SB 91: "An Act relating to clean energy project development licenses and leases of state land for clean energy projects."
00 SENATE BILL NO. 91 01 "An Act relating to clean energy project development licenses and leases of state land 02 for clean energy projects." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 38.04.045(b) is amended to read: 05 (b) Before the issuance of a long-term lease under AS 38.05.070, a lease 06 under AS 38.05.430, or [OF] a patent for state land, an official cadastral survey shall 07 be accomplished, unless a comparable, approved survey exists that has been conducted 08 by the federal Bureau of Land Management. Before land may be offered under 09 AS 38.08 or AS 38.09, or before land may be offered under AS 38.05.055 or 10 38.05.057, except land that is classified for agricultural uses, an official rectangular 11 survey grid shall be established. The rectangular survey section corner positions shall 12 be monumented and shown on a cadastral survey plat approved by the state. For those 13 areas where the state may wish to convey surface estate outside of an official 14 rectangular survey grid, the commissioner may waive monumentation of individual
01 section corner positions and substitute an official control survey with control points 02 being monumented and shown on control survey plats approved by the state. The 03 commissioner may not issue more than one conveyance for each section within a 04 township outside of an official rectangular survey grid. Land to be conveyed may not 05 be located more than two miles from an official survey control monument except that 06 the commissioner may waive this requirement on a determination that a single purpose 07 use does not justify the requirement if the existing status of the land is known with 08 reasonable certainty. The lots and tracts in state subdivisions shall be monumented and 09 the cadastral survey and plats for the subdivision shall be approved by the state. Where 10 land is located within a municipality with planning, platting, and zoning powers, plats 11 for state subdivisions shall comply with local ordinances and regulations in the same 12 manner and to the same extent as plats for subdivisions by other landowners. State 13 subdivisions shall be filed and recorded in the district recorder's office. The 14 requirements of this section do not apply to land made available for material sales, for 15 short-term leases, or for parcels adjoining a surveyed right-of-way, to land subject to 16 a clean energy project development license issued under AS 38.05.410, or to 17 [FOR] land that has been open to random staking under the homestead program in the 18 past; however, for short-term leases, the lessee shall comply with local subdivision 19 ordinances unless waived by the municipality under procedures specified by 20 ordinance. In this subsection, "a single purpose use" includes a communication site, an 21 aid to navigation, and a park site. 22 * Sec. 2. AS 38.05.035(a) is amended to read: 23 (a) The director shall 24 (1) have general charge and supervision of the division and may 25 exercise the powers specifically delegated to the director; the director may employ and 26 fix the compensation of assistants and employees necessary for the operations of the 27 division; the director is the certifying officer of the division, with the consent of the 28 commissioner, and may approve vouchers for disbursements of money appropriated to 29 the division; 30 (2) manage, inspect, and control state land and improvements on it 31 belonging to the state and under the jurisdiction of the division;
01 (3) execute laws, rules, regulations, and orders adopted by the 02 commissioner; 03 (4) prescribe application procedures and practices for the sale, lease, or 04 other disposition of available land, resources, property, or interest in them; 05 (5) prescribe fees or service charges, with the consent of the 06 commissioner, for any public service rendered; 07 (6) under the conditions and limitations imposed by law and the 08 commissioner, issue deeds, leases, or other conveyances disposing of available land, 09 resources, property, or any interests in them; 10 (7) have jurisdiction over state land, except that land acquired by the 11 Alaska World War II Veterans Board and the Agricultural Loan Board or the 12 departments or agencies succeeding to their respective functions through foreclosure 13 or default; to this end, the director possesses the powers and, with the approval of the 14 commissioner, shall perform the duties necessary to protect the state's rights and 15 interest in state land, including the taking of all necessary action to protect and enforce 16 the state's contractual or other property rights; 17 (8) maintain the records the commissioner considers necessary, 18 administer oaths, and do all things incidental to the authority imposed; the following 19 records and files shall be kept confidential upon request of the person supplying the 20 information: 21 (A) the name of the person nominating or applying for the sale, 22 lease, or other disposal of land by competitive bidding; 23 (B) before the announced time of opening, the names of the 24 bidders and the amounts of the bids; 25 (C) all geological, geophysical, meteorological, and other 26 engineering data supplied, whether or not concerned with the extraction or 27 development of natural resources; 28 (D) except as provided in AS 38.05.036, cost data and financial 29 information submitted in support of applications, bonds, leases, and similar 30 items; 31 (E) applications for rights-of-way or easements;
