PRELIMINARY DECISION For an Interagency Land Management Assignment ADL 108262 at to the Department of Natural Resources, Division of Forestry I. Requested ILMA February 25, 2016 The applicant, the Department of Natural Resources (DNR), Division of Forestry (DOF) is requesting authorization from DNR, Division of Mining Land and Water (DMLW) for management authority of three tracts of state owned tide and submerged land located in for continued use as a log transfer facility (LTF) and facilitate the transfer of timber purchased by private entities from the Southeast State Forest. The site consists of three tracts: II. Tract 1 is a 14 acre parcel adjacent to non state owned uplands 1 used for a log transfer ramp and rafting; Tract 2 is a 9 acre parcel to be used for ship moorage; and Tract 3 is an 11.5 acre parcel to be used for marine log raft storage Proposed ILMA DMLW intends to assign land management authority of requested tide and submerged lands to the Division of Forestry (assignee/dof) under an Interagency Land Management Assignment (assignment/ilma). Under this assignment, the assignee will authorize site development and use for all timber management and harvest related activities. 1 The adjacent upland sort yard is currently owned by the Alaska Mental Health Trust. Preliminary Decision Page 1 of 16 ADL 108262
III. Discussion A. Difference between Requested and Proposed ILMA DMLW will assign DOF the entirety of the area requested. Because of the sustained yield obligations, long periods between harvest cycles and the capacity of this LTF to be used by a number of different land owners the proposed ILMA term shall be 25 years. B. Background Development and use of this site was previously authorized under a land use permit issued to Alcan Alaska Timber Corporation that expired in 2012. 2 When the permit was first issued, the 6.25 acres of adjoining uplands to the tide and submerged land log transfer rafting area parcel was included in the authorization. Since that time it was discovered that the upland acres are owned by the Mental Health Trust (MHT). Since this area is not on state land, it cannot be included in this ILMA. This has potential consequences of affecting MHT s rights as upland owner to reasonable access to deep water. The ILMA grants management authority of the area to the DOF, therefore it is assumed that they would grant authorization if and when the MHT needs to access deep water through this facility. The DOF and MHT have a signed Statement of Intent to establish a reciprocal agreement to share facilities that support timber resource management. 3 Archaeological conditions included in permit LAS 25104 were required in order to protect an archaeological site in close proximity to the facility. It is recommended that these conditions be incorporated into this ILMA. One condition required an Archaeological Preventative Measures and Emergency Plan. The Office of History and Archaeology will be included in the agency review for this preliminary decision document and will be 2 LAS 25104 3 DOF/MHT SOI 10/21/14 Preliminary Decision Page 2 of 16 ADL 108262
given the opportunity to determine if the plan that was prepared for the previous permit is still appropriate. In 2010 the Legislature designated the Southeast State Forest, of which one unit is located just to the north of Bat Point. The DOF recognized that this LTF could facilitate the transfer of timber from this unit and could be a regional hub for the timber harvest program in this area of Southeast. A separate but nearby land use authorization for the construction of a new road across state land to connect the Revilla road with the existing Shelter Cove road system has been issued to the Alaska Department of Transportation and Public Facilities. 4 This road project is expected to open new Forest Service areas in the region to timber activities. DOF expects the LTF will become the centralized facility for Revilla Island. For this reason, the original acreage amounts associated with each of the three tracts in permit LAS 25104 and requested in the original ADL 108262 application was determined to be insufficient. The requested sizes of each tract been increased to reflect these changes. The log transfer ramp and rafting in Tract 1 has increased from 9.7 to 14 acres. The ship moorage in Tract 2 has increased from 4.75 acres to 9 acres. The marine log raft storage in Tract 3 has increased from 5.2 to 11.5 acres. C. Benefits to Community and Others Several agencies will work cooperatively to benefit the region. The proposed log transfer facility is intended to facilitate both present and future harvest of timber in this area from the Southeast State Forest, Alaska Mental Health Trust and other private land owners. D. Related Actions DMLW proposes to amend the Central/Southern Southeast Area Plan in a separate but associated action. 5 The amendment would create tideland 4 ADL 107613 5 Land Classification Order # SE 00 001A05 Preliminary Decision Page 3 of 16 ADL 108262
