HomeMy WebLinkAbout120911-ADL 108047 Easement FD signedCity of Tenakee Springs
ADL 108047
FINAL DECISION
AS 38.05.035(e)
Summary of Public Comment:
❑ No public comments received.
MPublic continents received see Attachment 1.
Modifications to Decision:
❑ Decision is not modified.
MDecision is modified as specified in Attachment 2 summary.
Approval:
The finding presented above has been reviewed and considered. The casefile has been
found to be complete and the requirements of all applicable statutes have been satisfied. It
is the finding of the Regional Manager that it is in the best interest of the State to proceed
with this public easement under the authority of AS 38.05.
❑ AFFIRMED AS PROPOSED.
M MODIFIED AND AFFIRMED.
David L. Kelley
Southeast Regional Manager
A person affected by this decision who provided timely written comment on this decision may
apppeal it, in accordance with 11 AAC 02. Any appeal must be received by
Qc eo,be-& ,t 9 o / c2 and may be mailed or delivered to Daniel S. Sullivan,
Commissioner, Department of Natural Resources, 550 W. 7th Avenue, Suite 1400, Anchorage,
Alaska 99501-3561; faxed to 1-907-269-8918; or sent by electronic mail to dnr.aRpeals@alaska.gov.
If no a peal is filed by that date, this decision goes into effect as a final order and decision on
O 'O her` /02, 020702 An eligible person must first appeal this decision in
accordance with 11 AAC 02 before appealing this decision to Superior Court. A copy of 11 AAC
02 is enclosed.
Attachment 1, Summary of public comment
Attachment 2, Summary of modifications to decision
Attachment 3, Appeal references
Final Decision ADL 108047 Page 1 of 10
Final Decision
ADL 108047
Attachment #1
Summary of Comments and Responses
During the comment period that ended on August 31, 2012 the Division of Mining Land and
Water (DMLW) received four sets of comments, two sets of comments from State agencies and
two sets of comments from the public.
STATE AGENCY COMMENTS: Both agency comments were received from the Departrnent of
Natural Resources, one set from the Water section of DMLW and the second set from the Alaska
State Historic preservation Office/Office of History and Archaeology.
Agency Comment #1: The Water Resources section commented on July 315Y that they intend to
issue a Water use Permit, LAS 27836 to the City of Tenakee Springs for up to 50 cfs for
hydroelectric generation.
DMLW Response: The Lands section received a copy of the permit and cover letter dated August
15, 2012. No modification of the decision is required.
Agency Comment #2: The Office of History and Archaeology commented that their office was
working with the US Army Corps of Engineers and the applicant to address conflicts with
cultural resources. Their review under the Federal law, Section 106 of the National Historic
Preservation Act is sufficient to comply with the Alaska Historic Preservation Act.
DMLW Response: The Lands section of DMLW defers to the Federal law and the US Army Corps
of Engineers, no modification of the decision is required.
PUBLIC COMMENTS: Two sets of comments were received. One set from the agent of the
applicant, the City of Tenakee Springs and the other set was received from the adjacent land
owner, the United States Forest Service (FS).
Public Comment #1: The agent of the applicant, Polarconsult Alaska, Inc. (PAI) commented that
the overall decision looks good but they had concerns with the DNR Division of Forestry road
standards, attachment "C" of the preliminary decision. The concerns were that these standards
may exceed what is needed for the project and unnecessarily increase project costs. PAY
suggested adding some flexibility into the decision language that would leave some latitude for
the city in the road standards. They will be finalizing the design and construction plans over the
winter, at which time they will have specific engineering designs and plans for these roads.
The suggested change that PAI recommended is to add the phrase "or engineered plans
indicating a different road design stamped by a qualified professional engineer registered in the
State of Alaska". The two places in the decision that this phrase should be added to are at the end
of the second sentence in the third paragraph of page one and at the end of the last sentence in
paragraph two of page three of the preliminary decision.
