CSSB 308(FIN): "An Act modifying administrative procedures and decisions by state agencies that relate to uses and dispositions of state land, property, and resources, and to the interests within them; and modifying administrative procedures and decisions by state agencies that relate to uses and activities involving land, property, and resources, and to the interests within them, that are subject to the coastal management program when the use or activity is to be authorized or developed in phases; and providing for an effective date."
00CS FOR SENATE BILL NO. 308(FIN) 01 "An Act modifying administrative procedures and decisions by state agencies that 02 relate to uses and dispositions of state land, property, and resources, and to the 03 interests within them; and modifying administrative procedures and decisions by 04 state agencies that relate to uses and activities involving land, property, and 05 resources, and to the interests within them, that are subject to the coastal 06 management program when the use or activity is to be authorized or developed 07 in phases; and providing for an effective date." 08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 09 * Section 1. LEGISLATIVE FINDINGS. The legislature finds that 10 (1) in order for the state to make a disposal of state land or of an interest in 11 state land, the legislature has previously determined that it is the responsibility of the director 12 of the division of lands in the Department of Natural Resources to make a written 13 determination that the interests of the state will be best served; 14 (2) each determination under AS 38.05 that the interests of the state will be
01 best served is a policy decision involving facts unique to each proposed disposal, and complex 02 issues the analysis and resolution of which are most appropriately left to the expertise of the 03 agency making the determination; 04 (3) it is the intent of the legislature to confirm that the determination of when 05 and under what circumstances a disposal is in the state's best interest is vested in the 06 discretion of the director of the division of lands, subject to the consent of the commissioner 07 of natural resources and the policy guidance provided by this Act; 08 (4) the scope of the review undertaken by the director of the division of lands 09 in support of a proposed disposal is to be established in the director's written finding made 10 under the provisions of this Act, and is to be based upon the known information or 11 information that is made known to the director during the administrative review; 12 (5) in delegating this discretion, it is not the intent of the legislature to limit 13 public comment or the public's opportunity to participate in the administrative review that 14 takes place before the determination by the director of the division of lands that a disposal is 15 in the state's best interest; 16 (6) it is the legislature's intent to ensure that the public participates in a timely 17 and meaningful manner in the development of the administrative record that will be used by 18 the director of the division of lands to define the scope of review of the written finding; 19 (7) analyses comparable to those generally required by 42 U.S.C. 4321 - 4370a 20 (National Environmental Policy Act of 1969, as amended) for the preparation of an 21 environmental impact statement under 42 U.S.C. 4332(2)(C) are not necessary for support of 22 best interest findings issued under AS 38.05 or conclusive coastal zone consistency 23 determinations issued under AS 46.40; 24 (8) speculation concerning future development activities that will be subject 25 to independent permitting requirements is not necessary at the time a decision is made to 26 dispose of state land or an interest in state land; 27 (9) this Act is not intended to allow the director of the division of lands to 28 limit the scope of an administrative review so as to omit issues or disregard concerns that 29 otherwise must be addressed under the provisions of applicable statutes and regulations; 30 (10) conducting phased coastal zone consistency determinations is appropriate 31 in those instances where there is insufficient information to determine the consistency of a
01 proposed development project from planning to completion; and 02 (11) consideration of a disposal as a phase of a development project is not 03 intended to artificially divide or segment a proposed development project to avoid thorough 04 review of the project or to avoid consideration of potential future environmental, sociological, 05 or economic effects, but rather is intended to allow for consideration of those issues when 06 sufficient data are available upon which to make reasoned decisions. 