01 (F) requests for information or applications by public agencies 02 for land that is being considered for use for a public purpose; 03 (G) the name of an applicant for a clean energy project 04 development license under AS 38.05.410; 05 (9) account for the fees, licenses, taxes, or other money received in the 06 administration of this chapter including the sale or leasing of land, identify their 07 source, and promptly transmit them to the proper fiscal department after crediting 08 them to the proper fund; receipts from land application filing fees and charges for 09 copies of maps and records shall be deposited immediately in the general fund of the 10 state by the director; 11 (10) select and employ or obtain at reasonable compensation cadastral, 12 appraisal, or other professional personnel the director considers necessary for the 13 proper operation of the division; 14 (11) be the certifying agent of the state to select, accept, and secure by 15 whatever action is necessary in the name of the state, by deed, sale, gift, devise, 16 judgment, operation of law, or other means any land, of whatever nature or interest, 17 available to the state; and be the certifying agent of the state, to select, accept, or 18 secure by whatever action is necessary in the name of the state any land, or title or 19 interest to land available, granted, or subject to being transferred to the state for any 20 purpose; 21 (12) on request, furnish records, files, and other information related to 22 the administration of AS 38.05.180 to the Department of Revenue for use in 23 forecasting state revenue under or administering AS 43.55, whether or not those 24 records, files, and other information are required to be kept confidential under (8) of 25 this subsection; in the case of records, files, or other information required to be kept 26 confidential under (8) of this subsection, the Department of Revenue shall maintain 27 the confidentiality that the Department of Natural Resources is required to extend to 28 records, files, and other information under (8) of this subsection; 29 (13) when reasonably possible, give priority to and expedite the 30 processing of an application for a lease or assignment of a lease of state land for 31 development and operation of a clean energy project under AS 38.05.400 -
01 38.05.460 or a gas storage facility, for a right-of-way necessary for a clean energy 02 project under AS 38.05.400 - 38.05.460 or [TO] a gas storage facility, for a change 03 to the allocation of production within a unit, and for a permit necessary for the 04 operation of a gas storage facility; in this paragraph, "gas storage facility" has the 05 meaning given in AS 31.05.032; 06 (14) prepare and submit to the senate secretary and chief clerk of the 07 house of representatives on or before the first day of each regular session of the 08 legislature an annual report in electronic form concerning site lease applications 09 submitted under AS 38.05.083; in preparing and submitting the report, the director 10 shall 11 (A) include in the report 12 (i) a list of all applications pending with the department, 13 including applications for a new lease and applications for renewal, 14 amendment, and assignment of a lease, and the length of time each 15 application has been pending with the department; 16 (ii) for an application that has not been granted, the 17 reason the application has not been granted; and 18 (iii) the number of leases that the director elected not to 19 renew under AS 38.05.070; 20 (B) notify the legislature that the report is available. 21 * Sec. 3. AS 38.05.035(e) is amended to read: 22 (e) Upon a written finding that the interests of the state will be best served, the 23 director may, with the consent of the commissioner, approve contracts for the sale, 24 lease, or other disposal of available land, resources, property, or interests in them. In 25 approving a contract under this subsection, the director need only prepare a single 26 written finding. In addition to the conditions and limitations imposed by law, the 27 director may impose additional conditions or limitations in the contracts as the director 28 determines, with the consent of the commissioner, will best serve the interests of the 29 state. The preparation and issuance of the written finding by the director are subject to 30 the following: 31 (1) with the consent of the commissioner and subject to the director's
01 discretion, for a specific proposed disposal of available land, resources, or property, or 02 of an interest in them, the director, in the written finding, 03 (A) shall establish the scope of the administrative review on 04 which the director's determination is based, and the scope of the written 05 finding supporting that determination; the scope of the administrative review 06 and finding may address only reasonably foreseeable, significant effects of the 07 uses proposed to be authorized by the disposal; 08 (B) may limit the scope of an administrative review and finding 09 for a proposed disposal to 10 (i) applicable statutes and regulations; 11 (ii) the facts pertaining to the land, resources, or 12 property, or interest in them, that the director finds are material to the 13 determination and that are known to the director or knowledge of which 14 is made available to the director during the administrative review; and 15 (iii) issues that, based on the statutes and regulations 16 referred to in (i) of this subparagraph, on the facts as described in (ii) of 17 this subparagraph, and on the nature of the uses sought to be authorized 18 by the disposal, the director finds are material to the determination of 19 whether the proposed disposal will best serve the interests of the state; 20 and 21 (C) may, if the project for which the proposed disposal is 22 sought is a multiphased development, limit the scope of an administrative 23 review and finding for the proposed disposal to the applicable statutes and 24 regulations, facts, and issues identified in (B)(i) - (iii) of this paragraph that 25 pertain solely to the disposal phase of the project when 26 (i) the only uses to be authorized by the proposed 27 disposal are part of that phase; 28 (ii) the disposal is the issuance of a clean energy 29 project development license under AS 38.05.410, a disposal of oil 30 and gas, or of gas only, and, before the next phase of the project may 31 proceed, public notice and the opportunity to comment are provided