IV. small tract area KTS 18.01 comprising the 3 separate parcels of this LTF with associated designation of Forestry which converts to a classification of Waterfront Development Land. This is described further in the Planning and Classification section on page 6. E. Agency Review of Application The assignee has already conducted agency scoping. There were no comments submitted. The State Historic Parks Office visited the site in October of 2013. The assignee completed a pre discharge dive survey for the Alaska Pollution Discharge Elimination System (APDES) permit. F. Public Review of Application This is a not a new site, it has received a substantial level of both agency and public notice for the permit, LAS 25104. However, the original permit was for a short term due to the nature of the authorization. DMLW has determined that since this application for an ILMA is proposed to have a longer 25 year term, it should receive both an agency review and a public notice coincident with the proposed plan amendment. Notice of this decision will be provided to the parties identified in the Public Notice, Decision and Appeal Process section of this decision. Authority Alaska Statute (AS) 38.05.020(b)(2) 6 ; AS 38.05.027(a) 7 ; AS 38.05.035. Alaska Administrative Code (Regulations): 11 AAC 05.010. V. Administrative Record The administrative record for this case is comprised of: (1) ILMA file ADL 108262; (2) Central/Southern Southeast Area Plan, adopted November 2000; (3) Area Plan amendment/ Land Classification Order SE 00 001A05 and legislatively designated Southeast State Forest (SESF) Leask Cove unit. 6 Under AS 38.05.020(b)(2), the commissioner may enter into agreements considered necessary to carry out the purposes of AS 38.05, including agreements with federal and state agencies 7 AS 38.05.027. Cooperative resource management or development agreements. Preliminary Decision Page 4 of 16 ADL 108262
VI. Scope of the Decision This decision is limited to 8 : (1) reasonably foreseeable, significant effects of the uses authorized; (2) the applicable statutes and regulations; (3) the facts pertaining to the land or resources, and; (4) the issues that are material to the determination that the ILMA will best serve the interests of the State. VII. Description A. Location The tracts are located on state tide and submerged land. This land is in navigable waterways in the upper portion of George Inlet about 12 miles northeast of Ketchikan, AK. Specifically the log transfer/rafting tract is located at the mouth of Leask Cove; the log raft storage tract is located off the northwest shore of Bull Island and the ship moorage tract is located southwest of Bat Point. Other Land Information: (1) Borough: Ketchikan Gateway Borough; (2) Regional Corporation: Sealaska Corporation; B. Legal Description This assignment would transfer management of the following parcels of State land to the applicant: 1. Tract 1, Tide and submerged Lands LTF and rafting area: An parcel of tide and submerged land, comprising approximately 14acres, more or less, as depicted in Engineer Plat File 2005 49 and on the Development Plan (Attachment A), within the SW1/4 of the SE1/4 of section 25 and the NW1/4 of the NE1/4 of section 36 T73S, R91E, CRM in the Ketchikan Recording District. 2. Tract 2, Tide and submerged Lands Ship Moorage: An unsurveyed parcel of tide and submerged land, comprising approximately 9 acres, more or less, located within the 8 Under AS 38.05.035(e)(1) (2) Preliminary Decision Page 5 of 16 ADL 108262
NE1/4 of the NE1/4 of section 36 T73S, R91E and the NW1/4 of the NW1/4 of section 31 T73S, R92E CRM. 3. Tract 3, Tide and submerged Lands Log Raft Storage: An unsurveyed parcel of tide and submerged land, comprising approximately 11.5 acres, more or less, located within the S1/2 of the N1/2 of section 31 T73S, R92E CRM. C. Title The State of Alaska received title to the affected State tide and submerged land under the Submerged Lands Act of 1953 and the Equal Footing Doctrine upon entry of the State into the Union. Management is subject to the Public Trust Doc trine. Title to this land resides with the State. 