Legislature(2013 - 2014)BUTROVICH 205
03/10/2014 03:30 PM Senate RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| HB77 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 77 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | TELECONFERENCED |
HB 77-LAND USE/DISP/EXCHANGES; WATER RIGHTS
3:34:21 PM
CHAIR GIESSEL announced HB 77 to be up for consideration [SCS
CSHB 77(FIN), version 28-GH1524\Y, was before the committee].
SENATOR DYSON moved to adopt 2d SCS CSHB 77(RES), version 28-
GH1524\H, as the working draft. There were no objections and it
was so ordered.
3:35:21 PM
LINDSAY WILLIAMS, staff to Senator Giessel and the Senate
Resources Committee, Alaska State Legislature, Juneau, Alaska,
explained the difference between version H and the previous
version Y.
3:36:09 PM
She explained that on page 1, line 11, section 1, of draft H the
phrase "Notwithstanding any other provision of law" was removed
and replaced with a clause that removes potential conflicts with
three applicable title provisions in Title 38. They are found on
page 2, starting on line 17: AS 38.04, AS 38.05, and AS 38.95.
Throughout section 1 the "Commissioner" was also changed to the
"Department".
3:36:26 PM
Section 1 restructures general permits to be used only for
activities that the department can already authorize through a
permit under AS 38.05 and AS 38.95 or regulations adopted under
those statutes. This eliminates leasing, easements, material
sales, other sales, and other provisions of Title 38.
Page 2, line 2, in Section 1, following "significant" "and" was
replaced with the word "or" so that permits may only be issued
if they are unlikely to result in significant or irreparable
harm to state land or resources.
Lines 3-10 on page 2 add language that spell out the
requirements for public comment on proposed general permits. The
comment period must not be less than 30 days. The department
shall make available to the public a written decision issuing
the general permit. The decision to issue a general permit is
appealable under AS 44.37.011, however a decision not to issue a
permit does not require a written decision and that is not
appealable (page 2, lines 11-15).
3:38:25 PM
Section 2, on page 2 makes a change that is made throughout the
document: following the word "Commissioner" used to be a phrase
"not later than" and that is replaced with "within". This is a
stylistic change that was recommended by the legislative legal
team to conform to the manual of legislative drafting.
In Section 4 on page 7, line 11, following the word "may" the
word "within" again, the same as before.
Section 5 on page 7, line 29, following the word
"reconsideration" the word "within" replaced the words "not
later than".
In Section 6 on page 8, line 6, following the words "to the
court" the word "within" replaced the words "not later than".
3:39:22 PM
In Section 7 on page 8 deals with AS 38.05.035, which are the
powers and duties of the director, the preference right
provision applicability was narrowed to state land leases issued
competitively under AS 38.05.070; in the previous version
language could have been construed to pertain to oil and gas
mineral leases.
On line 13, page 8, the word "valid" replaces "active", so now
it reads "valid municipal entitlements". Also on line 13,
changes made last year to AS 38.05.035 changed the lettering in
this section; the letter (l) now reads (p).
On page 8, lines 21-24, a new sentence was added to address the
preference rights. The sentence is:
An application for a preference right under this
section must be filed with the director within 120
days after notice to the lessee or the municipal
entitlement land selection if the director grants a
preference right.
On page 8, line 30, the word "avoided" was added after the word
"be" and on line 30 through page 9, line 2, clarifies how the
municipal entitlement would be affected by a granted preference
right. If the preference right application is approved, the
amount of land within the overall municipal entitlement under AS
29.65.10 - AS 29.65.30 should be reduced by the amount of land.
3:41:28 PM
On page 9, line 2, the funds transferred to the municipality are
subject to appropriation. This relieves any concern with
creating a dedicated fund.
3:41:40 PM
SENATOR MICCICHE joined the committee.
3:42:08 PM
MS. WILLIAMS stayed on page 9, line 3, and said "land selection"
was added after the word "entitlement". On Page 9, lines 5-6,
the definition of "building" was modified to add a size
constraint of "not less than 500 sq. ft."
Section 12 on page 11, line 17, had another stylistic change
dealing with leasing procedures in AS 38.05.075: following the
word "made" the word "within" replaced the words "not later
than".
The old Section 13, which in version Y used to be on page 11,
line 16, was removed for a stylistic edit suggested by
legislative legal. So, subsequent sections were renumbered
accordingly.
3:43:10 PM
Section 13, on page 12, line 10, following the word "made" one
will find the word "within" that replaced the words "not later
than". The same change was made in section 14, in line 29.
In Section 22 on page 16, line 17, deals with AS 38.50.10: the
word "to" was deleted and "that would" was inserted, a stylistic
change.
On line 27 the word "within" following "AS 38.50.140", which
replaced the words "not later than".
