CSHB 185(FIN): "An Act relating to fees for certain uses of state water, other than fees for traveling upon state water, and to the accounting and appropriation of those fees; relating to authorizations for the temporary use of state water; making other amendments to the Alaska Water Use Act; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 185(FIN) 01 "An Act relating to fees for certain uses of state water, other than fees for traveling upon 02 state water, and to the accounting and appropriation of those fees; relating to 03 authorizations for the temporary use of state water; making other amendments to the 04 Alaska Water Use Act; and providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. The uncodified law of the State of Alaska is amended by adding new sections 07 to read: 08 POLICY REGARDING STATE WATER USE FEES. (a) It is the policy of 09 the legislature to authorize the Department of Natural Resources to assess a reasonable fee for 10 the services it provides in facilitating the use of state water; the fee should reflect the 11 reasonable direct cost of providing the service, but it is the policy of the state that the fee not 12 include 13 (1) the costs and salaries of administrative, support, or supervisory personnel 14 who are not directly engaged in providing the service;
01 (2) other budgeted overhead expenses, including rent and utilities; 02 (3) interagency charges that would not meet the requirements of AS 37.10.052 03 - 37.10.058 if those charges had been incurred or invoiced by the agency providing the 04 designated regulatory service; 05 (4) public consultation costs when the consultation is not required by law; 06 (5) costs related to an appeal of permit issuance by a person other than the 07 applicant for that permit; 08 (6) expenses that are not reasonably necessary to comply with the law under 09 which the service is provided; or 10 (7) travel expenses for inspecting businesses having not more than 20 11 employees. 12 (b) It is the policy of the legislature that the Department of Natural Resources not 13 apply a charge to the holder of a certificate of appropriation that is not specifically related to 14 services provided by the department, except that the department may continue to charge the 15 annual $50 administrative service fee currently in use by the department in order to maintain 16 the water rights program for the benefit of Alaskans and current water rights holders. 17 (c) It is the policy of the legislature that the Department of Natural Resources 18 (1) minimize the required costs, including application fees, on individuals and 19 businesses withdrawing less than a significant amount of water; 20 (2) consider providing a partial fee reduction for water rights holders and 21 applicants who have approved irrigation management plans. 22 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 23 read: 24 FINDINGS, POLICY, AND PURPOSE RELATED TO AUTHORIZATIONS FOR 25 CERTAIN TEMPORARY USES OF STATE WATER. (a) The legislature finds that 26 (1) many construction, development, commercial, and private activities 27 require an authorization for the temporary use of the state's water without the need to acquire 28 a permanent right to appropriate water; 29 (2) for many years, in appropriate circumstances, the Department of Natural 30 Resources has issued revocable permits for the temporary use of state water under AS 46.15; 31 and
01 (3) the legislature validates and affirms that temporary permits authorizing the 02 temporary use of state water continue to be appropriate under AS 46.15. 03 (b) It is the policy of the legislature to expressly confirm in the Department of Natural 04 Resources the authority to issue authorizations for temporary use of water subject to 05 appropriate conditions and limitations set by the Department of Natural Resources. 06 (c) The purpose of the enactment of AS 46.15.155 in sec. 6 of this Act is to 07 (1) confirm the authority of the Department of Natural Resources to issue 08 authorizations for temporary use of water; and 09 (2) affirm the validity of existing temporary permits for the use of state water 10 issued before the effective date of this Act that may have been called into question by the 11 rationale used by the court in Greenpeace v. Alaska Department of Natural Resources, 3AN- 12 00-3415 Civil. 