HomeMy WebLinkAbout05192009 Planning & Zoning PacketSeward Planning Commission
Agenda Packet
May 19, 2009
Special Meeting
City Council Chambers Beginning at 7.30 pm
Seward Planning & Zoning Commission
Sandie Roach'
Chair
Term Expires 02/10
Sue McClure
Vice Chair
Term Expires 02110
Vacant
Commissioner
Term Expires 02112
Tena Morgan
Commissioner
Term Expires 02110
Steven Heinrich
Commissioner
Terns Expires 02111
Christina Stauffer
Commissioner
'Perm Expires 02112
Cindy Ecklund
Commissioner
Term Expires 02/11
Phillip Oates
CityManager
Christy Terry
Community Development
Director
Anne Bailey
Executive Liaison
lar Meeti.
1. Call to Order
2. Opening Ceremony
A. Pledge of Allegiance
3. Roll Call
4. Special Reports & Presentations
A. City Administration Report
B. Other Reports, Announcements & Presentations
5. Citizens' Comments on any subject except those items
scheduled for public hearing. [Those who have signed in
will be given thefirst opportunity to speak. Time is limited
to 2 minutes per speaker and 30 minutes total time.for this
agenda item]
6. Approval of Agenda and Consent Agenda. [Approval of
Consent Agenda passes all routine items indicated by
asterisk (*). Consent Agenda items are not considered
separately unless a Commissioner so requests. In the event
of such a request, the item is returned to the Regular
Agenda.]
Planning and Zoning Commission Special Meeting Agenda
May 19, 2009 Page I
7. Public Hearings [Limit comments to 5 minutes. Those who have signed in will be given
the first opportunity to speak]
A. Unfinished Business Items requiring a Public Hearing — None
B. New Business Items requiring a Public Hearing -
Resolution 2990-14 of the Seward Planning and Zoning Commission,
granting Jim Hoeffler a variance from Seward City Code Chapter 15.25
Floodplain Management to construct an aircraft hanger on Lot SA, Block
200 Seward Airport ........................................................................ Page 3
8. Unfinished Business —
A. Resolution 2009-12, Supporting Council Recommendation that the State of
Alaska Revoke Its March 20, 2006 Navigability Determination as to Salmon
Creek, Fourth of July Creek and Sawmill Creek, All Located in the Vicinity of
Seward, Alaska......................................................................................... Page 19
9. New Business —
A. Schedule Title 15 Revision Work Sessions ............................................... Page 39
* B. April 21, 2009 Special Meeting Minutes ................................................... Page 41
10. Informational Items and Reports (No action required) -None
11. Commission Comments
12. Citizens' Comments [Limit to 5 minutes per individual —Each individual has one opportunity to speak)
13. Commissions and Administration Response to Citizens' Comments
14. Adjournment
Planning and Zoning Commission
May 19, 2009
E
Special Meeting Agenda
Page 2
Sponsored by: Applicant
CITY OF SEWARD, ALASKA
PLANNING AND ZONING COMMISSION
RESOLUTION 2009-14
A RESOLUTION OF THE SEWARD PLANNING AND ZONING
COMMISSION, GRANTING JIM HOEFFLER A VARIANCE FROM
SEWARD CITY CODE CHAPTER 15.25 FLOODPLAIN MANAGEMENT
TO CONSTRUCT AN AIRCRAFT HANGER ON LOT 5A, BLOCK 200
SEWARD AIRPORT
WHEREAS, applicant Jim Hoeffler proposes to construct an aircraft hanger on Lot 5A,
Block 200, Seward Airport which he has leased from the State of Alaska, Department of
Transportation; and
WHEREAS, Lot 5A, Seward Airport is located within a designated 100-year floodplain as
identified on the Federal Emergency Management Agency's (FEMA) Flood Insurance Rate Map
(FIRM); and
WHEREAS, according to FIRM No. 020012- 3255A, dated May 19, 1981, the Base Flood
Elevation for Lot 5A, Seward Airport is 21.0 feet; and
WHEREAS, based on information from previous site plans prepared by a registered land
surveyor and studies completed by DOWL engineers for the Seward Airport Master Plan, the
existing elevation of the proposed building site is approximately 18.0 which would place the lowest
floor of the building approximately 3 feet below the base flood elevation; and
WHEREAS, the City of Seward Floodplain Management Ordinance, Seward City Code
Section 15.25.050.B.2.a&b, requires that the lowest floor of non-residential construction be elevated
to the base flood elevation, or be flood -proofed so that below the base flood level the structure is
watertight with walls substantially impermeable to the passage of water; or be constructed with
components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and
WHEREAS, the applicant would be unable to access the structure for its designed use if the
structure were to be elevated above the base flood elevation; and
WHEREAS, the applicant has applied to the Planning and Zoning Commission for a
variance from the City of Seward Floodplain Management Ordinance to construct the proposed
aircraft hanger's lowest floor at a grade less than 1 foot above the adjoining airport apron elevation
of approximately 18 feet; and
WHEREAS, the applicant has applied to the Planning and Zoning Commission for a
variance from the City of Seward Floodplain Management Ordinance 15.25.050.B.2a to construct the
3
Seward Planning and Zoning Commission
Resolution No. 2009-14
Page 2 of 4
proposed aircraft hanger without being flood -proofed with watertight walls substantially
impermeable to the passage of water; and
WHEREAS, the applicant has applied to the Planning and Zoning Commission for a
variance from the City of Seward Floodplain Management Ordinance 15.25.050.B.2b to construct
the proposed aircraft hanger without additional components capable of resisting hydrostatic and
hydrodynamic loads and effects of buoyancy; and
WHEREAS, the public notification process was complied with and the appropriate public
hearing as required by Seward City Code § 15.01.040 was conducted by the Commission on May 19,
2009.
