Legislature(2023 - 2024)BUTROVICH 205
03/15/2023 03:30 PM Senate RESOURCES
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SB 68-PUBLIC NOTICE FOR WATER RIGHTS 3:31:24 PM CO-CHAIR BISHOP announced the consideration of SENATE BILL NO. 68 "An Act relating to public notice for a sale, appropriation, or removal of water, or for filing a declaration of a right of water; and providing for an effective date." 3:32:03 PM SENATOR CATHY GIESSEL, District E, sponsor of SB 68, provided the introduction to SB 68. The sponsor statement read as follows: [Original punctuation provided.] Senate Bill 68 proposes changes to certain public notice requirements relating to the sale, appropriation, or removal of water, and for the commencement of the process for determining the rights of persons holding existing appropriations of water. Specifically, SB 68 proposes that public notices, as originally required in statute, instead be posted on the Alaska Online Public Notice System. This change would remove the current requirement that notices be posted in a newspaper of general circulation in the affected area. The bill would update, but not substantively change, any other requirements for notice by the commissioner to determine the rights of persons holding existing appropriations, removal, or sale of beneficial water use rights. Eliminating the newspaper notice requirement would prevent delays in the water permitting process and save the applicants a significant amount of money required for newspaper notice. The changes would utilize the state's existing online public notice system, which is available to most Alaskans at no cost. All public notices posted on the online public notice system are permanently retained for future reference by interested parties, whereas newspaper notices are much more difficult to retrieve. Utilizing the online public notice system ensures that each Alaska resident has equal access to public notices rather than just newspaper subscribers or residents of an affected area. Further, elimination of coordinating newspaper publications reduces the permit processing timeframe. The public is encouraged to utilize the "Subscriptions" feature on the Alaska Online Public Notice System website (https://aws.state.ak.us/OnlinePublicNotices/) to either register for all notifications through the system, or to tailor what notifications from which departments they wish to receive. The Department of Natural Resources is eager to educate the public on the benefits of using the online notice system; SB 68 enables notice to be delivered to Alaskans through the power of the Internet. 3:34:36 PM RYAN RIVERS, Staff, Senator Cathy Giessel, Alaska State Legislature, Juneau, Alaska, presented the following sectional analysis for SB 68: Section 1: Amends AS 46.15.065(b)(2) by removing language requiring that notice be by means of "a newspaper of general circulation in the affected area" and replacing that language to require notice be published on the Alaska Online Public Notice System (AS 44.62.175) for a period of three weeks. Section 2: Amends AS 46.15.133(b) by requiring that notice be provided on the Alaska Online Public Notice System (AS 44.62.175) and removing language requiring that notice be by means of a newspaper of general circulation in the affected area." Section 3: Adds an immediate effective date. 3:35:58 PM CO-CHAIR BISHOP turned to invited testimony. 3:36:19 PM CHRISTY COLLES, Director, Division of Mining, Land, and Water, Department of Natural Resources, Anchorage, Alaska, thanked the sponsor for introducing SB 68 because the current process has a large impact on staff time and is costly for those who request water rights. She deferred to Tom Barrett to start the presentation. 3:37:16 PM TOM BARRETT, Water Resources Section Chief, Division of Mining Land and Water, Department of Natural Resources, Anchorage, Alaska, spoke to the following to provide background on the appropriation of water: [Original punctuation provided.] • Alaska Constitution Article 8 Section 13 • Title 46.15 Water Use Act • Appropriation of Water o Right to Use Water ?Permit ?Certificate o Reservation of Water 3:40:21 PM MR. BARRETT turned to slide 3, AS 46 Public Notice Requirements, and spoke to the following to explain the current process to publicly notice an application to use water: [Original punctuation provided.] • Alaska Statute 46.15.133 (b) requires that, "The commissioner shall publish the notice in one issue of a newspaper of general distribution in the area of the state in which the water is to be appropriated?" • Once the Division of Mining, Land and Water (DMLW) determines which newspaper best fits that description, the identified newspaper is contacted by DMLW, and a copy of the public notice is sent to the newspaper in order to obtain both a quote of the price of the ad and a copy of the proof of the ad for review before authorizing publication of the ad. • The applicant is also sent the proof and provided with a contact at the newspaper in order to make payment, pursuant to AS 46.15.133 (b). • Once the proof has been accepted, the ad is run in the newspaper with a date as close as possible to the starting date of the online public notice. • There is an exemption to public notice in regulation 11 AAC 93.100 for appropriations of 5,000 gallons of water per day (gpd) or less. 3:42:48 PM SENATOR KAWASAKI asked if Title 46 currently requires online public notice. MR. BARRETT said no; the statutes were written in 1966. SENATOR KAWASAKI asked if the current process was to publish the notice online and then the department helps the applicant get the notice published in a newspaper. MR. BARRETT clarified that DNR staff puts the notice in the online public notice system. 