SCS CSHB 77(FIN): "An Act relating to the Alaska Land Act, including certain authorizations, contracts, leases, permits, or other disposals of state land, resources, property, or interests; relating to authorization for the use of state land by general permit; relating to exchange of state land; establishing that performance of a feasibility study for the development and operation of a hydroelectric site at Chikuminuk Lake is not considered an incompatible use of the Wood-Tikchik State Park; relating to procedures for certain administrative appeals and requests for reconsideration to the commissioner of natural resources; relating to the Alaska Water Use Act; and providing for an effective date."
00 SENATE CS FOR CS FOR HOUSE BILL NO. 77(FIN) 01 "An Act relating to the Alaska Land Act, including certain authorizations, contracts, 02 leases, permits, or other disposals of state land, resources, property, or interests; relating 03 to authorization for the use of state land by general permit; relating to exchange of state 04 land; establishing that performance of a feasibility study for the development and 05 operation of a hydroelectric site at Chikuminuk Lake is not considered an incompatible 06 use of the Wood-Tikchik State Park; relating to procedures for certain administrative 07 appeals and requests for reconsideration to the commissioner of natural resources; 08 relating to the Alaska Water Use Act; and providing for an effective date." 09 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 10 * Section 1. AS 38.05.020 is amended by adding a new subsection to read: 11 (c) Notwithstanding any other provision of law, the commissioner may 12 authorize an activity on state land by the issuance of a general permit if the
01 commissioner finds that the activity is unlikely to result in significant and irreparable 02 harm to state land or resources. This subsection does not apply to land designated 03 under AS 16.20, AS 27.21, AS 41.17, or AS 41.21. 04 * Sec. 2. AS 38.05.030(c) is amended to read: 05 (c) The [IN ADDITION TO THE REQUIREMENTS SPECIFIED IN 06 AS 38.50.090, THE] agencies referred to in (b) of this section and other state agencies 07 with authority to acquire or dispose of land shall give written notification of the fact of 08 acquisition, lease, disposal, or exchange to the commissioner not later than 09 [WITHIN] three months after the date that they make the acquisition, lease, disposal, 10 or exchange. 11 * Sec. 3. AS 38.05.035(e) is amended to read: 12 (e) Upon a written finding that the interests of the state will be best served, the 13 director may, with the consent of the commissioner, approve contracts for the sale, 14 lease, or other disposal of available land, resources, property, or interests in them. In 15 approving a contract under this subsection, the director need only prepare a single 16 written finding. In addition to the conditions and limitations imposed by law, the 17 director may impose additional conditions or limitations in the contracts as the director 18 determines, with the consent of the commissioner, will best serve the interests of the 19 state. The preparation and issuance of the written finding by the director are subject to 20 the following: 21 (1) with the consent of the commissioner and subject to the director's 22 discretion, for a specific proposed disposal of available land, resources, or property, or 23 of an interest in them, the director, in the written finding, 24 (A) shall establish the scope of the administrative review on 25 which the director's determination is based, and the scope of the written 26 finding supporting that determination; the scope of the administrative review 27 and finding may address only reasonably foreseeable, significant effects of the 28 uses proposed to be authorized by the disposal; 29 (B) may limit the scope of an administrative review and finding 30 for a proposed disposal to 31 (i) applicable statutes and regulations;
01 (ii) the facts pertaining to the land, resources, or 02 property, or interest in them, that the director finds are material to the 03 determination and that are known to the director or knowledge of which 04 is made available to the director during the administrative review; and 05 (iii) issues that, based on the statutes and regulations 06 referred to in (i) of this subparagraph, on the facts as described in (ii) of 07 this subparagraph, and on the nature of the uses sought to be authorized 08 by the disposal, the director finds are material to the determination of 09 whether the proposed disposal will best serve the interests of the state; 10 and 11 (C) may, if the project for which the proposed disposal is 12 sought is a multiphased development, limit the scope of an administrative 13 review and finding for the proposed disposal to the applicable statutes and 14 regulations, facts, and issues identified in (B)(i) - (iii) of this paragraph that 15 pertain solely to the disposal phase of the project when 16 (i) the only uses to be authorized by the proposed 17 disposal are part of that phase; 18 (ii) the disposal is a disposal of oil and gas, or of gas 19 only, and, before the next phase of the project may proceed, public 20 notice and the opportunity to comment are provided under regulations 21 adopted by the department; 22 (iii) the department's approval is required before the 23 next phase of the project may proceed; and 24 (iv) the department describes its reasons for a decision 25 to phase; 26 (2) the director shall discuss in the written finding prepared and issued 27 under this subsection the reasons that each of the following was not material to the 28 director's determination that the interests of the state will be best served: 29 (A) facts pertaining to the land, resources, or property, or an 30 interest in them other than those that the director finds material under (1)(B)(ii) 31 of this subsection; and