01 under regulations adopted by the department; 02 (iii) the department's approval is required before the 03 next phase of the project may proceed; and 04 (iv) the department describes its reasons for a decision 05 to phase; 06 (2) the director shall discuss in the written finding prepared and issued 07 under this subsection the reasons that each of the following was not material to the 08 director's determination that the interests of the state will be best served: 09 (A) facts pertaining to the land, resources, or property, or an 10 interest in them other than those that the director finds material under (1)(B)(ii) 11 of this subsection; and 12 (B) issues based on the statutes and regulations referred to in 13 (1)(B)(i) of this subsection and on the facts described in (1)(B)(ii) of this 14 subsection; 15 (3) a written finding for an oil and gas lease sale or gas only lease sale 16 under AS 38.05.180 is subject to (g) of this section; 17 (4) a contract for the sale, lease, or other disposal of available land or 18 an interest in land is not legally binding on the state until the commissioner approves 19 the contract, but if the appraised value is not greater than $50,000 in the case of the 20 sale of land or an interest in land, or $5,000 in the case of the annual rental of land or 21 interest in land, the director may execute the contract without the approval of the 22 commissioner; 23 (5) public notice requirements relating to the sale, lease, or other 24 disposal of available land or an interest in land for oil and gas, or for gas only, 25 proposed to be scheduled in the five-year oil and gas leasing program under 26 AS 38.05.180(b), except for a sale under (6)(F) of this subsection, are as follows: 27 (A) before a public hearing, if held, or in any case not less than 28 180 days before the sale, lease, or other disposal of available land or an interest 29 in land, the director shall make available to the public a preliminary written 30 finding that states the scope of the review established under (1)(A) of this 31 subsection and includes the applicable statutes and regulations, the material
01 facts and issues in accordance with (1)(B) of this subsection, and information 02 required by (g) of this section, on [UPON] which the determination that the 03 sale, lease, or other disposal will serve the best interests of the state will be 04 based; the director shall provide opportunity for public comment on the 05 preliminary written finding for a period of not less than 60 days; 06 (B) after the public comment period for the preliminary written 07 finding and not less than 90 days before the sale, lease, or other disposal of 08 available land or an interest in land for oil and gas or for gas only, the director 09 shall make available to the public a final written finding that states the scope of 10 the review established under (1)(A) of this subsection and includes the 11 applicable statutes and regulations, the material facts and issues in accordance 12 with (1) of this subsection, and information required by (g) of this section, on 13 [UPON] which the determination that the sale, lease, or other disposal will 14 serve the best interests of the state is based; 15 (6) before a public hearing, if held, or in any case not less than 21 days 16 before the sale, lease, or other disposal of available land, property, resources, or 17 interests in them other than a sale, lease, or other disposal of available land or an 18 interest in land for oil and gas or for gas only under (5) of this subsection, the director 19 shall make available to the public a written finding that, in accordance with (1) of this 20 subsection, sets out the material facts and applicable statutes and regulations and any 21 other information required by statute or regulation to be considered on [UPON] which 22 the determination that the sale, lease, or other disposal will best serve the interests of 23 the state was based; however, a written finding is not required before the approval of 24 (A) a contract for a negotiated sale authorized under 25 AS 38.05.115; 26 (B) a lease of land for a shore fishery site under AS 38.05.082; 27 (C) a permit or other authorization revocable by the 28 commissioner; 29 (D) a mineral claim located under AS 38.05.195; 30 (E) a mineral lease issued under AS 38.05.205; 31 (F) an exempt oil and gas lease sale or gas only lease sale under