13 * Sec. 3. AS 37.10.058(2) is amended to read: 14 (2) "designated regulatory service" means a regulatory service 15 provided under the following regulatory programs: 16 (A) regulation of the disposal of waste into waters of the state 17 under AS 46.03.100; 18 (B) certification of federal permits or authorizations under 33 19 U.S.C. 1341 (sec. 401, Clean Water Act); [AND] 20 (C) a coastal management consistency determination relating to 21 a permit or authorization issued under a program listed in (A) or (B) of this 22 paragraph, if the determination is made by the agency issuing the permit or 23 authorization; and 24 (D) any authorization for the use or appropriation of water 25 under AS 46.15. 26 * Sec. 4. AS 46.15.020(b) is amended to read: 27 (b) The commissioner shall 28 (1) adopt procedural and substantive regulations to carry out the 29 provisions of this chapter, taking into consideration the responsibilities of the 30 Department of Environmental Conservation under AS 46.03 and the Department of 31 Fish and Game under AS 16;
01 (2) keep a public record of all applications for permits and certificates 02 and other documents filed in the commissioner's office; and shall record all permits 03 and certificates and amendments and orders affecting them and shall index them in 04 accordance with the source of the water and the name of the applicant or appropriator; 05 (3) cooperate with, assist, advise, and coordinate plans with the 06 federal, state, and local agencies, including local soil and water conservation 07 districts, in matters relating to the appropriation, use, conservation, quality, disposal, 08 or control of waters and activities related thereto; 09 (4) prescribe fees or service charges for any public service rendered 10 consistent with AS 37.10.050 - 37.10.058, except that the department may charge 11 under regulations adopted by the department an annual $50 administrative 12 service fee to maintain the water management program and a water conservation 13 fee under AS 46.15.035; 14 (5) before February 1 of each year, prepare a report describing the 15 activities of the commissioner under AS 46.15.035 and 46.15.037; the commissioner 16 shall notify the legislature that the report is available; the report must include 17 (A) information on the number of applications and 18 appropriations for the removal of water from one hydrological unit to another 19 that were requested and that were granted and on the amounts of water 20 involved; 21 (B) information on the number and location of sales of water 22 conducted by the commissioner and on the volume of water sold; 23 (C) recommendations of the commissioner for changes in state 24 water law; and 25 (D) a description of state revenue and expenses related to 26 activities under AS 46.15.035 and 46.15.037. 27 * Sec. 5. AS 46.15.035(e)(2) is amended to read: 28 (2) "hydrologic unit" means a hydrologic subregion established by the 29 United States Department of the Interior, Geological Survey, on the "Hydrologic Unit 30 Map-1987, State of Alaska"; "hydrologic unit" includes the water of an ocean that 31 is adjacent to a hydrologic subregion of the state. ["]
01 * Sec. 6. AS 46.15 is amended by adding a new section to read: 02 Sec. 46.15.155. Authorization for temporary use of water. (a) 03 Notwithstanding any contrary provision of this chapter, the commissioner may 04 authorize the temporary use of a significant amount of water, as determined by the 05 department by regulation, for a period of time not to exceed five consecutive years, if 06 the water applied for has not been appropriated in accordance with this chapter. 07 (b) Notwithstanding any contrary provision of this chapter, an authorization 08 for a temporary use of less than a significant amount of water is not required under 09 this section unless the commissioner has determined by regulation that the use may 10 have an adverse effect on other water uses and that an authorization must be obtained 11 from the department. 12 (c) The issuance of an authorization for temporary use of water under this 13 section does not establish a right to appropriate water. The temporary use of water 14 under an authorization remains subject to appropriation under this chapter. 15 (d) Notwithstanding any contrary provision of this chapter, the commissioner 16 is not required to provide public notice under AS 46.15.133 of a proposed 17 authorization for temporary use of water; however, the commissioner shall request 18 comment on an application for temporary use of water from the Department of Fish 19 and Game and the Department of Environmental Conservation. 20 (e) The provisions of AS 46.15.080 do not apply to the issuance under this 21 section of an authorization for temporary use of water. 22 (f) The commissioner may impose reasonable conditions or limitations on an 23 authorization for temporary use of water to protect the water rights of other persons or 24 to protect fish and wildlife habitat, human health, or other public interests. 25 (g) Upon approval by the department, an authorization under this section may 26 be transferred to another person under the same conditions and limitations under 27 which the authorization was issued. 28 (h) A person to whom an authorization for temporary use of water was issued 29 under this section may allow another person to use the authorization, consistent with 30 the conditions and limitations of the authorization. 31 (i) The commissioner may modify, suspend, or revoke an authorization issued
