11 AAC 63.050. Application review; best interest finding

(a) After an aquatic farmsite lease application period closes, the affected agencies will check the applications for completeness. If applications are filed for sites within a state game refuge or critical habitat area, the commissioner will request the approval of the commissioner of the Department of Fish and Game as required by AS 16.20.060 or 16.20.530.

(b) The commissioner will prepare a preliminary best interest finding on proposed aquatic farmsite leases for which applications have been timely filed, and on applications the commissioner intends to deny. The preliminary best interest finding will be made available for public and agency review during the fall that follows the application period. During the period of time that the preliminary finding is available for public and agency review, agencies, affected coastal districts, and the public may, consistent with 6 AAC 50.070, comment on the consistency of the proposed aquatic farmsites with the Alaska Coastal Management Program. If the sites are unclassified, a proposed land use plan and classification order will be prepared, and will accompany or be included as part of the preliminary best interest finding for public review and comment. If the commissioner decides to amend or deny an application, to limit the number of sites to be authorized, or to offer a lease at auction rather than noncompetitively, the preliminary best interest finding must explain the reason. The finding must consider both advantages and disadvantages of the proposal. The following criteria are within the scope of the department's review:

(1) repealed 6/14/98;

(2) repealed 6/14/98;

(3) repealed 6/14/98;

(4) whether aquatic farming is compatible with land management policies applicable to the proposed aquatic farmsite and nearby upland, including legislative or congressional designations such as parks or wilderness areas and adopted federal, state, and local land use plans, land classifications, and zoning;

(5) whether aquatic farming conflicts with existing uses, or with pending uses, as that term is defined in 11 AAC 63.900, of the site and of nearby land, whether or not the nearby land is in state ownership; under this paragraph, the finding must consider

(A) impacts on nearby communities or residential land;

(B) traditional and existing uses of the site, including commercial fishing, sport fishing, subsistence activities, use as an anchorage, navigation, seaplane landing area, recreation, sightseeing, and tourism; consideration of this criterion will, in the commissioner's discretion, be combined with a traditional use finding if such a finding is required by AS 38.05.830 ;

(D) commercial or industrial facilities, such as log transfer facilities, salmon hatcheries, seafood processing plants, or harbor development, that might be incompatible with aquatic farming;

(6) how public access to and along public waters, and the upland owner's right of reasonable access to tidewater, will be ensured by reserving easements under 11 AAC 53 or by other means; if upland access to the water is limited to a specific point by topography, existing improvements, or other factors, the commissioner will ensure that aquatic farming facilities do not obstruct water access to that point;

(7) how the interests served by the public trust doctrine, specifically the public's right to use navigable waters and the land beneath them for navigation, commerce, fishing, and other purposes, will be protected;

(8) whether special lease provisions or other measures are needed to mitigate identified conflicts; for this purpose the commissioner will consult guidelines set out in an applicable land use plan, zoning ordinance, or coastal management program; and

(9) other significant social, economic, and environmental effects of the proposed aquatic farming.

(c) In general, the commissioner will not grant aquatic farmsite leases that would encumber more than a third of the surface area estimated to exist at mean lower low water of a bay, bight, or cove, unless the commissioner finds that (1) it is in the state's best interest to concentrate leases in one such bay, bight, or cove so as to keep other specified water bodies completely unencumbered, (2) the cumulative impacts will not be excessive, and (3) the upland owner will retain a right of reasonable access to tidewater. The commissioner will include a finding under this subsection in the best interest finding, as well as in the land use plan if one is being prepared.

(d) The final best interest finding will include a summary of agency and public comments on the preliminary finding, and the department's responses to those comments. It may also report whether the coordinating state agency has issued a final determination of consistency with the Alaska Coastal Management Program. However, the Alaska Coastal Management Program consistency determination is not within the scope of the department's administrative review, and cannot be appealed to the department; instead, it is subject to the process set out in AS 46.40.096 (d) - (e).

History: Eff. 7/1/89, Register 110; am 6/14/98, Register 146

Authority: AS 38.05.020

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