9 D. Planning & Classification Disposal and use of state land must conform to the constitution of the State of Alaska and the principles of multiple purpose use consistent with the public interest. The management intent for these subunits is to manage state land to support shoreline use and to protect the most important recreation and fish and wildlife habitat and harvest areas. Area plans set policy of how state lands are managed by designating areas for compatible or allowed uses those designations get converted into a statutory classification. The Central/Southern Southeast Area Plan, adopted November 2000 (CSSEAP) is the applicable area plan for this ILMA. 1. Classification of Tide & Submerged Lands Tract 1 Tract 1 is a 14 acre parcel used for a log transfer ramp and rafting. It is currently not in a designated management unit. Therefore the General Use designation applies and converts to the Resource Management Land classification. 9 RPT 8246 and RPT 8247 Preliminary Decision Page 6 of 16 ADL 108262
Tract 2 is a 9 acre parcel to be used for ship moorage. It is also currently not in a designated management unit. Therefore the General Use designation applies and converts to the Resource Management Land classification. Tract 3 is a 11.5 acre parcel to be used for marine log raft storage. It is currently in unit KT 18 designated Public Recreation Dispersed Use, Harvest, and Shoreline Use, and classified as Public Recreation Land, Wildlife Habitat Land and Settlement Land respectively. All tidelands and submerged lands in CSSEAP, including specific parcels designated Harvest (Hv), are recognized to contain important fisheries for one or more of the following: subsistence, recreational or commercial harvest. The goal of the Settlement designation is to provide suitable public land for private settlement purposes within two settlement categories. They are: (1) to provide year round residences or community expansion, and; (2) to provide for industrial or commercial development. 2. Current Designation & Classification Compatibility 10 The GU designation applies to tidelands and submerged lands not otherwise designated for specific, habitat, harvest, economic, or recreation functions. This designation does not mean that the tideland and submerged land lacks value, but that the appropriateness of whether and how a tideland parcel will be used will be decided through the formal state and federal permitting procedures. Development authorizations are not considered appropriate in the area designated Public Recreation dispersed use unless they are related to recreation. Log raft storage is not related to recreation. 10 CSSEAP ch.3 p.308 Preliminary Decision Page 7 of 16 ADL 108262
DMLW deems log raft storage as not compatible with this designation. CSSEAP does not identify what resource the Harvest designation is for regarding the KT 18 section. Under Resources for which unit is to be managed it simply states that it applies to the entire 252 acre unit. Regardless, the log raft storage use is not deemed by DMLW to be compatible with this designation. The Shoreline Use designation for KT 18 does not apply to the log raft storage tract. It applies to the areas directly adjoining private lands within the subdivision on Bull Island. The log raft storage area will not front any of this subdivision land. 3. Current Tide and Submerged Lands Classification Must be Amended DMLW has permitted a 5.2 acre area for log raft storage area within KT 18 under a revocable permit, LAS 25104. During the term of the permit DMLW did not document any reports that this log raft interfered with current CSSEAP designations. It is this same area that DOF wants to continue to use for this purpose, with an expanded 40 acres around and including the new 11.5 acre log raft itself to encompass all associated LTF activities. In order to continue under a long term authorization, DMLW has to first determine if the ILMA can be made compatible with the existing designations. This requires an area plan amendment. The plan amendment process would determine if a designation could be added to allow for log raft storage. Since the previously permitted site in LAS 25104 worked out well, DMLW will propose in the amendment the creation of a tideland small tract (KTS 18.01) with a designation of Forestry which converts to a classification of Waterfront Development Land. While the log transfer/rafting and the ship moorage tracts are allowable under the undesignated GU area with Resource Manage Preliminary Decision Page 8 of 16 ADL 108262