3:44:27 PM
In Section 26 on page 17, line 31, following the word "review"
"within" replaced the words "not later than". Another stylistic
change. Following the word "days" the word "after" replaced
"from",
3:45:00 PM
In Section 34 on page 20, line 16, following "reconsideration"
"to a person" was made singular; it used to say "persons".
3:45:17 PM
In Section 36 on page 21, lines 8-9, AS 15.133 dealing with
notices and objection, after the word "removal" a clause was
added saying "when the commissioner determines that the proposal
or application is ready for a decision". Basically, the
commissioner doesn't have to prepare a notice of application for
sale, appropriation, or removal until the application is ready
for a decision. It would be inappropriate for the commissioner
to move forward with the notice until appropriate application
and necessary data are available to begin the adjudication
process.
Staying on page 21, line 12, after the word "that" the words
"not later than" were replaced with "within".
3:46:21 PM
Old Section 42 in the Y version was found on page 22, line 11,
and this section contained changes to AS 46.15.145(a) that
removed the word "person" from eligible applicants. In Version H
this section was removed and the statute reads as it does today,
leaving in the word "person". So, subsequent sections were
renumbered accordingly.
In Section 40 on page 22 dealing with AS 46.15.145, reservation
of water, items were added that the commissioner must consider
in determining the proposed reservation is in the public
interest under (4) beginning with:
(a) on line 23 the commissioner must consider the benefit to the
applicant;
(b) the effect of the economic activity;
(c) the effect on fish and game resources and public recreation
opportunities;
(d) the effect on public health;
(e) the effect of loss of alternate uses of water;
(f) harm to another person;
-and moving onto page 23, (f) and (g) say the effect upon access
to navigable or public water.
She explained that this language was pulled directly from AS
46.15.080: criteria for issuance of a permit. It's also found in
the regulations for the department under "reservation of water."
This just puts it right into statute. And the following
subsections were numbered accordingly.
3:48:20 PM
In Section 42 on page 23 several subsections were added to AS
46.15.145 explaining the treatment of applications. Beginning on
line 15, (g) directs the commissioner to issue any approved
certificates for water reservations applied for by a person to
the appropriate state agency to ensure that a public entity
holds the reservation for a public resource; (h) grants the
commissioner discretion in determining when and in what order to
process water reservation applications. It clarifies that the
order through which the application must process does not affect
the priority of the appropriation. In subsection (i), only the
applicant for a water reservation or an agency that holds the
reservation may appeal the subsequent administrative decision
under AS 46.15.145(f), and that appeal right may not be
transferred or assigned. "They" on line 27 clarifies how much
data must be submitted before the commissioner can issue a
certificate of reservation. It specifies that not less than five
years of non-proprietary public domain hydrologic data must be
collected by or for the applicant to support the application.
Subsequent sections were then renumbered accordingly.
3:49:43 PM
In Section 44, on page 24, line 7, a new section was added to
read: "An applicant under this chapter does not have a property
right in the application." Basically, the application itself
does not constitute a right. The right can only be attributed
once a certificate has been issued by the commissioner. This
does not apply to the property right granted through a
traditional water right for beneficial use upon certification.
Since this is a new section, subsequent sections were renumbered
accordingly.
Section 45 also on page 24 is new and adds "federally recognized
tribe" on lines 11-12 to the definition of a "person." While DNR
currently interprets federally recognized tribes to be included
in this definition, this very clearly spells it out. Subsequent
sections were also renumbered.
Section 48, which used to be Section 47, has transition language
for pending applications for reservations of water. Section 48
was changed to require that all applications filed before the
effective date of this act will be processed using the
provisions of this act.
It used to read:
The Department of Natural Resources shall return any
applications and fees for applications pending as the
effective date of Section 42 of this act to persons no
longer authorized to reserve water under Section 42 of
this act.
She said that Section 48 also clarifies that the transition
language pertains to applications filed under AS 46.15.145.
New Section 51 was added; this used to be Section 50. It adds
provisions of this act take effect immediately including changes
to AS 46.15. She said that completes the changes.
3:52:07 PM
WYN MENEFEE, Chief Operations Officer, Division of Mining, Land,
and Water, Department of Natural Resources (DNR), presented a
power point that explained some of the changes to HB 77. He said
they have had a lot of meetings since hearing this bill last
year and had incorporated language to address the concerns they
heard. He would first cover all the different parts of the bill
lumping the provisions of the sectional analysis together where
they make sense.
3:54:21 PM
He started with general permits in Section 1 for which they
heard concerns about the "notwithstanding" clause, because it
was felt that general permits might be used for much more than
they were intended to be used for. So, that was removed and
replaced with language saying if it conflicts with Title 38.04,
Title 38.05 or Title 38.95, the only places there might be a
conflict. Secondly, the department can only use the general
permit where they can already authorize permits under AS 38.05
or AS 38.95. This really brings the scope of what a general
permit can do down to a very few things. They will write a
decision on an application and give the public 30 days' notice.
