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    Memo to Mark Myers, Commissioner, Alaska Department of Natural Resources from David Schade, Chief, and Michael Walton, Natural Resources Manager, Water Resources Management

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    Memo to Mark Myers, Commissioner, Alaska Department of Natural Resources from David Schade, Chief, and Michael Walton, Natural Resources Manager, Water Resources Management

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    Download as pdf
    696 views8 pages

    Alaska DNR Types of Water Use Memo 9-30-15

    Uploaded by

    Steve
    Memo to Mark Myers, Commissioner, Alaska Department of Natural Resources from David Schade, Chief, and Michael Walton, Natural Resources Manager, Water Resources Management

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    MEMORANDUM ‘TO: Mark Myers, Ph.D. Commissioner Marty Rutherford, Deputy Commissioner a Fogels, Deputy Commissioner ‘Thru: Brent Goodrum, DMLW Director From David W. Schade, MPA, Chef JA/— Michael Walton, J.D., Natural Resource Manager Il 7 2. War Renee Mammen Un rg Date: September 29, 2015 Subjects Types of Water Use Authorizations; a primer In Article 8, Section 3 of the Alaska Constitution, the State of Alaska established that, ‘water, wherever occurring in a natural state, is reserved tothe people for common use. Section 13 of the Constitution then established that Alaska will use the Prior Appropriation Doctrine subject to statutes established by the Alaska Legislature, That system was codified as Title 46, (Chapter 15, cited as the Alaska Water Use Act (Act). This Act gives the Alaska Department of ‘Natural Resources (Department) the duty to manage water appropriation and distribution. The ‘Act, a8 amended, also gives the Department the authority to Reserve Waters for Instream flow levels or lake levels, and the responsibility to authorize the Temporary Use of Water. A traditional water right in Alaska is.granted in much the same manner as in most western states. The frst applicant who applies for the use of water from a given water source, ‘can become the most senior right holder and is given a permit to appropriate water allowing ‘them to perfect the right to use water fora particular beneficial purpose. Water se priority dates are based on the date of water right application receipt by the Department for applications that are accepted for filing. After the permit to appropriate is granted, the applicant has time (a ‘number of years) to build the necessary facilities, and then to operate a system in order to establish actual beneficial use of an amount of water. Upon filing a Statement of Beneficial Use of Water, permanent water right can be given. This perpetual right can only be lost by voluntary relinquishment or non-use (abandonment or forfeiture) of the water. Department of Natural Resources DIVISION OF MINING, LAND & WATER: Memorandum “Types of Water Use Authortations; A Primer 93035 A reservation of water is z second type of water right. Water flow within a stream, ora lake level can be reserved to maintain an adequate instream flow reservation or level of water for specific purposes. Water can be reserved for one or more permissible purposes at a particular point or part ofa stream o: other waterbody, during a certain period of time. Under Alaska Statute 46.15.145, permissible reserved purposes include: Protection of fish and wildlife habitat, ‘migration, and propagation: Recreation and park purposes: Navigation and Transportation Purposes, and; Sanitary ard water quality purposes. A reservation of water cannot be voluntarily abandoned, conveyed, transferred, assigned, or converted to another tse without the approval of the Department. Private individuals or organizations, as well as governmental agencies may apply fora reservation. Like treditional water rights, the Department adjudicates, certificates and enforces these water rights. However, in order to establish a reservation, lunappropriated water must be available forthe reservation. This is also a perpetual right, however, curent statute requires a review ofthe reservation ifthe Commissioner determines that the purpose for the reservation or any finding(s) inthe reservation issuance decision have changed, but in any case, a least once every 10 years Last, the Department can provide authorization to use unappropriated water on a temporary basis, Temporary Water Use Authorizations (TWUA) are required forthe use of any ‘ater quantity that isa significant amount of water as defined in regulation, and are at-will authorizations that can be evoked at anytime in the public interest or to protect appropriators of record. Further, these authorizations can be issued for upto $ separate sources of water, but