ment Land classification, this does not identify the proposed long term activity/use of the land for forestry purposes. Therefore DMLW deems it prudent to include these two tracts in the plan amendment addition of tideland small tract KTS 18.01 and to designate them as Forestry which converts to a classification of Waterfront Development Land to identify this long term use of state land. DMLW proposes by separate but associated action (Land Classification Order # SE 00 001A05) to amend the Central/Southern Southeast Area Plan. This will designate all three newly created KT 18.01 tracts as Forestry which converts to a classification of Waterfront Development Land. The proposed ILMA is contingent upon the Central/Southern Southeast Area Plan amendment. 4. Mineral Orders There are no mineral orders or leasehold location orders for the subject parcels. No extraction of materials is proposed with this project. 5. Local Planning The assignment is subject to local planning and zoning ordinances. 6. Water Bodies The assignment will be in, and adjacent to Leask Cove, Upper George Inlet a navigable body of water. 7. Access, Including To and Along Public Waters Pursuant to AS 38.05.126(a), the public has a constitutional right to free access to, and use of, navigable or public waters of the State. Under AS 38.05.127, DNR is required to determine whether to reserve specific public access easements to and along these waters. An assignment of management authority is not a disposal of interest and does not require reservation of specific to and along ease Preliminary Decision Page 9 of 16 ADL 108262
ments. As conditioned by the assignment, the state owned land remains open and available to the public. The uplands associated with the log transfer rafting area tract are not state owned. The state owned tide and submerged land is subject to the consideration of a public access easement because of the two fill areas, the barge bulkhead and the transfer ramp. The authorized log transfer rafting area is subject to a 50 foot public access easement located seaward of the natural line of mean high water. To protect the public during times of when the log transfer rafting area tract is operational the DOF can temporarily limit access through this tract for safety reasons. VIII. Adjudicator Recommendation, Preliminary Decision Based on the information that the applicant submitted, a review of planning documents, statutes, and regulations, and subject to the approval of the previously described Area Plan amendment, I recommend granting an ILMA to the applicant. If the ILMA is approved, it will be subject to the terms and conditions set forth therein, and will be issued upon the return of the applicant signed ILMA document and any required deliverables. A. Management Authority To the extent provided by statute, the assignee will be responsible for both the management of the LTF and for issuing any authorizations required for its use for forestry related purposes. B. Assignee s Authority The Assignee s authority to manage state land is from AS 41.17 Forest Resources and Practices, and implementing regulations in conjunction with AS 38 and appropriate land use plans. 11 Under AS 41.17.055(e), the DNR commissioner may enter into cooperative agreements and contracts with 11 See AS 41.17.030(a) and 11 AAC 95.185(e) Preliminary Decision Page 10 of 16 ADL 108262
interested organizations, enterprises, individuals, government agencies, educational institutions, and landowners to carry out AS 41.17. C. Transferability The assignee is not authorized to assign or transfer its management authority to other entity for any reason. D. Term of Assignment This ILMA will expire in 25 years, from the effective date of a final decision approving issuance or when the assignee no longer uses ILMA for the originally intended purpose, whichever occurs first. Prior to termination of this assignment, DMLW will require rehabilitation of the site to a condition satisfactory to the Authorized Officer (AO). E. Inactive Periods The LTF will be used intermittently with the potential for long periods of inactivity. During these inactive periods DMLW may authorize other temporary short term non timber related uses within the assignment area, with the concurrence of the assignee. F. Concurrent Uses DMLW may authorize, with the assignees concurrence, temporary nonforestry uses within the assignment area and any other uses within our authority that the assignee does not have statutory or regulatory authority to manage. G. Assignment Amendment If the approved development plan must be modified to accommodate a different log transfer use to meet forestry goals, then the assignee shall be responsible for obtaining any required authorizations that may associated with the site plan modification. Preliminary Decision Page 11 of 16 ADL 108262
