CSSB 308(FIN) AM: "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) am 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 required by the state for 22 support of 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 but is not intended to artificially 02 divide or segment a proposed development project to avoid thorough review of the project or 03 to avoid consideration of potential future environmental, sociological, or economic effects; and 04 (11) consideration of a disposal as a phase of a development project is not 05 intended to artificially divide or segment a proposed development project to avoid thorough 06 review of the project or to avoid consideration of potential future environmental, sociological, 07 or economic effects, but rather is intended to allow for consideration of those issues when 08 sufficient data are available upon which to make reasoned decisions. 09 * Sec. 2. AS 38.05.035(e) is amended to read: 10 (e) Upon a written finding that the interests of the state will be best served, 11 the director may, with the consent of the commissioner, approve contracts for the sale, 12 lease, or other disposal of available land, resources, property, or interests in them, and, 13 in addition to the conditions and limitations imposed by law, may impose additional 14 conditions or limitations in the contracts as the director determines, with the consent 15 of the commissioner, will best serve the interests of the state. The preparation and 16 issuance of the written finding by the director is subject to the following: 17 (1) with the consent of the commissioner and subject to the 18 director's discretion, for a specific proposed disposal of available land, resources, 19 or property, or of an interest in them, the director, in the written finding, 20 (A) shall establish the scope of the administrative review on 21 which the director's determination is based, and the scope of the written 22 finding supporting that determination; the scope of the review and finding 23 may address only reasonably foreseeable, significant effects of the uses 24 proposed to be authorized by the disposal; 25 (B) may limit the scope of an administrative review and 26 finding for a proposed disposal to 27 (i) applicable statutes and regulations; 28 (ii) the facts pertaining to the land, resources, or 29 property, or interest in them, that the director finds are material to 30 the determination and that are known to the director or knowledge 31 of which is made available to the director during the administrative
01 review; and 02 (iii) issues that, based on the statutes and regulations 03 referred to in (i) of this subparagraph, on the facts as described in 04 (ii) of this subparagraph, and on the nature of the uses sought to be 05 authorized, the director finds are material to the determination of 06 whether the proposed disposal will best serve the interests of the 07 state; and 08 (C) may, if the project for which the proposed disposal is 09 sought is a multiphased development, limit the scope of an administrative 10 review and finding for the proposed disposal to the applicable statutes and 11 regulations, facts, and issues identified in (B)(i) - (iii) of this paragraph 12 that pertain solely to a discrete phase of the project when 13 (i) the only uses to be authorized by the proposed 14 disposal are part of that discrete phase; 15 (ii) the department's approval is required before the 16 next phase of the project may proceed; and 17 (iii) the department describes its reasons for a 18 decision to phase and conditions its approval to ensure that any 19 additional uses or activities proposed for that or any later phase of 20 the project will serve the best interests of the state; 21 (2) the director shall discuss in the written finding prepared and 22 issued under this subsection the reasons that each of the following was not 23 material to the director's determination that the interests of the state will be best 24 served: 25 (A) facts pertaining to the land, resources, or property, or 26 an interest in them other than those that the director finds material under 27 (1)(B)(ii) of this subsection; and 28 (B) issues based on the statutes and regulations referred to 29 in (1)(B)(i) of this subsection and on the facts described in (1)(B)(ii) of this 30 subsection; 31 (3) a [A] written finding for an oil and gas lease sale under
01 AS 38.05.180 is subject to (g) of this section; 02 (4) a [. A] contract for the sale, lease, or other disposal of available 03 land or an interest in land is not legally binding on the state until the commissioner 04 approves the contract but if the appraised value is not greater than $50,000 in the case 05 of the sale of land or an interest in land, or $5,000 in the case of the annual rental of 06 land or interest in land, the director may execute the contract without the approval of 07 the commissioner; 08 (5) public notice requirements relating to the sale, lease, or other 09 disposal of available land or an interest in land for oil and gas proposed to be 10 scheduled in the five-year oil and gas leasing program under AS 38.05.180(b), are 11 as follows: 12 (A) before a public hearing, if held, or in any case not less 13 than 180 days before the sale, lease, or other disposal of available land or 14 an interest in land, the director shall make available to the public a 15 preliminary written finding that states the scope of the review established 16 under (1)(A) of this subsection and includes the applicable statutes and 17 regulations, the material facts and