The decision is appealable and they made that clear along with
the fact that subsequent actions that people perform under a
general permit aren't individually appealable. General permits
don't include things like easements, oil and gas mineral
leasing, coal leasing, material sales or other disposals of
state land.
3:56:08 PM
They also changed language so that you can't get a general
permit if it causes "significant or irreparable harm" by adding
"or irreparable harm."
CHAIR GIESSEL said she had been asked the definition of
"unlikely" and what timeframe he was looking at for "irreparable
harm."
MR. MENEFEE answered unlikely to result in significant or
irreparable harm refers to actions in the foreseeable future.
CHAIR GIESSEL asked for an example of a general permit that he
thought would cause irreparable harm.
MR. MENEFEE answered if it would cause irreparable harm, they
wouldn't give the general permit. They can still permit
applications through a miscellaneous land use permit and put
provisions in about how they can fix something that happened:
for instance, if they gave a permit for someone to bring
equipment across some area and they knew it was going to cause
some impact, but it was going to be repaired. However, for a
general permit the applicant would have to show that it's not
going to cause significant or irreparable harm.
3:58:31 PM
SENATOR FRENCH said Section 1 motivated maybe thousands of
Alaskans to come out against this bill. He went to a meeting on
it in Anchorage on a cold December night and there was standing
room only - probably 250 people. He wondered whether the
department would gain more by just jettisoning the general
permits and moving on to the other reforms that the bill offers.
MR. MENEFEE answered that he believed this was a good provision,
because it's an efficiency measure. The way the changes
constrain it so that it wouldn't be used for authorizing large
projects; it's not what people were saying it would do. It's for
very small things. However, if the department gets repetitive
requests for the same type of thing that they always say "yes"
to and put these parameters around that authorization, that's a
very good candidate for doing a general permit. It saves both
the applicant and the department time and money. General permits
are used very commonly by many different agencies, but it wasn't
clarified in DNR statutes.
SENATOR FRENCH asked what he is gaining from this versus the
existing system. It might be helpful to give an example of a
situation.
MR. MENEFEE said for instance, a general permit could be used
for a situation they had on a river with hundreds of mooring
buoys, all that need permitting. Every single person would be
required to come in and get a permit, do an application, go
through the process of the public notice, and pay for it. The
department already decided that if you have a Corps permit for
that marine buoy and you've shown that it is already in place,
they would permit it under certain conditions. The people who
met the conditions would pay for the permit and be done quickly.
In one year hundreds of buoys were permitted saving both money
and time for the department and the applicants, while protecting
the environment and authorizing lawful activities.
4:02:19 PM
SENATOR MICCICHE said a lot of people don't understand how
codifying general permits works, and because of that they want
to jettison it. People are still concerned because the original
language in HB 77 didn't have sideboards; they don't realize
those issue have been fixed in under AS 38.05 or AS 38.95 and
the "notwithstanding" language has been removed, which gives the
authority back to the ADF&G to work with DNR on using their
Title 16 codes to make sure that criteria is met. He thanked him
for the changes saying it's important to make Alaskans more
aware of the substantive changes in Section 1.
SENATOR MICCICHE asked if this bill could be used as a general
permit for a major dam in Cook Inlet or a major resource
development project for Chuitna or Pebble Mine. People are under
the impression that the department would just issue a general
permit for some of these major developments. The way he
understands this is that those sideboards don't allow those
major activities, including oil and gas exploration and
production to occur, using a general permit.
MR. MENEFEE answered that was correct. He added that a very
large project might have a very small portion that might
actually fit within a general permit. For instance, a stream
crossing that was under a general permit and the large project
needed to cross that stream. If that big project fit within the
parameter of that little portion it might work, but in general,
he would say, "no."
SENATOR MICCICHE said hundreds of folks' concerns about section
1 were heard and captured in code.
4:05:32 PM
MR. MENEFEE said in his view that section returned protections
to Alaskans that they feared went away with the
"notwithstanding" language in Section 1. It is important that
people understand that and that it was captured in code.
He moved to the land lease and sale provisions on slide 4 that
included Sections 3, 8, 9, 10, and 21. These are just
clarifications about the division's land leasing and sale
provisions. Essentially they are raising the threshold from
5,000 acres to 10,000 acres when getting the commissioner's
approval when disposing of state land. Prices have gone up since
the time the statutes were originally put in place, and they
clarified in Section 8 that you can purchase for contract
(something they already do). Then they talked about lotteries
and public auctions being allowed on-line as well as out-cry.