01 (B) issues based on the statutes and regulations referred to in 02 (1)(B)(i) of this subsection and on the facts described in (1)(B)(ii) of this 03 subsection; 04 (3) a written finding for an oil and gas lease sale or gas only lease sale 05 under AS 38.05.180 is subject to (g) of this section; 06 (4) a contract for the sale, lease, or other disposal of available land or 07 an interest in land is not legally binding on the state until the commissioner approves 08 the contract, but if the appraised value is not greater than $50,000 in the case of the 09 sale of land or an interest in land, or $10,000 [$5,000] in the case of the annual rental 10 of land or interest in land, the director may execute the contract without the approval 11 of the commissioner; 12 (5) public notice requirements relating to the sale, lease, or other 13 disposal of available land or an interest in land for oil and gas, or for gas only, 14 proposed to be scheduled in the five-year oil and gas leasing program under 15 AS 38.05.180(b), except for a sale under (6)(F) of this subsection, are as follows: 16 (A) before a public hearing, if held, or in any case not less than 17 180 days before the sale, lease, or other disposal of available land or an interest 18 in land, the director shall make available to the public a preliminary written 19 finding that states the scope of the review established under (1)(A) of this 20 subsection and includes the applicable statutes and regulations, the material 21 facts and issues in accordance with (1)(B) of this subsection, and information 22 required by (g) of this section, upon which the determination that the sale, 23 lease, or other disposal will serve the best interests of the state will be based; 24 the director shall provide opportunity for public comment on the preliminary 25 written finding for a period of not less than 60 days; 26 (B) after the public comment period for the preliminary written 27 finding and not less than 90 days before the sale, lease, or other disposal of 28 available land or an interest in land for oil and gas or for gas only, the director 29 shall make available to the public a final written finding that states the scope of 30 the review established under (1)(A) of this subsection and includes the 31 applicable statutes and regulations, the material facts and issues in accordance
01 with (1) of this subsection, and information required by (g) of this section, 02 upon which the determination that the sale, lease, or other disposal will serve 03 the best interests of the state is based; 04 (6) before a public hearing, if held, or in any case not less than 21 days 05 before the sale, lease, or other disposal of available land, property, resources, or 06 interests in them other than a sale, lease, or other disposal of available land or an 07 interest in land for oil and gas or for gas only under (5) of this subsection, the director 08 shall make available to the public a written finding that, in accordance with (1) of this 09 subsection, sets out the material facts and applicable statutes and regulations and any 10 other information required by statute or regulation to be considered upon which the 11 determination that the sale, lease, or other disposal will best serve the interests of the 12 state was based; the director may make available to the public a preliminary 13 written finding and provide opportunity for public comment on the preliminary 14 written finding for a period of at least 30 days; [HOWEVER,] a written finding is 15 not required before the approval of 16 (A) a contract for a negotiated sale authorized under 17 AS 38.05.115; 18 (B) a lease of land for a shore fishery site under AS 38.05.082; 19 (C) a permit or other authorization revocable by the 20 commissioner; 21 (D) a mineral claim located under AS 38.05.195; 22 (E) a mineral lease issued under AS 38.05.205; 23 (F) an exempt oil and gas lease sale or gas only lease sale under 24 AS 38.05.180(d) of acreage subject to a best interest finding issued within the 25 previous 10 years or a reoffer oil and gas lease sale or gas only lease sale under 26 AS 38.05.180(w) of acreage subject to a best interest finding issued within the 27 previous 10 years, unless the commissioner determines that substantial new 28 information has become available that justifies a supplement to the most recent 29 best interest finding for the exempt oil and gas lease sale or gas only lease sale 30 acreage and for the reoffer oil and gas lease sale or gas only lease sale acreage; 31 however, for each oil and gas lease sale or gas only lease sale described in this
01 subparagraph, the director shall call for comments from the public; the 02 director's call for public comments must provide opportunity for public 03 comment for a period of not less than 30 days; if the director determines that a 04 supplement to the most recent best interest finding for the acreage is required 05 under this subparagraph, 06 (i) the director shall issue the supplement to the best 07 interest finding not later than 90 days before the sale; 08 (ii) not later than 45 days before the sale, the director 09 shall issue a notice describing the interests to be offered, the location 10 and time of the sale, and the terms and conditions of the sale; and 11 (iii) the supplement has the status of a final written best 12 interest finding for purposes of (i) and (l) of this section; 13 (G) a surface use lease under AS 38.05.255; 14 (H) a permit, right-of-way, or easement under AS 38.05.850; 15 (7) the director shall include in 16 (A) a preliminary written finding, if issued [REQUIRED], a 17 summary of agency and public comments, if any, obtained as a result of 18 contacts with other agencies concerning a proposed disposal or as a result of 19 informal efforts undertaken by the department to solicit public response to a 20 proposed disposal, and the department's preliminary responses to those 21 comments; and 22 (B) the final written finding a summary of agency and public 23 comments received and the department's responses to those comments. 24 * Sec. 4. AS 38.05.035(i) is amended to read: 25 (i) A person who is eligible to file an administrative appeal or a request for 26 reconsideration, as appropriate, under this subsection and who is substantially and 27 adversely affected [AGGRIEVED] by the final written finding of the director entered 28 under (e)(5) or (6) of this section may, not later than [WITHIN] 20 days after the 29 issuance of the final written finding, file an administrative appeal or request 30 reconsideration of the decision by the commissioner. A person is eligible to file an 31 administrative appeal or a request for reconsideration if the person
