SB 227-STATE OWNERSHIP OF SUBMERGED LAND  3:35:01 PM SENATE BILL NO. 227 "An Act relating to state ownership of submerged land within and adjacent to federal areas; and providing for an effective date." [CSSB 227, Version B, was before the committee.] [The bill was previously heard on 4/8/2022 and 4/20/2022.] 3:35:35 PM VICE CHAIR MICCICHE moved to adopt the committee substitute (CS) for SB 227, work order 32-GS2561\I, Version I, as the working document. CHAIR REVAK objected for discussion purposes. 3:36:06 PM INTIMAYO HARBISON, Staff, Senator Josh Revak, Alaska State Legislature, Juneau, Alaska, offered his view that Version I would address the concerns raised at the last hearing. He paraphrased the Explanation of Changes on behalf of the committee, which read: [Original punctuation provided.] SB 227 Explanation of Changes Version \B to Version \I P.1, line 8-9.  Amended to read "navigable water within the boundaries of and adjacent to federal areas". P.2, line 2-3.  Amended to read "navigable water listed in AS 38.04.063 that is within the boundaries of and adjacent to federal areas". 3:37:09 PM P.2, line 11-12.  Amended to read "navigable water within the boundaries of and adjacent to federal areas". P.3, line 4. Strike "or" P.3, line 6.  Add "or" following ";". P.3, line 7.  Insert "(C) other federal areas". P4., line 1.  Amended to read "navigable water within the boundaries of and adjacent to federal areas". P 4., line 11  Sec. 7. AS 38.04.062 is amended by adding new subsections to read: (j) For purposes of (b) and (c) of this section, the commissioner shall make a determination of navigability based on evidence consistent with the meaning given to "navigable water" in (g) of this section, and after considering factors that include 3:37:53 PM  (1) a showing that a river is boatable at any time during the open-water season by customary and traditional watercraft. P.5, line 1-2.  Amended to read "that is within the boundaries of and adjacent to federal areas." 3:38:44 PM SENATOR KAWASAKI referred to page 4, line 11 of the explanation of changes, related to boatable waters. He stated that sometimes rivers are boatable right after breakup, but the high-water mark would be lower the rest of the year. He wondered how that would affect the determination of boatable. 3:39:20 PM RON OPSAHL, Assistant Attorney General, Natural Resources Section, Civil Division, Department of Law, Anchorage, Alaska, responded that the bill used boatable "at any time" to make it less restrictive. He explained that the issue with the previous language, "boatable during the open-water season," could be interpreted to mean that it must be boatable during the entire open-water season. The original language was for one-third of the open water season, but the Alaska Department of Fish and Game (ADF&G) thought that language was too restrictive. Currently, case law doesn't define how much of the open-water season needs to be available for boatability. However, as case law develops, it will better define the open-water season. He noted that the department did not want to codify something more restrictive than necessary. SENATOR KAWASAKI asked for clarification that this change is more permissive and less restrictive. MR. OPSAHL replied that is correct. 3:41:00 PM SENATOR VON IMHOF asked whether questions were limited to the committee substitute right now. CHAIR REVAK answered yes, questions right now were about the changes incorporated in the committee substitute. 3:41:18 PM CHAIR REVAK withdrew his objection; he found no further objection, and Version I was adopted as the working document. He solicited further questions 3:41:41 PM SENATOR VON IMHOF referred to page 5, line 5, which indicates the "SWFA" number, the identification number assigned to the body of water on April 20, 2022, by DNR [in its Navigable Waters in Federal Areas Database]. She asked whether the SWFA number was listed on DNR's website so someone could input the numbers and pull up the navigable water and that perhaps it would pull up a map showing the location. 3:42:24 PM JIM WALKER, Public Access Assertion and Defense Section Chief, Division of Mining, Land and Water, Department of Natural Resources, Anchorage, Alaska, answered that it would be available, but some technical aspects were being worked through to add the specific numbers. He noted that the files were being maintained at DNR. The water body is currently listed on DNR's Navigable Waters Map. The unnamed water bodies listed in the bill have specific geographic descriptive information that would allow someone to identify them on the map. 3:43:27 PM SENATOR VON IMHOF related her understanding that the SWFA would be available soon. She referred to page 9, line 8, the line item for Big Lake, SWFA 0100. She asked which Big Lake it refers to since it is a common name for lakes. She noted that Big Lake is a popular destination in the Mat-Su Valley, so some people wondered which lake is SWFA 0100. She asked where the public could find that information. MR. WALKER directed attention to the bottom of page 8 and page 9, lines 1-3, which reference water bodies in Denali National Park and Preserve. He explained that Big Lake in Mat-Su is not covered in this bill because it does not fall within the federal area. The SWFA water bodies are only located within federal CSUs and other statewide areas. The SWFA number will appear on a specific water body identified on DNR's Navigable Waters Map. He referred to page 11, various unnamed lakes and rivers listed have specific descriptions within the statutory language in the bill, which also appear on DNR's Navigable Waters Map, which pinpoints the precise location of the unnamed lake or river. 