SB 156: "An Act amending the Alaska Land Act to clarify the requirement of a single written best interest finding required for the sale, lease, or other disposal of state land or resources or an interest in them, and relating to certain disposals involving multiphased development; and providing for an effective date."
00 SENATE BILL NO. 156 01 "An Act amending the Alaska Land Act to clarify the requirement of a single written 02 best interest finding required for the sale, lease, or other disposal of state land or 03 resources or an interest in them, and relating to certain disposals involving multiphased 04 development; 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 a new section 07 to read: 08 LEGISLATIVE PURPOSE. (a) In 1994, the legislature amended AS 38.05.035 in 09 reaction to a series of decisions by the Alaska Supreme Court concerning what the court 10 characterized as the Department of Natural Resources' "phasing" of its review of various 11 mining and oil and gas projects and deciding that phasing generally should not be allowed. 12 (b) The amendment to AS 38.05.035(e) provided that, in preparing its best interest 13 finding, the Department of Natural Resources may limit the scope of its review and finding to 14 the disposal phase of a multiphase project if certain conditions were met.
01 (c) Although the legislature did intend that there would be a detailed review of the 02 project at any later phase, the legislature did not intend that the Department of Natural 03 Resources would have to issue another best interest finding as part of that review. 04 (d) When passing the 1994 amendments, the legislature was aware that any post- 05 disposal phase, such as exploration, development, and transportation, would be subjected to 06 numerous federal, state, and local laws, regulations, policies, and ordinances; reviewed by 07 numerous agencies; and subjected to public review and comment. For example, 08 (1) before an onshore exploration well can be drilled in the Cook Inlet, a 09 lessee, in addition to complying with the lease's stipulations and mitigation measures, 10 typically must 11 (A) conduct a cultural resource study with the Department of Natural 12 Resources, division of parks, office of history and archaeology; and 13 (B) obtain 14 (i) from the state and borough an Alaska coastal management 15 program consistency determination; 16 (ii) from the Division of Oil and Gas of the Department of 17 Natural Resources approval of a plan of operation; 18 (iii) from the Department of Natural Resources, division of 19 mining, land, and water a land use permit; 20 (iv) from the Department of Fish and Game a special area, and 21 possibly a fish habitat, permit; 22 (v) from the Department of Natural Resources, division of 23 mining, land, and water a temporary water use permit; 24 (vi) from the Department of Environmental Conservation a 25 wastewater disposal permit; 26 (vii) from the Department of Environmental Conservation 27 approval of an oil discharge prevention and contingency plan; 28 (viii) from the Department of Environmental Conservation a 29 solid waste disposal permit; 30 (ix) from the Department of Environmental Conservation a 31 certificate of reasonable assurance that state water quality standards are met;
01 (x) from the United States Army Corps of Engineers a permit 02 issued under 33 U.S.C. 1344 (sec. 404 of the Clean Water Act); 03 (xi) from the Alaska Oil and Gas Conservation Commission a 04 conservation order; and 05 (xii) from the Alaska Oil and Gas Conservation Commission a 06 permit to drill; and 07 (2) for a typical offshore exploration well in the Cook Inlet, in addition to 08 complying with the lease's stipulations and mitigation measures, a lessee typically must 09 (A) obtain 10 (i) from the state and borough an Alaska coastal management 11 program consistency determination; 12 (ii) from the Department of Natural Resources, division of oil 13 and gas, approval of a plan of operation; 14 (iii) from the Department of Environmental Conservation an air 15 quality permit; 16 (iv) from the Department of Environmental Conservation 17 approval of an oil discharge prevention and contingency plan; 18 (v) from the Department of Environmental Conservation an 19 annular injection approval under a general permit; 20 (vi) from the Department of Environmental Conservation a 21 certificate of reasonable assurance that state water quality standards are met; 22 (vii) from the United States Army Corps of Engineers a permit 23 issued under 33 U.S.C. 403 (sec. 10 of the Rivers and Harbors Act of 1899); 24 (viii) from the United States Environmental Protection Agency 25 a National Pollutant Discharge Elimination System (NPDES) waste disposal 26 permit; 27 (ix) from the Alaska Oil and Gas Conservation Commission a 28 conservation order; and 29 (x) from the Alaska Oil and Gas Conservation Commission a 30 permit to drill; and 31 (B) meet the requirements, under the Alaska coastal management