4:06:54 PM
Slide 5 covered extensions and renewals on land and aquatic
leases. Sections 11, 15, and 16 are about renewing or extending
leases. Generally, HB 361 that passed a couple of years ago said
you can renew leases that are done under AS 38.05.070 for
someone in good standing and they don't exceed the term of the
original lease. Aquatic farming was left out of that, because it
had a certain renewal statement already in its language, but it
doesn't match up with the other part. So, they are just making
it consistent with what already passed.
The other part is an extension for a lease where there is a
request to purchase or to renew the lease, or someone is
substantially changing their operation. They may ask for that at
the very end of their lease and there wasn't any provision to
keep that lease active while that request was being adjudicated.
So, the two-year extension gives them the capability of going
through that decision process while they are legitimately
authorized to be out there with that lease. Then the decision is
made to approve it or not.
SENATOR MICCICHE thanked him for that clarification; this is one
of those things that Alaskans are unaware of that is so
important to fishermen and shellfish farmers. It adds to and
makes lives of many hardworking Alaskans better.
4:08:45 PM
MR. MENEFEE moved to preference rights on certain land leases
(situations where you have a municipal entitlement land
selections that overlay on top of a lease). A provision giving a
preference right for people who had leases was inserted during
Senate Finance. The change clarified that language is talking
about land leases that were offered competitively through AS
38.05.070 as the intention was never to include oil and gas
leases or mineral leases. In a municipal entitlement situation
if an individual has the lease, if that land were to be
transferred over to the borough or city that lease would have to
be honored. However, this gives them the option to purchase at
the point of the selection. So the department will notify that
lessee when that selection comes over the top of their lease and
give them 120 days to tell them whether they would like to
purchase it, and then the department will run through a process
to see if they meet all the criteria to purchase that land.
Those criteria are: that they have been operating for at least
10 years under a lease, that 25 percent of their income for the
previous 10 years comes from that land, and that they've put a
building on there that is at least 500 sq. ft. Then if they
decide they meet all the criteria, when they dispose of it, they
have to do it for fair market value. And the value, because the
municipality selected it most likely for the purposes of
revenue, will be for the borough subject to appropriation by the
legislature.
4:11:06 PM
He said the preliminary written findings section had not changed
since last year (slide 7). The issue was that they already do
preliminary decisions in a two-step process: you give folks a
preliminary decision and let them comment on it and then you
make changes if necessary and write the final decision. Existing
statutes didn't actually clarify that process, so all the
changes in Sections 3, 17, 18, and 19 were essentially to
clarify that they "may" do that.
In addition, in Section 19, they clarified that they wanted to
give more public notice than what was required and that was in
lease hold location orders - not just mineral closing orders,
but opening orders and other location orders.
4:12:19 PM
Nothing has changed on land exchanges on slide 8 since last
year, but they are very important, especially with the mixed
ownership with municipal entitlements. As land becomes more
complex, there are more needs to do land exchanges. Currently,
it is almost impossible to do general land exchanges - not under
Title 29, the municipal entitlement side of things, but just on
general land exchanges.
4:13:32 PM
MR. MENEFEE clarified that they changed "aggrieved by" in
appealing to "substantially and adversely affected". However,
that is seen throughout their statutes, so therefore multiple
sections had to be adjusted to reflect that. Sections 4, 5, 6,
all have that change. He said it doesn't change the intent of
the existing statutes. Sections 12, 13, 14 are the same.
4:14:55 PM
CHAIR GIESSEL asked if a request for reconsideration in Section
14 is reduced.
MR. MENEFEE explained that the other ones say 20 days for appeal
and this one had said 30 days, and they are just trying to make
it consistent with all the other ones.
SENATOR FRENCH asked if the reduction was in last year's bill.
MR. MENEFEE answered yes. He said the general appeal statute now
says that a person to be eligible to appeal has to be aggrieved
by something. They found multiple people appealing by just
saying they don't like something, but not explaining why. So,
they clarified that the department wants something in writing
that says how they are substantially and adversely affected.
Secondly, they added a provision that would allow them to say if
they go out for notice for 30 days (a provision that is already
in for disposals of state land) and tell the people in order to
appeal this you have to meaningfully participate by submitting
comments during the process. The whole reason is that they have
found numerous times when people bring up a point at the end of
the process when the decision has been made and then someone
appeals. But it's late in the game and a delay. They would
rather see that up front, because they want to address the
public's concerns.
AS 44.37.011 is the appeal standard for all their decisions
except for water that is a little different in the sense that it
says "adversely affected" which goes a little bit further in
saying that an appeal decision that someone who is adversely
affected makes has to show that there is either a physical or
financial detriment to them, the idea being that water is
pervasive through all types of projects throughout Alaska.