01 AS 38.05.180(d) of acreage subject to a best interest finding issued within the 02 previous 10 years or a reoffer oil and gas lease sale or gas only lease sale under 03 AS 38.05.180(w) of acreage subject to a best interest finding issued within the 04 previous 10 years, unless the commissioner determines that substantial new 05 information has become available that justifies a supplement to the most recent 06 best interest finding for the exempt oil and gas lease sale or gas only lease sale 07 acreage and for the reoffer oil and gas lease sale or gas only lease sale acreage; 08 however, for each oil and gas lease sale or gas only lease sale described in this 09 subparagraph, the director shall call for comments from the public; the 10 director's call for public comments must provide opportunity for public 11 comment for a period of not less than 30 days; if the director determines that a 12 supplement to the most recent best interest finding for the acreage is required 13 under this subparagraph, 14 (i) the director shall issue the supplement to the best 15 interest finding not later than 90 days before the sale; 16 (ii) not later than 45 days before the sale, the director 17 shall issue a notice describing the interests to be offered, the location 18 and time of the sale, and the terms and conditions of the sale; and 19 (iii) the supplement has the status of a final written best 20 interest finding for purposes of (i) and (l) of this section; 21 (G) a surface use lease under AS 38.05.255; 22 (H) a permit, right-of-way, or easement issued under 23 AS 38.05.430(a) or 38.05.850 [AS 38.05.850]; 24 (7) the director shall include in 25 (A) a preliminary written finding, if required, a summary of 26 agency and public comments, if any, obtained as a result of contacts with other 27 agencies concerning a proposed disposal or as a result of informal efforts 28 undertaken by the department to solicit public response to a proposed disposal, 29 and the department's preliminary responses to those comments; and 30 (B) the final written finding a summary of agency and public 31 comments received and the department's responses to those comments.
01 * Sec. 4. AS 38.05.070(e) is amended to read: 02 (e) The director may renew a lease issued under this section, AS 38.05.075, 03 38.05.083, 38.05.430, or 38.05.810 upon its expiration if the lease is in good standing 04 and the lease renewal is determined to be in the best interests of the state. A renewal 05 issued under this subsection is not subject to AS 38.05.035(e). A lease under this 06 section, AS 38.05.075, 38.05.430, or 38.05.810 may be renewed only once for a term 07 not longer than the initial term of the lease. The director shall provide notice of the 08 lease renewal decision. 09 * Sec. 5. AS 38.05.075(a) is amended to read: 10 (a) Except as provided in AS 38.05.035, 38.05.070, 38.05.073, 38.05.081, 11 38.05.082, 38.05.083, 38.05.087, 38.05.102, 38.05.400 - 38.05.460, 38.05.565, 12 38.05.600, 38.05.810, and this section, when competitive interest has been 13 demonstrated or the commissioner determines that it is in the state's best interests, 14 leasing shall be made at public auction or by sealed bid, at the discretion of the 15 director, to the highest qualified bidder as determined by the commissioner. A bidder 16 may be represented by an attorney or agent at a public auction. In the public notice of 17 a lease to be offered at public auction or by sealed bid, the commissioner shall specify 18 a minimum acceptable bid and the lease compensation method. The lease 19 compensation method shall be designed to maximize the return on the lease to the 20 state and shall be a form of compensation set out in AS 38.05.073(m). An aggrieved 21 bidder may appeal to the commissioner within five days for a review of the 22 determination. The leasing shall be conducted by the commissioner, and the successful 23 bidder shall deposit at the public auction or with the sealed bid the first year's rental or 24 other lease compensation as specified by the commissioner, or that portion of it that 25 the commissioner requires in accordance with the bid. The commissioner shall require, 26 under AS 38.05.860, qualified bidders to deposit a sum equal to any survey or 27 appraisal costs reasonably incurred by another qualified bidder acting in accordance 28 with the regulations of the commissioner or incurred by the department under 29 AS 38.04.045 and AS 38.05.840. If a bidder making a deposit of survey or appraisal 30 costs is determined by the commissioner to be the highest qualified bidder under this 31 subsection, the deposit shall be paid to the unsuccessful bidder who incurred those
01 costs or to the department if the department incurred the costs. All costs for survey and 02 appraisal shall be approved in advance in writing by the commissioner. The 03 commissioner shall immediately issue a receipt containing a description of the land or 04 interest leased, the price bid, and the terms of the lease to the successful qualified 05 bidder. If the receipt is not accepted in writing by the bidder under this subsection, the 06 commissioner may offer the land for lease again under this subsection. A lease, on a 07 form approved by the attorney general, shall be signed by the successful bidder and by 08 the commissioner. 09 * Sec. 6. AS 38.05.102 is amended to read: 10 Sec. 38.05.102. Lessee preference. Except for a lease under AS 38.05.081, 11 [OR] 38.05.083, or 38.05.430, if land within a leasehold created under AS 38.05.070 - 12 38.05.105 is offered for sale or long-term lease at the termination of the existing 13 leasehold, the director may, upon a finding that it is in the best interest of the state, 14 allow a holder in good standing of the existing leasehold to purchase or lease the land 15 for its appraised fair market value at the time of the sale or long-term lease. 