Legislature(2013 - 2014)BARNES 124
02/01/2013 01:00 PM House RESOURCES
| Audio | Topic |
|---|---|
| Start | |
| Overview(s): Alaska Stand Alone Gas Pipeline Project Update | |
| HB78 | |
| HB77 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| *+ | HB 78 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | HB 77 | ||
HB 77-LAND DISPOSALS/EXCHANGES; WATER RIGHTS
2:19:26 PM
CO-CHAIR FEIGE announced that the final order of business is
HOUSE BILL NO. 77, "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; 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."
2:19:43 PM
WYN MENEFEE, Chief of Operations, Division of Mining, Land &
Water (DMLW), Department of Natural Resources (DNR), began by
addressing the question from the prior hearing regarding whether
mineral estate can be conveyed through exchanges. He specified
that mineral lands cannot be conveyed per Section 6(i) of the
Alaska Statehood Act. If the mineral estate is conveyed to
other entities, the state forfeits the land to the federal
government. However, the mineral estate can be conveyed back to
the federal government. For clarification, Mr. Menefee
explained that a long-term lease for the AS 38.05.102 preference
right would be over 10 years. Two statutes combine to provide
that right, which is not a mandatory preference right, but is an
option after 10 years.
2:21:30 PM
MR. MENEFEE, returning to the briefing paper, directed attention
to point 5, which addresses aquatic farm leases, which are 10-
year leases that can be renewed. Currently, leases can be
renewed when an individual is in good standing for one term, not
to exceed the time of the original lease term. Therefore, this
proposal would include aquatic farm leases such that an
individual with a 10-year aquatic farm lease could obtain
another 10-year lease if that individual is in good standing.
Moving on to point 6, which addresses temporary water use
authorizations, he stressed that temporary water use
authorizations are not a water right. A temporary water use
authorization is temporary, revocable, modifiable, and does not
provide any long-term right to that water. Therefore, temporary
water rights are used for development projects throughout
Alaska, such as for oil and gas, mining, construction, and
Department of Transportation & Public Facilities maintenance of
roads. Current statute specifies that a temporary use
authorization can be issued for up to five years, but the
division has observed that some projects take over five years.
In the case of a project that still needs water at the five-year
mark, DMLW reevaluates and moves through the same process such
that it is vetted through the Department of Fish & Game (ADF&G)
to ensure no other water rights or habitat will be impacted.
Upon completion of that process, another temporary water use
authorization not to exceed five years is issued. Mr. Menefee
informed the committee that there has been discussion regarding
whether to challenge that, and therefore this proposal would
clarify that the division can issue another temporary water use
authorization to the same individual for the same location for
another five years. Basically, it is a new adjudication
process.
2:23:46 PM
CO-CHAIR SADDLER inquired as to whether there is any absolute
cap on the amount of time that leases for aquatic farms or
temporary water use can be extended.
MR. MENEFEE explained that for aquatic farms there is a one-time
renewal for another 10 years, after which it must be a
competitive process. For temporary water use authorizations,
there is no cap on the number of times the authorization can be
reissued. He highlighted that there is a difference between
"reissue" and "renew". Renewal refers to a [lessee] in good
standing for a project that has not changed. However, reissue
is a process by which the division considers [the lease new] and
considers all aspects of it. Basically, the division is
adjudicating from the beginning even though the division knows
the project [and lessee] has been there before. For example,
for a 15-year project three separate water use authorizations
could be issued for that project.
CO-CHAIR SADDLER surmised then that practically speaking there
is no limit on how many times one can renew.
MR. MENEFEE clarified that although there is no limit for
temporary water use authorizations, each time the division
reviews what other needs there are for the water and what other
water rights there are. Furthermore, there is no right inferred
from obtaining multiple temporary water use authorizations in
the past.
2:25:46 PM
REPRESENTATIVE SEATON requested further explanation of the
notation in point 6 that temporary water use authorizations "are
mainly used by exploration projects and construction projects
that are not conducive to permanent water rights".
MR. MENEFEE explained that companies can apply for a water right
from the outset [of a project]. With a full water right
companies have to apply and then they have two years to perfect
that water right at which point "it stays with it". For
example, a project that needs water rights at various periods
throughout the project and does not need a long-term water
right. He clarified that water is needed temporarily at one
location and then another location. Water rights, on the other
hand, are typically used when water is needed from a location
continuously.