People need water to do their business. Water is so important to
keep things moving that if someone appeals a water authorization
they have to show substantively how they are affected.
4:18:39 PM
MR. MENEFEE explained that DNR issues three types of
authorizations under the Water Use Act:
1. Temporary use authorizations, which are an authorization to
use water - temporary, revocable and never perfects to a water
right
2. Two different types of water rights: the type that you are
beneficially using for your purpose (traditional water right),
the idea being that you are either taking water out of the water
body for your beneficial use or you are using the water in the
water body for your beneficial use, like a turbine.
3. Now there is another type of water right, which is called a
"reservation of water" and that leaves the water in the water
body.
4:20:09 PM
He said the water reservations section got a lot of attention in
last year's bill that removed a person's ability to apply for a
water reservation, and the reason was because they had started
to see what might be a tactic for people to use a water
reservation as a tool to delay projects. But they heard very
loud and clear from the public that was not a good idea. The
change in this year's version puts persons back in; anyone can
apply for a water reservation (including federally recognized
tribes that are defined as a person), but they put a few
sideboards on that to make sure it's not used as a tool for a
delay. For instance, the commissioner has the discretion to
determine the order of adjudication, and they clarified when
submitting a water reservation application a person has to
submit five years of hydrologic data that has been in the public
domain or collected for them - the idea being that they don't
just copy and paste something that they found somewhere. They
also made sure that the applicant that applies for a water
reservation has the ability to appeal the decision on that,
which is important for persons, because of the one substantive
change they made that said if a person applies rather than
granting the water reservation to that person it's granted to
the appropriate state agency. Last year they clarified that they
wanted to make sure that a public water reservation for a public
resource is held by a public agency. This does that without
denying people the ability to apply. However, the applicant that
originally applied will still have the ability to appeal that
and secondly, if they ever make a change on that water
reservation - reducing the amount or restructuring the reach
that it applies to - even though they were the applicant but not
holding the water reservation, they still have a right to appeal
that.
4:23:27 PM
They also added decision criteria to be used in making their
decision for water reservation into statute. They had those
before, but people didn't see it. It is in Section 40 of the
bill on page 22, starting on line 12.
SENATOR MCGUIRE commented that Alaskans have the equal goals of
developing its natural resources while being fierce
environmentalists and there is a tendency to use examples of
over-zealous litigants, but they also need to use the flips side
which is the over-zealous corporations that come in from Outside
and want to take the resource as quickly as they can and leave
behind almost nothing. So, she was equally concerned about there
no longer being a priority status and relying on a
commissioner's un-corruptibility to make water reservation
decisions for the benefit of Alaskans. She was more worried
about them than the individual Alaskan. She wanted it on the
record that it's so important to think about the future streams
and how they feed into other places and the foreseeability of
that in looking at large general permits for a large mine or
dam.
SENATOR MCGUIRE said she was still deeply concerned about this
bill and the idea of one general permit with one opportunity to
testify and you don't get another shot at it when all the other
uses come back.
4:28:11 PM
MR. MENEFEE said he appreciated her comments and that there were
two things mixed in with what she said: reservations and general
permits, but they are not the same. She was correct that these
are weighty decisions, but the criteria are there to protect the
fish and game habitat for foreseeable uses.
Her reference was to "big" general permits, but they are now
constrained to small projects. The big things are done by leases
and other larger authorizations; general permits don't affect
them anymore. Language has been clarified so that it can't
affect larger projects like that.
4:29:20 PM
SENATOR MICCICHE added that he also appreciated her comments,
but they were in reference to the original language, which
concerned everyone, but he didn't think it was the intent
originally of the department for it to be that open. He
appreciated the sideboards and how they defined a general permit
for smaller projects.
He said coming back to water reservations, they don't typically
repeat code as in this case, but what is very important is that
everyone remains focused on how the commissioner determines what
is in the public interest before water is reserved. The criteria
clarify what kinds of things are considered.
CHAIR GIESSEL invited Alaska Department of Fish and Game's Randy
Bates to the table to clarify their role in this kind of
permitting.
4:30:59 PM
RANDY BATES, Director, Division of Habitat, Alaska Department of
Fish and Game (ADF&G), said HB 77 [version Y] does not diminish
or lessen fish and game protections as it relates to fish and
fish resources. The division retains separate, independent
authority under Title 16 to provide those protections for fish
and habitat. The Division of Habitat is the primary agency that
permits activities for the ADF&G and they have two primary
functions: one is to issue fish habitat permits for activities
that occur within resident fish streams and anadromus water
bodies and to permit activities that occur in specially
designated legislative areas around the state.
SENATOR MCGUIRE asked if ADF&G currently has the ability under
the definition of a "person" to apply for one of these water
reservations if they believe that one of these areas is
important to Alaska's fish habitat.
