Legislature(2013 - 2014)BARNES 124
02/01/2013 01:00 PM House RESOURCES
Audio | Topic |
---|---|
Start | |
Overview(s): Alaska Stand Alone Gas Pipeline Project Update | |
HB78 | |
HB77 | |
Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
+ | TELECONFERENCED | ||
*+ | HB 78 | TELECONFERENCED | |
+ | TELECONFERENCED | ||
= | HB 77 | ||
HB 77-LAND DISPOSALS/EXCHANGES; WATER RIGHTS 2:19:26 PM CO-CHAIR FEIGE announced that the final order of business is HOUSE BILL NO. 77, "An Act relating to the Alaska Land Act, including certain authorizations, contracts, leases, permits, or other disposals of state land, resources, property, or interests; relating to authorization for the use of state land by general permit; relating to exchange of state land; relating to procedures for certain administrative appeals and requests for reconsideration to the commissioner of natural resources; relating to the Alaska Water Use Act; and providing for an effective date." 2:19:43 PM WYN MENEFEE, Chief of Operations, Division of Mining, Land & Water (DMLW), Department of Natural Resources (DNR), began by addressing the question from the prior hearing regarding whether mineral estate can be conveyed through exchanges. He specified that mineral lands cannot be conveyed per Section 6(i) of the Alaska Statehood Act. If the mineral estate is conveyed to other entities, the state forfeits the land to the federal government. However, the mineral estate can be conveyed back to the federal government. For clarification, Mr. Menefee explained that a long-term lease for the AS 38.05.102 preference right would be over 10 years. Two statutes combine to provide that right, which is not a mandatory preference right, but is an option after 10 years. 2:21:30 PM MR. MENEFEE, returning to the briefing paper, directed attention to point 5, which addresses aquatic farm leases, which are 10- year leases that can be renewed. Currently, leases can be renewed when an individual is in good standing for one term, not to exceed the time of the original lease term. Therefore, this proposal would include aquatic farm leases such that an individual with a 10-year aquatic farm lease could obtain another 10-year lease if that individual is in good standing. Moving on to point 6, which addresses temporary water use authorizations, he stressed that temporary water use authorizations are not a water right. A temporary water use authorization is temporary, revocable, modifiable, and does not provide any long-term right to that water. Therefore, temporary water rights are used for development projects throughout Alaska, such as for oil and gas, mining, construction, and Department of Transportation & Public Facilities maintenance of roads. Current statute specifies that a temporary use authorization can be issued for up to five years, but the division has observed that some projects take over five years. In the case of a project that still needs water at the five-year mark, DMLW reevaluates and moves through the same process such that it is vetted through the Department of Fish & Game (ADF&G) to ensure no other water rights or habitat will be impacted. Upon completion of that process, another temporary water use authorization not to exceed five years is issued. Mr. Menefee informed the committee that there has been discussion regarding whether to challenge that, and therefore this proposal would clarify that the division can issue another temporary water use authorization to the same individual for the same location for another five years. Basically, it is a new adjudication process. 2:23:46 PM CO-CHAIR SADDLER inquired as to whether there is any absolute cap on the amount of time that leases for aquatic farms or temporary water use can be extended. MR. MENEFEE explained that for aquatic farms there is a one-time renewal for another 10 years, after which it must be a competitive process. For temporary water use authorizations, there is no cap on the number of times the authorization can be reissued. He highlighted that there is a difference between "reissue" and "renew". Renewal refers to a [lessee] in good standing for a project that has not changed. However, reissue is a process by which the division considers [the lease new] and considers all aspects of it. Basically, the division is adjudicating from the beginning even though the division knows the project [and lessee] has been there before. For example, for a 15-year project three separate water use authorizations could be issued for that project. CO-CHAIR SADDLER surmised then that practically speaking there is no limit on how many times one can renew. MR. MENEFEE clarified that although there is no limit for temporary water use authorizations, each time the division reviews what other needs there are for the water and what other water rights there are. Furthermore, there is no right inferred from obtaining multiple temporary water use authorizations in the past. 2:25:46 PM REPRESENTATIVE SEATON requested further explanation of the notation in point 6 that temporary water use authorizations "are mainly used by exploration projects and construction projects that are not conducive to permanent water rights". MR. MENEFEE explained that companies can apply for a water right from the outset [of a project]. With a full water right companies have to apply and then they have two years to perfect that water right at which point "it stays with it". For example, a project that needs water rights at various periods throughout the project and does not need a long-term water right. He clarified that water is needed temporarily at one location and then another location. Water rights, on the other hand, are typically used when water is needed from a location continuously. 