Final Decision ADL 108047 Page 2 of 10
DMLW Response: DMLW agrees with this change. The reasoning is that the Lands section of
DMLW does not have a minimum set of criteria for standards to construct roads on State land
therefore we defer to the criteria that DNR's Division of Forestry has developed for timber haul
roads. This criteria is probably excessive for a road whose purpose is to provide access to the
hydra site, it does not need to accommodate two lane traffic nor does it need to accommodate the
weights of large trucks hauling logs, it is more or less an improved access trail. For example the
road does not need to meet the 20 foot width as identified in the DOF road standards for
minimum width. The width of the road could be reduced to 10 feet as in the proposed
development plan which would reduce the amount of the road fill by half.
The agent for the applicant, Polarconsult Alaska Inc. is a full service multi -disciplined consulting
engineering firm and is licensed in Alaska to perform structural, civil, and electrical engineering,
and regulated environmental site assessments. In DMLW's assessment this firm is qualified to
develop sound engineering plans for this road/access trail.
Public Comment #2: The adjacent upland owner, the United States Forest Service (FS)
commented to this project. The FS supports the City's efforts to develop dependable affordable
electricity. The FS commended that the State's conditions that all operations will be conducted in
a manner that will minimize potential conflicts with other users of the area and that public access
shall not be restricted in any way. The continued management by the State to be used for
dispersed recreation or public facilities is consistent with the land management of adjacent FS
lands.
The FS has been working with the applicant and their consultant on the collocation of the
diversion/intake structure of the fish pass, existing State easement, ADL 106204. They support
the condition that the proposed easement will not interfere with the primary purpose of their
existing easement for the fish pass.
The FS is working with the City for use of the Indian River Road for construction and
maintenance access to the project. They would issue a road -use permit and this authorization
would be accomplished through a change analysis revised Environmental Assessment of the Sitka
Access and Travel management plan.
DMLW Response: The other comments both agency and public did not change the preliminary
decision on the points the FS identified to protect their interests and to maintain consistency with
the management of their adjacent lands. The FS did not raise any concerns or issues that required
DMLW to address in revising the preliminary decision. These comments also confirm that the FS
intends to issue a road -use permit for the portion of the Indian River Road that will allow the City
of Tenakee Springs access from tide waters to the hydro site and to DMLW's proposed easement.
Final Decision ADL 108047 Page 3 of 10
Final Decision
ADL 108047
Attachment #2
Summary of Modifications to Decision
The Final Decision for ADL 108047 proposed public easement is hereby modified to add
additional language to two paragraphs of the preliminary decision. The paragraphs are revised
accordingly:
The third paragraph on page one of the preliminary decision is revised as follows:
DMLW proposes to issue a public easement to CTS for this purpose. The
recommended maximum easement width for the access road is 60 feet (11 AAC
51.015(d)(1)(D)) but shall conform to DNR Division of Forestry (DOF) standards
for timber haul roads where the minimum width is 20 feet or engineered plans
indicating a different road design stamped by a qualified professional
engineer registered in the State of Alaska [DMLW emphasis]. The width for
the transmission line is 30 feet (11 AAC 51.015(d)(1)(A)). The width of the hydro
portion of the project will vary to accommodate the improvements as well as any
additional area needed for the purposes of safe operation of the facility. Public
easements are not subject to a term; instead the Grantor (DMLW) reserves the
right to allow other like or compatible uses of the easement and the right to
require such users to enter into an equitable maintenance agreement with the
holder of this easement. The equitableness of any such agreement shall be
determined by the Grantor. The proposed development plan diagram for the
project is included in this preliminary decision as Attachment A.
The second paragraph on page three of the preliminary decision is revised as follows:
Regarding the construction of the new access road, DMLW does not have a
minimum set of criteria for standards to construct road on State land. We defer
to the DOF standards for roads that are built to access their timber sales
(Attachment C) or acceptable alternative engineered plans indicating a
different road design stamped by a qualified professional engineer registered
in the State of Alaska [DMLW emphasis]. It is recommended that a condition is
included in the EEA that the roads are built to these minimum standards.
All other conditions of the Preliminary Decision, ADL 108047 are unchanged and adopted as
the Final Decision.