NOW, THEREFORE, BE IT RESOLVED by the Seward Planning and Zoning
Commission that:
Section 1. In accordance with Seward City Code Section 15.25.060 the Seward Planning and
Zoning Commission has considered all of the following factors:
a. The danger that materials may be swept onto other lands to the injury of others;
b. The danger to life and property due to flooding or erosion damage;
C. The susceptibility of the proposed facility and its contents to flood damage and the
effect of such damage on the individual owner;
d. The importance of the services provided by the proposed facility to the community;
e. The necessity to the facility of a waterfront location, where applicable; Not
applicable.
f. The availability of alternative locations for the proposed use which are not subject to
flooding or erosion damage;
g. The compatibility of the proposed use with the existing and anticipated development;
h. The relationship of the proposed use to the comprehensive plan and floodplain
management program for that area;
i. The safety of access to the property in times of flood for ordinary and emergency
vehicles;
j. The expected heights, velocity, duration, rate of rise, and sediment transport of the
flood waters and the effects of wave action, if applicable, expected at the site;
k. The costs of providing governmental services during and after flood conditions,
including maintenance and repair of public utilities and facilities such as sewer, gas,
electrical, and water systems, and streets and bridges.
Section 2. The Commission makes the following specific findings regarding the Jim
Hoeffler floodplain variance request:
4
Seward Planning and Zoning Commission
Resolution No. 2009-14
Page 3 of 4
1. The majority of the Seward Airport and surrounding property is located within the
floodplain or floodway. Since the applicant's proposed aircraft hanger is dependent upon an airport
location, there are no other feasible locations for the structure which are not located within the
floodplain.
2. Failure to grant the variance would result in exceptional hardship to the applicant for the
following reason: It is not feasible to elevate the structure at or above the base flood elevation. To
do so would not allow the aircraft hanger to be utilized for its intended purpose.
3. Granting the requested variance will not result in damage or hardship for this or any other
property.
4. The proposed use is compatible with the surrounding industrial land uses and existing
similar facilities.
5. The applicant has established good and sufficient cause for this Commission to find
pursuant to SCC§15.25.060(b)(5) that the granting of a variance will not result in increased flood
heights, additional threats to public safety, extraordinary public expense, create nuisances, cause
fraud on or victimization of the public or conflict with existing laws.
6. Because the proposed variance has low damage potential and otherwise conforms to all
variance criteria in SCC§ I 5.25.060(a) & (b), the Commission finds this application to be one of
those "very limited circumstances" described at SCC§I5.25.060(b)(7) for granting this floodplain
variance on Lot 5A, Block 200, Seward Airport.
7. Considering all of the above findings, the Commission hereby determines that the
requested variance to construct the aircraft hanger on Lot 5A, Block 200, Seward Airport, at an
elevation of 18 feet which is approx 3 feet below the base flood elevation, is the minimum necessary
to afford relief.
Section 3. Based on the above findings, the Planning and Zoning Commission hereby grants
Jim Hoeffler a floodplain variance from SCC§15.25.050.B.2. allowing the lowest floor of the
proposed aircraft hanger to be constructed up to three (3) feet below the base flood elevation of 21.0
feet.
Section 4. Based on the above findings, the Planning and Zoning Commission hereby grants
Jim Hoeffler a floodplain variance from SCC§15.25.050B2. allowing the aircraft hanger to be
constructed without being flood -proofed with watertight walls substantially impermeable to the
passage of water.
Section 5. Base on the above findings, the Planning and Zoning Commission hereby grants
Seward Planning and Zoning Commission
Resolution No. 2009-14
Page 4 of 4
Jim Hoeffler a floodplain variance from SCC§15.25.050.B2 allowing the aircraft hanger to be
constructed without additional components capable of resisting hydrostatic and hydrodynamic loads
and effects of buoyancy.
Section 6. Base on the above findings, the Planning and Zoning Commission finds the
proposed use, subject to the following condition satisfies the criteria for granting a floodplain
variance, and authorizes the administration to issue a Floodplain Variance Permit to Jim Hoeffler
subject to the following condition
1. Submit to the City of Seward a copy of the required elevation certificate upon
completion of the proposed aircraft hanger.