01 program, of public notice and the opportunity to comment. 02 (e) In Kachemak Bay Conservation Society v. State, Department of Natural 03 Resources, 6 P.3d 270 (2000), the Alaska Supreme Court considered the 1994 amendment; 04 the Court recognized that it empowered the department to phase, but declared that the 05 department "is obliged, at each phase of development, to issue a best interests finding . . . 06 relating to that phase before the proposed development may proceed." 07 (f) This Act is intended to make clear that 08 (1) no other best interest finding is required after the disposal phase; 09 (2) the best interest finding shall be based upon known information or 10 information that is made available to the director, even if all potential cumulative impacts of 11 the project are not known; and 12 (3) public notice and the opportunity to comment shall be provided at each 13 phase of the project. 14 * Sec. 2. AS 38.05.035(e) is amended to read: 15 (e) Upon a written finding that the interests of the state will be best served, the 16 director may, with the consent of the commissioner, approve contracts for the sale, 17 lease, or other disposal of available land, resources, property, or interests in them. In 18 approving a contract under this subsection, the director need only prepare a 19 single written finding. In addition to the conditions and limitations imposed by law, 20 the director may impose additional conditions or limitations in the contracts as the 21 director determines, with the consent of the commissioner, will best serve the interests 22 of the state. The preparation and issuance of the written finding by the director are 23 [IS] subject to the following: 24 (1) with the consent of the commissioner and subject to the director's 25 discretion, for a specific proposed disposal of available land, resources, or property, or 26 of an interest in them, the director, in the written finding, 27 (A) shall establish the scope of the administrative review on 28 which the director's determination is based, and the scope of the written 29 finding supporting that determination; the scope of the administrative review 30 and finding may address only reasonably foreseeable, significant effects of the 31 uses proposed to be authorized by the disposal;
01 (B) may limit the scope of an administrative review and finding 02 for a proposed disposal to 03 (i) applicable statutes and regulations; 04 (ii) the facts pertaining to the land, resources, or 05 property, or interest in them, that the director finds are material to the 06 determination and that are known to the director or knowledge of which 07 is made available to the director during the administrative review; and 08 (iii) issues that, based on the statutes and regulations 09 referred to in (i) of this subparagraph, on the facts as described in (ii) of 10 this subparagraph, and on the nature of the uses sought to be authorized 11 by the disposal, the director finds are material to the determination of 12 whether the proposed disposal will best serve the interests of the state; 13 and 14 (C) may, if the project for which the proposed disposal is 15 sought is a multiphased development, limit the scope of an administrative 16 review and finding for the proposed disposal to the applicable statutes and 17 regulations, facts, and issues identified in (B)(i) - (iii) of this paragraph that 18 pertain solely to a discrete phase of the project when 19 (i) the only uses to be authorized by the proposed 20 disposal are part of that discrete phase; 21 (ii) before the next phase of the project may proceed, 22 public notice and the opportunity to comment are provided under 23 regulations adopted by the department or, if the project is subject 24 to a consistency review under AS 46.40, public notice and the 25 opportunity to comment on provided under AS 46.40.096(c); 26 (iii) the department's approval is required before the 27 next phase of the project may proceed; and 28 (iv) [(iii)] the department describes its reasons for a 29 decision to phase [AND CONDITIONS ITS APPROVAL TO 30 ENSURE THAT ANY ADDITIONAL USES OR ACTIVITIES 31 PROPOSED FOR THAT OR ANY LATER PHASE OF THE
01 PROJECT WILL SERVE THE BEST INTERESTS OF THE STATE]; 02 (2) the director shall discuss in the written finding prepared and issued 03 under this subsection the reasons that each of the following was not material to the 04 director's determination that the interests of the state will be best served: 05 (A) facts pertaining to the land, resources, or property, or an 06 interest in them other than those that the director finds material under (1)(B)(ii) 07 of this subsection; and 08 (B) issues based on the statutes and regulations referred to in 09 (1)(B)(i) of this subsection and on the facts described in (1)(B)(ii) of this 10 subsection; 11 (3) a written finding for an oil and gas lease sale under AS 38.05.180 is 12 subject to (g) of this section; 13 (4) a contract for the sale, lease, or other disposal of available land or 14 an interest in land is not legally binding on the state until the commissioner approves 15 the contract, but if the appraised value is not greater than $50,000 in the case of the 16 sale of land or an interest in land, or $5,000 in the case of the annual rental of land or 17 interest in land, the director may execute the contract without