are limited to a maximum duration ofS years from date of issuance. The term “significant amount ‘of water” is defined in 11 AAC93.035 . Temporary Water Use Authorizations do not have a priority date, For a quick review, see the following Water Authorization Summary: [WaterRight ——Reservation of Water. TWUA Water Available Water Unappropriated Water Unappropriated Beneficial Use Rate or Level Protected Beneficial Use Permit / Certificate Certificate Authorization Establishes Right Establishes Protection ‘Temporary Use Permanent* Reviewable (at least Revocable (at will) every 10 years) 14976 Certificates** 131 Certificates 762 Authorizations 496 Applications 394 Applications 415 Applications * As long as beneficial use continues. ** As of 7-24-15 These numbers chi Memorandum “Types of Water Use Authorizations; A Primer 93015 ‘Alaskan Statistics: 586,412 Square Miles of Land Area 43% of the Alaska is wetlands (Over 3 Millon Lakes > 2 acre Upto 15 Million Miles of "potential" nevigebie waterways 167,000 “vers Alaska “More Coastline than the est ofthe Continental US. ith the extension ofthe Aleutian Islands into the eastern hemisphere, it is technically both the westernmost and easternmost stat in the United States, as wellas aso being the northernmost, Select cites: ‘Alaska Constitution Article 8- Natural Resources 41. statement of Policy tis the policy ofthe State to encourage the settlement of its land and the development of ts resources by making them avalable for maximum use consistent with the public interest. 5 2.General Authority The legislature shal provide forthe utitzetion, development, ond conservation of oll natural resources belonging tothe State, including land and waters, forthe maximum benefit ofits people. 63. Common Use Wherever occurring in thelr natural state fish, wilde, and waters ere reserved tothe people for 4513, Water Rights All surface and subsurface waters reserved tothe people for common use, except mineral and ‘medicinal waters, are subject to appropriation. Priority of eppropriation shall give prior right. Except for public water supply, an appropriation of water shall be limited t tated purposes and subject to preferences among beneficial uses, concurrent or otherwise, as prescribed by law, and tothe general reservation of fish and wif, (Chapter 46.35, WATER USE ACT ‘Article 01. ADMINISTRATION Sec. 46.15.010 . Determination of water rights ‘The Department of Natural Resources shll determine and adjudicate rights in the water ofthe state, and ints appropriation and distribution ‘Memorandum ‘Types of Water Use Authorizations; A Primer 93035 Sec. 46.15.030, Water reserved tothe people. Wherever occurring in a natural tate, the water is reserved tothe people for common use and is subject to appropriation and beneficial use and to reservation of instream flows and levels of water, 25 provided inthis chapter. 46.15.040, Right to appropriate (a) right to appropriate water can be acquired only as provided inthis chopter {) right to appropriate water shall be obtained by frst making application tothe commissioner for a permit to appropriate... (6) The commissioner's isuance of permit under AS 46.15.060or of a certificate under AS 4.15.055: (0r 46.15.120 does not representa guarantee by the state tothe permittee or certificate holder that ‘water willbe aveloble for appropriation ata certaln volume, quality, otesin pressure, or cos. Sec. 46.15.050. Peorty. (a) Priority of appropriation gives prior right. Priority of appropriation does not ince the right to prevent changes inthe condition of water occurrence, suchas the increase or decrease of stream flow, ‘or the lowering ofa water table, artesian pressure, or water level, by later appropriators, Ifthe prior _appropriator can reasonably acquire the appropriators water under te changed conditions. (6) Priority of appropriation made under this chapter date from th fling ofan application with the {c] Priority of appropriation perfected before Jly 1, 1965, shall be determined as provided in AS 46.15.0685 See. 46.15.080. Criteria for Issuance of peemit. (a) The commissioner shallissue a permit ifthe commissioner finds that: (1) sights of a prior appropriator will not be unduly affected; {2} the proposed means of diversion or construction are adequate; (2) the proposed use of water's beneficial; and (4) the proposed appropriation i inthe public interest Sec, 46.15.080. Criteria for lzuance of permit. (b) In determining the public interest, the commissioner shall consider (0) the benefit to the applicant resulting from the proposed appropriation; (2) the effet ofthe economic atvty resulting from the proposed appropriation; (3) the effect on fish and game resourees and on public recreational (8) the effect on public health; (5) the effect of los of alternate uses