Section 7. In accordance with SCC§15.25.060.11.8, the Community Development Office
must give written notice to the applicant that the structure will be permitted to be built with a lowest
floor elevation below the base flood elevation and that the cost of flood insurance will be
commensurate with the increased risk resulting from the reduced lowest floor elevation. This
variance to construct the structure below the Base Flood Elevation will result in increased flood
insurance premiums rates as high as $25.00 per $100.00 of coverage.
Section 8. This resolution shall take effect ten (10) days following its adoption.
PASSED AND APPROVED by the Seward Planning and Zoning Commission this 191h day
of May 2009.
THE CITY OF SEWARD, ALASKA
Sandie Roach', Chair
AYES:
NOES:
ABSENT:
ABSTAIN:
VACANT: One
ATTEST: (City Seal)
Jean Lewis, CMC
City Clerk
n.
P&Z Agenda Statement
Meeting Date: May 19, 2009
Through: Christy Terry, Community Development Director
From: Donna Glenz, Associate Plannery
Agenda Item: Jim Hoeffler's Request for Variance to Floodplain Management Standards
SCC Chapter 15.25 on Lot 5A, Seward Airport
Background:
Jim Hoeffler applied for a building permit to construct an aircraft hanger on Lot 5A, Block 200,
Seward Airport Lease Tracts. During the permit review process it was identified that the parcel is
located within a Federal Emergency Management Agency (FEMA) mapped 100-year floodplain
(Zone A3).
The City's Floodplain Management Ordinance (Chapter 15.25) guides development in the floodplain
in order to lessen the economic loss caused by impending flood events. Provisions of the ordinance
Section 15.25.050 General Standards provide specific construction standards for development in the
floodplain. Section 15.25.050(B)(2) requires that nonresidential construction must have the lowest
floor, including basement, elevated to the level of the base flood elevation; OR, together with
attendant utility and sanitary facilities, shall:
a. Be flood -proofed so that below the base flood level the structure is watertight with
walls substantially impermeable to the passage of water. The applicant is unable to
meet this requirement, noting that an aircraft hanger cannot be constructed to be
watertight The applicant is requesting a variance
b. Have structural components capable of resisting hydrostatic and hydrodynamic loads
and effects of buoyancy. The applicant is requesting a variance from the
requirement of adding additional structural components.
C. Be certified by a registered professional engineer or architect that the standards of
this subsection are satisfied. Stamped engineered plans have been submitted to the
City of Seward Building Department
d. Nonresidential structures that are elevated, not flood proofed, must meet the same
standard for space below the lowest floor as described in SCC§15.25.050 B.l.b.
Item d. is not applicable, the aircraft hanger will not be elevated, the lowest floor
will be at grade.
e. Applicants flood proofing nonresidential buildings shall be notified that flood
insurance premiums will be based on rates that are one foot below the flood proofed
level. The applicant has been notified of the increased flood insurance premiums
and shall again be notified through the variance process.
Based on FEMA's Flood Insurance Rate Map (FIRM), the Base Flood Elevation for the applicants
1
7
lease parcel is 21.0 feet. The applicant has applied to construct the proposed aircraft hanger at no
more than one (1) foot above the adjoining airport apron which according to previously submitted
surveys and studies completed by DOWL engineers for the Seward Airport Master Plan, the
elevation of the proposed development area is approximately 18 feet. The applicant has also
submitted building plans that do not plan for wet flood proofing by adding flood vents.
Variance Renuested:
The applicant is requesting a variance from Seward City Code§ I 5.25.050(B)(2)(a)(b) and (d). in
order to construct the proposed aircraft hanger's lowest floor approximately 3 feet below the base
flood elevation.
CONDITIONS AND FINDINGS FOR GRANTING A VARIANCE
SCC&15.25.060. Appeal and Variance Procedure
(b) Conditions for variances
(1) Generally, the only condition under which a variance from the elevation standard maybe issued
is for new construction and substantial improvements to be erected on a lot of 1/2 acre or less in size
contiguous to and surrounded by lots with existing structures constructed below the base flood level,
providing subparagraphs (a) through (k) of subsection (a)(4) of this section have been fully
considered. As the lot size increases the technical justification required for issuing the variance
increases.
Review. The requested variance meets this stipulation. The variance request is for construction of a
new hanger on less than a %z acre lot, this lot is contiguous to and surrounded by lots with existing
structures constructed below the base flood level.