MR. BATES answered yes; they are the recipient and the applicant
of record of all the above and will continue to apply for those
reservations and work with DNR. They are considered a "person"
under the definition.
SENATOR MCGUIRE asked on page 22, line 27, the findings (already
a part of regulation) that the commissioner must consider in
determining the public interest, item (c) requires that the
commissioner look at the effect on fish and game resources and
she wondered whether that involves a requirement that the DNR
commissioner consult with the ADF&G, specifically the Habitat
Division. The reason she asks is because a commissioner might
have a background in biology and fish habitat and some may not.
What would that particular commissioner's analysis look like?
She hoped it required a specific conversation with ADF&G.
MR. MENEFEE answered that although it doesn't say the DNR has to
consult with them, the understanding has always been that ADF&G
is the expert on the fish and game and their habitat; DNR folks
are not. Therefore, they absolutely depend on ADF&G; every
single application goes through ADF&G consultation to tell them
whether it's true when an applicant says a certain reach of the
river needs to be protected for fish habitat.
4:35:18 PM
SENATOR MICCICHE said he knew it was not the intent of the
department, but the "notwithstanding" language was concerning in
the general permits originally. And the intent was to continue
regulating under Title 16, however legally they could have been
trumped in the court of law, but that has been clarified.
He said the 12 important rivers are the rivers that grow 90-95
percent of the salmon in the state not counting the tributaries,
and the state holds the reservation on six of those rivers: the
Stikine, the Taku, the Copper, the Kenai, the Karluk, and the
Nushigak. So, they have done some studying of necessary in-
stream water flows in these primary streams.
4:36:29 PM
MR. MENEFEE responded that he was pretty sure ADF&G was the
primary on those, but he couldn't guarantee every single one
(BLM might have been issued some).
4:37:05 PM
MR. MENEFEE said he hadn't covered a couple things yet on
reservations and one is that transition language states in
section 48 that all the pending applications they have for water
reservations will be done under the provisions of this act.
SENATOR FRENCH asked if he meant under the new act or the law as
it stands now.
MR. MENEFEE replied the new act.
SENATOR FRENCH pointed out that if he had an application that
had been waiting in line for some time, the rules he had been
working under are now new with respect to this act.
MR. MENEFEE responded that the issue is that the new provisions
will prevail; you don't lose any priority or date of
application. You don't lose the fact that you applied and did
all this work to gather data. The only difference is that under
the old provision technically he could have issued a reservation
to a person and they would not be able to now, because the
provision says it has to be issued to the appropriate state
agency. So, if they adjudicated an application from a person,
they will issue it to an appropriate state agency.
4:38:36 PM
CHAIR GIESSEL said he just said it would be held by a state
agency and she thought municipalities could also hold one; it
wouldn't have to be just a state agency.
MR. MENEFEE replied that he would check, but section 42 says
"appropriate state agency."
SENATOR MICCICHE asked how many individual persons or groups
have been successful in adjudicating a water reservation.
MR. MENEFEE responded that they had issued no reservations to
persons to this date.
SENATOR MICCICHE said he wanted to clarify that folks are not
technically losing ground - they have the same ability to apply
- the only difference is that "an appropriate state agency" will
possess the water reservation.
SENATOR MICCICHE said he saw what he thought of as another
improvement in the bill in that the change does not require the
department to review a water reservation every 10 years, so a
water reservation will likely not have pressure to be removed.
They'll likely not even look at those rivers unless there is a
pending project or other use of that water.
MR. MENEFEE said he stated that very well. The situation is that
before they were required to look at the water reservation every
10 years and reevaluate even if all the facts were the same and
it still warranted a reservation. At this point, that's a lot of
work, so this is just saying they can look at a reservation, but
they don't need to.
SENATOR FRENCH asked how many private reservations are pending
and for how long.
4:41:28 PM
MR. MENEFEE answered that right now they have received 202
applications and 181 have information that is complete enough
for them to make the adjudication. They have issued certificates
for 89 and at least 25 of them since last year. Six were closed,
because the applicant withdrew or for some other reason.
SENATOR FRENCH said he thought a few minutes ago he said there
had been no private reservations accomplished under state law.
MR. MENEFEE said he may have misunderstood the question, because
he had given the information for all reservations, not just
private ones.
SENATOR FRENCH said he meant private ones.
MR. MENEFEE said that right now they have 35 applications from
private entities and of those 35, they have issued zero permits.
SENATOR FRENCH asked how long they have been pending and how
many are complete.
MR. MENEFEE answered the oldest one was from 1992 and the
majority of them came in past 2007; the vast majority came after
2009. They are not necessarily complete applications; he didn't
know how many were complete.
