CSSB 142(RES): "An Act designating the Department of Natural Resources as lead agency for resource development projects; making conforming amendments; and providing for an effective date."
00 CS FOR SENATE BILL NO. 142(RES) 01 "An Act designating the Department of Natural Resources as lead agency for resource 02 development projects; making conforming amendments; and providing for an effective 03 date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 38.05.020(b) is amended to read: 06 (b) The commissioner may 07 (1) establish reasonable procedures and adopt reasonable regulations 08 necessary to carry out this chapter and, whenever necessary, issue directives or orders 09 to the director to carry out specific functions and duties; regulations adopted by the 10 commissioner shall be adopted under AS 44.62 (Administrative Procedure Act); 11 orders by the commissioner classifying land, issued after January 3, 1959, are not 12 required to be adopted under AS 44.62 (Administrative Procedure Act); 13 (2) enter into agreements considered necessary to carry out the 14 purposes of this chapter, including agreements with federal and state agencies;
01 (3) review any order or action of the director; 02 (4) exercise the powers and do the acts necessary to carry out the 03 provisions and objectives of this chapter; 04 (5) notwithstanding the provisions of any other section of this chapter, 05 grant an extension of the time within which payments due on any exploration license, 06 lease, or sale of state land, minerals, or materials may be made, including payment of 07 rental and royalties, on a finding that compliance with the requirements is or was 08 prevented by reason of war, riots, or acts of God; 09 (6) classify tracts for agricultural uses; 10 (7) after consulting with the Board of Agriculture and Conservation 11 (AS 03.09.010), waive, postpone, or otherwise modify the development requirements 12 of a contract for the sale of agricultural land if 13 (A) the land is inaccessible by road; or 14 (B) transportation, marketing, and development costs render 15 the required development uneconomic; 16 (8) reconvey or relinquish land or an interest in land to the federal 17 government if 18 (A) the land is described in an amended application for an 19 allotment under 43 U.S.C. 1617; and 20 (B) the reconveyance or relinquishment is 21 (i) for the purposes provided in 43 U.S.C. 1617; and 22 (ii) in the best interests of the state; 23 (9) lead and coordinate all matters relating to the state's review 24 and authorization of resource development projects. 25 * Sec. 2. AS 41.17.085 is amended by adding a new subsection to read: 26 (c) An operator may apply through the commissioner for permits required by 27 other state agencies to operate on forest land. The applications may be forwarded to 28 the commissioner of environmental conservation for procedures under AS 46.35. The 29 commissioner shall notify the operator of the action taken. 30 * Sec. 3. AS 46.03.020 is amended by adding a new paragraph to read: 31 (13) after consultation with other state agencies and local government
01 officials, identify and propose for addition or deletion, by regulation, other licenses, 02 permits, or authorizations for which the provisions of AS 46.35 are applicable. 03 * Sec. 4. AS 46.03.880 is amended by adding a new subsection to read: 04 (b) Notwithstanding AS 44.62.330(a)(44), adjudicatory hearing procedures to 05 review permit decisions under this chapter need not conform to AS 44.62.330 - 06 44.62.630 (Administrative Procedure Act). 07 * Sec. 5. AS 46.04 is amended by adding a new section to article 3 to read: 08 Sec. 46.04.890. Applicability of Administrative Procedure Act. 09 Notwithstanding AS 44.62.330(a)(44), adjudicatory hearing procedures to review 10 permit decisions under this chapter need not conform to AS 44.62.330 - 44.62.630 11 (Administrative Procedure Act). 12 * Sec. 6. AS 46.35 is amended by adding new sections to read: 13 Sec. 46.35.011. Legislative determination. The legislature determines that 14 the substantial burdens placed upon persons who are proposing to undertake certain 15 types of projects in this state through requirements to obtain numerous permits and 16 related documents from various federal, state, and local agencies are undesirable and 17 should be alleviated. The legislature further finds that present methods for obtaining 18 public views relating to applications to state and local agencies pertaining to these 19 projects are cumbersome and place undue hardships on members of the public with the 20 result that the public ability to express its views is hindered and not facilitated. 21 Sec. 46.35.021. Purpose. It is the purpose of AS 46.35.011 - 46.35.211 to 22 (1) establish a simplified procedure to assist those who, to satisfy the 23 requirements of federal, state, and local law, must obtain a permit from one or more 24 federal, state or local government agencies by establishing a procedure to coordinate 25 the administrative decision-making process; 26 (2) provide to the members of the public a better opportunity to present 27 their views on proposed uses of the state's natural resources and related environmental 28 concerns before federal, state, and local agencies decide on applications for permits; 29 (3) provide to applicants for the use of the air, land, or water resources 30 of the state a greater degree of certainty on permit requirements of federal, state, and 31 local governments;
