section to                         
21 read:                                                                                                                   
22       TRANSITION:  REGULATIONS.  (a)  Under AS 44.62.125(b)(6), the regulations                                         
23 attorney may change the term "temporary water use permit" in regulations of the Department                              
24 of Natural Resources concerning water use to "authorization for temporary use of water" as                              
25 consistent with this Act.                                                                                               
26       (b)  To the extent that the regulations are not inconsistent with this Act, regulations                           
27 relating to water management adopted by the Department of Natural Resources under                                       
28 AS 46.15 and in effect on the effective date of this Act remain in effect until amended or                              
29 repealed and may be administered and enforced by the Department of Natural Resources.                                   
30    * Sec. 10.  Except as provided in sec. 11 of this Act, this Act takes effect immediately under                     
31 AS 01.10.070(c).                                                                                                        
01    * Sec. 11.  Section 4 of this Act takes effect July 1, 2002.