2:27:20 PM
REPRESENTATIVE P. WILSON informed the committee that the Sitka
Sound Science Center has [had a temporary water use
authorization] for some time. However, now the U.S. Forest
Service has expressed the need for the water. She then asked
whether the U.S. Forest Service has priority for the stream.
MR. MENEFEE answered that in Alaska water rights are on a first
come first served basis, and thus a priority right is based on
the date of the application. Temporary water use authorizations
have nothing to do with that, he said. For instance, in a
situation in which an entity has a temporary water use
authorization and another entity applies for the water right,
the entity applying for the water right would be first in line.
Usually those companies that believe they might have to compete
for the water or they believe they need to protect the water may
apply for a water right. Again, whoever applies for the water
right first is considered first.
2:29:08 PM
CO-CHAIR FEIGE asked whether a water right is revocable.
MR. MENEFEE explained that after one first applies for a water
right permit that applicant must prove and perfect the use of it
prior to certification of that water right. With regard to
whether the water right can be revoked after certification, Mr.
Menefee said he would have to provide that answer later.
2:30:15 PM
CO-CHAIR SADDLER asked whether a temporary water use permit has
been superseded or boxed out by an application for a water
right.
MR. MENEFEE said that he did not know, but offered to find out.
2:30:36 PM
MR. MENEFEE, returning to the review of his briefing paper,
directed the committee's attention to point 7, which addresses
water reservations. A water reservation specifies the amount of
water flow to protect and the remaining amount of water flow can
be used to appropriate through temporary water use
authorizations or water rights, but the amount of protected
water flow cannot be used. One can apply for a water
reservation for navigation, habitat, recreation, and water
quality. Currently, anyone can apply for a water reservation
after fulfilling all the obligations an agency would, including
the data necessary to prove the need for a water reservation.
Unlike a water right for which an application is the priority,
the priority for a water reservation is not established until
the in-stream flow reservation is proven by the state as needed
and granted, and then it returns to the priority right. Alaska
is the only state in the nation that allows a person to apply
for and hold a water reservation, which this proposal changes.
The change is being requested so that when there is an
application for a water reservation, it is based in sound
science and good information, routed to the applicable agencies,
and would not allow an individual to apply and hold a water
reservation.
2:33:36 PM
CO-CHAIR FEIGE pointed out that flow rates can fluctuate, and
therefore he inquired as to who gets priority if the flow
decreases to the point that there is no surplus after all the
water reservations and rights are utilized.
MR. MENEFEE clarified that a granted water reservation is
protected over other rights and the other rights must defer to
the water reservation. The water reservation is a priority
right, which is why it is important to have good data to support
why a water reservation is a priority.
2:34:54 PM
REPRESENTATIVE SEATON asked whether the legislation allows a
person to petition the agency to apply for a water reservation,
such as is the case in Idaho.
MR. MENEFEE replied that is correct. A person can [petition] a
water reservation by approaching an agency and mixing the data
from the person with that of the agency. If the agency believes
protection of the water is a priority, then it will submit an
application.
REPRESENTATIVE SEATON surmised then that as the legislation is
structured there is an obligation to the agency to consider such
a petition.
MR. MENEFEE confirmed that the agency has an obligation to
consider a petition, but not to submit an application.
2:36:04 PM
CO-CHAIR SADDLER related his understanding that temporary water
use permits and water reservations are not percentages of flow
but rather raw numbers of gallons per second.
MR. MENEFEE said that is correct.
2:36:18 PM
MR. MENEFEE, returning to his briefing paper review, directed
the committee's attention to point 8. He explained that there
are six hydrologic units in the state, which were established by
the U.S. Geological Survey (USGS). Existing statute specifies
that one who takes water from one hydrologic unit to another
hydrologic unit, including filling a water bottle from one unit
to the next, is guilty of a misdemeanor. However, the division
only wants to address [the transfer/removal] of significant
amounts of water. The definition of a "significant amount of
water" is specified in regulation and is what is currently
permitted. Therefore, the proposal in HB 77 is to specify that
it will address moving significant amounts of water between
hydrologic units by permitting it. In response to Co-Chair
Feige, Mr. Menefee informed the committee that the definition of
"significant amount of water" can be found in the 11 AAC 93.035
(b)(1)-(4), Requirement to apply for the use of a significant
amount of water, which read:
(b) A person shall file an application for a water
right under 11 AAC 93.040 or for a temporary water use
authorization under 11 AAC 93.220 before
(1) the consumptive use of more than 5,000 gallons of
water from a single source in a single day;
(2) the regular daily or recurring consumptive use of
more than 500 gpd from a single source for more than
10 days per calendar year;
(3) the non-consumptive use of more than 30,000 gpd
(0.05 cubic feet per second) from a single source; or
(4) any water use that may adversely affect the water
rights of other appropriators or the public interest.
