11 AAC 51.035. Determination of navigable and public water

(a) As part of a preliminary or proposed written decision under AS 38.05.035 (e) before the sale, lease, grant, or other disposal of any interest in state land, the department will determine whether water adjacent to or contained within the land intended for disposal is navigable water, public water, or neither under AS 38.05.127 . However, if the preliminary or proposed written decision is for an oil and gas lease or a mineral lease, the determination under this section and reservation of access easements under 11 AAC 51.045 may be postponed until the lessee proposes, within 100 feet upland from the ordinary high water mark or mean high water line, lease facilities or lease development activities involving surface entry.

(b) For purposes of the determination under (a) of this section and for reserving access easements under 11 AAC 51.045, a water body at least 50 acres in size or a waterway at least 50 feet in width from the ordinary high water mark to the ordinary high water mark will be considered navigable water. The commissioner may determine that a water body smaller than 50 acres or a waterway smaller than 50 feet in width is navigable water.

(c) For purposes of the determination under (a) of this section and for reserving access easements under 11 AAC 51.045, a water body at least 10 acres but less than 50 acres in size or a waterway at least 10 feet but less than 50 feet in width from the ordinary high water mark to the ordinary high water mark will be considered

(1) navigable water if the department finds that the water body or waterway is navigable in fact for a useful public purpose under AS 38.05.965 ; or

(2) public water if the department does not make a finding described in (1) of this subsection.

(d) The commissioner may determine that a water body smaller than 10 acres in size or a waterway smaller than 10 feet in width from the ordinary high water mark to the ordinary high water mark is public water.

History: Eff. 5/3/2001, Register 158

Authority: AS 38.04.005

Editor's note: The subject matter of 11 AAC 51.035 was formerly located at 11 AAC 53.310 and 11 AAC 53.320. The history note for 11 AAC 51.035 does not reflect the history of the earlier sections.

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