3:43:52 PM MR. BARRETT advanced to slide 4 to describe the inefficiencies associated with newspaper notices. He spoke to the following points: [Original punctuation provided.] • Identifying a newspaper of general distribution in the area of the state in which the water is to be appropriated is not clear, especially in rural areas. • A single day advertisement is a limited window of time to provide notice. • Online services to get information have become more accessible since the Water Use Act was promulgated in 1966. • The cost of a single day newspaper advertisement for a water right is expensive and can cost the applicant $500 to $1,500, depending on the length of the publication and the individual newspaper. • It is expensive to extend a public notice in newspapers. • DMLW staff must carefully coordinate newspaper publication dates with the Online Public Notice system. He noted that 3:45:36 PM SENATOR DUNBAR asked how many water rights notices are published in a year. MR. BARRETT said the department publishes approximately 80 high- volume water rights in an average year. He noted there is a threshold below which notice is not required. SENATOR DUNBAR asked if the major newspapers like ADN and the Fairbanks News Miner publish most of the notices. MR. BARRETT said that would be his estimate. CO-CHAIR BISHOP asked if the 80 high-volume water rights applications are to use 5,000 gallons or more per day, and that volumes under 5,000 are considered de minimis and don't need public notice. MR. BARRETT replied that's correct. 3:47:14 PM MR. BARRETT advanced to slide 5, Online Public Notice Benefits, and discussed the following points: [Original punctuation provided.] • The Alaska Online Public Notice System (Online System) is available to everyone. • There is no cost to applicants. • Public notices are easily extended at no cost. • Additional documents, maps, and figures can be attached. • Submitting comments to DMLW through links provided in the Online System is easy and accurately sends the comment to the correct destination. • Anyone can establish a subscription to get notified of specific topics, such as water rights. • The Online System permanently archives public notices for future reference. • DMLW already utilizes the Online System for land and mining notices. CO-CHAIR BISHOP asked if the subscription would be mailed to his address in Bush Alaska if he didn't have access to the Internet. MR. BARRETT clarified that this notice is distributed to email addresses. He noted that many people in remote areas access their email periodically using the public access at a local school. They're able to get to the email within the two-week public comment period. He noted that the graphic on the upper right of the slide included directions on how to sign up for the subscriptions. 3:50:01 PM MR. BARRETT turned to the table on slide 6, Water Use Fees from 11 AAC 05.260(b), to illustrate the magnitude of the advertising costs. He directed attention to the third category in the first column, "(7) Appropriation of water > 5,000 gpd and < 30,000 gpd." These are small entity users such as schools, businesses, small utilities, and farmers. The fee to issue them a permit is $595 and the cost to advertise that permit is often more than that. He calculated that 80 high-volume water rights publicized per year multiplied by $750 for the average newsprint cost totals $60,000. He said that's how much these Alaskans are paying for advertising every year and SB 68 would eliminate that cost. 3:51:34 PM MS. COLLES turned to slide 7 to discuss the public notice requirements under AS 38. [Original punctuation provided.] • In 2012, the passage of HB 361 modernized public notice requirements in AS 38.05.945, the statute that provides general notice provisions in the Alaska Land Act. • AS 38.05.945 now requires notice on the Alaska Online Public Notice System and one of the following: o Newspapers o Public service announcements o Posting in conspicuous location o Notification of known or likely affected parties o Publication of a legal notice o Another method calculated to reach affected persons SENATOR KAWASAKI asked for confirmation that she said that the department has not had problems with people saying they had not seen the published notices. MS. COLLES replied that there have been instances of people not getting their mail or their address no longer being accurate, but they didn't hear complaints that people didn't see the notice because it was not available in the newspaper. She continued to say the department is always looking for ways to deliver notices to individuals, other than knocking on doors. 3:54:16 PM MS. COLLES concluded the presentation by speaking to the following points: [Original punctuation provided.] • DNR supports SB 68 o Notification to affected parties in addition to the Online Public Notice System. o It aligns with other notice requirements under Title 38. o It will save Alaskans unnecessary advertising costs that can exceed the cost of a water right. o A process efficiency will be realized as DNR staff will be relieved of the responsibility to coordinate duplicative notifications. o The reduction in staff efforts will enable them to work on processing additional applications. o Statutory requirement to contact potentially affected appropriators of record by certified mail still applies. SENATOR CLAMAN recalled that the Alaska Online System was implemented on 1985 or 1986. He asked if there had been any complaints about that system since the department started using it more for state notices. MS. COLLES said not to her knowledge. She agreed with Senator Giessel that the public appeared happy with the online notices. She acknowledged that it was important to continue to educate the public about this no-cost tool. SENATOR CLAMAN noted that the lieutenant governor's office manages the online system, and asked whether she had communicated with that office to see whether they'd encountered any problems. MS. COLLES answered no. 3:56:45 PM CO-CHAIR BISHOP held SB 68 in committee.