01 (4) increase the coordination between federal, state, and local agencies 02 in their administration of programs affecting the state's air, land, and water resources; 03 (5) establish an opportunity for members of the public to obtain 04 information pertaining to requirements of federal, state, and local law that must be 05 satisfied before undertaking a project in this state. 06 Sec. 46.35.031. Master application. (a) A person proposing a project that 07 requires the issuance of one or more permits may submit a master application to the 08 department requesting the issuance of all permits and documents necessary before the 09 construction and operation of the project in the state. The master application must be 10 on a form established by the department and must contain sufficient information as to 11 the location and the nature of the project, including discharge of wastes and use of or 12 interference with natural resources of the state. 13 (b) Upon receipt of a properly completed master application, the department 14 shall immediately forward a copy of the application to all heads of executive 15 departments of the state and the chief elected official of all municipalities in which a 16 portion of the project is proposed to be constructed, together with the date by which 17 the agency shall respond to the master application. 18 (c) Each agency notified shall respond in writing to the department by the 19 specified date, not exceeding 15 days from receipt, as determined by the department, 20 advising 21 (1) whether the agency has an interest in the master application; 22 (2) if the response to (1) of this subsection is affirmative, the permit 23 program under the agency's jurisdiction to which the project described in the master 24 application is pertinent; and 25 (3) whether, in relation to the master application, a public hearing as 26 provided in AS 46.35.051 and 46.35.061 would be in the public interest. 27 (d) Each notified agency that (1) responds within the specified date that it does 28 not have an interest in the master application; or (2) does not respond as required 29 within the specified date, may not subsequently require a permit of the applicant for 30 the project described in the master application unless the master application contained 31 false, misleading, or deceptive information, or other information or lack of
01 information that would reasonably lead an agency to misjudge its interest in the master 02 application. 03 (e) The department shall submit application forms relating to permit programs 04 identified in affirmative responses under (c) of this section to the applicant with a 05 direction to complete and return them to the department within a reasonable time as 06 specified by the department. 07 (f) When the applications, properly completed, have been returned to the 08 department, each of the applications shall be transmitted to the appropriate state 09 agency for the performance of its responsibilities of decision making in accordance 10 with the procedures of AS 46.35.011 - 46.35.211. 11 Sec. 46.35.041. Withholding final permit. When it appears that the 12 applicant does not own or control the land or water necessary for the siting of the 13 project in the master application, the department shall continue the proceedings under 14 AS 46.35.011 - 46.35.211 but may withhold the final permit until the applicant has 15 obtained ownership or control of the land or water necessary for the site of the project. 16 If the applicant has applied for land or water necessary for the siting of the project 17 from the state or a municipality of the state, the state agency or municipality shall 18 promptly adjudicate the application for the land or water filed by applicant. 19 Sec. 46.35.051. Notice of proposed project. (a) The department, within 30 20 days after transmittal under AS 46.35.031(f), shall cause a notice to be published at the 21 applicant's expense once each week for three consecutive weeks in a newspaper of 22 general circulation within each municipality in which the project is proposed to be 23 constructed or operated. The notice must describe the nature of the master application, 24 including, with reasonable specificity, the project proposed, its location, the various 25 permits or documents applied for, and the state agency having jurisdiction over each 26 permit or document. Except as provided in (c) of this section, the notice must also 27 state the time and place of the public hearing, which shall be scheduled not less than 28 20 or more than 30 days after the date of last publication of the notice. It must further 29 state that a copy of the master application and a copy of all applications for the project 30 are available for public inspection in the regional office of the department nearest to 31 where the project is proposed to be constructed or operated, as well as at the