16 * Sec. 7. AS 38.05.125(a) is amended to read: 17 (a) Each contract for the sale, lease, or grant of state land, and each deed to 18 state land, properties, or interest in state land, made under AS 38.05.045 - 38.05.120, 19 38.05.321, 38.05.400 - 38.05.460, 38.05.810 - 38.05.825, AS 38.08, or AS 38.50 20 except as provided in AS 38.50.050 is subject to the following reservations: "The 21 party of the first part, Alaska, hereby expressly saves, excepts, and reserves out of the 22 grant hereby made, unto itself, its lessees, successors, and assigns forever, all oils, 23 gases, coal, ores, minerals, fissionable materials, geothermal resources, and fossils of 24 every name, kind, or description, and which may be in or upon said land above 25 described, or any part thereof, and the right to explore the same for such oils, gases, 26 coal, ores, minerals, fissionable materials, geothermal resources, and fossils, and it 27 also hereby expressly saves and reserves out of the grant hereby made, unto itself, its 28 lessees, successors, and assigns forever, the right to enter by itself, its or their agents, 29 attorneys, and servants upon said land, or any part or parts thereof, at any and all times 30 for the purpose of opening, developing, drilling, and working mines or wells on these 31 or other land and taking out and removing therefrom all such oils, gases, coal, ores,
01 minerals, fissionable materials, geothermal resources, and fossils, and to that end it 02 further expressly reserves out of the grant hereby made, unto itself, its lessees, 03 successors, and assigns forever, the right by its or their agents, servants, and attorneys 04 at any and all times to erect, construct, maintain, and use all such buildings, 05 machinery, roads, pipelines, powerlines, and railroads, sink such shafts, drill such 06 wells, remove such soil, and to remain on said land or any part thereof for the 07 foregoing purposes and to occupy as much of said land as may be necessary or 08 convenient for such purposes hereby expressly reserving to itself, its lessees, 09 successors, and assigns, as aforesaid, generally all rights and power in, to, and over 10 said land, whether herein expressed or not, reasonably necessary or convenient to 11 render beneficial and efficient the complete enjoyment of the property and rights 12 hereby expressly reserved." 13 * Sec. 8. AS 38.05.127(a) is amended to read: 14 (a) Except as provided in (e) of this section, before [BEFORE] the sale, 15 lease, grant, or other disposal of any interest in state land adjacent to a body of water 16 or waterway, the commissioner shall, 17 (1) determine if the body of water or waterway is navigable water, 18 public water, or neither; 19 (2) upon finding that the body of water or waterway is navigable or 20 public water, provide for the specific easements or rights-of-way necessary to ensure 21 free access to and along the body of water, unless the commissioner finds that 22 regulating or limiting access is necessary for other beneficial uses or public purposes. 23 * Sec. 9. AS 38.05.127(e) is repealed and reenacted to read: 24 (e) For a clean energy project under AS 38.05.400 - 38.05.460 or an oil and 25 gas, gas only, or mineral lease, the determination required under (a)(1) of this section 26 and, if applicable, the provision of an easement or right-of-way under (a)(2) of this 27 section are required only once the lease under AS 38.05.430 or oil and gas, gas only, 28 or mineral lease is ready to be developed. 29 * Sec. 10. AS 38.05 is amended by adding new sections to read: 30 Article 12A. Clean Energy Projects. 31 Sec. 38.05.400. Clean energy project program. (a) The commissioner may
01 issue clean energy project development licenses under AS 38.05.410 for the use of 02 state land, including tide, submerged, and shoreland, that entitle a licensee to exclusive 03 use of the licensed land for the purposes of determining the feasibility of a clean 04 energy project and preparing a development plan and, upon approval of the licensee's 05 development plan under AS 38.05.420, to a preference right for a lease and for rights- 06 of-way and other land use rights and authorizations necessary to implement the 07 development plan. 08 (b) The commissioner shall adopt regulations to implement AS 38.05.400 - 09 38.05.460, including regulations 10 (1) setting fees to be paid to the department for submission of clean 11 energy project development license applications and for issuance of licenses; 12 (2) providing for departmental review of a licensee's development plan 13 and lease application; 14 (3) addressing rights-of-way and other necessary land use 15 authorizations and payment to the state for those land use rights. 16 (c) AS 38.05.400 - 38.05.460 authorize the issuance of land use authorizations 17 to develop clean energy projects only on the state's surface estate. 18 Sec. 38.05.410. Clean energy project development licenses. (a) A clean 19 energy project development license issued under this section is limited to a maximum 20 of 3,000,000 acres of state land. The commissioner may identify state land eligible for 21 development and operation of clean energy projects and notify the public that the land 22 is available for those purposes. State land may also be identified by an applicant in an 23 application submitted under (e) of this section. 24 (b) Subject to the bonding requirements of AS 38.05.440, a clean energy 25 project development license authorizes the licensee to conduct feasibility studies and 26 prepare a development plan for the licensed land. A licensee may conduct sampling, 27 mapping, data collection, and limited construction and development activities needed 28 to determine the feasibility of a project and complete a development plan under 29 AS 38.05.420. In this subsection, "limited construction" includes installing a 30 meteorological tower, performing geotechnical work, establishing a personnel camp, 31 constructing a helicopter landing pad, and other similar activities.