Final Decision ADL 108047 Page 4 of 10
Finding and Decision
ADL 108047
Attachment # 3
Appeal References
AS 38.05.035
(i) A person who is eligible to file an administrative appeal or a request for reconsideration, as appropriate,
under this subsection and who is aggrieved by the final written finding of the director entered under (e)(5) or (6) of
this section may, within 20 days after the issuance of the final written finding, file an administrative appeal or request
reconsideration of the decision by the commissioner, A person is eligible to file an administrative appeal or a
request for reconsideration if the person
(1) meaningfully participated in the process set out in this chapter for
receipt of public comment by
(A) submitting written comment during the period for receipt of public comment; or
(B) presenting oral testimony at a public hearing, if a public hearing was held; and
(2) is affected by the final written finding.
0) An administrative appeal or a request for reconsideration submitted under (1) of this section must specify
the written finding complained of and the specific basis upon which it is challenged. The commissioner
shall grant or deny the administrative appeal or reconsideration request within 30 days after issuance of the
final written finding. Failure of the commissioner to act on the request for reconsideration within this period
is a denial of the request for reconsideration and a final administrative decision for purposes of appeal to
the superior court.
11 AAC 02. Appeals
11 AAC 02.010. APPLICABILITY AND ELIGIBILITY. (a) This chapter sets out the administrative review
procedure available to a person affected by a decision of the department. If a statute or a provision of this title
prescribes a different procedure with respect to a particular decision, that procedure must be followed when it
conflicts with this chapter.
(b) Unless a statute does not permit an appeal, an applicant is eligible to appeal or request reconsideration of
the department's decision on the application. An applicant is eligible to participate in any appeal or request for
reconsideration filed by any other eligible party.
(c) If a statute restricts eligibility to appeal or request reconsideration of a decision to those who have provided
timely written comment or public hearing testimony on the decision, the department will give notice of that eligibility
restriction as part of its public notice announcing the opportunity to comment.
(d) If the department gives public notice and allows a public comment period of at least 30 days on a proposed
action, and if no statute requires opportunity for public comment, the department may restrict eligibility to appeal or
request reconsideration to those who have provided timely written comment or public hearing testimony on the
proposed action by including notice of the restriction as part of its public notice announcing the opportunity to
comment.
Final Decision ADL 108047 Page 5 of 10
(e) An eligible person affected by a decision of the department that the commissioner did not sign or cosign may
appeal the decision to the commissioner within the period set by 11 AAC 02.040.
(f) An eligible person affected by a decision of the department that the commissioner signed or cosigned may
request the commissioners reconsideration within the period set by 11 AAC 02.040.
(g) A person may not both appeal and request reconsideration of a decision. (Eff. 1117190, Register 116; am
9119/2001, Register 159)
Authority: AS 03.05.010 AS 38.04.900 AS 38.08.110 AS 41.15.020 AS 44.37.011
AS 29.65.050 AS 38.05.020 AS 38,09.110 AS 41.17.055 AS 46.15.020
AS 29.65.120 AS 38,05.035 AS 38.50.160 AS 41.21.020 AS 46.17.030
11 AAC 02.015. COMBINED DECISIONS. (a) When the department issues a combined decision that is
both a final disposal decision under AS 38.05.035(e) and any other decision, including a disposal decision combined
with a land use plan decision, or a disposal decision to grant certain applications combined with a decision to deny
others, the appeal process set out for a disposal decision in AS 38.05.035(i) - (m) and this chapter applies to the
combined decision.
(b) A decision of the department may include a statement that a final consistency determination under AS
46.40 (Alaska Coastal Management Program) has been rendered in conjunction with the decision. A person may
not, under this chapter, appeal or request reconsideration of the final consistency determination, including a
requirement necessary solely to ensure the activity is consistent with the Alaska coastal management program as
approved under AS 46.40. (Eff. 9/19/2001, Register 159)
Authority: AS 29.65.050 AS 38.04.900 AS 38.05.035 AS 38.09.110
AS 29.65.120 AS 38.05.020 AS 38.08.110 AS 38.50.160
11 AAC 02.020. FINALITY OF A DECISION FOR PURPOSES OF APPEAL TO COURT. (a) Unless
otherwise provided in a statute or a provision of this title, an eligible person must first either appeal or request
reconsideration of a decision in accordance with this chapter before appealing a decision to superior court.
