Alaska State Land Right-of-Way (3-AK-b)
State Land Right-of-Way Process
3-AK-b.1 - Contact the Alaska Division of Mining Land and Water (ML&W)
The developer should contact ML&W early on in the planning process to discuss the proposed project, to identify the authorization required to use state lands, and to identify the information, plans and documents the developer must submit to ML&W as part of a complete application package.
3-AK-b.2 to 3-AK-b.3 –Does the Proposed Activity Require a State Land Lease?
A hydropower developer may need to obtain a land lease from the director of the Alaska Division of Mining Land and Water (ML&W) if the project will involve the placement of a permanent structure on lands to which the state holds title, including state tidal, submerged and/or shorelands.
For more information on Alaska’s State Land Lease process, see:
3-AK-b.4 to 3-AK-b.5 - Does the Proposed Activity Require an Easement or Right-of-Way Over State Lands?
If the proposed activity requires an easement or right-of-way over state lands, the developer must obtain the appropriate authorization from the ML&W. If the proposed activity does not require an easement or right-of-way, the developer may still need to obtain a land use permit from the Alaska Department of Natural Resources. 11 AAC 96.010. Land use permits authorize a number of state land uses that do not require a property interest such as a lease or right-of-way. Land use permits range in duration from one to five years and are intended only to authorize temporary uses of the land. Land use permits do not convey any interest in the land and permanent structures are not allowed. Instructions for Completing a Development Plan.
For more information on Alaska’s Land Use Permit process, see:
3-AK-b.6 - Application for Right-of-Way or Easement Over State Lands
To obtain a right-of-way or easement to use Alaska state lands, the developer must submit an application and development plan to the ML&W. The development plan must include the following:
- A USGS map at a scale of at least 1:63,360, showing the location of the proposed project;
- A blueline drawing or sketch, drawn to scale;
- A detailed written description of the proposed use and level of development planned; and
- An explanation of the sketch or blueline drawing.
For more information on the requirements of the blueline drawing and written description of the development plan, see Instructions for Completing a Development Plan.
3-AK-b.7 to 3-AK-b.8 – Review Application Materials for Completeness?
Information contained within the developer’s application must be sufficient to allow ML&W to conduct a complete review of the proposed use and development of state lands, to determine the terms and conditions of the right-of-way or easement, and to determine the level of bonding and insurance the developer must provide. Instructions for Completing a Development Plan.
If the developer’s application is incomplete, ML&W will contact the developer to request the additional information needed. Deficiencies in the initial application may delay processing of the developer’s request for a right-of-way or easement. Instructions for Completing a Development Plan.
3-AK-b.9 - Notify Upland Owner for the Use of Adjacent Tideland or Submerged Land
ML&W must give preference to the use of land that is of the greatest economic benefit to the state and the development of its resources. However, ML&W must give first preference to the upland owner of a track of tideland, shoreland, or contiguous submerged land if the upland owner needs the land for any purpose for which authorization may be granted. AS 38.05.850(a).
3-AK-b.10 to 3-AK-b.11 - Will the Nature and Duration of the Developer’s Proposed Use be Functionally Revocable?
If the Director of ML&W determines that the nature and duration of the proposed use will not be functionally revocable, the director will provide public notice of the developer’s application on the State Online public Notices System and send notice directly (by email, mail, or fax) to interested third parties and other State Federal, and Municipal agencies. AS 38.05.850(c).
The public notice period lasts for 30 days. During this time, interested members of the public and agency personnel may submit written comments to the ML&W regarding the developer’s application. The ML&W can only consider written comments and will respond to those written comments that are within the scope of the ML&W’s decision.
3-AK-b.12 – Review Developer’s Application and Public Comments (If Applicable)
Once the developer’s application is complete and ML&W has provided notice to the appropriate interested parties, ML&W considers the developer’s application for an easement or right-of-way over state lands and any public comments received (if applicable).
3-AK-b.13 to 3-AK-b.14 – Complete Best Interest Finding Process
Before the ML&W may issue a right-of-way or otherwise dispose of state land, the director must first determine in a written finding that the interests of the state will be best served by the proposed action. The written finding, known as a best interest finding, considers and discusses relevant information, reflecting the hard look and reasoned approach that the ML&W takes in making its determination of whether a particular action is in the State’s best interest.
Best Interest Finding Process:
3-AK-b.15 – Does the Director of ML&W Approve the Developer’s Application for an Easement or Right-of-Way?
The director of ML&W may approve or deny the developer’s application for an easement or right-of-way. The director’s decision serves as the State’s recommendation for use of the area of State land in question.
3-AK-b.16 - Permit, Easement or Right of Way Document
If the director of ML&W approves the developer’s application, ML&W will issue a document authorizing the easement or right-of-way. The development plan then becomes part of the authorizing document. Instructions for Completing a Development Plan.
The authorizing document prepared by ML&W sets forth the extent of the activity allowed on the tract of land and the provisions of such use. Authorized activities are limited to those activities described within the authorizing document. Authorizing documents are revocable, nonexclusive permits for the personal or commercial use or removal or resources that the Director determines to be of limited value. The Director of ML&W may issue authorization documents without the prior approval of the Commissioner of the Alaska Department of Natural Resources (commissioner). AS 38.05.850(a).
Before making any changes to the project siting, construction, or operation; adding any additional structures, buildings or improvements, or making any changes to activities described in the approved authorizing document, the developer must update the development plan, and obtain approval from ML&W. Instructions for Completing a Development Plan.
3-AK-b.17 to 3-AK-b.18 – Request Reconsideration of ML&W’s Decision (Optional)
If the director of ML&W denies the developer’s application, the developer can appeal the director’s decision to the commissioner of the Alaska Department of Natural Resources (commissioner). 11 AAC 02.900. The commissioner may affirm ML&W’s decision, issue a new or modified decision, or remand the matter to the director for further proceedings. 11 AAC 02.020(d).
3-AK-b.19 to 3-AK-b.20 – Appeal Final Administrative Order to the Superior Court (Optional)
If the commission denies the developer’s request for reconsideration, the denial is considered the final administrative order. The developer may appeal the commissioner’s final administrative order to the superior court, in accordance with 11 AAC 02.900.
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