of water that might be made within a reasonable time itnot precluded or hindered bythe proposed appropriation; (6) harm to other persons esting from the proposed appropriation; (7) the intent and abifty ofthe applicant to complete the appropriation; and (8) the effect upon access to navigable or public water. Sec. 46.15,090. Preference in granting permit ‘When there ae competing applications for water from the same source, and the source i insufficient £0 supply all applicants, the commissioner shall give preference fist to publle water supply and then to ‘the use that alone or In combination with other foreseeable uses wil constitute the most Benejcal use. ‘Memorandum ‘Types of Water Use Authorizations; A Primer 9530-15 Sec. 46.15.120, Certificates. {Upon competion of construction ofthe works and commencement of use of water, the permit holder shall notify the commissioner thatthe appropriato has perfected the appropriation, Ifthe ‘commissioner determines thatthe appropriation has been perfected in substantial accordance withthe permit, the commissioner shall sue the permit holder a certificate of appropriation. The certificate shall et out any condition thatthe commissioner may prescribe by regulation, inuding conditions that {are necessary to protect the prior rights of other persons and the public interest. Sec. 46.15.133, Notices; objections. {a) ifthe commissioner proposes a sale of water or receives an application for appropriation or ‘removal, the commissioner shal prepare a notice containing the location and extent ofthe proposed: sale, appropriation, or removal, the name and address ofthe applicant, applicable, and other Information the commissioner considers pertinent. The notice shall state that within 15 days of ‘publication or service of notice, persons may lle with the director written objections, stating the nome ‘and address ofthe objector, and any facts tending to show that rights of the objector or the public Interest would be adversely affected bythe proposed sole, appropriation, or removal. Sec. 46.15.133, Notices; objections. {e) Within 15 doys of publication or service of notice, an intersted person may fle an objection. The ‘commissioner may hold hearings upon giving due notice and shall rant, deny, or condition the ‘proposed sale or application for appropriation or removal in whole or in part within 30 dys of receipt ofthe lat objection cr, if the commissioner elets to hold hearings, within 180 days of receipt of the fast objection. Notice ofthe order or decision shal be served personaly or mailed to any person who has filed an objection. (d)ifn0 objection filed, the commissioner may proceed to make a determination upon the application {or appropriation or remawal or the proposal forsale. Sec. 46.15.14. Reservation of water. {2 Te state, an agency ora politcal subdivision ofthe state, an agency ofthe United States or @ person ‘may apply tothe commissioner to reserve sufficient water to malntaln @ specified instream flow or level of water ata specified point ona stream or body of water, or na specified part ofa stream, ‘throughout ayearorfor specified times, for (2) protection of fish and wildlife habitat, migration, and propagation; (2) recreation and park purposes; (3) navigation and transportation purposes; and (4) sanitary and water quality purposes. (0) Upon receiving an application for a reservation under tis section, the commisioner shall proceed in accordance with AS 46.15.133, (The commissioner shall issue a certificate reserving the water applied for under this section ifthe commissioner finds that (1) the rights of prior appropriators wil not be offected by the ‘reservation; (2} the applicant hos demonstrated that @ need exists fo the reservation; (3) there is Lunappropriated water inthe stream or body of water sufficient forthe reservation; and,(4 the proposed reservation Is inthe public interest. (¢) After the issuance of cerfiate reserving water, the water specified in the certificate shall be withdrawn from appropriation and the commissioner shal reject an application fr a permit to appropriate the reserved water. (e)A reservation under this section doesnot affect rights In existence onthe date the certificate reserving waters issue. ‘Memorandum Types of Water Use Authorizations; A Primer 9305 (1 At east once each 10 years the commissioner shal review each reservation under this section to determine whether the purpose described in a) ofthis ection for which the certificate reserving water ‘was issued and the findings described in (cof tis section stil apply tothe reservation. i the ‘commissioner determines thatthe purpose, o part oral ofthe findings, no longer apply tothe reservation, the commissioner may revoke or modify the certificate reserving the water after notice, ‘hearing