Legislature(2001 - 2002)
04/08/2002 01:40 PM Senate CRA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 351-CONVEYANCE OF TIDELANDS TO MUNICIPALITIES
SENATOR ROBIN TAYLOR read the following into the record:
For too long, coastal municipalities have been denied
control of the land within its own boundaries. SB 351
will correct problems in existing law, giving
communities more control over some of its more valuable
property.
SB 351 makes the transfer of tide and submerged lands
to municipalities much easier than is in current law.
It requires the commissioner to identify specific land
the state may reserve in the public interest or access
and transfer the balance to the municipality. From
there, local government and the local public can
determine how that land is of the most value. In some
cases, it will remain wild for its scenic value; in
others, it may be developed. In either case, the final
decision will be made at the local level. Residents who
actually have to live with the results will have easy
access and input in the decision making process.
SB 351 also allows the municipality to make selections
and receive an answer within an acceptable timeline.
For many communities, the selection process has been
brought to a "hurry up and wait" status because the
department has not made a determination. Often, that is
because of the department's workload. This bill
corrects that problem by providing for a 90-day
timeline for response. This time frame gives the
department 90 days to review the request. If there is
no objection based on the reasons stated in Section 1,
the land is conveyed to the municipality.
Making decisions for local communities on how they
conduct their business should not be up to state
government. Communities make the best decisions for
their community. The public process always works best
on a local level. SB 351 will give local governments
the ability to best determine how land within its
boundaries can and will be used for its residents.
SENATOR TAYLOR said he just received the fiscal note from the
Department of Natural Resources and they indicate they are unable
to calculate the fiscal impact for the bill. He was sure they
would comment further. He said that if a 90-day objection period
is not sufficient the department should suggest a timeframe.
There are many communities that have never received their land
transfers, particularly the tideland transfers. As a policy
matter, this situation should be resolved and this is one
suggestion.
CHAIRMAN TORGERSON said he wasn't sure 90 days would be workable
either, but for different reasons such as clouded titles.
Extending the 90-day timeframe to 180 days and giving reasons for
which the commissioner could extend might be workable.
SENATOR PHILLIPS asked Senator Taylor for a specific example from
Wrangell or Petersburg and how this could help them.
SENATOR TAYLOR replied one of the biggest problems in his area is
the cost of surveying. They were looking for a solution so an
industrial complex or processing plant that wanted to locate
along the beach would be able to do so. The property might have
been transferred in essence, but it has never been surveyed and
conveyed so it is still literally held within the state's
ownership. Additionally, the Legislature has required that recent
conveyances can only be made through a lease while in earlier
conveyances the communities could actually sell their tidelands.
If someone wants to develop tidelands now, the state requires the
proposed developer to survey much more land than they need so the
cost is so huge it stops the entire process from moving forward.
SENATOR PHILLIPS asked whether that is internal policy or state
law that is driving the state to require the block surveys.
SENATOR TAYLOR thought the reason was that the Legislature had
never appropriated enough money for the state to survey the
lands. The state put off surveying and is now telling communities
they must survey. The new text states that, "Any property
conveyed without prior survey must be surveyed and if necessary,
resubdivided before its lease, development, or sale." The cost of
any required survey and subdivision requirements would be borne
by the municipality. He included this language so parcels for a
particular project or development could be surveyed without
including large tracts that weren't relevant to the project. He
thought this would be a way of expediting the process but he too
was concerned about the 90 day limit.
CHAIRMAN TORGERSON asked whether this came under the municipal
entitlement section.
SENATOR TAYLOR didn't know whether this would be part of their
entitlement acre-for-acre.
CHAIRMAN TORGERSON noted that 230 million acres was more than was
transferred to local governments in total.
SENATOR AUSTERMAN said municipalities are specifically referred
to, but he couldn't tell whether boroughs would also be affected.
SENATOR TAYLOR replied they would be affected if they owned land.
He didn't think associations or villages would qualify if they
weren't incorporated.
SENATOR AUSTERMAN was concerned about scope because areas without
municipalities such as Prince of Wales Island with their
mariculture issues could be affected. He wondered whether
municipalities could take over the sub leases and deal with those
mariculture issues.
SENATOR TAYLOR said Wrangell received most of their tidelands
through a conveyance by the state and, at the same time, received
all the existing leases that were on those tidelands. There were
leases for storage facilities and log storage on tidelands that
never went dry. Although there's probably opportunity for the
community to modify those leases there hasn't been a pattern to
do that because it would affect business stability as much as
anything. Leases have been transferred and he's not aware of any
problems that have occurred at renewal. However, he agreed the
question was valid because it is possible that a municipality
could dramatically change a lease upon renewal.
SENATOR AUSTERMAN then questioned how "municipality" would be
defined because on Kodiak Island the uplands are refuge and the
lower lands are state waters that are leased from the state to
set netters.
CHAIRMAN TORGERSON said the city and borough limits are quite
well defined. Borough limits might not be completely surveyed but
they follow section lines fairly well and city governments follow
their own survey lines. He then read, "This section does not
enlarge or diminish the general grant land entitlement of a
municipality nor is the conveyance of the section counted against
the municipalities general land grant."