issues in accordance with (1)(B) of this 18 subsection, and information required by (g) of this section, upon which the 19 determination that the sale, lease, or other disposal will serve the best 20 interests of the state will be based; the director shall provide opportunity 21 for public comment on the preliminary written finding for a period of not 22 less than 60 days; 23 (B) after the public comment period for the preliminary 24 written finding and not less than 90 days before the sale, lease, or other 25 disposal of available land or an interest in land for oil and gas, the director 26 shall make available to the public a final written finding that states the 27 scope of the review established under (1)(A) of this subsection and includes 28 the applicable statutes and regulations, the material facts and issues in 29 accordance with (1) of this subsection, and information required by (g) of 30 this section, upon which the determination that the sale, lease, or other 31 disposal will serve the best interests of the state is based;
01 (6) before [. BEFORE] a public hearing, if held, or in any case not 02 [NO] less than 21 days before the sale, lease, or other disposal of available land, 03 property, resources, or interests in them other than a sale, lease, or other disposal 04 of available land or an interest in land for oil and gas under (5) of this subsection, 05 the director shall make available to the public a written finding that, in accordance 06 with (1) of this subsection, sets out the material facts and applicable statutes and 07 regulations and any other information required by statute or regulation to be 08 considered [LAW] upon which the determination that the sale, lease, or other disposal 09 will best serve the interests of the state was based; however, a [. A] written finding 10 is not required before the approval of 11 (A) [(1)] a contract for a negotiated sale authorized under 12 AS 38.05.115; 13 (B) [(2)] a lease of land for a shore fishery site under 14 AS 38.05.082; 15 (C) [(3)] a permit or other authorization revocable by the 16 commissioner; 17 (D) [(4)] a mineral claim located under AS 38.05.195; 18 (E) [(5)] a mineral lease issued under AS 38.05.205; 19 (F) [(6)] a production license issued under AS 38.05.207; 20 (G) [(7)] an exempt oil and gas sale under AS 38.05.180(d) of 21 acreage offered in a sale that was held within the previous five years if the sale 22 was subject to a written best interest finding, unless the commissioner 23 determines that new information has become available that justifies a revision 24 of the best interest finding; or 25 (H) [(8)] a lease sale under AS 38.05.180(w) of acreage offered 26 in a sale that was held within the previous five years if the sale was subject to 27 a best interest finding, unless the commissioner determines that new 28 information has become available that justifies a revision of the best interest 29 finding; 30 (7) the director shall include in 31 (A) a preliminary written finding, if required, a summary
01 of agency and public comments, if any, obtained as a result of contacts 02 with other agencies concerning a proposed disposal or as a result of 03 informal efforts undertaken by the department to solicit public response 04 to a proposed disposal, and the department's preliminary responses to 05 those comments; and 06 (B) the final written finding a summary of agency and 07 public comments received and the department's responses to those 08 comments. 09 * Sec. 3. AS 38.05.035(g) is amended to read: 10 (g) Notwithstanding (e)(1)(A) and (B) of this section, when [WHEN] the 11 director prepares a written finding required under (e) of this section for an oil and gas 12 lease sale scheduled under AS 38.05.180, the director shall consider and discuss 13 (1) in a preliminary or final written [THE] finding [(1)] facts that are 14 known to the director at the time of preparation of the finding and that are 15 (A) material to [THE FOLLOWING MATTERS OR TO] issues 16 that were raised during the period allowed for receipt of public comment, 17 whether or not material to a matter set out in (B) of this paragraph, and 18 within the scope of the administrative review established by the director 19 under (e)(1) of this section; or 20 (B) material to the following matters: 21 (i) [; (A)] property descriptions and locations; 22 (ii) [(B)] the petroleum potential of the sale area, in 23 general terms; 24 (iii) [(C)] fish and wildlife species and their habitats in 25 the area; 26 (iv) [(D)] the current and projected uses in the area, 27 including uses and value of fish and wildlife; 28 (v) [(E)] the governmental powers to regulate oil and 29 gas exploration, development, production, and transportation; 30 (vi) [(F)] the reasonably foreseeable cumulative effects 31 of oil and gas exploration, development, production, and transportation
