Alaska Permit to Appropriate (19-AK-c)
- The consumptive use of more than 5,000 gallons of water from a single source in a single day;
- The regular daily or recurring consumptive use of more than 500 gallons per day (gpd) from a single source for more than 10 days per calendar year;
- The non-consumptive use of more than 30,000 gpd (0.05 cubic feet per second) from a single source; or
- Any water use that may adversely affect the water rights of other appropriators or the public interest.
Permit to Appropriate Process
19-AK-c.1 to 19-AK-c.2 – Contact the Alaska Division of Mining Land and Water (DMLW) to Schedule a Pre-Application Meeting
The developer should schedule a pre-application meeting with the Alaska Division of Mining Land and Water (DMLW) early on in the project planning stages to discuss the project, application requirements, and application filing fees.
The application filing fee varies for hydropower projects. The pre-application meeting provides the developer and the DMLW an opportunity to discuss and resolve any issues regarding the filing fee.
19-AK-c.3 - Application for a Permit to Appropriate Water
- An Application for Water Right;
- The application fee, as prescribed by 11 AAC 05.010;
- Evidence that the developer has a present possessory interest in the property where the water is to be beneficially used;
- A map identifying the following:
- The section, township, range, and meridian, and showing the property boundary for the point of water withdrawal, impoundment, or diversion;
- The route of water transmission;
- The point of water use; and
- If the water is to be returned to a stream or water body, the point of return flow;
- Evidence that the developer has obtained or is in the process of obtaining a right of access to the property where water is to be withdrawn, impounded, or diverted, and over which water is to be transported both to the point of use and to the point of return flow;
- A legal description of the point of withdrawal, diversion, or impoundment; the point of water use; and, if the water is to be returned to a stream or water body, the point of return flow;
- A description of the sources as being either surface or ground water;
- A description of any impoundment, diversion, or withdrawal structures;
- A description of the nature of the water use and times of the year during which water is to be used;
- A statement of the dates water use is expected to begin and when the maximum amount will be beneficially used;
- A statement of beneficial use, signed before a notary or postmaster, if water is already in use at the time of application;
- An application for a right-of-way, filed in accordance with AS 38.05.850, if access to or across state land is needed;
- A statement of the quantity of water requested;
- For a water use of more than 100,000 gallons per day (gpd) from a stream, a description of the mean annual flow, or mean monthly flow if available;
19-AK-c.4 to 19-AK-c.5 - Review Application Materials for Completeness
Upon receipt, the DMLW reviews the developer’s application and determines whether the application clearly presents and documents all aspects of the proposed project. If the application is incomplete or more information is needed, the DMLW will notify the developer and request the additional materials and/or information needed. Unless the DMLW determines a longer period should be allowed, the developer must submit the requested information within 30 days. If the developer fails to submit the requested information within 30 days, the DMLW may reject the application. 11 AAC 93.050.
19-AK-c.6 - Is Public Notice of the Application Required?
The DMLW may also require notice of an application to appropriate less than 5,000 gpd if the water source is an anadromous fish stream or the water source has a high level of competition among water users. 11 AAC 93.100.
19-AK-c.7 – Publish Public Notice of Application
If public notice of the developer’s application is required, the DMLW will:
- Serve individual notice of the developer’s application by certified mail to any prior appropriators who may be taking from the same source of water;
- Issue public notice of the developer’s application in a newspaper of general circulation in the vicinity in which the water is to be appropriated or, if there is no newspaper of general circulation in the vicinity, in a public place near the site of the proposed appropriation; and
- Post notice of the developer’s application on the Alaska Online Public Notice System.
19-AK-c.8 – Comment on Application; File an Objection (If Applicable)
19-AK-c.9 - Review Application, Public Comments and Objections (If Applicable), and Other Pertinent Information
The DMLW reviews the developer’s application, any comments and/or objections received, and any other pertinent information to inform its decision on whether to authorize or deny a permit to appropriate water. 11 AAC 93.090(b)-(c).
The DMLW may investigate or inspect the proposed diversion, withdrawal, or impoundment structures, the source of the water, meter records, gage data, well logs, and other competing uses for water within the area of the proposed application, to determine whether there is a possibility that existing water rights of other persons or the public interest will be adversely affected or impaired by the proposed appropriation. Failure of the developer to cooperate in the DMLW’s investigation will result in the DMLW rejecting the application. (11 AAC 93.070).