07 * Sec. 2. AS 38.05.035(e) is amended to read: 08 (e) Upon a written finding that the interests of the state will be best served, 09 the director may, with the consent of the commissioner, approve contracts for the sale, 10 lease, or other disposal of available land, resources, property, or interests in them, and, 11 in addition to the conditions and limitations imposed by law, may impose additional 12 conditions or limitations in the contracts as the director determines, with the consent 13 of the commissioner, will best serve the interests of the state. The preparation and 14 issuance of the written finding by the director is subject to the following: 15 (1) with the consent of the commissioner and subject to the 16 director's discretion, for a specific proposed disposal of available land, resources, 17 or property, or of an interest in them, the director, in the written finding, 18 (A) shall establish the scope of the administrative review on 19 which the director's determination is based, and the scope of the written 20 finding supporting that determination; the scope of the review and finding 21 may address only reasonably foreseeable, significant effects of the uses 22 proposed to be authorized by the disposal; 23 (B) may limit the scope of an administrative review and 24 finding for a proposed disposal to 25 (i) applicable statutes and regulations; 26 (ii) the facts pertaining to the land, resources, or 27 property, or interest in them, that the director finds are material to 28 the determination and that are known to the director or knowledge 29 of which is made available to the director during the administrative 30 review; and 31 (iii) issues that, based on the statutes and regulations
01 referred to in (i) of this subparagraph, on the facts as described in 02 (ii) of this subparagraph, and on the nature of the uses sought to be 03 authorized, the director finds are material to the determination of 04 whether the proposed disposal will best serve the interests of the 05 state; and 06 (C) may, if the project for which the proposed disposal is 07 sought is a multiphased development, limit the scope of an administrative 08 review and finding for the proposed disposal to the applicable statutes and 09 regulations, facts, and issues identified in (B)(i) - (iii) of this paragraph 10 that pertain solely to a discrete phase of the project when 11 (i) the only uses to be authorized by the proposed 12 disposal are part of that discrete phase; 13 (ii) the department's approval is required before the 14 next phase of the project may proceed; and 15 (iii) the department conditions its approval to ensure 16 that any additional uses or activities proposed for that or any later 17 phase of the project will serve the best interests of the state; 18 (2) the director shall discuss in the written finding prepared and 19 issued under this subsection the reasons that each of the following was not 20 material to the director's determination that the interests of the state will be best 21 served: 22 (A) facts pertaining to the land, resources, or property, or 23 an interest in them other than those that the director finds material under 24 (1)(B)(ii) of this subsection; and 25 (B) issues based on the statutes and regulations referred to 26 in (1)(B)(i) of this subsection and on the facts described in (1)(B)(ii) of this 27 subsection; 28 (3) a [A] written finding for an oil and gas lease sale under 29 AS 38.05.180 is subject to (g) of this section; 30 (4) a [. A] contract for the sale, lease, or other disposal of available 31 land or an interest in land is not legally binding on the state until the commissioner
01 approves the contract but if the appraised value is not greater than $50,000 in the case 02 of the sale of land or an interest in land, or $5,000 in the case of the annual rental of 03 land or interest in land, the director may execute the contract without the approval of 04 the commissioner; 05 (5) public notice requirements relating to the sale, lease, or other 06 disposal of available land or an interest in land for oil and gas proposed to be 07 scheduled in the five-year oil and gas leasing program under AS 38.05.180(b), are 08 as follows: 09 (A) before a public hearing, if held, or in any case not less 10 than 180 days before the sale, lease, or other disposal of available land or 11 an interest in land, the director shall make available to the public a 12 preliminary written finding that states the scope of the review established 13 under (1)(A) of this subsection and includes the applicable statutes and 14 regulations, the material facts and issues in accordance with (1)(B) of this 15 subsection, and information required by (g) of this section, upon which the 16 determination that the sale, lease, or other disposal will serve the best 17 interests of the state will be based; the director shall provide opportunity 18 for public comment on the preliminary written finding for a period of not 19 less than 60 days; 20 (B) after the public comment period for the preliminary 21 written finding and not less than 90 days before the sale, lease, or other 22 disposal of available land or an interest in land for oil and gas, the director 23 shall make available to the public a final written finding that states the 24 scope of the review established under (1)(A) of this subsection and includes 25 the applicable statutes and regulations, the material facts and issues in 26 accordance with (1) of this subsection, and information required by (g) of 27 this section, upon which the determination that the sale, lease, or other 28 disposal will serve the best interests of the state is based; 29 (6) before [. BEFORE] a public hearing, if held, or in any case not 30 [NO] less than 21 days before the sale, lease, or other disposal of available land, 31 property, resources, or interests in them other than a sale, lease, or other disposal
