CSSB 139(FIN): "An Act relating to fees for certain uses of 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 SENATE BILL NO. 139(FIN) 01 "An Act relating to fees for certain uses of state water and to the accounting and 02 appropriation of those fees; relating to authorizations for the temporary use of state 03 water; making other amendments to the Alaska Water Use Act; and providing for an 04 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 the 09 legislature to authorize the Department of Natural Resources to assess a reasonable fee for the 10 services it provides in facilitating the use of state water; the fee should reflect the reasonable 11 direct cost of providing the service, but it is the policy of the state that the fee not include 12 (1) the costs and salaries of administrative, support, or supervisory personnel 13 who are not directly engaged in providing the service; 14 (2) other budgeted overhead expenses, including rent and utilities;
01 (3) interagency charges that would not meet the requirements of AS 37.10.052 02 - 37.10.058 if those charges had been incurred or invoiced by the agency providing the 03 designated regulatory service; 04 (4) public consultation costs when the consultation is not required by law; 05 (5) costs related to an appeal of permit issuance by a person other than the 06 applicant for that permit; 07 (6) expenses that are not reasonably necessary to comply with the law under 08 which the service is provided; or 09 (7) travel expenses for inspecting businesses having not more than 20 10 employees. 11 (b) It is the policy of the legislature that the Department of Natural Resources not 12 apply a charge to the holder of a certificate of appropriation that is not specifically related to 13 services provided by the department, except that the department may continue to charge the 14 annual $50 administrative service fee currently in use by the department in order to maintain 15 the water rights program for the benefit of Alaskans and current water rights holders. 16 (c) It is the policy of the legislature that the Department of Natural Resources 17 (1) minimize the required costs, including application fees, on individuals and 18 businesses withdrawing less than a significant amount of water; 19 (2) consider providing a partial fee reduction for water rights holders and 20 applicants who have approved irrigation management plans. 21 * Sec. 2. The uncodified law of the State of Alaska is amended by adding a new section to 22 read: 23 FINDINGS, POLICY, AND PURPOSE RELATED TO AUTHORIZATIONS FOR 24 CERTAIN TEMPORARY USES OF STATE WATER. (a) The legislature finds that 25 (1) many construction, development, commercial, and private activities 26 require an authorization for the temporary use of the state's water without the need to acquire 27 a permanent right to appropriate water; 28 (2) for many years, in appropriate circumstances, the Department of Natural 29 Resources has issued revocable permits for the temporary use of state water under AS 46.15; 30 and 31 (3) the legislature validates and affirms that temporary permits authorizing the
01 temporary use of state water continue to be appropriate under AS 46.15. 02 (b) It is the policy of the legislature to expressly confirm in the Department of Natural 03 Resources the authority to issue authorizations for temporary use of water subject to 04 appropriate conditions and limitations set by the Department of Natural Resources. 05 (c) The purpose of the enactment of AS 46.15.155 in sec. 6 of this Act is to 06 (1) confirm the authority of the Department of Natural Resources to issue 07 authorizations for temporary use of water; and 08 (2) affirm the validity of existing temporary permits for the use of state water 09 issued before the effective date of this Act that may have been called into question by the 10 rationale used by the court in Greenpeace v. Alaska Department of Natural Resources, 3AN- 11 00-3415 Civil. 12 * Sec. 3. AS 37.10.058(2) is amended to read: 13 (2) "designated regulatory service" means a regulatory service 14 provided under the following regulatory programs: 15 (A) regulation of the disposal of waste into waters of the state 16 under AS 46.03.100; 17 (B) certification of federal permits or authorizations under 33 18 U.S.C. 1341 (sec. 401, Clean Water Act); [AND] 19 (C) a coastal management consistency determination relating to 20 a permit or authorization issued under a program listed in (A) or (B) of this 21 paragraph, if the determination is made by the agency issuing the permit or 22 authorization; and 23 (D) any authorization for the use or appropriation of water 24 under AS 46.15. 25 * Sec. 4. AS 46.15.020(b) is amended to read: 26 (b) The commissioner shall 27 (1) adopt procedural and substantive regulations to carry out the 28 provisions of this chapter, taking into consideration the responsibilities of the 29 Department of Environmental Conservation under AS 46.03 and the Department of 30 Fish and Game under AS 16; 31 (2) keep a public record of all applications for permits and certificates
01 and other documents filed in the commissioner's office; and shall record all permits 02 and certificates and amendments and orders affecting them and shall index them in 03 accordance with the source of the water and the name of the applicant or appropriator; 04 (3) cooperate with, assist, advise, and coordinate plans with the 05 federal, state, and local agencies, including local soil and water conservation 06 districts, in matters relating to the appropriation, use, conservation, quality, disposal, 07 or control of waters and activities related thereto; 08 (4) prescribe fees or service charges for any public service rendered 09 consistent with AS 37.10.050 - 37.10.058, except that the department may charge 10 under regulations adopted by the department an annual $50 administrative 11 service fee to maintain the water management program; 12 (5) before February 1 of each year, prepare a report describing the 13 activities of the commissioner under AS 46.15.035 and 46.15.037; the commissioner 14 shall notify the legislature that the report is available; the report must include 15 (A) information on the number of applications and 16 appropriations for the removal of water from one hydrological unit to another 17 that were requested and that were granted and on the amounts of water 18 involved; 19 (B) information on the number and location of sales of water 20 conducted by the commissioner and on the volume of water sold; 21 (C) recommendations of the commissioner for changes in state 22 water law; and 23 (D) a description of state revenue and expenses related to 24 activities under AS 46.15.035 and 46.15.037. 