01 department office in the capital and any other locations the department may designate 02 in the notice. 03 (b) If no part of the project is to be constructed or operated in a municipality, 04 or if there is no regularly published newspaper of frequency at least weekly, the public 05 notice shall be published in a newspaper in the judicial district in which the project is 06 proposed. 07 (c) If the responses received by the department from state agencies under 08 AS 46.35.031(f) unanimously state the position that a public hearing concerning a 09 master application is not necessary in the public interest, and the department, after a 10 careful evaluation, taking into consideration all interests involved, including the 11 opportunity for members of the public to present views, agrees, the provisions of (a) of 12 this section pertaining to the time and place of a public hearing need not be included in 13 the notice. In that case the notice must state that members of the public may present 14 their views and supporting materials in writing to the department regarding any of the 15 permits applied for within 30 days after the last date of publication of the notice in a 16 newspaper. 17 Sec. 46.35.061. Public hearing. (a) Except as provided in AS 46.35.051(c), 18 before a final decision is made on a permit application relating to a project subject to 19 the procedures of AS 46.35.011 - 46.35.211, a public hearing shall be held in or near 20 the municipality in which all or a major part of the proposed project is to be 21 constructed or operated, or, if the project is not to be constructed or operated in a 22 municipality, the hearing shall be held at a location reasonably convenient to the site 23 of the proposed project. The hearing shall be held in accordance with the notice given 24 under AS 46.35.051(a). At the hearing the applicant may submit any relevant 25 information and material in support of the applications, and members of the public 26 may present relevant views and supporting materials relating to any or all of the 27 applications being considered. 28 (b) Each state agency having an application for a permit before it under 29 AS 46.35.051(a) shall be represented at the public hearing by its commissioner or a 30 designee of the commissioner. The commissioner of the department, a designee of the 31 commissioner, or a hearing officer appointed by the governor, shall chair the hearing;
01 however, the representative of any state agency other than the department within 02 whose jurisdiction a specific application lies shall conduct the portion of the hearing 03 pertaining to submission of information, views, and supporting materials that concern 04 that application. The chair may continue a hearing from time to time and place to 05 place. 06 (c) The provisions of AS 44.62 do not apply to the hearing conducted under 07 this section, and the hearing shall be conducted for the purpose of obtaining 08 information for the assistance of state agencies and not as a trial or adversary 09 proceeding. 10 (d) Federal and local government agencies may be represented at the hearings, 11 at their option, by their chief executive officer or the officer's designee. 12 (e) The hearing shall be electronically recorded, and copies of the recording 13 shall be made available to state, federal and local agencies upon request. 14 Sec. 46.35.071. Final decision. (a) Upon completion of the public hearing 15 the chair, after consultation with the state agency representatives, shall establish the 16 date by which all state agencies shall forward their final decisions on applications 17 before them to the department. The date established shall be within the following 90- 18 day period after the public hearing. 19 (b) In a situation where a notice is provided under AS 46.35.051(c), the 20 department shall, 30 days after the last notice publication in the newspaper, submit a 21 copy of all views and supporting material received by it to each agency as described in 22 the notice as having an application before it. At the same time, the department shall 23 notify each state agency, in writing, of the date by which final decisions on 24 applications shall be forwarded to the department. That date shall be not later than 90 25 days after the date of last publication of the notice, but may be extended by the 26 department for reasonable cause. 27 (c) Each final decision shall state the basis for the conclusion together with a 28 final order denying the application for a permit or granting it, subject to a condition of 29 approval as the deciding agency may have the power to impose. An agency that 30 denies an application shall, with its final decision denying the application, provide a 31 written summary suggesting alternate means of completing the project, or, if no