01 of available land or an interest in land for oil and gas under (5) of this subsection, 02 the director shall make available to the public a written finding that, in accordance 03 with (1) of this subsection, sets out the material facts and applicable statutes and 04 regulations and any other information required by statute or regulation to be 05 considered [LAW] upon which the determination that the sale, lease, or other disposal 06 will best serve the interests of the state was based; however, a [. A] written finding 07 is not required before the approval of 08 (A) [(1)] a contract for a negotiated sale authorized under 09 AS 38.05.115; 10 (B) [(2)] a lease of land for a shore fishery site under 11 AS 38.05.082; 12 (C) [(3)] a permit or other authorization revocable by the 13 commissioner; 14 (D) [(4)] a mineral claim located under AS 38.05.195; 15 (E) [(5)] a mineral lease issued under AS 38.05.205; 16 (F) [(6)] a production license issued under AS 38.05.207; 17 (G) [(7)] an exempt oil and gas sale under AS 38.05.180(d) of 18 acreage offered in a sale that was held within the previous five years if the sale 19 was subject to a written best interest finding, unless the commissioner 20 determines that new information has become available that justifies a revision 21 of the best interest finding; or 22 (H) [(8)] a lease sale under AS 38.05.180(w) of acreage offered 23 in a sale that was held within the previous five years if the sale was subject to 24 a best interest finding, unless the commissioner determines that new 25 information has become available that justifies a revision of the best interest 26 finding; 27 (7) the director shall include in 28 (A) a preliminary written finding a summary of agency and 29 public comments, if any, obtained as a result of contacts with other 30 agencies concerning a proposed disposal or as a result of informal efforts 31 undertaken by the department to solicit public response to a proposed
01 disposal, and the department's preliminary responses to those comments; 02 and 03 (B) the final written finding a summary of agency and 04 public comments received and the department's responses to those 05 comments. 06 * Sec. 3. AS 38.05.035(g) is amended to read: 07 (g) Notwithstanding (e)(1)(A) and (B) of this section, when [WHEN] the 08 director prepares a written finding required under (e) of this section for an oil and gas 09 lease sale scheduled under AS 38.05.180, the director shall consider and discuss 10 (1) in a final written [THE] finding [(1)] facts that are known to the 11 director at the time of preparation of the finding and that are 12 (A) material to [THE FOLLOWING MATTERS OR TO] issues 13 that were raised during the period allowed for receipt of public comment, 14 whether or not material to a matter set out in (B) of this paragraph, and 15 within the scope of the administrative review established by the director 16 under (e)(1) of this section; or 17 (B) material to the following matters: 18 (i) [; (A)] property descriptions and locations; 19 (ii) [(B)] the petroleum potential of the sale area, in 20 general terms; 21 (iii) [(C)] fish and wildlife species and their habitats in 22 the area; 23 (iv) [(D)] the current and projected uses in the area, 24 including uses and value of fish and wildlife; 25 (v) [(E)] the governmental powers to regulate oil and 26 gas exploration, development, production, and transportation; 27 (vi) [(F)] the reasonably foreseeable cumulative effects 28 of oil and gas exploration, development, production, and transportation 29 on the sale area, including effects on subsistence uses, fish and wildlife 30 habitat and populations and their uses, and historic and cultural 31 resources;
01 (vii) [(G)] lease stipulations and mitigation measures, 02 including any measures to prevent and mitigate releases of oil and 03 hazardous substances, to be included in the leases, and a discussion of 04 the protections offered by these measures; 05 (viii) [(H)] the method or methods most likely to be 06 used to transport oil or gas from the lease sale area, and the advantages, 07 disadvantages, and relative risks of each; 08 (ix) [(I)] the reasonably foreseeable fiscal effects of the 09 lease sale and the subsequent activity on the state and affected 10 municipalities and communities, including the explicit and implicit 11 subsidies associated with the lease sale, if any; 12 (x) [(J)] the reasonably foreseeable effects of oil and gas 13 exploration, development, production, and transportation on 14 municipalities and communities within or adjacent to the lease sale area; 15 and 16 (xi) [(K)] the bidding method or methods adopted by the 17 commissioner under AS 38.05.180; 18 (2) in a preliminary written finding, facts that are known to the 19 director at the time of preparation of the finding and that are 20 (A) material to issues that the department identifies, whether 21 or not material to a matter set out in (B) of this paragraph, and within the 22 scope of the administrative review established by the director under (e)(1) 23 of this section; or 24 (B) material to a matter described in (1)(B) of this 25 subsection [A SUMMARY OF AGENCY AND PUBLIC COMMENTS 26 RECEIVED AND THE DEPARTMENT'S RESPONSES TO THOSE 27 COMMENTS]; and 28 (3) the basis for the director's preliminary or final finding, as 29 applicable, [DETERMINATION] that, on balance, leasing the area would be in the 30 state's best interest. 31 * Sec. 4. AS 38.05.035 is amended by adding new subsections to read:
01 (h) In preparing a written finding under (e)(1) of this section, the director may 02 not be required to speculate about possible future effects subject to future permitting 03 that cannot reasonably be determined until the project or proposed use for which a 04 written best interest finding is required is more specifically defined, including 05 speculation about 06 (1) effects that are remote in time or place; 07 (2) the exact location and size of an ultimate use and related facilities; 08 (3) the economic feasibility of ultimate development; and 09 (4) future environmental or other laws that may apply at the time of 10 any future development. 11 (i) A person who is eligible to file a request for reconsideration under this 12 subsection and who is aggrieved by the final written finding of the director entered 13 under (e)(5) or (6) of this section may, within 20 days after the issuance of the final 14 written finding, request reconsideration of the decision by the commissioner. A person 15 is eligible to file a request for reconsideration if the person 16 (1) meaningfully participated in the process set out in this chapter for 17 receipt of public comment by 18 (A) submitting written comment during the period for receipt 19 of public comment; 20 (B) presenting oral testimony at a public hearing, if a public 21 hearing was held; or 22 (C) adopting as the person's own testimony concerns that were 23 expressed by another, either by submitting a written statement to that effect 24 during the period for receipt of public comment or by so declaring during a 25 public hearing; and 26 (2) is affected by the final written finding. 27 (j) A request for reconsideration submitted under (i) of this section must 28 specify the written finding complained of and the specific basis upon which it is 29 challenged. The commissioner shall grant or deny the request within 30 days after 30 issuance of the final written finding. Failure of the commissioner to act on the request 31 for reconsideration within this period is a denial of the request for reconsideration and
01 a final administrative decision for purposes of appeal to the superior court. 02 (k) If a request for reconsideration is granted, the commissioner may order the 03 director to issue a new final written finding after reconsideration as may be required 04 under the circumstances. 05 (l) A person may appeal a final written finding issued under (e)(5) or (6) of 06 this section to the superior court, but only if the person was eligible to request, and did 07 request, reconsideration of that finding under (i) of this section. The person shall 08 initiate the appeal within 30 days from the date that the decision on reconsideration 09 is mailed or otherwise distributed, or the date the request for reconsideration is 10 considered denied by the commissioner's failure to act on the request, whichever is 11 earlier. The points on appeal are limited to those presented to the commissioner in the 12 person's request for reconsideration. 13 (m) For purposes of appeal under (l) of this section, the burden is upon the 14 party seeking review to establish the invalidity of the finding. 15 * Sec. 5. AS 38.05.075(h) is amended to read: 16 (h) A person aggrieved by a decision of the commissioner under this section 17 may appeal to the commissioner within five days of the prequalification decision. The 18 decision of the commissioner under this subsection [OR UNDER AS 38.05.035(e)] 19 may be appealed to the superior court. 20 * Sec. 6. AS 38.05.945(a) is amended to read: 21 (a) This section establishes the requirements for notice given by the department 22 for the following actions: 23 (1) classification or reclassification of state land under AS 38.05.300 24 and the closing of land to mineral leasing or entry under AS 38.05.185; 25 (2) zoning of land under applicable law; 26 (3) issuance of a 27 (A) preliminary written finding under AS 38.05.035(e)(5)(A) 28 regarding the sale, lease, or disposal of an interest in state land or 29 resources for oil and gas subject to AS 38.05.180(b); 30 (B) final written finding under AS 38.05.035(e)(5)(B) 31 regarding the sale, lease, or disposal of an interest in state land or