4:43:43 PM
SENATOR FRENCH asked if one had completed an application for a
private water reservation should be some reasonable amount of
time in which the department should act on it.
MR. MENEFEE answered the reasonable amount of time is in the eye
of the beholder, but they have a backlog of 202 applications and
they can't get them all done within a year. So, inevitably they
are going to have to prioritize the most important ones with
ADF&G, because a vast majority of the applications are done for
fish and game habitat.
SENATOR FRENCH commented that if they are not good applications
and not in the public interest, then deny them, and move on to
the next one. It seems like a weird joke to have this
application process on the books that never results in the
awarding of a reservation.
MR. MENEFEE answered a person's application doesn't necessarily
mean it's the highest priority. It's not a joke; they have been
actively doing reservations, but they take a lot of time and are
based on science that requires a lot of research. And if you
look at history the process is going a lot faster now.
4:46:36 PM
SENATOR DYSON asked what happens when reservation permits have
all been given and something happens in a natural habitat. For
instance, in the sub-Arctic, virtually all rivers in the flat
country meander and sometimes get a long ways out of what the
river bed was when the permit was issued. Some places on Lake
George, in his area, a glacier comes down and dams up a lake and
sometimes it takes seasons to break through or there are
landslides (which the Eklutna people have had to deal with) -
things happening that are out of anyone's control - or dumping
sewage into the water.
MR. MENEFEE said when a river changes course the water
reservation is going to stay with the reach of the river (a
natural meander. An avulsion is when a complete new river
emerges, a rare situation when a rockslide that blocks a river.
A provision in AS 46.15.145(f) says if something has
fundamentally changed, you might have to reevaluate this instead
of doing the 10-year review. He related an example where someone
dumped hydrochloric acid into the water and killed everything in
that river body. Then the question they will consult with ADF&G
on is if there is still habitat to protect; is the purpose still
there that warranted the reservation in the first place?
SENATOR MCGUIRE said language on page 24, lines 1-6, talks about
the tremendous amount of power given to the commissioner. It
says:
Notwithstanding any contrary provision of this
chapter, the commissioner may authorize the temporary
use of a significant amount of water as determined by
the department by regulation for a period of time not
to exceed five consecutive years in each
authorization. If the water applied for has not been
appropriated in accordance with this chapter, the
commissioner may issue one or more new temporary water
use authorizations for the same project.
She said there could be no limit to the extensions the
commissioner could grant as determined by regulation, so the
legislature has no authority. Each one of them can last up to
five consecutive years. At least one or more could be issued for
each project. She didn't see a limit on gallons either. She
asked how big the state's exposure is on these temporary water
permits and what would prevent an applicant from just going that
route if a commissioner were particularly favorable to that
project and the public generally wasn't.
4:52:05 PM
MR. MENEFEE answered that a temporary water use authorization is
temporary and it's revocable and never perfects into a water
right. Keep that in mind. Secondly, revocable means they can
stop that authorization at a moment's notice. But what keeps it
from just being renewed is there is no renewal of a temporary
use water authorization. It is saying that first of all it does
not exceed five years; however, it also clarifies that at the
end of that five-year period (which happens), if a project
doesn't quite get done in those five years - it's a seven-year
project - they can come back at the end of those five years and
say they need two, three, or five more years of a water use
authorization. The division must start from scratch, reevaluate
it, and they are still required to go to ADF&G on a temporary
water use authorization and consult with them to protect the
fish habitat and then they make a decision based upon other
water rights that are out there and such, and then issue a
certain amount of water for the project. He explained that these
types of water use authorizations are used by DOTPF and for
things like the GVEA wind tower project and ice roads on the
North Slope, and for things throughout Alaska for development
projects and small projects.
SENATOR MCGUIRE said she was not comfortable with that
particular language. He had worked with Senator Micciche to come
up with some very clear language on page 22 about the kinds of
things that have to be considered, but then this
"notwithstanding" provision on page 24 guts it and gives the
discretion back to the commissioner and not to exceed five
years, but it can be one or more times again. She just didn't
see protection for the public there. There has to be some
limitation.
MR. MENEFEE clarified that that "notwithstanding" provision was
in existing law. They are just clarifying that they can do it
more than once to the same location. He said they still have all
the protections to evaluate that.
SENATOR MCGUIRE stated that he was adding the fact that they can
issue one or more new temporary use authorizations for the same
project, which in her opinion takes away any incentive
whatsoever to go through the regular process, because a
commissioner could just continue to extend that process.
CHAIR GIESSEL asked if a ski resort that is making snow every
winter has a temporary water use permit, and he mentioned a road
project that could go past five years - ice roads, municipal
sewer and water projects, as well. These are common every day
private citizens who need a temporary water use permit. Is that
correct?
