Section 46.15.035. Appropriation or removal of water out of hydrologic units to other hydrologic units; water conservation fee; reservation of water for fish.

   (a) Water may not be removed from the hydrologic unit from which it was appropriated to another hydrologic unit, inside or outside the state, without being returned to the hydrologic unit from which it was appropriated nor may water be appropriated for removal from the hydrologic unit from which the appropriation is sought to another hydrologic unit, inside or outside the state, without the water being returned to the hydrologic unit from which it is to be appropriated, unless the commissioner
        (1) finds that the water to be removed or appropriated for removal is surplus to needs within the hydrologic unit from which the water is to be removed or appropriated for removal, including fishing, mining, timber, oil and gas, agriculture, domestic water supply, and other needs as determined by the commissioner;
        (2) finds that the application for removal or appropriation for removal meets the requirements of AS 46.15.080; and
        (3) assesses a water conservation fee under (b) of this section.
   (b) The commissioner shall establish, by regulation, a water conservation fee for a use of water in which the water is removed from the hydrologic unit from which it was appropriated to another hydrologic unit inside or outside the state, without the water being returned to the hydrologic unit from which it was appropriated. The fee established under this subsection shall be graduated to encourage the conservation of water.
   (c) Except as provided in AS 46.15.090, and in addition to the requirements of (a) of this section, the commissioner may approve an application for removal or permit an appropriation for removal under (a) of this section of water from a lake, river, or stream that is used by fish for spawning, incubation, rearing, or migration, or ground water that significantly influences the volume of water in a lake, river, or stream that is used by fish for spawning, incubation, rearing, or migration, only if the commissioner reserves a volume of water in the lake or an instream flow in the river or stream for the use of fish and to maintain habitat for fish. The commissioner may adjust the volume of water reserved under this subsection if the commissioner, after public notice and opportunity to comment and with the concurrence of the commissioner of fish and game, finds that the best interests of the state are served by the adjustment. A reservation under this subsection
        (1) of a volume of water or an instream flow for the use of fish and to maintain habitat for fish that is reserved under this section is withdrawn from appropriation;
        (2) for fish from a lake, river, or stream, identified under AS 16.05.871 or identified in a Department of Fish and Game regional guide as being used by fish for spawning, incubation, rearing, or migration on or before July 1, 1992, has a priority date as of July 1, 1992;
        (3) of water does not apply to an application for removal or appropriation for removal under AS 46.15.040 for nonconsumptive uses of water or for single family domestic use;
        (4) is not subject to AS 46.15.145;
        (5) of water does not apply to appropriations of ground water of 5,000 gallons or less a day unless the commissioner, in consultation with the Department of Fish and Game, determines that the appropriation may adversely affect fish habitat in a lake, river, or stream; the commissioner shall consider multiple appropriations of water for a single related use as a single appropriation for the purposes of this subsection.
   (d) With respect to rivers and streams described in (c) of this section, the instream flow reservation shall be limited to the portion of the stream, including tributaries to the stream, at and downstream of the point of diversion or withdrawal. With respect to lakes described in (c) of this section, the reservation shall be limited to the lake from which the diversion or withdrawal is made, and the outlet and tributaries to the outlet flowing downstream.
   (e) In this section,
        (1) "fish" means a species of anadromous or freshwater fish that may be taken under regulations of the Board of Fisheries;
        (2) "hydrologic unit" means a hydrologic subregion established by the United States Department of the Interior, Geological Survey, on the "Hydrologic Unit Map-1987, State of Alaska"; "hydrologic unit" includes the water of an ocean that is adjacent to a hydrologic subregion of the state.

Authorities

46.15.020;46.15.037;46.15.133

Notes

Implemented As

11 AAC 05.010

References

11 AAC 05.010
AS 46.15.020 Authority and duties of the commissioner.
AS 46.15.037 Sale of water by the state.
AS 46.15.133 Notices; objections.

History

(Sec. 31 ch 2 FSSLA 1992; am Sec. 5 ch 100 SLA 2001; am Sec. 68 ch 41 SLA 2009)