01 (c) An initial clean energy project development license issued under this 02 section may be issued for a maximum term of 10 years. A license may be extended 03 twice for a period of up to 10 years each time if the commissioner determines that the 04 licensee 05 (1) is in compliance with the license terms, conditions, and 06 stipulations; 07 (2) has diligently pursued the licensed activities; and 08 (3) is likely to complete a feasibility study if granted an extension. 09 (d) The commissioner may, subject to the acreage limits of (a) of this section, 10 amend the area covered by a clean energy project development license during the 11 license term. The commissioner shall provide public notice of an amendment under 12 this subsection that increases the area covered by a license by 5,000 acres or more. 13 (e) A person may submit to the department an application requesting a clean 14 energy project development license. An applicant must meet qualifications established 15 in regulations adopted by the commissioner. An application for a license under this 16 section must, at a minimum, contain detailed information including 17 (1) a description of the proposed clean energy project; 18 (2) the proposed area to be covered by the license; 19 (3) a description of the nature and scope of activities to be completed 20 during the term of the license; 21 (4) a description of performance benchmarks and project milestones 22 for each phase of the proposed clean energy project, including feasibility studies and 23 project design, funding, construction, and operation; and 24 (5) information relating to project viability, including financing plans, 25 market demand, and anticipated revenue. 26 (f) In addition to information required under (e) of this section, the 27 commissioner may require an applicant to provide additional information that the 28 commissioner determines is necessary to evaluate the application. 29 (g) Upon receiving an application for a clean energy project development 30 license, the department shall solicit competitive interest by issuing a public notice in 31 the manner prescribed in AS 38.05.945. The notice must contain an announcement
01 seeking competitive interest. If competing applications are received following notice, 02 the commissioner shall evaluate the applications as described in (h) of this section. 03 (h) If the commissioner receives two or more clean energy project 04 development license applications for the same land, the commissioner shall review 05 each application and evaluate each application against the others. In evaluating 06 competing applications, the commissioner shall consider 07 (1) whether the applications are for clean energy projects that are 08 similar, compatible, or mutually exclusive for the area proposed; 09 (2) the proposed monetary terms; 10 (3) the potential revenue to the state; 11 (4) the qualifications of each applicant, including the applicant's 12 previous experience with the type of clean energy project proposed; 13 (5) how the proposed use would accommodate multiple uses of the 14 land; and 15 (6) any additional considerations established by the department in 16 regulation. 17 (i) The commissioner may issue a clean energy project 18 development license only after the director issues a finding under 19 AS 38.05.035(e)(6) that the license is in the best interests of the state. 20 In addition to the requirements of AS 38.05.035(e), the best interest 21 finding for a clean energy project development license must 22 (1) describe the area of state land subject to the license by aliquot parts 23 or another descriptive method that reasonably describes the land; 24 (2) include any limitations, stipulations, conditions, or changes to the 25 proposal that the director determines are required for the license to conform to the best 26 interests of the state; 27 (3) outline the specific benchmarks and work that must be satisfied 28 during the license term; and 29 (4) when competing applications are received, address the 30 considerations listed under (h) of this section. 31 (j) State land subject to a clean energy project development license must, to
01 the extent not incompatible with the licensee's approved activities, remain open to 02 (1) the public for access, hunting, fishing, and other generally allowed 03 uses as determined by the department; and 04 (2) other resource exploration and development, including mining. 05 (k) A licensee's use of water within an area covered by a clean energy project 06 development license is limited to those uses necessary to complete a feasibility study 07 and prepare a development plan. Use of water within a license area is governed by 08 AS 46.15. 09 Sec. 38.05.420. Development plans. (a) Before the commissioner may issue a 10 lease for a clean energy project under AS 38.05.430 or other related authorization, a 11 licensee under AS 38.05.410 must submit and the commissioner must approve a 12 development plan for the project. The development plan must 13 (1) identify all infrastructure required for the completed project; 14 (2) identify all locations where proposed infrastructure would be 15 located; 16 (3) include a schematic design for the overall project; 17 (4) list all land use authorizations needed to construct and operate the 18 project; 19 (5) include the timeline for completing design development and 20 construction; and 21 (6) contain other information the commissioner determines is 22 necessary to facilitate the commissioner's determination to approve or disapprove the 23 development plan under this section. 