CAROL CARROLL, Department of Natural Resources representative,
read the following statement into the record:
Existing state law (AS 38.05.825) allows DNR to convey
state-owned tidelands and submerged lands to
municipalities if they are needed for a specific
development project or use. The existing law protects
the public's right to use and have access across these
tidelands for navigation, recreation and other uses
(referred to as the public trust doctrine) after
conveyance.
The existing law has enabled municipalities to acquire
tidelands and submerged lands that are needed for
development. Lands have been transferred to Wrangell,
Whittier, Anchorage, Lake and Peninsula Borough,
Dillingham, Cordova, Valdez, and many other communities
under this existing law. DNR is not aware of any
particular problem with the existing law and is unsure
why the changes are proposed.
This legislation modifies AS 38.05.825 by removing the
requirements for a demonstrated need and specifically
would allow municipalities to sell tidelands and
submerged lands. It also requires the commissioner to
either approve or disapprove an application within 90
days or it automatically would be approved without any
public notice or decision by DNR.
DNR strongly opposes this bill as it makes AS
38.05.825, the law allowing conveyances of tidelands to
municipalities, unconstitutional and unmanageable.
Section 1 of the bill deletes most of the criteria for
approval of conveyances in the existing law, including:
that the land must be suitable for occupation and
development, that the land be appropriately classified
by either a state or municipal land use plan, and that
there be a need for the transfer for an existing or
proposed project.
Section 1 also adds a provision that the commissioner
can only disapprove a municipal application when the
state can identify a specific state use or statutory
reservation of the land. The only lands with such
reservations would be legislatively established areas
such as Kachemak Bay State Park, State Game Refuges and
Critical Habitat Areas, state ferry terminals and state
boat harbors, and a few other sites. This provision
would likely result in the conveyance of virtually all
tideland and submerged lands within municipalities, an
area DNR estimates to be 20 to 30 MILLION acres.
The consequences of such conveyances are staggering.
For example, the North Slope Borough could receive
title to the surface of all offshore lands in Prudhoe
Bay, thereby controlling where and how development
occurs on state oil and gas leases that underlay the
offshore waters. Many log transfer facilities and
aquatic farm sites in Southeast would be under borough,
not state, control, with multiple different rules
depending on municipal, not state, laws. These are
only a few examples.
In addition, such massive conveyances to municipalities
in Southeast Alaska would jeopardize the existing Quiet
Title Action that the State has filed in the US Supreme
Court against the federal government that includes
tidelands and submerged land in the Tongass National
Forest.
Section 2 requires DNR to approve or disapprove a
conveyance within 90 days, or it is automatically
approved. Because this provision allows conveyances to
be approved automatically after 90 days without public
notice as required by the Constitution, DNR believes
this section of the bill is unconstitutional. This
section also specifically allows municipalities to sell
the tidelands. Under federal law and the Alaska
Constitution, tidelands and submerged lands are
considered Public Trust resources held by the state for
the use and enjoyment of all citizens, and Public Trust
resources generally cannot be sold. By specifically
allowing for the sale of tidelands and submerged lands,
this section of the law violates the public trust
doctrine.
Because the bill allows virtually all tidelands and
submerged lands within municipal boundaries to be
conveyed under this bill, shortly after the bill
passes, DNR will likely be flooded with applications
that it will be unable to process within the 90-day
timeframe.
In conclusion, DNR believes that existing law AS
38.05.825 allows the state to transfer tideland and
submerged lands to municipalities for a specific
development project or use. This authority works as
presently defined.
SENATOR AUSTERMAN asked whether the department would be willing
to negotiate on the 90 day limit if the bill were to become law.
MS. CARROLL replied she doesn't know what the timeframe would be
but it certainly would depend on how many applications were
received. She would ask the department what timeframe they could
give the committee.
CHAIRMAN TORGERSON suggested she talk with the sponsor since he
just received the fiscal note and realized there might be
problems.
SIDE B
2:45 pm
SENATOR PHILLIPS asked whether DNR would need additional staff if
the bill were to become law.
MS. CARROLL said she could provide him with information regarding
the current staff levels. The fiscal note is indeterminate
because they don't know what kind of response they would get from
municipalities. "Twenty to thirty million acres is a lot of
land."
SENATOR PHILLIPS asked how many conveyances are currently done in
a year.
RON SCHONENBACH with the Department of Natural Resources Division
of Mining Land and Water said in Southeast they have entertained
applications from eight municipalities since the current bill was
passed in 1995. All the municipalities have full management
authority for those tidelands. They have a pending application
from the Haines Borough and another from the Ketchikan Borough.
All others from Southeast have been processed.
SENATOR PHILLIPS asked him to provide the committee with
information regarding the rest of the state.
MR SCHONONBACH said he would get that information. The staff that
deals with the leases for the rest of the state is covered in the
resource allocation development section and are also the ones
doing the AS 29 conveyances to municipalities along with the
tideland conveyances to municipalities.
SENATOR PHILLIPS commented some community must have complained.
CHAIRMAN TORGERSON announced to bill would be set aside so Ms.
Carroll could provide the requested information.
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