2:27:20 PM REPRESENTATIVE P. WILSON informed the committee that the Sitka Sound Science Center has [had a temporary water use authorization] for some time. However, now the U.S. Forest Service has expressed the need for the water. She then asked whether the U.S. Forest Service has priority for the stream. MR. MENEFEE answered that in Alaska water rights are on a first come first served basis, and thus a priority right is based on the date of the application. Temporary water use authorizations have nothing to do with that, he said. For instance, in a situation in which an entity has a temporary water use authorization and another entity applies for the water right, the entity applying for the water right would be first in line. Usually those companies that believe they might have to compete for the water or they believe they need to protect the water may apply for a water right. Again, whoever applies for the water right first is considered first. 2:29:08 PM CO-CHAIR FEIGE asked whether a water right is revocable. MR. MENEFEE explained that after one first applies for a water right permit that applicant must prove and perfect the use of it prior to certification of that water right. With regard to whether the water right can be revoked after certification, Mr. Menefee said he would have to provide that answer later. 2:30:15 PM CO-CHAIR SADDLER asked whether a temporary water use permit has been superseded or boxed out by an application for a water right. MR. MENEFEE said that he did not know, but offered to find out. 2:30:36 PM MR. MENEFEE, returning to the review of his briefing paper, directed the committee's attention to point 7, which addresses water reservations. A water reservation specifies the amount of water flow to protect and the remaining amount of water flow can be used to appropriate through temporary water use authorizations or water rights, but the amount of protected water flow cannot be used. One can apply for a water reservation for navigation, habitat, recreation, and water quality. Currently, anyone can apply for a water reservation after fulfilling all the obligations an agency would, including the data necessary to prove the need for a water reservation. Unlike a water right for which an application is the priority, the priority for a water reservation is not established until the in-stream flow reservation is proven by the state as needed and granted, and then it returns to the priority right. Alaska is the only state in the nation that allows a person to apply for and hold a water reservation, which this proposal changes. The change is being requested so that when there is an application for a water reservation, it is based in sound science and good information, routed to the applicable agencies, and would not allow an individual to apply and hold a water reservation. 2:33:36 PM CO-CHAIR FEIGE pointed out that flow rates can fluctuate, and therefore he inquired as to who gets priority if the flow decreases to the point that there is no surplus after all the water reservations and rights are utilized. MR. MENEFEE clarified that a granted water reservation is protected over other rights and the other rights must defer to the water reservation. The water reservation is a priority right, which is why it is important to have good data to support why a water reservation is a priority. 2:34:54 PM REPRESENTATIVE SEATON asked whether the legislation allows a person to petition the agency to apply for a water reservation, such as is the case in Idaho. MR. MENEFEE replied that is correct. A person can [petition] a water reservation by approaching an agency and mixing the data from the person with that of the agency. If the agency believes protection of the water is a priority, then it will submit an application. REPRESENTATIVE SEATON surmised then that as the legislation is structured there is an obligation to the agency to consider such a petition. MR. MENEFEE confirmed that the agency has an obligation to consider a petition, but not to submit an application. 2:36:04 PM CO-CHAIR SADDLER related his understanding that temporary water use permits and water reservations are not percentages of flow but rather raw numbers of gallons per second. MR. MENEFEE said that is correct. 2:36:18 PM MR. MENEFEE, returning to his briefing paper review, directed the committee's attention to point 8. He explained that there are six hydrologic units in the state, which were established by the U.S. Geological Survey (USGS). Existing statute specifies that one who takes water from one hydrologic unit to another hydrologic unit, including filling a water bottle from one unit to the next, is guilty of a misdemeanor. However, the division only wants to address [the transfer/removal] of significant amounts of water. The definition of a "significant amount of water" is specified in regulation and is what is currently permitted. Therefore, the proposal in HB 77 is to specify that it will address moving significant amounts of water between hydrologic units by permitting it. In response to Co-Chair Feige, Mr. Menefee informed the committee that the definition of "significant amount of water" can be found in the 11 AAC 93.035 (b)(1)-(4), Requirement to apply for the use of a significant amount of water, which read: (b) A person shall file an application for a water right under 11 AAC 93.040 or for a temporary water use authorization under 11 AAC 93.220 before (1) the consumptive use of more than 5,000 gallons of water from a single source in a single day; (2) the regular daily or recurring consumptive use of more than 500 gpd from a single source for more than 10 days per calendar year; (3) the non-consumptive use of more than 30,000 gpd (0.05 cubic feet per second) from a single source; or (4) any water use that may adversely affect the water rights of other appropriators or the public interest. 