H. Access The site is accessible by water. In accordance with the DOF/MHT Statement of Intent, the reciprocal agreement allows DOF to access the log transfer ramp and rafting area in Tract 1. The state owned land subject to this assignment remains open and available to the public. For safety reasons, DOF may temporarily limit public access through the log transfer facility area during periods when the facility is operational. I. Hazardous Materials The assignee estimates that when the LTF is active there will be about: (1) 125 gallons of lubricants; (2) 1,000 to 4,000 gallons of fuel oil, and (3) 15 gallons of antifreeze used per month. The assignee must ensure that its users comply with the following requirements 1. Use of Substances with Potential to Contaminate For operations involving oil, fuel and hazardous substances which have the potential to contaminate state land, the assignment requires ADEC notification for certain spills and discharges. 12 2. Spill Prevention The assignee is responsible for preventing spills and contamination of contiguous land and water and cleaning up any oil or other pollutants that result from activities associated with this authorization or timber sale contracts. 3. Compliance with other Requirements The use of and/or storage of hazardous substances by the assignee, a purchaser/contractor must be done in accordance with existing federal, state and local laws, regulations and ordinances. 12 See Attachment B, Condition 9 Preliminary Decision Page 12 of 16 ADL 108262
4. Precautions for Substance Transfer Secondary containment or a surface liner must be placed under all container or vehicle fuel tank inlet and outlet points, hose connections, and hose ends during fuel or hazardous substance transfers. Appropriate spill response equipment must be on hand during any transfer or handling of fuel or hazardous substances to respond to a spill of up to five gallons. Any fuel transfer operations shall be attended by trained personnel at all times. 5. Bark Accumulation Any bark accumulation resulting from log transfer operations at the site will be monitored and regulated under the authority of ADEC under the Alaska Pollutant Discharge Elimination System (APDES) LTF General Permit. 6. Minimization of Risks Adherence to conditions of the APDES permit should minimize the environmental risk to state land in this area. J. Performance Guaranty A state agency is not subject to a performance guaranty nor is an assignment subject to this requirement. Under the assignment, the assignee is responsible for maintaining the site. The permit issued under LAS 25104 included certain conditions for site restoration and required a performance guaranty in the amount of $57,000 to ensure obligations under the permit are performed. In accepting this management authority, DOF verifies that the site is left in an acceptable condition and assumes any of the former permittee s restoration obligations. K. Insurance Requirements A state agency is not subject to insurance nor is an assignment subject to this requirement. The state is self insured. Preliminary Decision Page 13 of 16 ADL 108262
L. Survey Requirements Previous excavation and fill activities associated with LAS 25104 have altered the natural mean high water (MHW) line. Alaska State Cadastral Survey 88 73 recorded in the Ketchikan recording district as Plat 90 7 established the natural line of MHW 13. The cost for construction of any publically financed improvements exceeding $100,000 is subject to the requirements of AS 38.95.160 and a survey plat of the constructed improvements is required. 14 M. ILMA FEE DOF s development of the LTF represents a significant capital investment. Additionally, it is planned that the site will be periodically closed to the public during periods when timber is actively being transferred. Therefore, a one time fee of $3,000 or seven percent of the fair market value (FMV), whichever is less, is required. 15 N. Appraisal To determine the fee amount, the assignee may provide an appraisal based on area land values for reasonable comparisons to determine whether seven percent of the parcel s fair market value is less than $3,000.00. 13 Consistent with 11 AAC 96.040(d), 14 AS 38.95.160(a) states, in part, that the location and design of a publicly financed improvement on state land that costs more than $100,000 shall be supervised by a professional registered to practice under AS 08.48. A lease, easement, right or way, or other similar agreement that permits the use and improvement of state land under this section shall be documented by a recorded plat. 15 See 11 AAC 5(e)(15)(B), Preliminary Decision Page 14 of 16 ADL 108262