2:38:26 PM
MR. MENEFEE, returning to the briefing, moved on to point 9 that
addresses appeals. The suggested change is to affect standing
and burden of proof in appeals. Currently, some people will
await an appeal on certain types of authorization decisions and
not participate in the process. The goal is encourage public
participation and do so during the process. The change is such
that if the division has provided at least 30 days of public
notice and the public has been informed that it needs to
participate, one must participate in order to appeal at the end.
The aforementioned allows the division to address and mitigate
an individual's concerns and issues during the process while
still maintaining the right to appeal if the individual
continues to disagree with the division's decision. Mr. Menefee
emphasized that the aforementioned is the standing aspect. With
regard to the burden of proof aspect, existing statute allows an
individual who is aggrieved [to file an appeal], which he opined
provides an emotional connotation that an individual just does
not like a project. The goal with the proposed change in HB 77
is for the individual to show that he/she is substantially and
adversely affected [by a decision].
2:40:19 PM
REPRESENTATIVE SEATON posed an example of a fisherman who in the
past harvested fish in Cook Inlet. If a project was proposed
that would significantly impact a watershed, would the fisherman
have to genetically illustrate that a certain portion of the
fish he caught came from the impacted watershed in order to meet
the suggested standard, he asked.
MR. MENEFEE said he could not provide a definitive answer for
every situation as that would be pre-determining the appeals.
However, he offered that the division would expect the fisherman
to relate how the fisherman is impacted, which could be as
simple as pointing to fish documentation that fish cycle around
Cook Inlet and come from the various streams. Most likely, the
division will not move into the scientific burden of proof of
genetic sampling. Still, he opined that there would be the
desire to be presented with evidence as to why the individual
believes he/she is substantially and adversely impacted.
REPRESENTATIVE SEATON opined that this matter will require more
review as HB 77 would seem to shift the burden of proof of
impact to the individual, which is of concern.
2:42:51 PM
CO-CHAIR SADDLER inquired as to the degree of participation an
individual would have to put forth during the public review
process to be eligible to appeal.
MR. MENEFEE clarified that the division would merely require
that those who want to appeal at the end to have brought up the
concern earlier, even just once. Furthermore, the requirement
requires that the division tell the public that it has this
opportunity and must take advantage of the opportunity in order
to file an appeal and the notice has to be at least 30 days.
Those authorizations that do not require 30 days' notice would
not be included in this.
2:43:51 PM
MR. MENEFEE, continuing review of his briefing paper, directed
attention to point 10. He explained that existing law specifies
that only mineral closing orders are subject to public notice
requirements. However, the goal is to ensure that the public is
aware of any changes to the mineral entry, and thus HB 77
proposes to include mineral orders and leasehold location orders
not just mineral closing orders to the actions that limit the
use of the mineral estate on state lands of which the public
should be made aware. Moving on to point 11, Mr. Menefee
informed the committee that in the unorganized borough of the
state DNR is the platting authority. Therefore, DNR has to make
decisions regarding subdivision of land. This legislation would
allow DNR to make decisions without public notice for
alterations of platted boundaries when [the owners approve] and
no public easements or rights-of-way are impacted. Currently,
public notice has to be advertised for which the owner is
required to pay. Furthermore, the owner has to wait 30 days.
Historically, the division has found that no one comments on
such matters as there is no public interest impacted, just the
individual's land.
2:45:45 PM
REPRESENTATIVE SEATON inquired as to how these public easements
impact stream rights-of-way. He further inquired as to whether
any land with a stream or lake automatically has a public
easement or does this mean the subdivision cannot restrict the
public right-of-way.
MR. MENEFEE clarified that there are not easements on all
streams and lakes; the [AS] .125 "to and along" easement is only
in place when state lands are disposed. On the general stream
located on federal land or that went from the federal government
to a private individual that homesteaded, the state does not
have a reservation as an easement along those water bodies.
Since the state does not have any ownership interest, the
department cannot place a "to and along" easement on the land.
As that unorganized borough, the department could say an
easement is necessary. The aforementioned, however, only comes
into play when state land is disposed.
REPRESENTATIVE SEATON recalled that under that statute, any time
there was an action by the state, an easement had to be placed
along any streams or rivers. He asked whether the platting or
subdivision would create that because platting and subdividing
seems to be a state action.