25 * Sec. 5. AS 46.15.035(e)(2) is amended to read: 26 (2) "hydrologic unit" means a hydrologic subregion established by the 27 United States Department of the Interior, Geological Survey, on the "Hydrologic Unit 28 Map-1987, State of Alaska"; "hydrologic unit" includes the water of an ocean that 29 is adjacent to a hydrologic subregion of the state. ["] 30 * Sec. 6. AS 46.15 is amended by adding a new section to read: 31 Sec. 46.15.155. Authorization for temporary use of water. (a)
01 Notwithstanding any contrary provision of this chapter, the commissioner may 02 authorize the temporary use of a significant amount of water, as determined by the 03 department by regulation, for a period of time not to exceed five consecutive years, if 04 the water applied for has not been appropriated in accordance with this chapter. 05 (b) Notwithstanding any contrary provision of this chapter, an authorization 06 for a temporary use of less than a significant amount of water is not required under 07 this section unless the commissioner has determined by regulation that the use may 08 have an adverse effect on other water uses and that an authorization must be obtained 09 from the department. 10 (c) The issuance of an authorization for temporary use of water under this 11 section does not establish a right to appropriate water. The temporary use of water 12 under an authorization remains subject to appropriation under this chapter. 13 (d) Notwithstanding any contrary provision of this chapter, the commissioner 14 is not required to provide public notice under AS 46.15.133 of a proposed 15 authorization for temporary use of water; however, the commissioner shall request 16 comment on an application for temporary use of water from the Department of Fish 17 and Game and the Department of Environmental Conservation. 18 (e) The provisions of AS 46.15.080 do not apply to the issuance under this 19 section of an authorization for temporary use of water. 20 (f) The commissioner may impose reasonable conditions or limitations on an 21 authorization for temporary use of water to protect the water rights of other persons or 22 to protect fish and wildlife habitat, human health, or other public interests. 23 (g) Upon approval by the department, an authorization under this section may 24 be transferred to another person under the same conditions and limitations under 25 which the authorization was issued. 26 (h) A person to whom an authorization for temporary use of water was issued 27 under this section may allow another person to use the authorization, consistent with 28 the conditions and limitations of the authorization. 29 (i) The commissioner may modify, suspend, or revoke an authorization issued 30 under this section if the commissioner determines it necessary to protect the water 31 rights of other persons or the public interest.
01 * Sec. 7. AS 46.15.180(a) is amended to read: 02 (a) A person may not 03 (1) construct works for an appropriation, or divert, impound, withdraw, 04 or use a significant amount of water from any source without a permit, [OR] certificate 05 of appropriation, or authorization issued under this chapter; 06 (2) violate an order of the commissioner to cease and desist from 07 preventing any water from moving to a person having a prior right to use it; 08 (3) disobey an order of the commissioner requiring the person to take 09 steps to cause the water to move to a person having a prior right to use it; 10 (4) fail or refuse to install meters, gauges, or other measuring devices 11 or control works; 12 (5) violate an order establishing corrective controls for an area or for a 13 source of water; 14 (6) knowingly make a false or misleading statement in a declaration of 15 existing right. 16 * Sec. 8. The uncodified law of the State of Alaska is amended by adding a new section to 17 read: 18 VALIDITY OF EXISTING TEMPORARY PERMITS ISSUED BEFORE THE 19 EFFECTIVE DATE OF THIS ACT. (a) A temporary permit issued before the effective date 20 of this Act by the Department of Natural Resources under AS 46.15 authorizing the temporary 21 use of water is valid and remains in effect, notwithstanding that public notice was not 22 provided under AS 46.15.133 or the criteria set out in AS 46.15.080 were not applied before 23 the temporary permit was issued. 24 (b) A temporary permit described in (a) of this section shall be considered to be an 25 authorization for temporary use of water under AS 46.15.155, enacted by sec. 6 of this Act, as 26 if AS 46.15.155 had been in effect at the time the temporary permit was issued. A temporary 27 permit described in this subsection is subject to the terms and conditions set out in the 28 temporary permit and is subject to the requirements of AS 46.15.155, enacted by sec. 6 of this 29 Act. 30 * Sec. 9. The uncodified law of the State of Alaska is amended by adding a new section to 31 read:
01 TRANSITION: REGULATIONS. (a) Under AS 44.62.125(b)(6), the regulations 02 attorney may change the term "temporary water use permit" in regulations of the Department 03 of Natural Resources concerning water use to "authorization for temporary use of water" as 04 consistent with this Act. 05 (b) To the extent that the regulations are not inconsistent with this Act, regulations 06 related to water management adopted by the Department of Natural Resources under 07 AS 46.15 and in effect on the effective date of this Act remain in effect until amended or 08 repealed and may be administered and enforced by the Department of Natural Resources. 09 * Sec. 10. Except as provided in sec. 11 of this Act, this Act takes effect immediately under 10 AS 01.10.070(c). 11 * Sec. 11. Section 4 of this Act takes effect July 1, 2002.