3:46:46 PM SENATOR VON IMHOF asked for an estimate of when the link would be available on the website. MR. WALKER suggested that if someone has a specific question on the location of a water body, they could call DNR and speak to him or his staff. He estimated that the website to pinpoint the SWFA would be available in several weeks. 3:47:42 PM SENATOR VON IMHOF asked whether boatable or navigable water definitions align with the federal definition. MR. WALKER explained that the definitions align with federal case law, including the US District Court decision in State of Alaska v. the United States related to the Gulkana River 662 F. Supp. 455 (1987), and the US Supreme Court ruling in the John Sturgeon decision. [Sturgeon v. Frost, 139 S. Ct. 1066 (2019)]. 3:48:46 PM SENATOR VON IMHOF referred to page 4, lines 14-15, and read a portion of AS 38.04.062(j)(1), "...in this paragraph, "customary and traditional watercraft" includes poling boats, skin boats, motorized and nonmotorized inflatable rafts, canoes, motorized riverboats, airboats, jetboats, and other watercraft ...." MR. WALKER read the definition, as follows: "customary and traditional watercraft" includes poling boats, skin boats, motorized and nonmotorized inflatable rafts, canoes, motorized riverboats, airboats, jetboats, and other watercraft in use anywhere in the United States at the time the state achieved statehood; SENATOR VON IMHOF asked whether he was referring to the definition in federal case law. MR. WALKER answered that the decision for the Gulkana River [Gulkana River [662 F. Supp.455 (1987)] explicitly states that language. 3:50:01 PM SENATOR KAWASAKI asked for the effect if one of the bill's descriptions or citations for the SWFA navigable waters was listed wrong MR. WALKER answered that SB 227 requires DNR to present suggested waters to include in the listing at the beginning of each legislative session. He noted that the US Fish and Wildlife Service continues its work in the Chugach National Forest and on Bureau of Land Management (BLM) lands. He related that DNR must amend any descriptions consistent in developing case law or work. For instance, if the state prevailed in litigation and a federal court agreed that a waterway was navigable further upstream than described in statute or further downstream, DNR would ask the legislature to amend the entry. He predicted that this work would be ongoing and span several legislative sessions. 3:52:40 PM SENATOR KAWASAKI stated that he had introduced a bill to expand the boundaries of the Creamer's Field Wildlife Refuge. He highlighted that the boundaries were cited wrong in the bill, so the governor had to veto the bill. He noted that the legislature had to go through the process again, so he wondered how a mistake would affect the navigable waters. MR. WALKER answered that it would be similar; DNR would bring it before the legislature if a line item were incorrectly identified in the bill. He offered his view that a line-item description mistake would not likely invalidate the bill. He referred to the Revised Statute (RS) 2477 (Section 8 of the Mining Act of 1866) upon which this bill is based. The SOA asserted ownership over certain RS 2477 trails in the 1990s, so the bill refers to a file number maintained by DNR for a particular RS 2477 trail. Those files have expanded over time, and some have been litigated. However, the minor adjustments have not invalidated the enabling statute. 3:56:07 PM SENATOR KIEHL asked whether DNR would need specific legislation to partner in instances where there is a broad, shared management plan that would enable infrastructure by the federal government or visitor improvements. MR. WALKER answered that the department has that power now. It is good for all Alaskans and adjoining landowners with management and control authority to work together for the public good whenever possible. For example, if a federal agency approached DNR with a plan to enhance the visitor experience on state-owned uplands by building a dock, boat, or ramp, the department would work closely to facilitate, enable, and expedite the permitting process. However, the key is recognition of state and federal jurisdiction and authority. If the state wishes to use submerged federal lands, it should go through the federal authorization process and vice versa. He predicted that if SB 227 were to pass, it would foster better state and national partnerships. He said good land management requires a clear determination of federal and state land boundaries. 3:59:56 PM SENATOR KIEHL said he appreciated knowing that DNR has that power. He offered his view that it takes a willingness of state and federal staff to work together to accomplish the goals. 4:00:54 PM MR. WALKER related that he received a call from the refuge manager of the Tetlin National Wildlife Refuge, which is under U.S. Fish and Wildlife Service (USFWS), asking what he needed to do to get federal infrastructure that falls within the refuge on state submerged land into compliance with state law. 4:02:06 PM SENATOR MICCICHE moved to report the committee substitute (CS) for SB 227, work order 32-GS2561\I, from committee with individual recommendations and accompanying fiscal notes. CHAIR REVAK found no objection, and CSSB 227(RES) was reported from the Senate Resources Standing Committee.