01 on the sale area, including effects on subsistence uses, fish and wildlife 02 habitat and populations and their uses, and historic and cultural 03 resources; 04 (vii) [(G)] lease stipulations and mitigation measures, 05 including any measures to prevent and mitigate releases of oil and 06 hazardous substances, to be included in the leases, and a discussion of 07 the protections offered by these measures; 08 (viii) [(H)] the method or methods most likely to be 09 used to transport oil or gas from the lease sale area, and the advantages, 10 disadvantages, and relative risks of each; 11 (ix) [(I)] the reasonably foreseeable fiscal effects of the 12 lease sale and the subsequent activity on the state and affected 13 municipalities and communities, including the explicit and implicit 14 subsidies associated with the lease sale, if any; 15 (x) [(J)] the reasonably foreseeable effects of oil and gas 16 exploration, development, production, and transportation on 17 municipalities and communities within or adjacent to the lease sale area; 18 and 19 (xi) [(K)] the bidding method or methods adopted by the 20 commissioner under AS 38.05.180; and 21 (2) [A SUMMARY OF AGENCY AND PUBLIC COMMENTS 22 RECEIVED AND THE DEPARTMENT'S RESPONSES TO THOSE COMMENTS; 23 AND; 24 (3)] the basis for the director's preliminary or final finding, as 25 applicable, [DETERMINATION] that, on balance, leasing the area would be in the 26 state's best interest. 27 * Sec. 4. AS 38.05.035 is amended by adding new subsections to read: 28 (h) In preparing a written finding under (e)(1) of this section, the director may 29 not be required to speculate about possible future effects subject to future permitting 30 that cannot reasonably be determined until the project or proposed use for which a 31 written best interest finding is required is more specifically defined, including
01 speculation about 02 (1) the exact location and size of an ultimate use and related facilities; 03 (2) except as otherwise provided in AS 38.05.073 for land suitable for 04 recreational facilities development leasing, the economic feasibility of ultimate 05 development; and 06 (3) future environmental or other laws that may apply at the time of 07 any future development. 08 (i) A person who is eligible to file an administrative appeal or a request for 09 reconsideration, as appropriate, under this subsection and who is aggrieved by the final 10 written finding of the director entered under (e)(5) or (6) of this section may, within 11 20 days after the issuance of the final written finding, file an administrative appeal or 12 request reconsideration of the decision by the commissioner. A person is eligible to 13 file an administrative appeal or a request for reconsideration if the person 14 (1) meaningfully participated in the process set out in this chapter for 15 receipt of public comment by 16 (A) submitting written comment during the period for receipt 17 of public comment; or 18 (B) presenting oral testimony at a public hearing, if a public 19 hearing was held; and 20 (2) is affected by the final written finding. 21 (j) An administrative appeal or a request for reconsideration submitted under 22 (i) of this section must specify the written finding complained of and the specific basis 23 upon which it is challenged. The commissioner shall grant or deny the administrative 24 appeal or reconsideration request within 30 days after issuance of the final written 25 finding. Failure of the commissioner to act on the request for reconsideration within 26 this period is a denial of the request for reconsideration and a final administrative 27 decision for purposes of appeal to the superior court. 28 (k) If an administrative appeal or a request for reconsideration is granted, the 29 commissioner may order the director to issue a new final written finding as may be 30 required under the circumstances. 31 (l) A person may appeal a final written finding issued under (e)(5) or (6) of
01 this section to the superior court, but only if the person was eligible to request, and did 02 request, an administrative appeal or reconsideration of that finding under (i) of this 03 section. The person shall initiate the appeal within 30 days from the date that the 04 decision on administrative appeal or reconsideration is mailed or otherwise distributed, 05 or the date the request for reconsideration is considered denied by the commissioner's 06 failure to act on the request, whichever is earlier. The points on appeal are limited to 07 those presented to the commissioner in the person's administrative appeal or request 08 for reconsideration. 09 (m) For purposes of appeal under (l) of this section, the burden is upon the 10 party seeking review to establish the invalidity of the finding. 11 * Sec. 5. AS 38.05.075(h) is amended to read: 12 (h) A person aggrieved by a decision of the commissioner under this section 13 may appeal to the commissioner within five days of the prequalification decision. The 14 decision of the commissioner under this subsection [OR UNDER AS 38.05.035(e)] 15 may be appealed to the superior court. 16 * Sec. 6. AS 38.05.945(a) is amended to read: 17 (a) This section establishes the requirements for notice given by the department 18 for the following actions: 19 (1) classification or reclassification of state land under AS 38.05.300 20 and the closing of land to mineral leasing or entry under AS 38.05.185; 21 (2) zoning of land under applicable law; 22 (3) issuance of a 23 (A) preliminary written finding under AS 38.05.035(e)(5)(A) 24 regarding the sale, lease, or disposal of an interest in state land or 25 resources for oil and gas subject to AS 38.05.180(b); 26 (B) final written finding under AS 38.05.035(e)(5)(B) 27 regarding the sale, lease, or disposal of an interest in state land or 28 resources for oil and gas subject to AS 38.05.180(b); 29 (C) written finding for [A DECISION UNDER 30 AS 38.05.035(e) REGARDING] the sale, lease, or disposal of an interest in 31 state land or resources under AS 38.05.035(e)(6);