(b) The commissioner's decision on appeal is the final administrative order and decision of the department
for purposes of appeal to the superior court.
(c) The commissioner may order or deny a request for reconsideration within 30 calendar days after
issuance of the decision, as determined under 11 AAC 02.040(c)—(e). If the commissioner takes no action during
the 30-day period, the request for reconsideration is considered denied. Denial of a request for reconsideration is
the final administrative order and decision of the department for purposes of appeal to the superior court.
(d) If the commissioner timely orders reconsideration of the decision, the commissioner may affirm the
decision, issue a new or modified decision, or remand the matter to the director for further proceedings. The
commissioner's decision, other than a remand decision, is the final administrative order and decision of the
department for purposes of appeal to the superior court. (Eff. 1117190, Register 116; am 9/19/2001, Register 159)
Authority:
AS 03,05.010 AS 38,04.900 AS 38,08.110 AS 41.15.020 AS 44.37.011
AS 29.65.050 AS 38.05.020 AS 38.09.110 AS 41.17.055 AS 46.15.020
AS 29.65.120 AS 38.05.035 AS 38.50.160 AS 41.21.020 AS 46.17.030
11 AAC 02.030. FILING AN APPEAL OR REQUEST FOR RECONSIDERATION. (a) An appeal or
request for reconsideration under this chapter must
(1) be in writing;
Final Decision ADL 108047 Page 6 of 10
(2) be filed by personal service, mail, fax, or electronic mail;
(3) be signed by the appellant or the appellant's attorney, unless filed by electronic mail; an appeal or
request for reconsideration filed by electronic mail must state the name of the person appealing or requesting
reconsideration and a single point of contact to which any notice or decision concerning the appeal or request for
reconsideration is to be sent;
(4) be correctly addressed;
(5) be timely filed in accordance with 11 AAC 02.040;
(6) specify the case reference number used by the department, if any;
(7) specify the decision being appealed or for which reconsideration is being requested;
(8) specify the basis upon which the decision is challenged;
(9) specify any material facts disputed by the appellant;
(10) specify the remedy requested by the appellant;
(11) state the address to which any notice or decision concerning the appeal or request for reconsideration
is to be mailed; an appellant may also provide a telephone number where the appellant can be reached during the
day or an electronic mail address; an appeal or request for reconsideration filed electronically must state a single
address to which any notice or decision concerning the appeal or request for reconsideration is to be mailed;
(12) identify any other affected agreement, contract, lease, permit, or application by case reference
number, if any; and
(13) include a request for an oral hearing, if desired; in the appeal or request for reconsideration, the
appellant may include a request for any special procedures to be used at the hearing; the appeal or request for
reconsideration must describe the factual issues to be considered at the hearing.
(b) At the time an appeal is filed, and up until the deadline set out in 11 AAC 02.040(a) to file the appeal, an
appellant may submit additional written material in support of the appeal, including evidence or legal argument.
(c) If public notice announcing a comment period of at least 30 days was given before the decision, an
appellant may not submit additional written material after the deadline for filing the appeal, unless the appeal meets
the requirement of (a) of this section and includes a request for an extension of time, and the department determines
that the appellant has shown good cause for an extension. In considering whether the appellant has shown good
cause, the department will consider factors including one or more of the following:
(1) comments already received from the appellant and others;
(2) whether the additional material is likely to affect the outcome of the appeal;
(3) whether the additional material could reasonably have been submitted without an extension;
(4) the length of the extension requested;
(5) the potential effect of delay if an extension is granted.
(d) If public notice announcing a comment period of at least 30 days was not given before the decision, an
appellant may submit additional written material after the deadline for filing the appeal, if the appeal meets the
requirements of (a) of this section and includes a notice of intent to file the additional written material. The
department must receive the additional written material within 20 days after the deadline for filing the appeal, unless
the appeal also includes a request for an extension of time, and the department determines that the appellant has
shown good cause for an extension. In considering whether the appellant has shown good cause, the department
will consider factors including one or more of the following;
(1) comments already received from the appellant and others;
(2) whether the additional material is likely to affect the outcome of the appeal;
(3) whether the additional material could reasonably have been submitted without an extension;
(4) the length of the extension requested;
(5) the potential effect of delay if an extension is granted.