01 (1) meaningfully participated in the process set out in this chapter for 02 receipt of public comment by 03 (A) submitting written comment during the period for receipt 04 of public comment; or 05 (B) presenting oral testimony at a public hearing, if a public 06 hearing was held; or [AND] 07 (2) is the applicant [AFFECTED BY THE FINAL WRITTEN 08 FINDING]. 09 * Sec. 5. AS 38.05.035(j) is amended to read: 10 (j) An administrative appeal or a request for reconsideration submitted under 11 (i) of this section must specify the written finding complained of and the specific basis 12 upon which it is challenged. [THE COMMISSIONER SHALL GRANT OR DENY 13 THE ADMINISTRATIVE APPEAL OR RECONSIDERATION REQUEST WITHIN 14 30 DAYS AFTER ISSUANCE OF THE FINAL WRITTEN FINDING.] Failure of the 15 commissioner to act on a [THE] request for reconsideration not later than 30 days 16 after issuance of the final written finding [WITHIN THIS PERIOD] is a denial of 17 the request for reconsideration and a final administrative decision for purposes of 18 appeal to the superior court. 19 * Sec. 6. AS 38.05.035(l) is amended to read: 20 (l) A person may appeal a final written finding issued under (e)(5) or (6) of 21 this section to the superior court, but only if the person was eligible to request, and did 22 request, an administrative appeal or reconsideration of that finding under (i) of this 23 section. The person shall initiate the appeal to the court not later than [WITHIN] 30 24 days from the date that the decision on administrative appeal or reconsideration is 25 mailed or otherwise distributed, or the date the request for reconsideration is 26 considered denied by the commissioner's failure to act on the request, whichever is 27 earlier. The points on appeal to the court are limited to those presented to the 28 commissioner in the person's administrative appeal or request for reconsideration. 29 * Sec. 7. AS 38.05.035 is amended by adding a new subsection to read: 30 (o) Where there is an active municipal entitlement selection on state land 31 under AS 29.65.010 - 29.65.030 that has a state-issued lease and before the decision to
01 approve the municipal entitlement, the director shall grant a preference right to 02 purchase without competitive bid of up to five acres of the state land to an individual 03 who has erected a building approved by a lease on the state land and used the land for 04 bona fide business purposes for 10 or more years under a state lease, if the business 05 produced not less than 25 percent of the total income of the applicant for the 10 years 06 preceding the application to purchase the land. The director shall sell the land at a 07 price determined by the director to represent the current fair market value of the 08 unimproved land determined by appraisal and survey, if not already completed, at the 09 cost of the applicant. If the director determines, in a written finding, that the purchase 10 of the land would interfere with public use by residents of the area, the director may 11 condition the purchase to mitigate the adverse effects on the public or may reject the 12 application if those effects cannot be mitigated. The revenue from the purchase of the 13 parcel will be given to the municipality if the municipal entitlement is approved for 14 that acreage. In this subsection, 15 (1) "building" means a permanent type of structure with solid walls, 16 foundation, and roof; 17 (2) "business purposes" means a purpose consistent with the 18 classification of the land at the time the land was entered. 19 * Sec. 8. AS 38.05.065(a) is amended to read: 20 (a) Unless the remainder of the purchase price is paid in full at the time of 21 the sale, a [THE] contract of sale for land or property sold [AT PUBLIC AUCTION 22 OR BY SEALED BID] under this chapter or former AS 38.05.078 [AS 38.05.055] 23 shall require the remainder of the purchase price to be paid in monthly, quarterly, or 24 annual installments over a period of not more than 20 years, with interest at the rate 25 provided in (i) of this section. Installment payments plus interest shall be set on the 26 level-payment basis. 27 * Sec. 9. AS 38.05.065(c) is amended to read: 28 (c) The director shall, for a contract that provides for installment payments 29 [CONTRACTS] under (a) [, (b),] or (h) of this section, set out in the contract [FOR 30 EACH SALE] the period for the payment of installments and the total purchase price 31 plus interest. The director, with the consent of the commissioner, may also include in a
01 contract [CONTRACTS] under this section conditions, limitations, and terms 02 considered necessary and proper to protect the interest of the state. Violations of any 03 provision of this chapter or the terms of the contract of sale subject the purchaser to 04 appropriate administrative and legal action, including but not limited to specific 05 performance, foreclosure, ejectment, or other legal remedies in accordance with 06 applicable state law. 07 * Sec. 10. AS 38.05.065(h) is amended to read: 08 (h) The commissioner, after consulting with the Board of Agriculture and 09 Conservation (AS 03.09.010), 10 (1) shall provide that, notwithstanding (a) [AND (b)] of this section, in 11 a contract for the sale of land classified under AS 38.05.020(b)(6) for agricultural 12 uses, the interest rate to be charged on installment payments may not exceed 9.5 13 percent; and 14 (2) may declare a moratorium of up to five years on payments on land 15 sold under this section for land classified under AS 38.05.020(b)(6) for agricultural 16 uses if 17 (A) the commissioner determines that the moratorium is in the 18 best interest of the state; 19 (B) the commissioner certifies and the contract purchaser 20 agrees to perform farm development, crop production, and harvesting, not 21 including land clearing or related activity, requiring the expenditure of 22 amounts equivalent to the payments that would otherwise be made during the 23 moratorium; 24 (C) the sale of the agricultural land takes place after July 1, 25 1979; and 26 (D) the contract purchaser is in compliance with the 27 development plan specified in the purchase contract at the time the purchaser 28 applies for a moratorium under this paragraph and remains in compliance with 29 the development plan during the moratorium; for the payments subject to the 30 moratorium declared under this paragraph, interest payments are subject to the 31 moratorium but interest continues to accrue during the moratorium.