24 (b) The commissioner shall review a development plan submitted under (a) of 25 this section and prepare a written finding approving, approving in part, modifying, or 26 disapproving the development plan. The commissioner shall determine and include in 27 the written finding 28 (1) whether any changes or additions to information considered in the 29 best interest finding conducted under AS 38.05.410(i) are needed for the licensee's 30 clean energy project development license, considering the factors described in 31 AS 38.05.035(e)(1) and (2);
01 (2) the likelihood that the project will be constructed and successfully 02 operated; 03 (3) the potential monetary return to the state; and 04 (4) the cumulative effects of the project, taking into account all aspects 05 of the project considered as a whole and the context in which the project would be 06 developed. 07 (c) The commissioner's written finding under (b) of this section is subject to 08 public notice as required by AS 38.05.945. 09 Sec. 38.05.430. Leases, easements, rights-of-way, and other land use 10 authorizations. (a) Subject to the bonding requirements of AS 38.05.440, after the 11 commissioner approves, or approves in part, a development plan under AS 38.05.420, 12 the commissioner may, upon an application from the licensee, enter into leases with 13 and issue authorizations to a clean energy project development licensee that are 14 identified in the development plan approved by the commissioner under AS 38.05.420 15 and within the area licensed under AS 38.05.410. A separate best interest finding 16 under AS 38.05.035(e) is not required for a lease, easement, or right-of-way accounted 17 for in the licensee's approved development plan. AS 38.05.070(d) does not apply to 18 leases issued under this section. The commissioner may issue a lease, easement, or 19 right-of-way under this section for a maximum period of 55 years and may renew a 20 lease, easement, or right-of-way under this section once for a period not to exceed 55 21 years. A lease agreement under this section must include land use restrictions and 22 authorizations consistent with the purpose of the lease. 23 (b) A lease, easement, or right-of-way that is not accounted for in a licensee's 24 development plan is subject to the requirements of AS 38.05.070 - 38.05.105 and 25 38.05.850, including best interest findings and public notice. A clean energy project 26 development licensee under AS 38.05.410 or lessee under this section shall apply for a 27 permit, right-of-way, or easement under AS 38.05.850 for any necessary road, 28 pipeline, facility, or other infrastructure necessary for development of the clean energy 29 project. A lease, easement, or right-of-way issued under this section is subject to the 30 following requirements: 31 (1) a right-of-way for an oil or natural gas pipeline is subject to
01 AS 38.35, as applicable; 02 (2) the commissioner may include in a lease or right-of-way reasonable 03 provisions and conditions the commissioner determines are required by the public 04 interest; 05 (3) a lease, easement, or right-of-way, including a pipeline right-of- 06 way, must also contain terms and conditions that, to the extent reasonably practicable, 07 (A) prevent conflict with other existing beneficial uses of the 08 land; 09 (B) protect state and private interests in real property; 10 (C) prevent significant adverse environmental effects to 11 (i) land, including erosion; and 12 (ii) fish and wildlife and fish and wildlife habitat; 13 (D) ensure that the land is protected during the term of the lease 14 and, at termination of the lease, is restored and revegetated; 15 (E) protect the interests of individuals living in the general area 16 of the lease, right-of-way, or easement who rely on the fish, wildlife, and 17 replenishable resources of the area for subsistence purposes. 18 (c) Except as provided in (d) of this section, the commissioner shall ensure 19 that compensation for a lease, easement, or right-of-way under this section shall be a 20 form of compensation provided under AS 38.05.073(m), selected to provide the 21 greatest economic benefit to the state and the development of its resources. 22 Compensation for land leased under this section shall be separately accounted for 23 under AS 37.05.142. The lease must stipulate that, at five-year intervals, the lease rent 24 is subject to adjustment to ensure that the state receives the maximum benefit from the 25 lease. 26 (d) Compensation for a pipeline right-of-way lease under this section shall be 27 determined by the commissioner in accordance with AS 38.35.140 and 38.35.145. 28 (e) Land leased under this section must remain open to mineral exploration 29 and development, unless the commissioner determines that mineral exploration and 30 development are incompatible with the lessee's clean energy project and closes the 31 land to mineral development under AS 38.05.300(c).