(e) At the time a request for reconsideration is filed, and up until the deadline to file a request for
reconsideration, an appellant may submit additional written material in support of the request for reconsideration,
Final Decision ADL 108047 Page 7 of 10
including evidence or legal argument. No additional written material may be submitted after the deadline for filing
the request for reconsideration.
(f) If the decision is one described in 11 AAC 02.060(c), an appellant who believes a stay of the decision is
justified may ask for a stay as part of the appeal or request for reconsideration. The appellant must include an
argument as to why the public interest requires a stay. (Eff. 1117/90, Register 116; am 9/19/2001, Register 159)
Authority:
AS 03.05.010 AS 38,04.900
AS 29.65,050 AS 38.05.020
AS 29,65.120 AS 38.05.035
AS 38.08.110 AS 41,15.020 AS 44.37.011
AS 38.09.110 AS 41.17.055 AS 46.15.020
AS 38.50.160 AS 41.21.020 AS 46.17.030
Editor's note: The address for an appeal or request for reconsideration by personal service and by mail is:
Department of Natural Resources, Commissioner's Office, 550 W. 7th Avenue, Suite 1400, Anchorage, Alaska
99501-3561. The number for an appeal or request for reconsideration by fax is: 1-907-269-8918. The electronic
mailing address for an appeal or request for reconsideration by electronic mail is: dnr_appeals@dnr.state.ak.us
11 AAC 02.040. TIMELY FILING; ISSUANCE OF DECISION. (a) To be timely filed, an appeal or request
for reconsideration must be received by the commissioner's office within 20 calendar days after issuance of the
decision, as determined under (c) or (d) of this section, unless another period is set by statute, regulation, or existing
contract. If the 20th day falls on a day when the department is officially closed, the appeal or request for
reconsideration must be filed by the next working day.
(b) An appeal or request for reconsideration will not be accepted if it is not timely filed.
(c) If the appellant is a person to whom the department delivers a decision by personal service or by certified
mail, return receipt requested, issuance occurs when the addressee or the addressee's agent signs for the decision.
If the addressee or the addressee's agent neglects or refuses to sign for the certified mail, or if the address that the
addressee provided to the department is not correct, issuance by certified mail occurs when the decision is
deposited
in a united States general or branch post office, enclosed in a postage -paid wrapper or envelope, addressed to the
person's current address of record with the department, or to the address specified by the appellant under 11 AAC
02.030(a)(11).
(d) If the appellant is a person to whom the department did not deliver a decision by personal service or
certified mail, issuance occurs
(1) when the department gives public notice of the decision; or
(2) if no public notice is given, when the decision is signed; however, the department may state in the
decision a later date of issuance and the corresponding due date for any appeal or request for reconsideration.
(e) The date of issuance constitutes delivery or mailing for purposes of a reconsideration request under AS
44.37.011 (d) or AS 44.62.540(a). (Eff. 1117190, Register 116; am 9/19/2001, Register 159)
Authority:
AS 03.05.010
AS 38,04.900
AS 38.08.110
AS 41,15.020
AS 44.37.011
AS 29.65.050
AS 38.05,020
AS 38.09.110
AS 41.17,055
AS 46.15.020
AS 29.65.120
AS 38.05.035
AS 38.50.160
AS 41.21,020
AS 46.17.030
11 AAC 02.050. HEARINGS. (a) The department will, in its discretion, hold a hearing when questions of
fact must be resolved.
(b) The hearing procedure will be determined by the department on a case -by -case basis. As provided in 11
AAC 02.030(a)(13), any request for special procedures must be included with the request for a hearing.