01 * Sec. 11. AS 38.05.070 is amended by adding new subsections to read: 02 (f) A lease may be extended once for a period up to two years, if the director 03 determines it to be in the best interests of the state and the extension is necessary to 04 prolong the lease while the department considers 05 (1) a lessee preference application under AS 38.05.102; 06 (2) an application to renew the lease under (e) of this section; or 07 (3) an application to issue a new lease on the same site that, because it 08 substantially changes the purpose or operation of an existing lease, requires a new 09 finding and decision under AS 38.05.035(e) before the purpose or operation of a lease 10 is changed. 11 (g) An extension issued under (f) of this section is not subject to 12 AS 38.05.035(e). The director shall provide public notice of the decision to extend the 13 lease. 14 * Sec. 12. AS 38.05.075(a) is amended to read: 15 (a) Except as provided in AS 38.05.035, 38.05.070, 38.05.073, 38.05.082, 16 38.05.083, 38.05.087, 38.05.102, 38.05.565, 38.05.600, 38.05.810, and this section, 17 when competitive interest has been demonstrated or the commissioner determines that 18 it is in the state's best interests, leasing shall be made at public auction or by sealed 19 bid, at the discretion of the director, to the highest qualified bidder as determined by 20 the commissioner. A bidder may be represented by an attorney or agent at a public 21 auction. In the public notice of a lease to be offered at public auction or by sealed bid, 22 the commissioner shall specify a minimum acceptable bid and the lease compensation 23 method. The lease compensation method shall be designed to maximize the return on 24 the lease to the state and shall be a form of compensation set out in AS 38.05.073(m). 25 A substantially and adversely affected [AN AGGRIEVED] bidder may appeal or 26 request reconsideration under AS 44.37.011; however, the appeal or request must 27 be made not later than [TO THE COMMISSIONER WITHIN] five days after 28 issuance of the determination of the highest qualified bidder for a review of the 29 determination. The leasing shall be conducted by the commissioner, and the successful 30 bidder shall deposit at the public auction or with the sealed bid the first year's rental or 31 other lease compensation as specified by the commissioner, or that portion of it that
01 the commissioner requires in accordance with the bid. The commissioner shall require, 02 under AS 38.05.860, qualified bidders to deposit a sum equal to any survey or 03 appraisal costs reasonably incurred by another qualified bidder acting in accordance 04 with the regulations of the commissioner or incurred by the department under 05 AS 38.04.045 and AS 38.05.840. If a bidder making a deposit of survey or appraisal 06 costs is determined by the commissioner to be the highest qualified bidder under this 07 subsection, the deposit shall be paid to the unsuccessful bidder who incurred those 08 costs or to the department if the department incurred the costs. All costs for survey and 09 appraisal shall be approved in advance in writing by the commissioner. The 10 commissioner shall immediately issue a receipt containing a description of the land or 11 interest leased, the price bid, and the terms of the lease to the successful qualified 12 bidder. If the receipt is not accepted in writing by the bidder under this subsection, the 13 commissioner may offer the land for lease again under this subsection. A lease, on a 14 form approved by the attorney general, shall be signed by the successful bidder and by 15 the commissioner. 16 * Sec. 13. AS 38.05.075(e) is amended to read: 17 (e) The commissioner may require prequalification of bidders for a lease to be 18 issued under AS 38.05.070. If the commissioner determines to require 19 prequalification, the procedures established by this section and the notice including 20 prequalification requirements required to be given under AS 38.05.945 shall be 21 completed not later than [WITHIN] 75 days after [OF] the receipt of the first lease 22 application unless the commissioner grants additional time for the completion of the 23 procedures. During [WITHIN] the 75-day period or the additional time granted by the 24 commissioner, the commissioner shall complete 25 (1) classification under AS 38.05.300; 26 (2) the procedures required by AS 38.05.035(e); 27 (3) any other action required by law for the disposal of the lease to a 28 bidder except survey, appraisal, and the auction or sealed bid. 29 * Sec. 14. AS 38.05.075(h) is amended to read: 30 (h) A person substantially and adversely affected [AGGRIEVED] by a 31 decision of the commissioner under this section may appeal or request
01 reconsideration under AS 44.37.011; however, the appeal or request for 02 reconsideration must be made not later than [TO THE COMMISSIONER 03 WITHIN] five days after [OF] the prequalification decision. [THE DECISION OF 04 THE COMMISSIONER UNDER THIS SUBSECTION MAY BE APPEALED TO 05 THE SUPERIOR COURT.] 06 * Sec. 15. AS 38.05.082(b) is amended to read: 07 (b) The director may classify land as subject to leases for fisheries 08 development and publicly invite applications for lease of the selected areas. Each 09 application shall be accompanied by an affidavit to the effect that the applicant 10 presently intends to personally utilize the leased area for fishing purposes the 11 following season. If two or more applications are received for the same shore area, the 12 director shall award the lease to the most qualified applicant. In determining the 13 qualifications of applicants, the director shall consider the length of time during which 14 the applicant has been engaged in set netting, the proximity of the past fishing sites of 15 the applicant to the land to be leased, the present ability of the applicant to utilize the 16 location to its maximum potential, and other factors relevant to the equitable 17 assignment of the disputed area. If the director cannot determine a preference between 18 conflicting applicants for the same lease site on the basis of qualifications, the director 19 shall select between the applicants by lot. A substantially and adversely affected 20 [AN AGGRIEVED] applicant may appeal to the commissioner under AS 44.37.011 21 not later than 20 [WITHIN 30] days after issuance of the determination for a 22 review of the director's determination. 23 * Sec. 16. AS 38.05.083(a) is amended to read: 24 (a) The commissioner may offer to the public for lease at public auction or by 25 sealed bid under AS 38.05.075 or by negotiation under AS 38.05.070 a site for aquatic 26 farming or related hatchery operations. Before a final decision to issue [OR RENEW] 27 a lease under this section, the commissioner shall give notice and allow opportunity 28 for comment in accordance with AS 38.05.945 and may hold a hearing to take 29 testimony. Before a final decision to issue [OR RENEW] a lease under this section, 30 the commissioner shall consider all relevant comment or testimony submitted under 31 this section, AS 38.05.945, or 38.05.946.