when appropriate and a written determination that the revocation or modification Inthe best interests ofthe state. Sec. 46.15.180 Crimes. (@) A person may not (4) construc works for an appropriation, or divert, Impound, withdraw, or use a significant amount of. water from any source without a permit, certificate of appropriation, or authorlation issued under this chapter; (2) violate an order ofthe commissioner to cease and desis from preventing any water from moving to a person having a prior right to use it; {3) disobey an order of the commissioner requiring the person to take steps to cause the water to move toa person having a prior right to use (4) fal or efuse to install meters, gauges, or other measuring devices or control works; {5) violate an order establishing corrective controls for an area or fora source of water {6) knowingly make a false or misleading statement ina declaration of existing eight. (0) person who violates this section i guilty ofa misdemeanor, {e) Crimes under this section aren adition to any other crimes provided oy law, See. 46.15.25. Enforcement and costs. (a). Inaddition to penalty imposed under AS465.15.180 for violation ofan order issued under this chapter, the commissioner may (4) remove or abate unpermitted works of apropraton, diversion, impoundment, or withdrawal; (2) install corrective controls or control works; ond (3) seek enforcement ofthe order by fling an action in the superior cour. (b) Aperson who violates an order sued under AS 46.15.180 Is able forall costs of removal, abatement, or instalation and for court costs and attorney fees incured by the state in seeking ‘enforcement of the order. 1 AAC93.035. Requirement to apply forthe use of significant amount ef water (0) Asignificant amount of water is that amount of water for which an epplication for water right ‘ran application for a temporary water use authorization is required, as described in (b) ofthis (6) A person shall fle an application fora water right under 11. AAC93.0:0.0 fora temporary water use authorization under 11 AAC $3,220 before (1) the consumptive use of more than 5,000 gollons of water from a single source ina single day; (2) the regular daly or recurring consumptive use of more than 500 gpd jrom a single source for more than 10 days per colendar year; (3) the non-consumptve use of more than 30,000 gpd (0.05 cuble feet per second) from a single (4) any water use that may adversely affect the water rights of other appropratorsor the public interest. Memorandum “Types of Water Use Authorizations; A Primer 9305 (1A person using less than the amount of water described in (b) ofthis section acquires no water right ‘or priory unless an appation is filed anda permit or certificate is sued under 11 AAC $3,035.11 ‘AAC3.440. The use of water without a permit or certificate is subject to appropriation by others, and the use of water withouta water right i subject to curtailment in order to supply water to lawful approprators of record r to protec the public interest, 41, AAC93.040. Application for a water right (2) person may not lawfully appropriate a significant “amount of water ofthe sate without fist obtaining a permit to appropriate, a certitcate of appropriation, or a temporary water use authorization under ths chapter {) An application fora water right must be made ona form provided by the department. The form must be completed in accordance with the instructions furnished tothe applicant. ©) An application must include the following items: (2) the applicable application fee prescribed in 11 AAC 05.010; (2) evidence that the applicant he a present possessory interes inthe property where the waters tobe beneficially used, as shown by a copy ofthe deed, patent, license, leasehold agreement, minig location certificate, or other instrument, or a copy of acorpleted application that has been filed with the appropriate agency to acquire permission forthe use of federal state, or municipal property, (3). map identifying (A) the section, township, range, and merilan, and showing the property boundary, forthe point of water withdrawal impoundment, or diversion; (8) the route of water ‘transmission; (C) the point of water use; and (0) water isto be returned to a stream or water body, the pinto return flow; (@) evidence thatthe applicant has obtained os inthe process of obtaining aright of access to the property where waters to be withdrawn, impounded, or diverted, and ove which water is tobe transported both tothe point of use andto the point of return flow; (5) repeated 8/20/2004; (6) legal description ofthe point of withdrawal, diversion, or impoundment; the point of water se; and, f wateris to be returned to a stream or water body, the pont of return flow; the legal

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