The following are the consideration of (a) through (k) of SCC§ 15.25.060(a)(4):
In passing upon such applications, the commission shall consider all technical evaluations, all
relevant factors, standards specified in other sections of this chapter, and:
a. The danger that materials maybe swept onto other lands to the injury of others; There
is no reason to believe that placement of the structure will increase the danger of materials being
swept onto other lands. Staff has consulted with Dan Mahalak, Kenai Peninsula Borough
Hydrologist for his professional opinion. He has stated the area is a low flow velocity area. Mahalak
also noted if the structure were to be built above the Base Flood Elevation the added fill would cause
more problems by creating velocity on neighboring properties and/or increase flood levels in the
area.
b. The danger to life andproperty due to flooding or erosion damage. The past three major
flood events in 1986, 1995 and 2006 did not present any significant threat to life and/or property in
the area of the proposed structure.
2
F
c. The susceptibility of theproposedfacility and its contents to flood damage and the effect
of such damage on the individual owner. The past three major flood events in 1986, 1995 and 2006
did not present any significant threat of flooding to the area.
d. The importance of the services provided by the proposed facility to the community. The
applicant is a licensed aircraft mechanic and has verbally expressed the desire to open an aircraft
maintenance business at the Seward Airport which would provide a service to the community.
e. The necessity to the facility of a waterfront location, where applicable. Not applicable
f. The availability of alternative locations for the proposed use which are not subject to
flooding or erosion damage. The majority of the Seward Airport and surrounding property is
located within the floodplain or floodway. Since an aircraft hanger requires a location near an
airport, there are no other feasible locations for the proposed structure.
g. The compatibility of the proposed use with the existing and anticipated development.
The proposed use is compatible with the surrounding industrial land uses and existing similar
facilities.
h. The relationship of the proposed use to the comprehensive plan and floodplain
management program for that area. The 2020 Comprehensive Plan section 3.8.2 addresses
floodplain development by supporting the participation in the National Flood Insurance Program
(NFIP). Flooding of streams and rivers has historically occurred in Seward and the outlying areas as
most flat lands along the south central Alaskan coast is floodplain. The Resurrection River channels
and the airport erosion need continued attention. There is no evidence that this project would in
anyway increase or hinder the existing flooding issues in the area.
i. The safety of access to the property in times of flood for ordinary and emergency
vehicles. It does not appear the proposed structure will add any safety concerns for standard and/or
emergency vehicles during flood events.
j. The expected heights, velocity, duration, rate of rise, and sediment transport of theflood
waters and the effects of wave action, if applicable, expected at the site. The past three major flood
events in 1986, 1995 and 2006 did not present any significant threat to life and/or property in the area
of the proposed structure.
k. The costs of providing governmental services during and after flood conditions,
including maintenance and repair ofpublic utilities and facilities such as sewer, gas, electrical,
and water systems, and streets and bridges. Electrical utilities are the only governmental services in
the area of the proposed hanger, no increased cost expected.
(2) Variances maybe issued for the reconstruction, rehabilitation, or restoration of structures listed
on the National Register of Historic Places without regard to the procedures set forth in this section.
3
9
Review: Not applicable
(3) Variances shall not be issued within a designated floodway if any increase in flood levels during
the base flood discharge would result.
Review: Not applicable. However it should be noted that the designated floodway is located just
north of the cross wind runway. The main runway is located within the floodway.
(4) Variances shall only be issued upon a determination that the variance is the minimum necessary,
considering the flood hazard, to afford relief.
Review: The majority of the Seward Airport and surrounding property is located within the
floodplain or floodway. Since the proposed aircraft hanger is dependent upon an airport location,
and it is not feasible to elevate the structure above the base flood elevation, the requested variance to
construct the aircraft hanger on Lot 5A, Block 200, Seward Airport at an elevation of 18 feet, which
is approximately 3 feet below the base flood elevation, is the minimum necessary to afford relief.
(5) Variances shall only be issued upon:
a. A showing of good and sufficient cause;
Review. An aircraft hanger is dependent upon an airport location, and it is not feasible to elevate the
structure above the base flood elevation.
b. A determination that failure to grant the variance would result in exceptional hardship to
the applicant;
Review. Failure to grant the variance would result in exceptional hardship to the applicant for the
following reason: It is not feasible to elevate the structure at or above the base flood elevation. To
do so would not allow the aircraft hanger to be utilized for its intended purpose.
C. A determination that the granting of a variance will not result in increased flood heights,
additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or
victimization of the public or conflict with existing local laws or ordinances.
Review. The past three major flood events in 1986, 1995 and 2006 did not present any significant
threat to life and/or property in the area of the proposed structure. There is no indication that
granting the variance will result in increased flood heights, additional threats to public safety, public
expense, create any type of nuisances, or cause fraud on or victimization of the public or conflict
with existing local laws or ordinances.
6) Variances as interpreted in the National Flood Insurance Program are based on the general
zoning law principle that they pertain to a physical piece of property; they are not personal in nature
and do not pertain to the structure, its inhabitants, economic or financial circumstances. They
primarily address small lots in densely populated residential neighborhoods. As such, variances from
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the flood elevations should be quite rare.