01 * Sec. 17. AS 38.05.083 is amended by adding new subsections to read: 02 (g) The director may renew a lease issued under this section before its 03 expiration if the lease is in good standing and the director determines the lease renewal 04 to be in the best interests of the state. A renewal issued under this subsection is not 05 subject to AS 38.05.035(e). A lease may be renewed only once for a term not longer 06 than 10 years. The director shall provide notice of the decision to renew the lease. 07 (h) The director may extend the term of a lease issued under this section if the 08 lease is in good standing and the lease extension is determined to be in the best 09 interests of the state. A lease may be only extended once before its expiration for an 10 additional period of not more than two years. A lease extension may only be issued if 11 the director determines the extension is necessary while the department considers 12 (1) an application to renew the lease under (g) of this section; or 13 (2) an application to issue a new lease on the same site that, because it 14 substantially changes the purpose or operation of an existing lease, requires a new 15 finding and decision under AS 38.05.035(e) before the purpose or operation of a lease 16 is changed. 17 (i) An extension issued under (h) of this section is not subject to 18 AS 38.05.035(e). The director shall provide public notice of the decision to extend the 19 lease. 20 * Sec. 18. AS 38.05.185(a) is amended to read: 21 (a) The acquisition and continuance of rights in and to deposits on state land 22 of minerals, which on January 3, 1959, were subject to location under the mining laws 23 of the United States, shall be governed by AS 38.05.185 - 38.05.275. Nothing in 24 AS 38.05.185 - 38.05.275 affects the law pertaining to the acquisition of rights to 25 mineral deposits owned by any other person or government. The director, with the 26 approval of the commissioner, shall determine that land from which mineral deposits 27 may be mined only under lease, and, subject to the limitations of AS 38.05.300, that 28 land that shall be closed to location under AS 38.05.185 - 38.05.275. State land may 29 not be closed to location under AS 38.05.185 - 38.05.275 except as provided in 30 AS 38.05.300 and unless the commissioner makes a finding that mining would be 31 incompatible with significant surface uses on the state land. State land may not be
01 restricted to mining under lease unless the commissioner determines that potential use 02 conflicts on the state land require that mining be allowed only under written leases 03 issued under AS 38.05.205 or the commissioner has determined that the land was 04 mineral in character at the time of state selection. The determinations required under 05 this subsection shall be made in compliance with land classification orders and land 06 use plans developed under AS 38.05.300. A preliminary written decision under this 07 subsection may be made available to the public and provide opportunity for 08 public comment on the preliminary written decision for a period of at least 30 09 days. 10 * Sec. 19. AS 38.05.300(a) is amended to read: 11 (a) The commissioner shall classify for surface use land in areas considered 12 necessary and proper. This section does not prevent reclassification of land where the 13 public interest warrants reclassification, nor does it preclude multiple purpose use of 14 land whenever different uses are compatible. The commissioner may make available 15 to the public a preliminary written classification decision and provide 16 opportunity for public comment on the preliminary written decision for a period 17 of at least 30 days. If the area involved contains more than 640 contiguous acres, state 18 land, water, or land and water area may not, except by act of the state legislature, (1) 19 be closed to multiple purpose use, or (2) be otherwise classified by the commissioner 20 so that mining, mineral entry or location, mineral prospecting, or mineral leasing is 21 precluded or is designated an incompatible use, except when the classification is 22 necessary for a land disposal or exchange or is for the development of utility or 23 transportation corridors or projects or similar projects or infrastructure, or except as 24 allowed under (c) of this section. 25 * Sec. 20. AS 38.05.945(a) is amended to read: 26 (a) This section establishes the requirements for notice given by the 27 department for the following actions: 28 (1) a preliminary decision, or final decision if a preliminary 29 decision is not issued, regarding the classification or reclassification of state land 30 under AS 38.05.300 or a mineral order or leasehold location order regarding 31 [AND] the availability [CLOSING] of land to mineral leasing or entry under
01 AS 38.05.185; 02 (2) a preliminary decision, or final decision if a preliminary 03 decision is not issued, regarding the zoning of land under applicable law; 04 (3) issuance of a 05 (A) preliminary written finding under AS 38.05.035(e)(5)(A) 06 regarding the sale, lease, or disposal of an interest in state land or resources for 07 oil and gas, or for gas only, subject to AS 38.05.180(b); 08 (B) written finding for the sale, lease, or disposal of an interest 09 in state land or resources under AS 38.05.035(e)(6), except 10 (i) if a preliminary written finding is issued under 11 AS 38.05.035(e)(6); or 12 (ii) a lease sale described in AS 38.05.035(e)(6)(F) for 13 which the director must provide opportunity for public comment under 14 the provisions of that subparagraph; 15 (C) preliminary written finding that the director issued 16 under AS 38.05.035(e)(6); 17 (4) a competitive disposal of an interest in state land or resources after 18 final decision under AS 38.05.035(e); 19 (5) a preliminary finding under AS 38.05.035(e) concerning sites for 20 aquatic farms and related hatcheries; 21 (6) a decision under AS 38.05.132 - 38.05.134 regarding the sale, 22 lease, or disposal of an interest in state land or resources. 23 * Sec. 21. AS 38.05.965(21) is amended to read: 24 (21) "state land" or "land" means all land, including shoreland 25 [SHORE], tideland [TIDE], and submerged land, or resources belonging to or 26 acquired by the state; 27 * Sec. 22. AS 38.05.965 is amended by adding a new paragraph to read: 28 (26) "public auction" includes a public oral outcry auction and a public 29 online auction. 30 * Sec. 23. AS 38.50.010 is amended to read: 31 Sec. 38.50.010. Authorization for exchange of state land. Subject to the
