Alaska Water Law
Alaska, the largest state in the country (by area, approximately one-sixth of the United States), is unique in that, as a "western" state, it experiences little water use conflict. This is largely a result of the abundant clean water and extremely low population density of 1.2 persons/square mile, compared with New Jersey, which boasts the highest population density at 1,175 persons/square mile. Due to this relative abundance of water, there have been discussions at times of exporting water from Alaska to other areas of the West. Although such exports are authorized by statute, such a market has not yet been developed. However, increased pressure on Alaska's water supply due to increasing population and the effects of climate change raises the question of whether the state’ s water law is sufficiently farsighted.
Historical and Constitutional Framework
The early water law of Alaska was decentralized and followed local mining custom. These early laws often resembled riparian doctrine more so than prior appropriation. However, upon statehood and the passage of the state constitution in 1959, Alaska firmly adopted prior appropriation. Soon afterwards, appropriation was statutorily memorialized in the Alaska Water Use Act which declared, "[w]herever occurring in a natural state, the water is reserved to the people for common use and is subject to appropriation and beneficial use…" The Water Use Act remains in force and can be found under Title 46, Chapter 15 of the Alaska Statutes.
Structure of State Water Agency
The Division of Mining, Land and Water, housed under the Department of Natural Resources (DNR), directs the management of water appropriation in Alaska. The head official of DNR, the Commissioner, is charged with the statutory duty to establish the overall water policy of the state. The administrative regulations covering water appropriation are found in the Alaska Administrative Code (AAC) at 11 AAC §§ 93.010-970. There is also statutory provision for a Water Resources Board made up of seven citizens appointed by the governor to inform and advise him on water policy. This board has been inactive since 1994, however, due to budget constraints.
Surface and Groundwater Rights
Under the Alaska Constitution and Water Use Act both surface and groundwater are treated the same. In contrast to other western states, water withdrawals in Alaska are fairly evenly balanced between surface water and groundwater. This is most likely because Alaska has the greatest amount of available groundwater in the United States.
In 1980, an instream flow amendment was added to the Water Use Act, allowing instream flows to be reserved on any body of water not fully appropriated. The statute defines certain uses for instream flows including: protection of fish and wildlife, recreation, navigation, and water quality purposes. Additionally, an instream flow right may be held by any "person." This is unique, as most states only allow a few specific governmental departments to hold such rights. Also unique is the statutory requirement that all instream flows be reviewed at least every ten years to ensure that the purposes for the flow reservation are still applicable.
The use of water in mining operations is specifically mentioned in the statutes as a "beneficial use." Additionally, there is a statutorily created "mining water use review committee" charged with making recommendations to the Commissioner on each application for use of water for mining purposes. Overall, the appropriation of water for mining purposes is conducted as for any other beneficial use.
Permit and Adjudication Process
Any person who wishes to appropriate water in Alaska must submit an application and fee with the Commissioner of the DNR. The date of filing sets the date of priority. After an application for appropriation is received, the Commissioner must post notice in one issue of a newspaper of "general distribution in the area of the state in which the water is to be appropriated." Notice provides that, within 15 days of posting, any person may file a written objection to the proposed appropriation. Additionally, the Commissioner must give notice by personal service or certified mail to any current appropriator who may be affected by the appropriation. The cost of these notices is paid by the applicant.
If written objections are received by the Commissioner, he may hold hearings in order to assess whether the application should be granted, denied, or conditioned in some way. The Commissioner also has the power to exempt appropriations from the notice and objection process for appropriations of less than 5,000 gallons of water per day. The Commissioner must issue the permit if four criteria are met: (1) the rights of a prior appropriator will not be unduly affected; (2) the proposed means of diversion are adequate; (3) the proposed use of the water is beneficial; and (4) the proposed appropriation is in the public interest.
Beneficial uses include, but are not limited to, domestic, irrigation, manufacturing, fish and wildlife, recreation, and the maintenance of water quality. There is also a stated priority among beneficial uses for public water supply, although this preference is only invoked when "there are competing applications for water from the same source, and the source is insufficient to supply all applicants."
The determination of whether the appropriation is in the public interest is guided by a set of eight factors addressed below under “ The Public Interest.”
In granting a permit, the Commissioner may place conditions on the permit, including granting less water than requested, in order to protect the public interest or the rights of others. A permit includes a fixed time, determined by regulation, during which the appropriation must be perfected. Upon perfection the Commissioner will issue a certificate of appropriation, creating a vested water right with a priority date that relates back to the original date of application. There is also a process, which differs from the standard water permitting process, by which the Commissioner can authorize a significant temporary use of water.