Review. This variance is site specific to a physical lot less than the '/2 acre size as required under
15.25.060(6)(1). Granting the variance does not result in a special privilege. Any other lessee with
similar conditions could obtain a similar variance.
(7) Variances may be issued for nonresidential buildings in very limited circumstances to allow a
lesser degree of flood proofing than watertight or dry -flood proofing where it can be determined that
such action will have low damage potential, complies with all other variance criteria except
subsection (b)(1) of this section, and otherwise complies with section 15.25.060(a) and (b).
Review: There is no indication that granting this variance will increase any damage potential to
either the applicant's structure or the surrounding structures. The application complies with all
variance criteria of 15.25.060(a) and (b).
(8) Any applicant to whom a variance is granted shall be given written notice that the structure will
be permitted to be built with a lowest floor elevation below the base flood elevation and that the cost
of flood insurance will be commensurate with the increased risk resulting from the reduced lowest
floor elevation.
Review: Staff has verbally discussed the National Flood Insurance Program with the applicant.
Upon approval of this variance the Community Development Office must give written notice to the
applicant that the structure will be permitted to be built with a lowest floor elevation below the base
flood elevation. Staff is also required to provide written notice that the cost of flood insurance will
be commensurate with the increased risk resulting from the reduced lowest floor elevation. This
variance to construct the structure below the Base Flood Elevation will result in increased flood
insurance premiums rates as high as $25.00 per $100.00 of coverage.
Conditions of the Variances
Upon consideration of the above factors and the purposes of Chapter 15.25 Floodplain Management,
the Commission may attach such conditions to the granting of variances as it deems necessary to
further the purposes of this chapter. Based on the above findings and conclusions, the administration
recommends imposition of the following condition for the floodplain variance permit:
1. Submit to the City of Seward a copy of the required elevation certificate upon completion
of the proposed aircraft hanger.
RECOMMENDATION:
Commission approve Resolution 2009-14, granting Jim Hoeffler a variance from Seward City Code
Chapter 15.25 Floodplain Management to construct an aircraft hanger on Lot 5A, Block 200, Seward
Airport based on the findings and the condition stated within the Resolution.
11
Return to: City of Seward Received By:
Community Development Department Date:
P.O. Box 167
Seward, AK 99664
VARIANCE REQUEST
to SCC 15.25 FLOODPLAIN MANAGEMENT
I. APPLICANT INFORMATION
APPLICANT_ / I �,�t q' �; �7 V1'SE>t i�l� AGENT �✓!6i /
Address Address AC/ ICLC ,
City, State, Zip! 1,1,0"(Ye . / '
City, State, Zip�,—��,__ I'�T
Day Phone � � -/JY ' Fax; Lt�/ 6/ Day Phone\,� 7 `� Fax
* If the applicant or agent is not the owner of record, a letter of authorization for this variance request, signed by the owner, must
be attached.
II. PROJECT LOCATION
Assessor Parcel
Subdivision
Township Range Section___
Lot j 4 Block ��
III. INFORMATION/DOCUMENTATION REQUIRED
Please attach additional pages if there is not sufficient space for your response.
A. Documentation Required:
1. Completed City of Seward Floodplain permit application.
2. As -built or proposed site plan to scale, showing house location and local topography.
3. Building floor plans to scale.
4. A completed Elevation Certificate, FEMA form 81-31.
B. Describe the exact variance requested: ,
n� ) C
/ 1 l ' G i Cp
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C. Describe 'a4 conditions which exist peculiar to this piece roperty that are not applicable to other property in the same
general location:
D. Strict interpretation of the provisions of SCC 15.25 Floodplain Management, would deprive the applicant of rights commonly
enjoyed by other propertifs in the same general locatio#. These rights are: t
Page 1 of 2
E. The described special conditions and circumstances do not result from the actions or the applicant and such conditions and
circumstances do not merely constitute -a monetary hardship�orirtconvenience irlthat:
F. Granting the variance will not result in increased flood height for the following reasons:
ll�
l✓1 F4 `i i v < r
G. Describe t s//us��cepf ilitry of tV--S,70zr-ed
reposed facility and its contents to flood damage and the effect of such damage own the
owner, /A HW� AcltiCgCw- GYj . e-?(r 4(! 1. /•
H. Describgthe availability of alternative locations for the building Wo aA not subject to flooding or erosion damage:
1. Describe the compatibility of the facility w).th thy exiting a�tpticipated development in the area:
r
IV. ADDITIONAL REQUIREMENTS FOR DEVELOPMENT IN FLOODWAYS
For development in floodways, the applicant must submit documentation that this variance will not result in any increase to flood
levels during the base flood, e.g. conveyance calculations and/or step -backwater analysis certified by a registered professional
engineer or architect. The Floodplain Administrator will determine which analysis are required for individuals projects.
V. CERTIFICATION STATEMENT:
The information contained on this form and the attachments are true and complete to the best of my knowledge. I grant
permission for city staff to enter onto the property for the purpose of processing the variance request.