01 Sec. 38.05.440. Bonding. Before the commissioner may issue a clean energy 02 project development license under AS 38.05.410 or a lease under AS 38.05.430, an 03 applicant for a license under AS 38.05.410(e) or lease under AS 38.05.430(a) shall 04 post a performance bond or provide other security acceptable to the commissioner to 05 cover the costs to the department of one or more of the following, as determined by 06 the commissioner: 07 (1) administering and managing the license or lease to ensure 08 completion of the clean energy project and compliance with the terms and conditions 09 of the license or lease; 10 (2) administrating and managing the license or lease to ensure that 11 development occurs according to the terms and conditions of the license or lease; and 12 (3) restoring the land at the conclusion of the license period or lease 13 term, upon the termination of the license or lease, or upon a finding that work 14 associated with the clean energy project has been abandoned. 15 Sec. 38.05.450. Termination of clean energy project development license or 16 lease; improvements. (a) A violation of a provision of a clean energy project 17 development license or a lease under AS 38.05.430, or any terms, conditions, or 18 stipulations in the license or lease, subjects the licensee or lessee to appropriate legal 19 action, including revocation of the license or forfeiture of the lease. 20 (b) The commissioner has the discretion to terminate or revoke a clean energy 21 project development license issued under AS 38.05.410 if the licensee fails to meet 22 benchmarks set out in the license. If a license or a lease under AS 38.05.430 is 23 terminated or work contemplated in the license or lease is abandoned, improvements 24 remaining on the land are subject to AS 38.05.090. 25 Sec. 38.05.460. Definitions. In AS 38.05.400 - 38.05.460, 26 (1) "applicant" means a person submitting a clean energy project 27 development license application, development plan, or other application for a land use 28 authorization under AS 38.05.400 - 38.05.460; 29 (2) "competing applications" means the commissioner has received 30 two or more applications to license the same state land, or to license overlapping areas 31 of state land, for which only one proposal can be granted to ensure the licensee has
01 exclusive use of the land; 02 (3) "exclusive use" means the exclusive right to conduct activities on 03 land subject to a clean energy project development license for the purposes of 04 determining the feasibility of a clean energy project and preparation of a development 05 plan. 06 * Sec. 11. AS 38.05.945(a) is amended to read: 07 (a) This section establishes the requirements for notice given by the 08 department for the following actions: 09 (1) classification or reclassification of state land under AS 38.05.300 10 and the closing of land to mineral leasing or entry under AS 38.05.185; 11 (2) zoning of land under applicable law; 12 (3) issuance of a 13 (A) preliminary written finding under AS 38.05.035(e)(5)(A) 14 regarding the sale, lease, or disposal of an interest in state land or resources for 15 oil and gas, or for gas only, subject to AS 38.05.180(b); 16 (B) written finding for the sale, lease, or disposal of an interest 17 in state land or resources under AS 38.05.035(e)(6), except a lease sale 18 described in AS 38.05.035(e)(6)(F) for which the director must provide 19 opportunity for public comment under the provisions of that subparagraph; 20 (4) a competitive disposal of an interest in state land or resources after 21 final decision under AS 38.05.035(e); 22 (5) a preliminary finding under AS 38.05.035(e) concerning sites for 23 aquatic farms and related hatcheries; 24 (6) a decision under AS 38.05.132 - 38.05.134 regarding the sale, 25 lease, or disposal of an interest in state land or resources; 26 (7) an exchange of state land under AS 38.50; 27 (8) solicitation of competitive interest under AS 38.05.081(c); 28 (9) a written finding required under AS 38.05.410(i), 38.05.420(c), 29 or 38.05.430(b). 30 * Sec. 12. AS 38.05.965 is amended by adding a new paragraph to read: 31 (29) "clean energy project" means a power generating utility or
01 industrial project that includes development of and primary reliance on one or more of 02 the following technologies: 03 (A) solar; 04 (B) wind; 05 (C) hydropower; 06 (D) biomass; 07 (E) energy storage, including pumped storage hydropower and 08 compressed air storage; or 09 (F) advanced nuclear technologies.