01 under this section if the commissioner determines it necessary to protect the water 02 rights of other persons or the public interest. 03 * Sec. 7. AS 46.15.180(a) is amended to read: 04 (a) A person may not 05 (1) construct works for an appropriation, or divert, impound, withdraw, 06 or use a significant amount of water from any source without a permit, [OR] certificate 07 of appropriation, or authorization issued under this chapter; 08 (2) violate an order of the commissioner to cease and desist from 09 preventing any water from moving to a person having a prior right to use it; 10 (3) disobey an order of the commissioner requiring the person to take 11 steps to cause the water to move to a person having a prior right to use it; 12 (4) fail or refuse to install meters, gauges, or other measuring devices 13 or control works; 14 (5) violate an order establishing corrective controls for an area or for a 15 source of water; 16 (6) knowingly make a false or misleading statement in a declaration of 17 existing right. 18 * Sec. 8. AS 46.15.180(a) is amended to read: 19 (a) A person may not 20 (1) construct works for an appropriation, or divert, impound, withdraw, 21 or use a significant amount of water from any source without a permit or [,] certificate 22 of appropriation [, OR AUTHORIZATION ISSUED UNDER THIS CHAPTER]; 23 (2) violate an order of the commissioner to cease and desist from 24 preventing any water from moving to a person having a prior right to use it; 25 (3) disobey an order of the commissioner requiring the person to take 26 steps to cause the water to move to a person having a prior right to use it; 27 (4) fail or refuse to install meters, gauges, or other measuring devices 28 or control works; 29 (5) violate an order establishing corrective controls for an area or for a 30 source of water; 31 (6) knowingly make a false or misleading statement in a declaration of
01 existing right. 02 * Sec. 9. AS 46.15.155 is repealed. 03 * Sec. 10. Section 2 of this Act is repealed. 04 * Sec. 11. The uncodified law of the State of Alaska is amended by adding a new section to 05 read: 06 VALIDITY OF EXISTING TEMPORARY PERMITS ISSUED BEFORE THE 07 EFFECTIVE DATE OF THIS ACT. (a) A temporary permit issued before the effective date 08 of this Act by the Department of Natural Resources under AS 46.15 authorizing the temporary 09 use of water is valid and remains in effect, notwithstanding that public notice was not 10 provided under AS 46.15.133 or the criteria set out in AS 46.15.080 were not applied before 11 the temporary permit was issued. 12 (b) A temporary permit described in (a) of this section shall be considered to be an 13 authorization for temporary use of water under AS 46.15.155, enacted by sec. 6 of this Act, as 14 if AS 46.15.155 had been in effect at the time the temporary permit was issued. A temporary 15 permit described in this subsection is subject to the terms and conditions set out in the 16 temporary permit and is subject to the requirements of AS 46.15.155, enacted by sec. 6 of this 17 Act. 18 * Sec. 12. The uncodified law of the State of Alaska is amended by adding a new section to 19 read: 20 TRANSITION: REGULATIONS. (a) Under AS 44.62.125(b)(6), the regulations 21 attorney may change the term "temporary water use permit" in regulations of the Department 22 of Natural Resources concerning water use to "authorization for temporary use of water" as 23 consistent with this Act. 24 (b) To the extent that the regulations are not inconsistent with this Act, regulations 25 related to water management adopted by the Department of Natural Resources under 26 AS 46.15 and in effect on the effective date of this Act remain in effect until amended or 27 repealed and may be administered and enforced by the Department of Natural Resources. 28 * Sec. 13. Sections 1 - 3, 5 - 7, 11, and 12 of this Act take effect immediately under 29 AS 01.10.070(c). 30 * Sec. 14. Sections 4 and 8 - 10 of this Act take effect July 1, 2002.