01 requirements of this chapter, the director [, WITH THE CONCURRENCE OF THE 02 COMMISSIONER,] is authorized to exchange [DISPOSE OF] state land or interest in 03 land [BY EXCHANGING IT] for land, interest in land, or other consideration when it 04 is in the best interest of the state, including either or both the land estate or 05 mineral estate. Land or an interest in land must be of approximately equal value; 06 however, the director may accept cash from, or pay cash to, any other party to an 07 exchange in order to equalize the value of the property or other consideration 08 conveyed and received by the state. If the director determines that the property 09 to be exchanged is not of approximately equal value or if the value cannot be 10 ascertained with reasonable certainty, the director may enter into an exchange 11 with a finding that the value of the property to be received, together with the 12 value of other public benefits, equals or exceeds the value of the property that the 13 state will relinquish. Exchange procedures must comply with applicable statutes 14 and regulations and follow the decision and review procedures under 15 AS 38.05.035(e). The director may include in any patent or the written decision 16 stipulations necessary to promote or protect the public interest. If a land 17 exchange exceeds $5,000,000 in the value of state land, or if the exchange is other 18 than of an approximately equal value, the director shall forward the proposed 19 exchange to the legislature for review under AS 38.50.140 not later than 10 days 20 from the convening of the next legislative session. The notice provisions of 21 AS 38.05.945 must be followed. [EXCHANGES SHALL BE FOR THE PURPOSE 22 OF CONSOLIDATING STATE LAND HOLDINGS, CREATING LAND 23 OWNERSHIP AND USE PATTERNS WHICH WILL PERMIT MORE EFFECTIVE 24 ADMINISTRATION OF THE STATE PUBLIC DOMAIN, FACILITATING THE 25 OBJECTIVES OF STATE PROGRAMS, OR OTHER PUBLIC PURPOSES.] 26 * Sec. 24. AS 38.50.030(b) is amended to read: 27 (b) The director may negotiate an exchange involving more than one party [; 28 HOWEVER, IN ORDER TO ASCERTAIN WHETHER THE EQUAL VALUE 29 REQUIREMENTS OF THIS CHAPTER HAVE BEEN MET, THE DIRECTOR 30 SHALL CONSIDER ONLY THE LAND AND OTHER CONSIDERATION WHICH 31 THE STATE WOULD CONVEY AND RECEIVE IF THE EXCHANGE WERE
01 EXECUTED]. 02 * Sec. 25. AS 38.50.050 is amended to read: 03 Sec. 38.50.050. Conveyance of mineral rights. Subject to the requirements of 04 this chapter, the director is authorized to exchange mineral rights in state land to the 05 extent that the conveyance is authorized by the state constitution and applicable 06 federal law. [THE DIRECTOR MAY NOT EXCHANGE OR RECEIVE THE 07 SURFACE ESTATE OF LAND OR THE MINERAL RIGHTS IN IT, ONE 08 WITHOUT THE OTHER, UNLESS THE SEPARATION OF ESTATE IS 09 NECESSITATED BY A PRIOR SEPARATION OF OWNERSHIP OR BY 10 RESTRICTIONS IN APPLICABLE LAW, OR THE DIRECTOR OTHERWISE 11 FINDS THAT THE CONVEYANCE OR RECEIPT OF THE SURFACE OR 12 MINERAL ESTATES, ONE WITHOUT THE OTHER, IS NECESSARY TO 13 ACHIEVE A SIGNIFICANT PUBLIC PURPOSE.] 14 * Sec. 26. AS 38.50.070 is amended to read: 15 Sec. 38.50.070. Valid existing rights. Conveyances made by the state under 16 this chapter are subject to valid existing rights, including [, BUT NOT LIMITED TO,] 17 contracts, permits, leases, rights-of-way, and easements. Unless jurisdiction is waived, 18 the appropriate state agency shall continue to administer valid existing rights, and [AS 19 LONG AS] any revenues derived from the existing rights continue to accrue to the 20 state until state land has been conveyed under AS 38.50.150 [ARE DISTRIBUTED 21 AS PROVIDED IN THE EXCHANGE AGREEMENT]. 22 * Sec. 27. AS 38.50.140 is amended to read: 23 Sec. 38.50.140. Legislative review. Not later than [WITHIN] 10 days from 24 [OF] the convening of a regular legislative session, the governor shall transmit to the 25 president of the senate and the speaker of the house of representatives any proposal for 26 a land exchange required to be submitted to the legislature for approval under 27 AS 38.50.010 [AS 38.50.020(a)] that is scheduled to occur before the next legislative 28 session. If exigent circumstances seriously affecting state interests so require, the 29 governor may submit the proposed exchange to the legislature at some other time. A 30 finding of exigent circumstances shall be carefully documented in the letter of 31 transmittal. The director is authorized to conclude a proposed exchange agreement
01 upon approval by the legislature of the proposed exchange agreement. A decision by 02 the legislature to disapprove a proposed exchange shall be accompanied by a 03 recommendation to the governor with respect to future actions which the director 04 should take concerning the exchange. 05 * Sec. 28. AS 38.50.170(3) is amended to read: 06 (3) "state land" means all land including shoreland [SHORE], 07 tideland [TIDE], and submerged land or unsevered resources belonging to or acquired 08 by the state excluding interests in land severed or constructively severed from the 09 land. 10 * Sec. 29. AS 40.15.305(e) is amended to read: 11 (e) A recorded plat may not be altered or replatted except on petition of the 12 state, a municipality, a public utility, or the owner of a majority of the land affected by 13 the proposed alteration or replat. The petition shall be filed with the commissioner and 14 shall be accompanied by a copy of the existing plat showing the proposed alteration or 15 replat. The provisions of AS 29.40.130 and 29.40.140(a) apply to an alteration or 16 replat submitted under this subsection. The provisions of (d) of this section do not 17 apply to an alteration or replat petition, but the commissioner shall state in writing 18 reasons for disapproval of the petition. Alteration of a platted boundary is exempt 19 from this subsection if all owners approve and no public easement or right-of- 20 way is affected. A plat of the alteration remains subject to all other provisions of 21 this section. 22 * Sec. 30. AS 41.21.167 is amended by adding a new subsection to read: 23 (e) Performance of a feasibility study for the development and operation of a 24 hydroelectric site at Chikuminuk Lake is not considered an incompatible use. 25 * Sec. 31. AS 44.37.011(a) is amended to read: 26 (a) This section applies to administrative appeals or requests [PETITIONS] 27 for reconsideration of a decision in an administrative appeal to the commissioner of 28 natural resources, except for those administrative appeals or requests for 29 reconsideration [PETITIONS] done under AS 38.35, [OR] AS 43.82, or a different 30 procedure set out in AS 27.21 or its applicable regulations. If a conflict occurs 31 between this section and other state law existing at the time of original enactment of