I understand that a City of Seward Floodplain permit is also required and that the granting of a variance does not guarantee
issuance of a City of Seward Floodplain permit. Cost of flood insurance is determined by actuarial risk and will not be modified
by granting o variance.
W kPL v4-,Ivt �s lz� 4
o
ature of plicant or Agent Date
13 Page 2 of 2
Floodplain Variance Request
by Jim Hoeffler N
0 50100 Feet 1 inch = 237.037037 feet Mapping Assistane
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14
Lot 5A
Jim Hoeffler
Approximate Lease
Lot Location
P & Z Resolution 2009-14
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Floodplain Variance Request
by Jim Hoeffler
Lot 5A
Jim Hoeffler
Approximate Lease
Lot Location
1986 Historic Flooding
N Resolution 2009-14
0 135 270 Feet
I i I
Planning and Zoning Mtg.
' •0-pping assistance
17 ' Alaska Map Co. Date: May 19, 2009
Sponsored by : Administration
CITY OF SEWARD, ALASKA
PLANNING AND ZONING COMMISSION
RESOLUTION 2009-12
A RESOLUTION SUPPORTING A COUNCIL RECOMMENDATION
THAT THE STATE OF ALASKA REVOKE ITS MARCH 20, 2006
NAVIGABILITY DETERMINATION AS TO SALMON CREEK, FOURTH
OF JULY CREEK AND SAWMILL CREEK, ALL LOCATED IN THE
VICINITY OF SEWARD, ALASKA
WHEREAS, The State of Alaska Department of Natural Resources has changed
positions on the issue of navigability on several occasions; and
WHEREAS, The Seward Bear Creek Flood Service Area Board, the Kenai Peninsula
Borough and the City of Seward are working to lessen impacts to flooding in the Seward area;
and
WHEREAS, The State of Alaska Department of Natural Resources (DNR) charges a
royalty fee on all gravel materials removed from these areas; and
WHEREAS, This royalty fee makes flood control projects more expensive and cost
prohibitive; and
WHEREAS, The Bureau of Land Management recommends that all water bodies, with
the exception of Bear Lake, be considered administratively non -navigable in TIN R. 1E, T. 1N
R. 1 W, T.2N R.l W, T.1 SR. 1 W, T. IS R.] E; and
WHEREAS, Alaska DNR policy interprets the Daniel Ball test as requiring the water
body to be usable as a highway for the transportation of people or goods; and
WHEREAS, the Kenai Peninsula Borough Flood Plain Task Force voted unanimously
on April 1, 2009 in support of the State of Alaska revoking the navigability determination on
Salmon Creek, Fourth of July Creek and Sawmill Creek.
NOW THEREFORE, BE IT RESOLVED BY THE PLANNING AND ZONING
COMMISSION that:
Section 1. Council support the State of Alaska's revoking its March 20, 2006 navigability
determination as to Salmon Creek, Fourth of July Creek and Sawmill Creek, all located in the
vicinity of Seward, Alaska.
Section 2. That Salmon Creek, Fourth of July Creek and Sawmill Creek are not
navigable, as defined by and in to the Daniel Ball test, best survey practices, and are not subject
to the submerged land act, which, according to State of Alaska policy on Navigability, on the
website http://dnr.alaska.gov/mlw/nav/nav_policy.htm, is the accepted and correct standard for
determining navigability.
Section 3. The March 20, 2006 Determination of Navigability refers to extreme
19
Planning and Zoning Commission
Resolution 2009-12
Page 2 of 2
gradients as conclusive evidence of non -navigability on Spruce Creek. However, all of the creeks
listed as navigable in the 2006 determination contain reaches of these same "extreme" gradients
as expressed in percent slope derived from LIDAR dataset 2006 and pertinent cross sections.
Section 4. This resolution shall take effect immediately upon its adoption.
PASSED AND APPROVED by the Planning and Zoning Commission this 19" day
of May, 2009.
AYES:
NOES:
ABSENT:
ABSTAIN:
VACANT:
ATTEST:
Jean Lewis
City Clerk, CMC
THE CITY OF SEWARD, ALASKA
Sandie Roach' Chair
(City Seal)
20
P&Z Agenda Statement
Date: May 19, 2009
To: Planning and Zoning Commission
From: Community Development Director Christy Terry
Agenda Item: A RESOLUTION SUPPORTING A COUNCIL
RECOMMENDATION THAT THE STATE OF ALASKA REVOKE ITS
MARCH 20, 2006 NAVIGABILITY DETERMINATION AS TO SALMON
CREEK, FOURTH OF JULY CREEK AND SAWMILL CREEK, ALL
LOCATED IN THE VICINITY OF SEWARD, ALASKA
BACKGROUND & JUSTIFICATION:
The Kenai Peninsula Borough Flood Plain Task Force was formed by the Borough Assembly on
January 20, 2009 to examine possible solutions regarding flood plain issues for the Seward -Bear
Creek Flood Service Area. The Task Force has passed two resolutions to address important
flood mitigation items and has requested legislative support from the local boards, commissions
and City Councils. If approved, these resolutions will be sent to the State of Alaska for their
consideration. Planning and Zoning Resolution 2009-12 is in support of Council's adopting the
recommendations of the Task Force.