Final Decision ADL 108047 Page 8 of 10
(c) In a hearing held under this section
(1) formal rules of evidence need not apply; and
(2) the hearing will be recorded, and may be transcribed at the request and expense of the party
requesting the transcript. (Eff. 11/7/90, Register 116)
Authority:
AS 03.05.010 AS 38.04.900 AS 38.09.110 AS 41.17.055 AS 46.17.030
AS 29,65.050 AS 38.05.020 AS 38.50.160 AS 41.21,020
AS 29.65.120 AS 38.08.110 AS 41.15.020 AS 46.15,020
11 AAC 02.060. STAYS; EXCEPTIONS. (a) Except as provided in (c) and (d) of this section, timely appealing
or requesting reconsideration of a decision in accordance with this chapter stays the decision during the
commissioner's consideration of the appeal or request for reconsideration. If the commissioner determines that the
public interest requires removal of the stay, the commissioner will remove the stay and allow all or part of the
decision to take effect
on the date set in the decision or a date set by the commissioner.
(b) Repealed 9/19/2001.
(c) Unless otherwise provided, in a statute or a provision of this title, a decision takes effect immediately if it
is a decision to
(1) issue a permit, that is revocable at will;
(2) approve surface operations for a disposal that has already occurred or a property right that has
already vested; or
(3) administer an issued oil and gas lease or license, or an oil and gas unit agreement.
(d) Timely appealing or requesting reconsideration of a decision described in (c) of this section does not
automatically stay the decision. However, the commissioner will impose a stay, on the commissioner's own motion
or at the request of an appellant, if the commissioner determines that the public interest requires it.
(e) A decision takes effect immediately if no party is eligible to appeal or request reconsideration and the
commissioner waives the commissioners right to review or reconsider the decision. (Eff. 1117190, Register 116; am
9/1912001, Register 159)
Authority:
AS 03.05.010 AS 38.04,900 AS 38.08.110 AS 41,15.020 AS 46.15,020 AS 29.65.050 AS
38.05,020 AS 38.09.110 AS 41.17.055 AS 46.17.030 AS 29.65.120 AS 38.05.035 AS 38.50.160
AS 41.21.020
11 AAC 02.070. WAIVER OF PROCEDURAL VIOLATIONS. The commissioner may, to the extent
allowed by applicable law, waive a requirement of this chapter if the public interest or the interests of justice so
require. (Eff.1117190, Register 116; am 9/19/2001, Register 159)
Authority:
AS 03.05.010 AS 29.65.120
AS 03.10.020 AS 38.04.900
AS 29.65.050 AS 38.05.020
AS 38.05.035 AS 38.50.160 AS 41.21.020
AS 38.08.110 AS 41.15.020 AS 46,15.020
AS 38.09.110 AS 41,17.055 AS 46,17.030
11 AAC 02.080. DEFINITIONS. Repealed. (Eff. 1117/90, Register 116; repealed 9/19/2001, Register 159)
Editor's note: The subject matter formerly set out at 11 AAC 02.080 has been moved to 11 AAC 02,900,
Final Decision ADL 108047 Page 9 of 10
11 AAC 02.900. DEFINITIONS. In this chapter,
(1) "appeal' means a request to the commissioner to review a decision that the commissioner did not
sign or cosign;
(2) "appellant" means a person who files an appeal or a request for reconsideration,
(3) "commissioner" means the commissioner of natural resources;
(4) "decision" means a written discretionary or factual determination by the department specifying the
details of the action to be allowed or taken;
(5) "department" means, depending of the particular context in which the term is used, the
Department of Natural Resources, the commissioner, the director of a division within the Department of Natural
Resources, or an authorized employee of the Department of Natural Resources;
(6) "request for reconsideration" means a petition or request to the commissioner to review an
original decision that the commissioner signed or cosigned. (Eff. 11(7190, Register 116; am 9/19/2001, Register
159)
Authority:
AS 03.05.010 AS 38.05.020 AS 38.09.110 AS 41.17,055 AS 44.62.540
AS 29.65.050 AS 38.05.035 AS 38.50.160 AS 41.21.020 AS 46.15.020
AS 29.65.120 AS 38.08.110 AS 41,15.020 AS 44.37.011 AS 46.17.030
AS 38.04.900
Editor's note: The subject matter of 11 AAC 02.900 was formerly located at 11 AAC 02.080. The history note for
11 AAC 02.900 does not reflect the history of the earlier section.
Final Decision ADL 108047 Page 10 of 10