01 (4) a competitive disposal of an interest in state land or resources after 02 final decision under AS 38.05.035(e); 03 (5) a public hearing under AS 38.05.856(b); 04 (6) a preliminary finding under AS 38.05.035(e) and 38.05.855(c) 05 concerning sites for aquatic farms and related hatcheries. 06 * Sec. 7. AS 38.05.945(b) is amended to read: 07 (b) When notice is required to be given under this section, 08 (1) the notice must contain sufficient information in commonly 09 understood terms to inform the public of the nature of the action and the 10 opportunity of the public to comment on it; 11 (2) if the notice is of a preliminary written finding described in 12 (a)(3)(A) of this section, the department shall give notice at the beginning of the 13 public comment period for the preliminary written finding, notifying the public 14 of the right to submit comments; the department shall give notice by 15 (A) publication of a legal notice in newspapers of statewide 16 circulation and in newspapers of general circulation in the vicinity of the 17 proposed action at least once a week for two consecutive weeks; 18 (B) publication of a notice in display advertising form in the 19 newspapers described in (A) of this paragraph at least once a week for two 20 consecutive weeks; 21 (C) public service announcements on the electronic media 22 serving the area to be affected by the proposed action; and 23 (D) one or more of the following methods: 24 (i) posting in a conspicuous location in the vicinity of 25 the action; 26 (ii) notification of parties known or likely to be 27 affected by the action; or 28 (iii) another method calculated to reach affected 29 parties; 30 (3) if the notice is of an action [NOTICE OF ONE OR MORE 31 ACTIONS] described in (a) of this section, other than notice of an action under
01 (a)(3)(A) of this section, the department shall give notice [SHALL BE GIVEN] at 02 least 30 days before the action by publication in newspapers of statewide circulation 03 and in newspapers of general circulation in the vicinity of the proposed action and one 04 or more of the following methods: 05 (A) [(1)] publication through public service announcements on 06 the electronic media serving the area affected by the action; 07 (B) [(2)] posting in a conspicuous location in the vicinity of the 08 action; 09 (C) [(3)] notification of parties known or likely to be affected 10 by the action; or 11 (D) [(4)] another method calculated to reach affected persons 12 [. A NOTICE SHALL CONTAIN SUFFICIENT INFORMATION IN 13 COMMONLY UNDERSTOOD TERMS TO INFORM THE PUBLIC OF THE 14 NATURE OF THE ACTION AND THE OPPORTUNITY OF THE PUBLIC 15 TO COMMENT ON THE ACTION]. 16 * Sec. 8. AS 46.40 is amended by adding a new section to read: 17 Sec. 46.40.094. CONSISTENCY DETERMINATIONS FOR PHASED USES 18 AND ACTIVITIES. (a) The provisions of this section apply to a use or activity for 19 which a consistency determination is required if 20 (1) at the time the proposed use or activity is initiated, there is 21 insufficient information to evaluate and render a consistency determination for the 22 entirety of the proposed use or activity; 23 (2) the proposed use or activity is capable of proceeding in discrete 24 phases based upon developing information obtained in the course of a phase; and 25 (3) each subsequent phase of the proposed use or activity is subject to 26 discretion to implement alternative decisions based upon the developing information. 27 (b) When a use or activity is authorized or developed in discrete phases and 28 each phase will require decisions relating to a permit, lease, or authorization for that 29 particular phase, the agency responsible for the consistency determination for the 30 particular phase 31 (1) may, in its discretion, limit the consistency review to that particular
01 phase if, but only if, 02 (A) the agency or another state agency must carry out a 03 subsequent consistency review and make a consistency determination before a 04 later phase may proceed; and 05 (B) the agency responsible conditions its consistency 06 determination for that phase on a requirement that a use or activity authorized 07 in a subsequent phase be consistent with the Alaska coastal management 08 program; and 09 (2) shall, when the consistency review is limited under (1) of this 10 subsection, conduct the consistency review for the particular phase and make the 11 consistency determination based on 12 (A) applicable statutes and regulations; 13 (B) the facts pertaining to a use or activity for which the 14 consistency determination is sought that are 15 (i) known to the state agency responsible or made a part 16 of the record during the consistency review; and 17 (ii) material to the consistency determination; and 18 (C) the reasonably foreseeable, significant effects of the use or 19 activity for which the consistency determination is sought; 20 (3) shall, when the consistency review is limited under (1) of this 21 subsection, describe in the consistency determination the reasons for its decision to 22 make the consistency determination for the use or activity in phases. 23 (c) In this section, 24 (1) "agency responsible for the consistency determination" means 25 (A) the office of management and budget, for a consistency 26 determination required to be made under AS 44.19.145(a)(11); and 27 (B) the commissioner of the resource agency that coordinates 28 a consistency review for a proposed use or activity, or for a proposed phase of 29 a use or activity, when required by this chapter for which a permit, lease, or 30 authorization is required to be approved or issued only by that resource agency; 31 (2) "resource agency" has the meaning given in AS 44.19.152.
01 * Sec. 9. This Act takes effect immediately under AS 01.10.070(c).