11 AAC 63.040 - Associated facilities; upland owner preference right; upland owner access right

(a) The commissioner will, in the commissioner's discretion, authorize associated facilities for storing equipment or housing personnel at an aquatic farmsite, including upland managed by the department under AS 38, if the commissioner is satisfied that the associated facilities are necessary for aquatic farming. An applicant who wants authorization for associated facilities must request it as part of the lease application so that it can be considered during agency and public review. If a lessee intends to anchor or stay at the aquatic farmsite for a period of more than 14 consecutive days, the lessee shall disclose this intent in writing as part of the lessee's lease application. The lessee's intent to stay or anchor at the aquatic farmsite for more than 14 days is a factor to be considered in appraising the fair market value of the lease.

(b) The conditions in this subsection apply to an authorization for personnel housing at an aquatic farmsite. The commissioner will authorize personnel housing only if the applicant shows that (1) the level of site development at the time the housing is expected to begin will require that personnel be present on a daily basis, (2) the personnel cannot reasonably commute to the site by road, boat, or aircraft on a daily basis, and (3) nearby land suitable for housing is not available for rent or sale. The housing facility may not be used as the personnel's permanent place of abode. It must be designed and constructed so that it can be removed and the site completely restored within 30 days if the lease terminates or if housing personnel at the aquatic farmsite ceases to be necessary. The housing facility may not be placed on a permanent foundation.

(c) The conditions in this subsection apply to an authorization for floating housing at an aquatic farmsite. The commissioner will authorize floating housing only if that use is consistent with the floathouse provisions and management intent of an applicable land use plan or zoning ordinance, and if the Department of Environmental Conservation determines that floating housing would not result in degraded water quality that would be incompatible with raising shellfish or aquatic plants for human consumption.

(d) The nature and extent of associated facilities are a factor in setting the security amount under 11 AAC 63.080 and appraising the fair market value of a lease.

(e) After a lease terminates, the former lessee has no entitlement or preference right to continue using or occupying any portion of the former aquatic farmsite, including anchoring a floathouse at the site or on other state land, unless the person has obtained a new authorization from the department.

(f) Under this subsection, the commissioner grants an aquatic farmsite lease preference right to eligible upland owners and lessees in order to increase the compatibility of aquatic farming with upland management policies. The owner or lessee of adjacent or nearby upland may request a preference right to an aquatic farmsite lease by agreeing to place the owner's or lessee's associated facilities for storing equipment or housing personnel on the owner's or lessee's own land or leasehold rather than on state-owned land or other public land. The following apply to a preference right under this subsection:

(1) For an upland owner or lessee to be eligible, the applicant's development plan must demonstrate that the associated facilities are necessary for aquatic farming.

(2) For an upland lessee to be eligible, the term of the upland lease must equal or exceed the term of an aquatic farmsite lease. A U.S. Forest Service special use permit does not constitute a leasehold interest that would make the holder eligible for a preference right under this subsection.

(3) A preference right granted under this subsection is secondary to a preference right that the department provides under 11 AAC 63.090(a).

(4) If the number of applications eligible for a preference right for an upland owner or lessee exceeds the number of leases that the commissioner decides to grant, the commissioner will hold an auction as set out in 11 AAC 63.030(d) among the preference-eligible applications only.

(5) An upland owner or lessee who wants a preference right for aquatic farming shall apply under this subsection rather than under AS 38.05.075(c). AS 38.05.075(c) does not give an upland owner or lessee an entitlement or preference right to an aquatic farmsite lease.

(g) The commissioner may not issue an aquatic farmsite lease if issuing the lease would deny an upland owner's right of reasonable access to tidewater or deny access by boat to privately owned upland.

Notes

11 AAC 63.040

Eff. 7/1/89, Register 110; am 6/14/98, Register 146; am 12/27/2012, Register 204

Authority:AS 38.05.020

AS 38.05.083