Alaska has a process for Commissioner-initiated general adjudication of all water rights in an area. Such an adjudication requires notice to all potential water rights holders in the area. There is then a hearing in which all those asserting rights are allowed an opportunity to do so. For purposes of general adjudications, a certificate of appropriation serves as prima facie evidence of the water right and its priority date. After a final ruling by the Commissioner, an aggrieved party may appeal to the superior court (the court of general jurisdiction in Alaska).
Abandonment and Forfeiture
Water rights in Alaska may be lost due to a finding by the Commissioner of either abandonment or forfeiture. A finding of abandonment requires that the appropriator intended to abandon, while forfeiture requires only that the appropriator not make use the water for a period of five successive years. A water right may be either wholly or partially abandoned or forfeited. The amount of water that has been either abandoned or forfeited is then classified as unappropriated and becomes available for appropriation by other users. An appropriator may avoid a forfeiture finding by invoking a sufficient cause of the non-use.
Since 1993, the DNR has imposed an annual "administrative service fee" on most appropriation permits or certificates. Exempted uses from this fee include uses of less than 500 gallons/day and domestic uses of less than 1,500 gallons/day for a single family home. Since the imposition of this fee it has been an open question whether non-payment of this fee is grounds for forfeiture of a water right.
Water rights are appurtenant to the land and are presumed to pass with conveyance of the land unless expressly exempted. However, the right may be severed from the land with permission of the Commissioner. An appropriation may also be sold, leased, or transferred with the permission of the Commissioner. A transfer requires that the appropriate instrument of transfer be filed with the recorder's office.
Standing and Judicial Review
Any person aggrieved by an action of the Commissioner may appeal to the superior court. Actions of the Commissioner subject to review include decisions to grant, deny, or condition an application to appropriate. The Alaska Administrative Procedure Act (APA) governs appeals to the superior court under the Water Use Act.
The APA provides for robust review, allowing for augmentation of the record as well as a de novo hearing. The standard of review is for "abuse of discretion," which is established by a finding that the agency decision was not supported by: (1) the weight of the evidence or (2) substantial evidence in the light of the whole record.
The Public Interest
Alaska requires the Commissioner to consider the public interest in reviewing applications for permits to appropriate. Unlike other western states, Alaska has provided specific statutory guidelines for the Commissioner in determining whether an appropriation will serve the public interest. The Commissioner must balance the following eight factors:
1) The benefit to the applicant resulting from the proposed appropriation;
2) The effect of the economic activity resulting from the proposed appropriation;
3) The effect on fish and game resources and on public recreational opportunities;
4) The effect on public health;
5) 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;
6) Harm to other persons resulting from the proposed appropriation;
7) The intent and ability of the applicant to complete the appropriation; and
8) The effect upon access to navigable or public water.
These eight factors provide the Commissioner with flexibility to assess various concerns and interests, and arguably lead to a more thoughtful permitting process. They also have the benefit of providing those opposed to an appropriation an opportunity to make specific objections. This allows for reviewing courts to consider the validity of agency actions in a more constructive manner. Such review stands in contrast to other western states, where those challenging appropriations have a hard time showing abuse of discretion because the agency decision-making falls within the proverbial black box. In Alaska, however, these specific factors allow for a greater degree of transparency with regards to permitting.
The fifth factor, authorizing the Commissioner to consider the opportunity cost of granting an appropriation, is especially helpful in assuring successful water resource planning. It forces the Commissioner and the DNR as a whole to be forward thinking—to make decisions less pragmatically, with future interests in mind.
In addition to considering the public interest guidelines when approving permits, the Commissioner also may utilize them in conditioning approved permits. Again this provides flexibility by allowing the Commissioner to grant permits in close cases but condition them so as not to adversely impact the public interest. In order to assist in future planning and deal with present problems, the Commissioner also may designate critical water management areas. Such a designation allows the DNR to strictly control water use in the area, including forcing appropriators to implement water conservation measures and restricting or denying the acceptance of new applications to appropriate.
Unfortunately, the relative lack of water disputes in Alaska means that we do not have the benefit of knowing how well these statutory guidelines work in practice. It may be that as conditions change and more water disputes pop up, the real test of these guidelines will take place. In the meantime, the explicit statutory guidelines of Alaska could serve as a good example for other western states that arguably fail to consider the public interest in appropriating water although they are constitutionally or statutorily required to do so.
Resources• ROSS E. DE L IPKAU, WATERS AND WATER RIGHTS 349 (Robert E. Beck ed., vol. 6, Matthew Bender 2005 repl. vol.) (1991).• Alaska Department of Natural Resources, http://www.dnr.state.ak.us/.• Alaska Administrative Code, http://www.legis.state.ak.us/cgi-bin/folioisa.dll/aac.• Alaska Statutes, http://www.legis.state.ak.us/cgi-bin/folioisa.dll/stattx07.