01 alternative is feasible, the agency shall provide a written summary of its reasons for 02 that conclusion. 03 (d) As soon as all final decisions are received by the department under (b) and 04 (c) of this section, the department shall incorporate them, without modification, into 05 one document and transmit it to the applicant either personally or by registered mail. 06 (e) Each state agency having jurisdiction to approve or deny an application for 07 a permit shall have the power vested in it by law to make such determinations. 08 Nothing in AS 46.35.031 - 46.35.071 lessens or reduces these powers, and 09 AS 46.35.031 - 46.35.071 modify only the procedures to be followed in the carrying 10 out of the powers. 11 (f) A state agency, in the performance of its responsibilities of decision 12 making under AS 46.35.011 - 46.35.211, may request or receive additional 13 information from an applicant and others before or after the public hearing. 14 Sec. 46.35.081. Withdrawal of agency from participation. (a) A state 15 agency responding affirmatively under AS 46.35.031(c) may withdraw from 16 participation in the processing provided in AS 46.35.031 - 46.35.071 at any time, by 17 written notification to the department, if it subsequently appears to the state agency 18 that it has no permit programs under its jurisdiction applicable to the project. 19 (b) A decision by a state agency to withdraw from the proceeding is 20 irreversible, and the state agency may not subsequently require a permit of the 21 applicant for the project described in the master application unless the master 22 application contained false, misleading, or deceptive information, or other information 23 or lack of information which would reasonably lead an agency to misjudge its interest 24 in the master application. 25 Sec. 46.35.091. Administrative and judicial review. (a) A person aggrieved 26 by a final decision issued under AS 46.35.071(d) may file a notice of appeal with the 27 commissioner requesting an adjudicatory hearing within 30 days of transmittal of the 28 final decision to the person. A failure to file a timely notice of appeal constitutes a 29 waiver of the person's right to review the final decision, unless the failure was due to 30 circumstances beyond the applicant's control. 31 (b) The commissioner shall grant a request for an adjudicatory hearing within
01 20 days of filing of the notice of appeal if the commissioner determines that the notice 02 raises a reasonable issue of fact or law material to the final decision. 03 (c) A hearing officer appointed under AS 44.62.350 shall preside at hearings 04 under this section, rule on the admission and exclusion of evidence, advise the 05 deciding officers on matters of law, and participate in posthearing deliberations. 06 (d) Appeals shall be heard jointly by the commissioner, or a designee, of each 07 agency that rendered a final decision under AS 46.35.071 for which the person 08 requesting the hearing is aggrieved. The commissioner, or the designee, of each 09 agency shall decide only that portion of the appeal that involves that agency. 10 (e) The commissioner, after consultation with other state agencies and local 11 government, shall adopt regulations governing the conduct of adjudicatory hearings 12 under this section. The commissioner may enter into cooperative agreements with 13 local governments and federal agencies for the joint holding of adjudicatory hearings. 14 To the extent feasible, regulations adopted under this section must conform to 15 adjudicatory hearing procedures for the review of permit decisions under AS 46.03 16 and AS 46.04. Notwithstanding AS 44.62.330(a)(44), adjudicatory hearing procedures 17 to review permit decisions under AS 46.35.011 - 46.35.211, or under AS 46.03 or 18 AS 46.04, need not conform to AS 44.62.330 - 44.62.630 (Administrative Procedure 19 Act). 20 (f) A person aggrieved by a final decision of the commissioner under this 21 section may appeal the decision to the superior court in the manner provided by 22 AS 44.62.560 - 44.62.570. 23 Sec. 46.35.101. Time; extensions. It is the sense of the legislature that time is 24 of the essence in the processing of applications under AS 46.35.011 - 46.35.211. 25 Whenever a section in AS 46.35.011 - 46.35.211 states a time within which an act or a 26 review is to be completed, the legislature has determined that the time allotted is 27 adequate for a responsive state agency or municipality to complete the act or review. If 28 unusual conditions prevent this from happening, it is the sense of the legislature that 29 minimum extensions of the period established in AS 46.35.011 - 46.35.211 may be 30 granted upon a determination that the delay occurred beyond the control of the 31 reviewing agency or municipality.