2:38:26 PM MR. MENEFEE, returning to the briefing, moved on to point 9 that addresses appeals. The suggested change is to affect standing and burden of proof in appeals. Currently, some people will await an appeal on certain types of authorization decisions and not participate in the process. The goal is encourage public participation and do so during the process. The change is such that if the division has provided at least 30 days of public notice and the public has been informed that it needs to participate, one must participate in order to appeal at the end. The aforementioned allows the division to address and mitigate an individual's concerns and issues during the process while still maintaining the right to appeal if the individual continues to disagree with the division's decision. Mr. Menefee emphasized that the aforementioned is the standing aspect. With regard to the burden of proof aspect, existing statute allows an individual who is aggrieved [to file an appeal], which he opined provides an emotional connotation that an individual just does not like a project. The goal with the proposed change in HB 77 is for the individual to show that he/she is substantially and adversely affected [by a decision]. 2:40:19 PM REPRESENTATIVE SEATON posed an example of a fisherman who in the past harvested fish in Cook Inlet. If a project was proposed that would significantly impact a watershed, would the fisherman have to genetically illustrate that a certain portion of the fish he caught came from the impacted watershed in order to meet the suggested standard, he asked. MR. MENEFEE said he could not provide a definitive answer for every situation as that would be pre-determining the appeals. However, he offered that the division would expect the fisherman to relate how the fisherman is impacted, which could be as simple as pointing to fish documentation that fish cycle around Cook Inlet and come from the various streams. Most likely, the division will not move into the scientific burden of proof of genetic sampling. Still, he opined that there would be the desire to be presented with evidence as to why the individual believes he/she is substantially and adversely impacted. REPRESENTATIVE SEATON opined that this matter will require more review as HB 77 would seem to shift the burden of proof of impact to the individual, which is of concern. 2:42:51 PM CO-CHAIR SADDLER inquired as to the degree of participation an individual would have to put forth during the public review process to be eligible to appeal. MR. MENEFEE clarified that the division would merely require that those who want to appeal at the end to have brought up the concern earlier, even just once. Furthermore, the requirement requires that the division tell the public that it has this opportunity and must take advantage of the opportunity in order to file an appeal and the notice has to be at least 30 days. Those authorizations that do not require 30 days' notice would not be included in this. 2:43:51 PM MR. MENEFEE, continuing review of his briefing paper, directed attention to point 10. He explained that existing law specifies that only mineral closing orders are subject to public notice requirements. However, the goal is to ensure that the public is aware of any changes to the mineral entry, and thus HB 77 proposes to include mineral orders and leasehold location orders not just mineral closing orders to the actions that limit the use of the mineral estate on state lands of which the public should be made aware. Moving on to point 11, Mr. Menefee informed the committee that in the unorganized borough of the state DNR is the platting authority. Therefore, DNR has to make decisions regarding subdivision of land. This legislation would allow DNR to make decisions without public notice for alterations of platted boundaries when [the owners approve] and no public easements or rights-of-way are impacted. Currently, public notice has to be advertised for which the owner is required to pay. Furthermore, the owner has to wait 30 days. Historically, the division has found that no one comments on such matters as there is no public interest impacted, just the individual's land. 2:45:45 PM REPRESENTATIVE SEATON inquired as to how these public easements impact stream rights-of-way. He further inquired as to whether any land with a stream or lake automatically has a public easement or does this mean the subdivision cannot restrict the public right-of-way. MR. MENEFEE clarified that there are not easements on all streams and lakes; the [AS] .125 "to and along" easement is only in place when state lands are disposed. On the general stream located on federal land or that went from the federal government to a private individual that homesteaded, the state does not have a reservation as an easement along those water bodies. Since the state does not have any ownership interest, the department cannot place a "to and along" easement on the land. As that unorganized borough, the department could say an easement is necessary. The aforementioned, however, only comes into play when state land is disposed. REPRESENTATIVE SEATON recalled that under that statute, any time there was an action by the state, an easement had to be placed along any streams or rivers. He asked whether the platting or subdivision would create that because platting and subdividing seems to be a state action. MR. MENEFEE agreed to provide the committee an answer. 