01 this section, the provisions of this section control. 02 * Sec. 32. AS 44.37.011(b) is amended to read: 03 (b) If a person is an applicant, or substantially and adversely affected 04 [AGGRIEVED] by a decision of the Department of Natural Resources not made by 05 the commissioner and is otherwise eligible to seek the commissioner's review of the 06 decision, the person may appeal to the commissioner. The person may not file a 07 request [PETITION] for reconsideration of the commissioner's decision on the 08 appeal. The commissioner's decision on the administrative appeal is a final 09 administrative order for purposes of filing an appeal of the administrative decision to 10 the court. 11 * Sec. 33. AS 44.37.011(c) is amended to read: 12 (c) If a person is substantially and adversely affected [AGGRIEVED] by a 13 decision of the department made by the commissioner and is otherwise eligible to seek 14 the commissioner's review of the decision, the person may not appeal that decision to 15 the commissioner; however, the person may request [PETITION THE 16 COMMISSIONER FOR] reconsideration of the commissioner's decision. The 17 commissioner's decision made upon reconsideration or the commissioner's failure to 18 act on the request [PETITION] for reconsideration is a final administrative order for 19 purposes of filing an appeal of the administrative decision to the court. 20 * Sec. 34. AS 44.37.011(d) is amended to read: 21 (d) If a person has a right to appeal or request [PETITION FOR] 22 reconsideration under [AS 44.62.540 OR] this section, the person has [A TOTAL OF] 23 20 calendar days after the date of issuance of a final department decision [, 24 INCLUDING THE TIME AVAILABLE UNDER AS 44.62.540,] in which to file an 25 appeal or a request [PETITION] for reconsideration with the commissioner. 26 * Sec. 35. AS 44.37.011 is amended by adding new subsections to read: 27 (f) In this section, in order for a person to be adversely affected, a final 28 decision made by the department must create or impose an adverse and direct effect or 29 detriment on the person or the interests of that person. 30 (g) An appeal or request for reconsideration must include a statement that 31 explains how the person is substantially and adversely affected by the department
01 decision. The statement must 02 (1) specifically describe the substantial and adverse effect on the 03 person that is a direct result of the decision; and 04 (2) explain how the decision caused the substantial and adverse effect 05 on the person. 06 (h) If the department gives public notice and allows a public comment period 07 of at least 30 days on a proposed action, the department may restrict eligibility to 08 appeal or request reconsideration to persons who have provided timely comment on 09 the proposed action by including notice of the restriction as part of its public notice 10 announcing the opportunity to comment. 11 (i) The commissioner may reject an appeal or request for reconsideration for 12 failure to meet the requirements of (f) - (h) of this section. 13 * Sec. 36. AS 46.15.035(a) is amended to read: 14 (a) A significant amount of water, as determined by the department by 15 regulation, [WATER] may not be removed from the hydrologic unit from which it 16 was appropriated to another hydrologic unit, inside or outside the state, without being 17 returned to the hydrologic unit from which it was appropriated nor may a significant 18 amount of water be appropriated for removal from the hydrologic unit from which the 19 appropriation is sought to another hydrologic unit, inside or outside the state, without 20 the water being returned to the hydrologic unit from which it is to be appropriated, 21 unless the commissioner 22 (1) finds that the water to be removed or appropriated for removal is 23 surplus to needs within the hydrologic unit from which the water is to be removed or 24 appropriated for removal, including fishing, mining, timber, oil and gas, agriculture, 25 domestic water supply, and other needs as determined by the commissioner; 26 (2) finds that the application for removal or appropriation for removal 27 meets the requirements of AS 46.15.080; and 28 (3) assesses a water conservation fee under (b) of this section. 29 * Sec. 37. AS 46.15.133(a) is amended to read: 30 (a) If the commissioner proposes a sale of water or receives an application for 31 appropriation or removal, the commissioner shall prepare a notice containing the
01 location and extent of the proposed sale, appropriation, or removal, the name and 02 address of the applicant, if applicable, and other information the commissioner 03 considers pertinent. The notice shall state that, not later than [WITHIN] 15 days 04 after [OF] publication or service of notice, persons may file with the director written 05 objections [,] stating the name and address of the objector [,] and any facts tending to 06 show that rights of the objector or the public interest as described in AS 46.15.080(b) 07 would be adversely affected by the proposed sale, appropriation, or removal. 08 * Sec. 38. AS 46.15.133(b) is amended to read: 09 (b) The commissioner shall publish the notice in one issue of a newspaper of 10 general distribution in the area of the state in which the water is to be appropriated, 11 removed, or sold. The commissioner shall also have notice served personally or by 12 [CERTIFIED] mail upon an appropriator of water or applicant for or holder of a 13 permit who, according to the records of the division of lands, may be affected by the 14 proposed sale, appropriation, or removal and may serve notice upon any governmental 15 agency, political subdivision, or person; notice shall also be served upon the 16 Department of Fish and Game and the Department of Environmental Conservation. 