01 Sec. 46.35.111. Application. Notwithstanding any other provisions of 02 regulation or statute relating to the processing of application for permits, the 03 procedures set out in AS 46.35.011 - 46.35.211 are exclusive for applications filed 04 under AS 46.35.031. The procedures of AS 46.35.011 - 46.35.211 are in lieu of any 05 procedures otherwise provided by law or regulation, and are to be followed by a state 06 agency in ruling upon those applications. 07 Sec. 46.35.121. Fee schedules. Fee schedules previously established or 08 authorized by law for an application for a permit continue to apply. The department 09 shall collect the fees and forward them to the appropriate state agency. 10 Sec. 46.35.131. Compliance with local zoning ordinances and plans. (a) A 11 permit for a project filed under AS 46.35.031 may not be issued unless the application 12 has provided a certification from the appropriate local government that the project is in 13 compliance with the zoning ordinances and associated comprehensive plans 14 administered by the local government regarding the project. If the local government 15 has no ordinances or plans, the local government shall certify that fact. A local 16 government may accept applications for certification under this section and shall rule 17 upon them within 30 days. A local government may impose stipulations of 18 performance in its approval, but, upon certification, the local government may not 19 change the zoning ordinances as to the proposed project until the procedures of 20 AS 46.35.011 - 46.35.211, including an appeal, are completed. 21 (b) Approval of an application for certification as provided in this section does 22 not eliminate any requirements of ordinances administered by a local government. A 23 ruling by local government denying an application for certification is not appealable 24 under AS 46.35.011 - 46.35.211, except that the denial of an application for 25 certification under (a) of this section does not preclude the applicant from filing an 26 application under a different statute or procedure. 27 Sec. 46.35.141. Applicability of other laws. AS 46.35.011 - 46.35.211 do 28 not modify in any manner the applicability of a land use law or regulation or local 29 zoning ordinances to land of a state agency. 30 Sec. 46.35.151. Regulations. The department may adopt regulations to 31 implement the provisions of AS 46.35.011 - 46.35.211.
01 Sec. 46.35.161. Permit requirement information centers. (a) The 02 department shall establish permit requirement information centers at the 03 commissioner's office and in all of its regional offices and may enter into an 04 agreement with the governing body of any municipality having a population of more 05 than 1,000 persons to establish and maintain local information centers to provide 06 information to the public, in readily understandable form, regarding the requirements 07 of federal, state, and local governments for permits which must be acquired before 08 initiating projects in this state and to provide assistance in the completion of permit 09 applications. 10 (b) Each regional office of the department and other offices as the department 11 may establish shall provide a master application to any person requesting it. The 12 department shall provide information, forms, instructions, and assistance in the 13 completion of a master application under AS 46.35.011 - 46.35.211 to a person 14 requesting assistance. 15 Sec. 46.35.171. Conflicts and compliance with federal requirements. (a) 16 If any part of AS 46.35.011 - 46.35.211 is found in conflict with federal requirements 17 regarding the allocation of federal funds to the state, that part of AS 46.35.011 - 18 46.35.211 is inoperative to the extent of the conflict regarding the agencies affected, 19 and the determination does not affect the operation of the remainder of AS 46.35.011 - 20 46.35.211. 21 (b) The department, to the extent necessary to comply with procedural 22 requirements of federal law relating to permit systems operated by the state, may 23 modify the notice, timing, hearing, and related procedural matters provided in 24 AS 46.35.011 - 46.35.211. 25 Sec. 46.35.201. Definitions. In AS 46.35.011 - 46.35.211, 26 (1) "commissioner" means the commissioner of environmental 27 conservation; 28 (2) "department" means the Department of Environmental 29 Conservation; 30 (3) "local government" means a city or borough including a unified 31 municipality;