19-AK-c.10 to 19-AK-c.12 - Does the DMLW Elect to Hold a Public Hearing?
The DMLW can, in its discretion, elect to hold a hearing on the application if:
- DMLW receives objections to the application during the public comment period;
- DMLW determines that additional information is necessary to rule on the application; or
- DMLW determines that the public interest or the water rights of prior appropriators might be adversely affected.
19-AK-c.13 - Does the DMLW Approve the Application?
- The rights of a prior appropriator will not be unduly affected;
- The proposed means of diversion or construction are adequate;
- The proposed use of water is beneficial; and
- The proposed appropriation is in the public interest.
In determining whether the proposed appropriation is in the public interest, the DMLW must consider the following:
- The benefit to the developer resulting from the proposed appropriation;
- The effect of the economic activity resulting from the proposed appropriation;
- The effect on fish and game resources and public recreational opportunities;
- The effect on public health;
- The effect of loss of alternate uses of water that might be made within a reasonable time if not precluded or hindered by the proposed appropriation;
- Harm to other persons resulting from the proposed appropriation;
- The intent and ability of the developer to complete the appropriation; and
- The effect upon access to navigable or public water.
The DMLW must approve, deny, or condition the developer’s application within 30 days of receipt of the last objection or, if the DMLW elects to hold hearings, within 180 days of receipt of the last objection. AS 46.15.133.
For hydropower projects with a generating capacity greater than 50 KW, the DMLW may issue conditions requiring the developer to measure the water use in a manner to be approved by the DMLW and periodically report water use information to the DMLW. 11 AAC 93.120(e)(2)(c).
19-AK-c.14 - Notice of Decision
The DMLW must provide notice of, and reasons for, its decision to any person who is denied a permit to appropriate water and/or to any person who has filed an objection to the application. AS 46.15.133.
19-AK-c.15 - Permit to Appropriate Water
The DMLW issues permits to appropriate water for the period of time that the DMLW considers to be consistent with the public interest and adequate for the developer to finish construction and establish the full use of water. 11 AAC 93.120 provides some maximum time periods for which the DMLW will issue a permit for specific uses of water, unless the developer proves, or the DMLW independently determines, that a longer time period is required to establish the full use of the water. 11 AAC 93.120.
For hydropower projects, the maximum time period for which the DMLW may issue a permit to appropriate water is as follows:
- Five years for small-scale hydropower projects generating 100 KW or less;
- Ten years for large-scale hydropower projects generating over 100 KW.
19-AK-c.16 - Appeal Decision (If Applicable)
19-AK-c.17 to 19-AK-c.18 - Does the Developer Require a Permit Extension?
If the developer requires a permit extension in order to complete construction and apply the permitted water to a beneficial use, the developer must file a Request for Water Right Permit Extension form with the DMLW. The developer’s request for a permit extension must be accompanied by the applicable fee prescribed in 11 AAC 05.010; 11 AAC 93.120.
19-AK-c.19 to 19-AK-c.20 - Has the Developer Shown a Diligent Effort Towards Completion?
The DMLW may extend the permit once for a period of time equal to or less than the time allowed under the original permit if the DMLW determines that the developer has demonstrated a diligent effort toward completing the appropriation. 11 AAC 93.120(f).
19-AK-c.21 - Statement of Beneficial Use
In order to obtain a certificate of appropriation, the developer must submit a Statement of Beneficial Water Use proving that the developer has put the permitted water to a beneficial use and the fee required under 11 AAC 05.010 to the DMLW. 11 AAC 93.130.
19-AK-c.22 - Does the DMLW Approve the Developer’s Beneficial Use Statement?
The DMLW will issue a certificate of appropriation to the developer for the quantity of water beneficially used, which might be equal to or less than that amount granted under the permit, if:
- The developer submits a statement of beneficial use stating that the means necessary for the taking of water have been developed and the developer is beneficially using the quantity of water to be certificated;
- The developer submits the fee required under Alaska Admin. Code tit. 11, ch. 05.010; and
- The developer has substantially complied with all permit conditions.
19-AK-c.23 - Certificate of Appropriation
Once the developer establishes the full amount of water put to a beneficial use and compliance with all of the permit conditions, the DMLW issues a certificate of appropriation. The certificate of appropriation is the legal document establishing the developer’s water right. 11 AAC 93.130. Depending on the amount and use of the water, the developer may be subject to paying an annual administrative service fee pursuant to 11 AAC 05.010(8)(M).
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