4:58:13 PM
MR. MENEFEE said she was correct in the fact that all sorts of
individuals that are companies use these, but the key point is
when someone applies, because of the way the statutes are
written, if they want it in perpetuity they need a water right
to assure they will always have that. Everyone in the future
will be bumped. A temporary use permit doesn't bump anybody. So,
for instance, if a ski company needs water for snow on the
mountain, they probably will probably go for a water right,
because they don't want someone coming along a week later and
applying for a water right and then taking away their business
because they can't get water.
CHAIR GIESSEL said a lot of folks in her district have a water
right in terms of a private well.
4:59:36 PM
SENATOR MICCICHE said the section they are referring to on page
22 has nothing to do with the section on page 24. Page 22 is a
water reservation; page 24 is a temporary water use permit. It
is just a clarification of rights people already have today. And
being in industries that uses both, he agreed that someone who
is going to invest substantially in a project is not going to
ask for a temporary water use permit.
In his view, the line that is added "may issue one or more new
temporary water use authorizations for the same project" is not
something they couldn't do before. It's just being clarified.
Some folks want to be notified when a new temporary water use
permit is issued for the same project, but it's likely going to
be for a short time, just slightly longer than that initial five
years. In terms of investments and risk, you could get a brand
new commissioner in the middle of your temporary water use
permit and you've made a substantial investment and he could
revoke it tomorrow.
5:01:28 PM
MR. MENEFEE went over the Water Use Act changes on slide 15. In
Section 35 they made sure that people that are moving small
quantities of water from one hydrologic unit to another are not
violating the law - for carrying a water bottle across a
hydrologic unit, for instance.
Section 36 just says that they are going to prepare a public
notice on a proposal of sale of water once the commissioner
determines that the application is ready for a decision. He
explained that they get a lot of applications that are
incomplete and they will not go out to notice on them until they
are ready.
MR. MENEFEE said they removed a certified mail issue that wasn't
necessary. The temporary water reservation in Section 44 was
clarified to mean that an application does not vest a property
right in an individual; it's actually the issuing of a permit or
certification that does that.
5:02:55 PM
Chikuminuk Lake was added last year, which is allowing a
feasibility study for a hydro project at Woodtikchik State Park
and talks about making it consist with the management plan just
to do the feasibility study. They also added a definition and
clarification of state land, because of the way it was stated:
shorelands and tidelands.
In Section 28, if someone wants to do a subdivision of their
property in an unorganized borough (DNR manages that), and it
doesn't have any easements or anything that would affect the
public - they just want to divide it in half - they would have
to go through all this public notice which nobody ever comments
on, nobody ever says they have a problem, because it's just a
person's own property they are doing something with. It's just
more cost and delay. So, they have changed the public notice
requirement in those situations.
5:04:16 PM
Section 46 has the repeal provisions that were needed in order
to insert the new sections, transition language, and the change
in the effective date for the Water Use Act.
SENATOR MICCICHE said a huge proportion of pending applications
are federal applications for wilderness water ways that will not
have a competing use, perhaps ever or for generations, and why
is there not a category that says these were adjudicated as not
having a likely competing use, re-apply if, or you'll having a
standing someday if there is a competing use to get to a
reasonable amount of the applications that you actually have on
the books that you will act on.
MR. MENEFEE said there is no statutory provision to make that
call. However, they can always represent that backlog in two
different ways, but they don't have a way to ignore and reject
it for those reasons.
[HB 77 was held in committee.]
| Document Name | Date/Time | Subjects |
|---|---|---|
| HB 77 vs H work draft CS (SRES).pdf |
SRES 3/10/2014 3:30:00 PM |
HB 77 |
| HB 77 vs Y CS (SFIN).pdf |
SRES 3/10/2014 3:30:00 PM |
HB 77 |
| HB 77 Fiscal Note - DNR.PDF |
SRES 3/10/2014 3:30:00 PM |
HB 77 |
| HB 77 Fiscal Note - DNR (2).PDF |
SRES 3/10/2014 3:30:00 PM |
HB 77 |
| HB 77 Fiscal Note - ADF&G.PDF |
SRES 3/10/2014 3:30:00 PM |
HB 77 |
| HB 77-3.10.14 SCS CSHB77(RES) Presentation.pdf |
SRES 3/10/2014 3:30:00 PM |
HB 77 |
| HB 77-3.10.14 SCS CSHB77(RES) Sectional Analysis.pdf |
SRES 3/10/2014 3:30:00 PM |
HB 77 |
| HB77- 3.10.14 SCS CSHB77(RES) Briefing Paper.pdf |
SRES 3/10/2014 3:30:00 PM |
HB 77 |
| HB 77- 3.10.14 SCS CSHB77(RES) Summary of Changes.pdf |
SRES 3/10/2014 3:30:00 PM |
HB 77 |