01 (4) "permit" means each of the following licenses, permits or 02 authorizations required to be obtained from a state agency before constructing or 03 operating a project in the state, or any other license, permit or authorization which 04 may be designated by the commissioner: 05 (A) emission control permit - AS 46.14, 18 AAC 50.120; 06 (B) open burning permit - AS 46.03.020, 18 AAC 50.120; 07 (C) burning permit during fire season - AS 41.15.050, 11 08 AAC 92.010; 09 (D) waste water disposal permit - AS 46.03.100, 18 AAC 72; 10 (E) solid waste disposal permit - AS 46.03.100, 18 AAC 60; 11 (F) brine or other salt water waste disposal permit - 12 AS 31.05.030, 11 AAC 22.250; 13 (G) tidelands permit - AS 38.05.820, 11 AAC 62.710; 14 (H) tidelands right-of-way or easement permit - 15 AS 38.05.820, 11 AAC 62.810; 16 (I) authorization for tidelands transportation - AS 38.05.110, 17 11 AAC 76.205; 18 (J) tide and submerged lands prospecting permit - 19 AS 38.05.250; 20 (K) mineral and geothermal prospecting permits - 21 AS 38.05.145; 22 (L) coal development permit - AS 27.20.010, 11 AAC 46.010; 23 (M) dam construction permit - AS 46.15.040, 11 AAC 24 72.060; 25 (N) water well permit - AS 31.05.030, 11 AAC 22.140; 26 (O) permit to appropriate water - AS 46.15.040, 11 AAC 27 72.050; 28 (P) permit for use of timber or materials - AS 38.05.110, 11 29 AAC 76.185; 30 (Q) special material use permit - AS 38.05.115, 11 AAC 31 76.540;
01 (R) special land use permit - AS 38.05.035, 11 AAC 58.210; 02 (S) limited personal use permit - AS 38.05.820, 11 AAC 03 62.820; 04 (T) preferred use permit - AS 46.15.040, 11 AAC 72.160; 05 (U) surface use permit - AS 38.05.255, 11 AAC 86.600; 06 (V) miscellaneous state land use permit - AS 38.05.035, 11 07 AAC 96.010; 08 (W) anadromous fish protection permit - AS 16.05.870, 5 09 AAC 95.100; 10 (X) critical habitat area permit - AS 16.20.520 - 16.20.530; 11 (Y) state game refuge land permit - AS 16.20.050 - 12 16.20.060; 13 (Z) state park incompatible use permit - AS 41.21.020, 11 14 AAC 18.010; 15 (AA) pesticides permit - AS 46.03.320, 18 AAC 90; 16 (BB) surface oiling permit - AS 46.03.740, 18 AAC 75; 17 (CC) encroachment permit - AS 19.25.200; 18 (DD) utility permit - AS 19.25.010; 19 (EE) driveway permit - AS 19.05.020, 17 AAC 10.020; 20 (FF) access roads permit - AS 41.21.020, 11 AAC 18.020; 21 (GG) right-of-way and easement permits - AS 38.05.850, 11 22 AAC 58.200; 23 (HH) right-of-way permit - AS 38.05.850; 24 (5) "person" means an individual, municipal, public, or private 25 corporation, or other entity, and includes a state agency and a local government; 26 (6) "processing" and "processing of applications" means the entire 27 process followed in relation to the making of decisions on an application for a permit 28 and review of it as provided in AS 46.35.031 - 46.35.081; 29 (7) "project" means any new activity or expansion of or addition to an 30 existing activity, fixed in location, for which permits are required before construction 31 or operation;
01 (8) "state agency" means a state department, commission, board or 02 other agency of the state; for the purposes of AS 46.35.011 - 46.35.211, "state agency" 03 also means a local or regional air pollution control authority established under 04 AS 46.14.400. 05 Sec. 46.35.211. Short title. AS 46.35.011 - 46.35.211 may be cited as the 06 Environmental Procedures Coordination Act. 07 * Sec. 7. AS 41.17.085(a); AS 46.03.020(11); AS 46.35.010, 46.35.020, 46.35.030, 08 46.35.040, 46.35.050, 46.35.060, 46.35.070, 46.35.080, 46.35.090, 46.35.100, 46.35.110, 09 46.35.120, 46.35.130, 46.35.140, 46.35.150, 46.35.160, 46.35.170, 46.35.200, and 46.35.210 10 are repealed. 11 * Sec. 8. AS 38.05.020(b)(9); AS 46.03.880(b); and AS 46.04.890 are repealed. 12 * Sec. 9. Sections 1, 4, 5, and 7 of this Act take effect immediately under AS 01.10.070(c). 13 * Sec. 10. Sections 2, 3, 6, and 8 of this Act take effect July 1, 2007.