MR. MENEFEE agreed to provide the committee an answer.
2:47:57 PM
CO-CHAIR FEIGE highlighted that there is a difference between a
stream and a navigable waterway. He asked if ownership crosses
navigable waterways or are areas platted such that the edge of
the plat is the edge of the assumed right-of-way due to the
navigability of the waterway.
MR. MENEFEE pointed out that there are two different types of
navigability. First, state navigability in Title 38 is used to
determine action when the state disposes of something. This
navigability is a fairly low navigability standard. He pointed
out that the state owns all the public water, whether navigable
or not. There is public trust doctrine that allows the public
to have rights to be able to use the water. Second, under
federal navigability, the state owns the beds of the water. If
the state already owns the beds of the water, when it is
subdivided it would already be subdivided because [the state
owns the bed of the water]. Therefore, that would not be an
issue. The issue would arise when the owner owns the land [and
the beds of the water].
2:49:48 PM
MR. MENEFEE, returning to the briefing document, continued with
point 12 that re-defines public auction to include the online
auctions. Point 13 relates the proposal of HB 77 to allow the
division the option to perform preliminary decisions for non-oil
and gas related decisions. The proposal would clarify AS
38.05.035, which merely specifies that for non-oil and gas
decisions the division is required to perform a written
decision. The change would also address the fact that the
division performs preliminary findings and then final findings
and sometimes only performs one finding and avoid charges that
the division is not following the process. He noted that
performing preliminary findings are actually more inclusive of
the public. Point 14 encompasses miscellaneous minor statutory
revisions that provide minor working revisions to make statutes
more readable and understandable while also clarifying statutory
intent.
2:51:58 PM
REPRESENTATIVE SEATON, referring to Section 44, asked if the
change retroactively cancels actions that have been in the
adjudicatory process or on appeal, which may include those who
are in the aggrieved status. He inquired as to how Section 44
will work without retroactively dismissing actions that are
being appealed.
MR. MENEFEE explained that current water reservations statute
specifies that a person may hold a water reservation, but the
proposed change would mean that no person can hold a water
reservation. He then informed the committee that 438 water
reservations have been applied for, of which 35 are from persons
and the remainder are from agencies. Therefore, if this
language is accepted by the legislature, the division would not
be able to issue water reservations to applicants who are
persons. However, those applications would be referred to the
applicable agencies, which would decide whether to apply for the
water reservation or not.
2:55:13 PM
REPRESENTATIVE SEATON opined that this proposal appears to
retroactively and significantly change how things work since the
agency is not required to continue the persons' applications
that have already been submitted. Requiring that the
commissioner convert the existing applications by persons to an
agency application would at least keep the public process
intact.
MR. MENEFEE remarked that the agency may or may not agree that
the applications by persons are worthwhile. To mandatorily
convert these applications without evaluating each of them would
mean the agency supports the application, although it may or may
not.
REPRESENTATIVE SEATON clarified that he was not proposing a
mandate for the agency to grant the application but rather a
mandate to submit and consider the application. Again,
canceling the applications by persons seems to retroactively
change the public process, which he characterized as
problematic.
2:57:31 PM
CO-CHAIR FEIGE requested a list of the names of the persons who
would be impacted by passage of HB 77.
MR. MENEFEE agreed to do so.
2:57:55 PM
CO-CHAIR FEIGE then announced that HB 77 would be held over.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 01.17.13 Chenault Wetlands 404 Primacy Transmittal Letter.pdf |
HRES 2/1/2013 1:00:00 PM |
|
| HB 78 (H) RES Hearing Request.pdf |
HRES 2/1/2013 1:00:00 PM |
HB 78 |
| HB 78 Sectional Analysis.pdf |
HRES 2/1/2013 1:00:00 PM |
HB 78 |
| HB0078-1-3-011813-DEC-Y.pdf |
HRES 2/1/2013 1:00:00 PM |
HB 78 |
| HB0078-2-2-011813-DNR-Y.pdf |
HRES 2/1/2013 1:00:00 PM |
HB 78 |
| HB0078-3-2-011813-LAW-N.pdf |
HRES 2/1/2013 1:00:00 PM |
HB 78 |
| HB0078A.pdf |
HRES 2/1/2013 1:00:00 PM |
HB 78 |
| HRES AGDC 2.1.13.pdf |
HRES 2/1/2013 1:00:00 PM |