2:47:57 PM CO-CHAIR FEIGE highlighted that there is a difference between a stream and a navigable waterway. He asked if ownership crosses navigable waterways or are areas platted such that the edge of the plat is the edge of the assumed right-of-way due to the navigability of the waterway. MR. MENEFEE pointed out that there are two different types of navigability. First, state navigability in Title 38 is used to determine action when the state disposes of something. This navigability is a fairly low navigability standard. He pointed out that the state owns all the public water, whether navigable or not. There is public trust doctrine that allows the public to have rights to be able to use the water. Second, under federal navigability, the state owns the beds of the water. If the state already owns the beds of the water, when it is subdivided it would already be subdivided because [the state owns the bed of the water]. Therefore, that would not be an issue. The issue would arise when the owner owns the land [and the beds of the water]. 2:49:48 PM MR. MENEFEE, returning to the briefing document, continued with point 12 that re-defines public auction to include the online auctions. Point 13 relates the proposal of HB 77 to allow the division the option to perform preliminary decisions for non-oil and gas related decisions. The proposal would clarify AS 38.05.035, which merely specifies that for non-oil and gas decisions the division is required to perform a written decision. The change would also address the fact that the division performs preliminary findings and then final findings and sometimes only performs one finding and avoid charges that the division is not following the process. He noted that performing preliminary findings are actually more inclusive of the public. Point 14 encompasses miscellaneous minor statutory revisions that provide minor working revisions to make statutes more readable and understandable while also clarifying statutory intent. 2:51:58 PM REPRESENTATIVE SEATON, referring to Section 44, asked if the change retroactively cancels actions that have been in the adjudicatory process or on appeal, which may include those who are in the aggrieved status. He inquired as to how Section 44 will work without retroactively dismissing actions that are being appealed. MR. MENEFEE explained that current water reservations statute specifies that a person may hold a water reservation, but the proposed change would mean that no person can hold a water reservation. He then informed the committee that 438 water reservations have been applied for, of which 35 are from persons and the remainder are from agencies. Therefore, if this language is accepted by the legislature, the division would not be able to issue water reservations to applicants who are persons. However, those applications would be referred to the applicable agencies, which would decide whether to apply for the water reservation or not. 2:55:13 PM REPRESENTATIVE SEATON opined that this proposal appears to retroactively and significantly change how things work since the agency is not required to continue the persons' applications that have already been submitted. Requiring that the commissioner convert the existing applications by persons to an agency application would at least keep the public process intact. MR. MENEFEE remarked that the agency may or may not agree that the applications by persons are worthwhile. To mandatorily convert these applications without evaluating each of them would mean the agency supports the application, although it may or may not. REPRESENTATIVE SEATON clarified that he was not proposing a mandate for the agency to grant the application but rather a mandate to submit and consider the application. Again, canceling the applications by persons seems to retroactively change the public process, which he characterized as problematic. 2:57:31 PM CO-CHAIR FEIGE requested a list of the names of the persons who would be impacted by passage of HB 77. MR. MENEFEE agreed to do so. 2:57:55 PM CO-CHAIR FEIGE then announced that HB 77 would be held over.
Document Name | Date/Time | Subjects |
---|---|---|
01.17.13 Chenault Wetlands 404 Primacy Transmittal Letter.pdf |
HRES 2/1/2013 1:00:00 PM |
|
HB 78 (H) RES Hearing Request.pdf |
HRES 2/1/2013 1:00:00 PM |
HB 78 |
HB 78 Sectional Analysis.pdf |
HRES 2/1/2013 1:00:00 PM |
HB 78 |
HB0078-1-3-011813-DEC-Y.pdf |
HRES 2/1/2013 1:00:00 PM |
HB 78 |
HB0078-2-2-011813-DNR-Y.pdf |
HRES 2/1/2013 1:00:00 PM |
HB 78 |
HB0078-3-2-011813-LAW-N.pdf |
HRES 2/1/2013 1:00:00 PM |
HB 78 |
HB0078A.pdf |
HRES 2/1/2013 1:00:00 PM |
HB 78 |
HRES AGDC 2.1.13.pdf |
HRES 2/1/2013 1:00:00 PM |