The Stale of Alaska Department of Natural Resources has changed positions on the issue of navigability
on several occasions. The Seward Bear Creek Flood Service Area Board, the Kenai Peninsula Borough
and the City of Seward are working to lessen impacts to flooding in the Seward area. Additionally, the
State of Alaska Department of Natural Resources (DNR) charges a royalty fee on all gravel materials
removed from these areas which makes flood control projects more expensive and cost prohibitive.
Currently, the Bureau of Land Management recommends that all water bodies, with the exception of Bear
Lake, be considered administratively non -navigable in T.1N R. IE, T. 1N R. 1W, T.2N RAW, T.1SR.
1 W, T. 1 S R.I E. Also, Alaska DNR policy interprets the Daniel Ball test as requiring the water body to
be usable as a highway for the transportation of people or goods. There are three creeks in our area that
have been recently reclassified as navigable that should be taken off the list.
Because of the above recommendations and determinations the Kenai Peninsula Borough Flood Plain
Task Force voted unanimously on April 1, 2009 in support of the State of Alaska revoking the
navigability determination on Salmon Creek, Fourth of July Creek and Sawmill Creek.
CONSISTENCY CHECKLIST:
Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans,
Land Use Plans, Strategic Plan and City Council Rules of Procedures.
Other:
RECOMMENDATION:
Approve Resolution 2009-12, SUPPORTING A COUNCIL RECOMMENDATION THAT THE STATE
OF ALASKA REVOKE ITS MARCII 20, 2006 NAVIGABILITY DETERMINATION AS TO
SALMON CREEK, FOURTH OF JULY CREEK AND SAWMILL CREEK, ALL LOCATED IN THE
VICINITY OF SEWARD, ALASKA.
21
Memorandum
Date: May 19, 2009
To: Planning and Zoning Commission
Subject: Maps for Resolution 1009-12
At the May7, 2009 P & Z meeting, the Commission requested a full size map with
ownership of the Creek areas. This map will be displayed at the May 19, 2009 P & Z
Special meeting.
22
Alaska Department of Natural Resources
State Policy on Navigability
Table of Contents:
• I. Identifying and Protecting State Title to the Beds of Navi ability
• Riparian Rights and Statute of Limitations
• Navigability Criteria
• Navigability Criteria Disputes
• Identification of Navigable Waters
• Navigable Waters within Pre -Statehood Federal Withdrawals
• Navigable Waters within ANILCA Conservation System Units
• II. Leval and Policy Guidelines Governine Manaeement of
Submerged Lands and Public Waters
• Public Trust Doctrine
• Public Waters
• Boundaries of Navigable Waters
• Conclusion
Policies and Procedures on Ownership And
Management of Navigable and Public Waters
June 18,1996 State ownership of the beds of navigable waters is an inherent attribute of state sovereignty protected by the
United States Constitution. Utah v. United States, 482 U.S. 193 (1987). Under the doctrine, all states enter the Union on an
equal footing with respect to sovereign rights and powers, title to the beds of navigable waters in Alaska vested in the newly
formed State of Alaska in 1959. In addition, under the Alaska Constitution and the public trust doctrine, all waters in the
state are held and managed by the state in trust for the use of the people, regardless of navigability and ownership of the
submerged lands under the Equal Footing Doctrine.
The purpose of this paper is to describe the State of Alaska's policies and procedures for identifying and protecting the state's
title to the beds of navigable waters. In addition, this paper outlines the legal and policy considerations, which guide the
ownership and management of submerged lands and public waters.
L IDENTIFYING AND PROTECTING STATE TITLE TO THE BEDS OF NAVIGABLE WATERS
Identification and management of the beds of navigable waters is an important policy of the State of Alaska. In 1980, the
state established a comprehensive navigability program to respond to federal land conveyances and land management
State Policy on Navigability -1- 07/04/99
23
activities under the Alaska Statehood act, the Alaska Native Claims Settlement Act (ANCSA), and the Alaska National
Interest Lands Conservation Act (ANIILCA). Pursuant to the provisions of those acts, the federal government has issued
navigability determinations for thousands of lakes, rivers, and streams throughout the state in an effort to determine whether
the state or federal government owns the submerged lands. Navigability determinations are also made prior to many state
land disposals to insure that adequate public use easements are reserved.
The basic purpose of the state's program is to protect the public rights associated with navigable waters, including, in
particular, the state's title to the submerged lands. Because state and native land selections and federal conservation units
blanket the state, navigability questions have arisen for rivers, lakes, and streams throughout Alaska. The navigability of
many of those water bodies has already been established. There are hundreds of others, however, where navigability is not
yet determined.