the approval of the 18 commissioner; 19 (5) public notice requirements relating to the sale, lease, or other 20 disposal of available land or an interest in land for oil and gas proposed to be 21 scheduled in the five-year oil and gas leasing program under AS 38.05.180(b), except 22 for a sale under (6)(F) of this subsection, are as follows: 23 (A) before a public hearing, if held, or in any case not less than 24 180 days before the sale, lease, or other disposal of available land or an interest 25 in land, the director shall make available to the public a preliminary written 26 finding that states the scope of the review established under (1)(A) of this 27 subsection and includes the applicable statutes and regulations, the material 28 facts and issues in accordance with (1)(B) of this subsection, and information 29 required by (g) of this section, upon which the determination that the sale, 30 lease, or other disposal will serve the best interests of the state will be based; 31 the director shall provide opportunity for public comment on the preliminary
01 written finding for a period of not less than 60 days; 02 (B) after the public comment period for the preliminary written 03 finding and not less than 90 days before the sale, lease, or other disposal of 04 available land or an interest in land for oil and gas, the director shall make 05 available to the public a final written finding that states the scope of the review 06 established under (1)(A) of this subsection and includes the applicable statutes 07 and regulations, the material facts and issues in accordance with (1) of this 08 subsection, and information required by (g) of this section, upon which the 09 determination that the sale, lease, or other disposal will serve the best interests 10 of the state is based; 11 (6) before a public hearing, if held, or in any case not less than 21 days 12 before the sale, lease, or other disposal of available land, property, resources, or 13 interests in them other than a sale, lease, or other disposal of available land or an 14 interest in land for oil and gas under (5) of this subsection, the director shall make 15 available to the public a written finding that, in accordance with (1) of this subsection, 16 sets out the material facts and applicable statutes and regulations and any other 17 information required by statute or regulation to be considered upon which the 18 determination that the sale, lease, or other disposal will best serve the interests of the 19 state was based; however, a written finding is not required before the approval of 20 (A) a contract for a negotiated sale authorized under 21 AS 38.05.115; 22 (B) a lease of land for a shore fishery site under AS 38.05.082; 23 (C) a permit or other authorization revocable by the 24 commissioner; 25 (D) a mineral claim located under AS 38.05.195; 26 (E) a mineral lease issued under AS 38.05.205; 27 (F) an exempt oil and gas lease sale under AS 38.05.180(d) of 28 acreage subject to a best interest finding issued within the previous 10 years or 29 a reoffer oil and gas lease sale under AS 38.05.180(w) of acreage subject to a 30 best interest finding issued within the previous 10 years, unless the 31 commissioner determines that substantial new information has become
01 available that justifies a supplement to the most recent best interest finding for 02 the exempt oil and gas lease sale acreage and for the reoffer oil and gas lease 03 sale acreage; however, for each oil and gas lease sale described in this 04 subparagraph, the director shall call for comments from the public; the 05 director's call for public comments must provide opportunity for public 06 comment for a period of not less than 30 days; if the director determines that a 07 supplement to the most recent best interest finding for the acreage is required 08 under this subparagraph, 09 (i) the director shall issue the supplement to the best 10 interest finding not later than 90 days before the sale; 11 (ii) not later than 45 days before the sale, the director 12 shall issue a notice describing the interests to be offered, the location 13 and time of the sale, and the terms and conditions of the sale; and 14 (iii) the supplement has the status of a final written best 15 interest finding for purposes of (i) and (l) of this section; 16 (G) a shallow gas lease authorized under AS 38.05.177 in an 17 area for which leasing is authorized under AS 38.05.177; 18 (H) a surface use lease under AS 38.05.255; 19 (I) a permit, right-of-way, or easement under AS 38.05.850; 20 (7) the director shall include in 21 (A) a preliminary written finding, if required, a summary of 22 agency and public comments, if any, obtained as a result of contacts with other 23 agencies concerning a proposed disposal or as a result of informal efforts 24 undertaken by the department to solicit public response to a proposed disposal, 25 and the department's preliminary responses to those comments; and 26 (B) the final written finding a summary of agency and public 27 comments received and the department's responses to those comments. 28 * Sec. 3. This Act takes effect immediately under AS 01.10.070(c).