17 An applicant for an appropriation or removal shall pay the commissioner's costs in 18 providing publication and notice under this subsection. The commissioner may require 19 as a condition of a sale of water under AS 46.15.037, that a purchaser of water 20 reimburse the department for the costs associated with providing notice of the 21 proposed sale. 22 * Sec. 39. AS 46.15.133(c) is amended to read: 23 (c) Not later than [WITHIN] 15 days of publication or service of notice, an 24 interested person may file an objection. The commissioner may hold hearings upon 25 giving due notice and shall grant, deny, or condition the proposed sale or application 26 for appropriation or removal in whole or in part within 30 days of receipt of the last 27 objection or, if the commissioner elects to hold hearings, within 180 days of receipt of 28 the last objection. Notice of the order or decision shall be served personally or mailed 29 to any person who has filed an objection. 30 * Sec. 40. AS 46.15.133(d) is amended to read: 31 (d) If no objection is filed, the commissioner may proceed to make a final
01 determination upon the application for appropriation or removal or the proposal for 02 sale. 03 * Sec. 41. AS 46.15.133(e) is amended to read: 04 (e) A person adversely affected [AGGRIEVED] by the action of the 05 commissioner or by the failure of the commissioner to grant, deny, or condition a 06 proposed sale or an application for appropriation or removal in accordance with (c) of 07 this section may appeal to the superior court. In this subsection, to be adversely 08 affected, a person must be directly affected by a decision made by the department 09 either by a physical or financial detriment to the person's interests resulting from 10 the decision. 11 * Sec. 42. AS 46.15.145(a) is amended to read: 12 (a) The state, an agency or a political subdivision of the state, or an agency of 13 the United States [OR A PERSON] may apply to the commissioner to reserve 14 sufficient water to maintain a specified instream flow or level of water at a specified 15 point on a stream or body of water, or in a specified part of a stream, throughout a year 16 or for specified times, for 17 (1) protection of fish and wildlife habitat, migration, and propagation; 18 (2) recreation and park purposes; 19 (3) navigation and transportation purposes; and 20 (4) sanitary and water quality purposes. 21 * Sec. 43. AS 46.15.145(f) is amended to read: 22 (f) The [AT LEAST ONCE EACH 10 YEARS THE] commissioner may 23 [SHALL] review a [EACH] reservation under this section to determine whether the 24 purpose described in (a) of this section for which the certificate reserving water was 25 issued and the findings described in (c) of this section still apply to the reservation. If 26 the commissioner determines that the purpose, or part or all of the findings, no longer 27 apply to the reservation, the commissioner may revoke or modify the certificate 28 reserving the water after notice, hearing when appropriate, and a written determination 29 that the revocation or modification is in the best interests of the state. 30 * Sec. 44. AS 46.15.155(a) is amended to read: 31 (a) Notwithstanding any contrary provision of this chapter, the commissioner
01 may authorize the temporary use of a significant amount of water, as determined by 02 the department by regulation, for a period of time not to exceed five consecutive years 03 in each authorization, if the water applied for has not been appropriated in 04 accordance with this chapter. The commissioner may issue one or more new 05 temporary water use authorizations for the same project. 06 * Sec. 45. AS 38.05.065(b); AS 38.50.020, 38.50.040, 38.50.080, 38.50.090, 38.50.100, 07 38.50.110, 38.50.120, 38.50.130; and AS 46.15.145(e) are repealed. 08 * Sec. 46. The uncodified law of the State of Alaska is amended by adding a new section to 09 read: 10 TRANSITION: WOOD-TIKCHIK STATE PARK MANAGEMENT PLAN AND 11 REGULATIONS; ENFORCEMENT. To allow for a feasibility study for the development and 12 operation of a hydroelectric site at Chikuminuk Lake, the Department of Natural Resources 13 may not enforce or implement provisions in the Wood-Tikchik State Park Management Plan, 14 dated October 2002, and regulations applicable to the Wood-Tikchik State Park that are 15 inconsistent with AS 41.21.167(e), enacted by sec. 30 of this Act. 16 * Sec. 47. The uncodified law of the State of Alaska is amended by adding a new section to 17 read: 18 TRANSITION: PENDING APPLICATIONS FOR RESERVED WATER. The 19 Department of Natural Resources shall return any applications and fees for applications 20 pending as of the effective date of sec. 42 of this Act to persons no longer authorized to 21 reserve water under sec. 42 of this Act. The commissioner of the Department of Natural 22 Resources may refer applications that are no longer authorized to other state agencies for an 23 independent evaluation and consideration of submission of a similar application to request a 24 reservation to that agency. 25 * Sec. 48. The uncodified law of the State of Alaska is amended by adding a new section to 26 read: 27 TRANSITION: REGULATIONS. The Department of Natural Resources may 28 immediately adopt regulations necessary to implement the changes made by this Act. The 29 regulations take effect under AS 44.62 (Administrative Procedure Act), but not before July 1, 30 2013. 31 * Sec. 49. The uncodified law of the State of Alaska is amended by adding a new section to
01 read: 02 REVISOR'S INSTRUCTIONS. The revisor of statutes is instructed to change the 03 heading of AS 44.37.011 from "Additional procedures for administrative appeals and 04 petitions for reconsideration to the commissioner of natural resources" to "Procedures for 05 administrative appeals and requests for reconsideration to the commissioner of natural 06 resources." 07 * Sec. 50. Sections 30, 46, and 48 of this Act take effect immediately under 08 AS 01.10.070(c). 09 * Sec. 51. Except as provided in sec. 50 of this Act, this Act takes effect July 1, 2013.