01 resources for oil and gas subject to AS 38.05.180(b); 02 (C) written finding for [A DECISION UNDER 03 AS 38.05.035(e) REGARDING] the sale, lease, or disposal of an interest in 04 state land or resources under AS 38.05.035(e)(6); 05 (4) a competitive disposal of an interest in state land or resources after 06 final decision under AS 38.05.035(e); 07 (5) a public hearing under AS 38.05.856(b); 08 (6) a preliminary finding under AS 38.05.035(e) and 38.05.855(c) 09 concerning sites for aquatic farms and related hatcheries. 10 * Sec. 7. AS 38.05.945(b) is amended to read: 11 (b) When notice is required to be given under this section, 12 (1) the notice must contain sufficient information in commonly 13 understood terms to inform the public of the nature of the action and the 14 opportunity of the public to comment on it; 15 (2) if the notice is of a preliminary written finding described in 16 (a)(3)(A) of this section, the department shall give notice at the beginning of the 17 public comment period for the preliminary written finding, notifying the public 18 of the right to submit comments; the department shall give notice by 19 (A) publication of a legal notice in newspapers of statewide 20 circulation and in newspapers of general circulation in the vicinity of the 21 proposed action at least once a week for two consecutive weeks; 22 (B) publication of a notice in display advertising form in the 23 newspapers described in (A) of this paragraph at least once a week for two 24 consecutive weeks; 25 (C) public service announcements on the electronic media 26 serving the area to be affected by the proposed action; and 27 (D) one or more of the following methods: 28 (i) posting in a conspicuous location in the vicinity of 29 the action; 30 (ii) notification of parties known or likely to be 31 affected by the action; or
01 (iii) another method calculated to reach affected 02 parties; 03 (3) if the notice is of an action [NOTICE OF ONE OR MORE 04 ACTIONS] described in (a) of this section, other than notice of an action under 05 (a)(3)(A) of this section, the department shall give notice [SHALL BE GIVEN] at 06 least 30 days before the action by publication in newspapers of statewide circulation 07 and in newspapers of general circulation in the vicinity of the proposed action and one 08 or more of the following methods: 09 (A) [(1)] publication through public service announcements on 10 the electronic media serving the area affected by the action; 11 (B) [(2)] posting in a conspicuous location in the vicinity of the 12 action; 13 (C) [(3)] notification of parties known or likely to be affected 14 by the action; or 15 (D) [(4)] another method calculated to reach affected persons 16 [. A NOTICE SHALL CONTAIN SUFFICIENT INFORMATION IN 17 COMMONLY UNDERSTOOD TERMS TO INFORM THE PUBLIC OF THE 18 NATURE OF THE ACTION AND THE OPPORTUNITY OF THE PUBLIC 19 TO COMMENT ON THE ACTION]. 20 * Sec. 8. AS 46.40 is amended by adding a new section to read: 21 Sec. 46.40.094. CONSISTENCY DETERMINATIONS FOR PHASED USES 22 AND ACTIVITIES. (a) The provisions of this section apply to a use or activity for 23 which a consistency determination is required if 24 (1) at the time the proposed use or activity is initiated, there is 25 insufficient information to evaluate and render a consistency determination for the 26 entirety of the proposed use or activity; 27 (2) the proposed use or activity is capable of proceeding in discrete 28 phases based upon developing information obtained in the course of a phase; and 29 (3) each subsequent phase of the proposed use or activity is subject to 30 discretion to implement alternative decisions based upon the developing information. 31 (b) When a use or activity is authorized or developed in discrete phases and
01 each phase will require decisions relating to a permit, lease, or authorization for that 02 particular phase, the agency responsible for the consistency determination for the 03 particular phase 04 (1) may, in its discretion, limit the consistency review to that particular 05 phase if, but only if, 06 (A) the agency or another state agency must carry out a 07 subsequent consistency review and make a consistency determination before a 08 later phase may proceed; and 09 (B) the agency responsible conditions its consistency 10 determination for that phase on a requirement that a use or activity authorized 11 in a subsequent phase be consistent with the Alaska coastal management 12 program; and 13 (2) shall, when the consistency review is limited under (1) of this 14 subsection, conduct the consistency review for the particular phase and make the 15 consistency determination based on 16 (A) applicable statutes and regulations; 17 (B) the facts pertaining to a use or activity proposed for that 18 phase that are 19 (i) known to the state agency responsible or made a part 20 of the record during the consistency review; and 21 (ii) material to the consistency determination; and 22 (C) the reasonably foreseeable, significant effects of the use or 23 activity proposed for that phase; 24 (3) shall, when the consistency review is limited under (1) of this 25 subsection, prepare and issue a written statement describing the reasons for its decision 26 to make the consistency determination for the use or activity in phases. 27 (c) In this section, 28 (1) "agency responsible for the consistency determination" means 29 (A) the office of management and budget, for a consistency 30 determination required to be made under AS 44.19.145(a)(11); and 31 (B) the commissioner of the resource agency that coordinates
01 a consistency review for a proposed use or activity, or for a proposed phase of 02 a use or activity, when required by this chapter for which a permit, lease, or 03 authorization is required to be approved or issued only by that resource agency; 04 (2) "resource agency" has the meaning given in AS 44.19.152. 05 * Sec. 9. This Act takes effect immediately under AS 01.10.070(c).