To help resolve these navigability disputes, a major goal of the state's navigability program is to identify the proper criteria
for determining title navigability in Alaska and to gather sufficient information about the uses and physical characteristics of
individual water bodies so that accurate navigability determinations can be made as disputes arise. Other important aspects
of the program include monitoring federal land conveyance and management programs to identify particular navigability
disputes, seeking cooperative resolution of navigability problems through negotiations and legislation, and preparing for
statewide navigability litigation.
RIPARIAN RIGHTS AND STATUTE OF LIMITATIONS
Disputes over ownership of submerged lands in Alaska have arisen under a variety of circumstances. The principal source of
the disputes in Alaska is the survey and acreage accounting system used by the federal government for conveying land to the
state and native corporations.
The standard procedures for surveying and conveying federal land are found in the Manual of Instructions for the Survey of
the Public Lands of the United States, generally known as the BLM Manual of Surveying Instructions. Under those
procedures, consistently used in every public land state except Alaska, only uplands are surveyed and conveyed in fulfillment
of acreage entitlements, not submerged lands. The survey rules require that all lakes 50 acres or larger, and rivers and
streams three chains (198 feet) in width or wider, regardless of navigability, be meandered and segregated (excluded) from
the surveyed public lands. Only the surveyed uplands are conveyed. The acreage of meandered rivers, lakes, and streams is
not included in computing the amount of land involved in the conveyance.
In Alaska, however, the federal government had not consistently followed these survey rules. Until 1983, the federal
government treated submerged lands the same as uplands. All bodies of water that were considered non -navigable by the
federal government, regardless of size, were surveyed as though they were uplands and the acreage of submerged lands was
charged against the total acreage entitlement.
Because of these conveyance procedures, the navigability of water bodies in Alaska has been an issue of contention since the
enactment of the Alaska Statehood Act and ANCSA. In addition to the problems caused by a lack of information about many
water bodies, the situation was exacerbated by the narrow definition of navigability used by the federal government.
Hundreds of rivers, lakes, and streams considered navigable by the state were determined non -navigable by the federal
government.
In 1983, following years of negotiations, lawsuits and legislative attempts to solve the navigability problems created by the
unusual survey and conveyance procedures in Alaska, the State of Alaska, the United States Department of the Interior and
the Alaska Federation of Natives (AFN) agreed that the standard rules of survey should be followed for land conveyances in
Alaska. The effect of that decision was to treat .Alaska surveys and land conveyances like federal land surveys and
conveyances in other states. The recipients of conveyances from the federal government are charged only for the amount of
public land that is calculated by the survey, which does not include the areas of meandered rivers, lakes and streams.
The use of these survey procedures has eliminated many of the problems associated with the federal land conveyance
programs in Alaska. Submerged lands are no longer being conveyed to fulfill acreage entitlements. With the exception of
lakes smaller than 50 acres and streams narrower than 198 feet, navigability determinations are no longer being made prior to
federal land conveyances. Determinations of ownership of submerged lands can be put off until a natural resource use or
conflict requires resolution, such as issuance of an oil and gas lease, mining claim, or a gravel sate.
Through the joint efforts of the State of Alaska, AFN, and the Department of the Interior, the 1983 decision to use the
standard survey procedures for land conveyances in Alaska was legislatively approved in August 1988 when the United
States Congress passed legislation (94 Stat. 2430) amending Section 901 of the Alaska National Interest Lands Conservation
Act, codified at 43 U.S.C. 1631. The 1988 amendment, sometimes referred to as the Alaska Submerged Lands Act, requires
State Policy on Navigability -2- 07,104/99
24
that the standard rules of survey in the BLM Manual of Surveying Instructions be used for all federal surveys under the
Alaska Statehood Act and ANCSA. The 1988 amendment also repealed the Section 901 statute of limitations that would
have required the state to file a lawsuit within a very short period of time in order to preserve its title to the beds of navigable
waters conveyed to native corporations by the federal government as a result of erroneous navigability determinations, poor
maps, surveys or whatever.
Even with this legislation, a major problem concerning navigability decisions made by the federal government under the old
system remains unresolved. At issue are the hundreds of erroneous non -navigability decisions and the resulting submerged
land conveyances made to ANCSA corporations in previous years. In addition, to comply with the meandering requirements
of the BLM Survey Manual, the federal government is still required to make navigability determinations for lakes smaller
than 50 acres and rivers or streams narrower than 198 feet in width to determine if these waters must be meandered.
10EXICK13IIII&WORilI31RF1
The greatest hurdle to overcome in the state's efforts to identify and manage navigable waters has been the long- standing
differences of opinion between the State of Alaska and the United States regarding the application of the test for determining
title navigability. Navigability is a question of fact, not a simple legal formula. Variations in water body use that result from
different physical characteristics and transportation methods and needs must be taken into account. There are many legal
precedents for determining navigability in other states based upon the particular facts presented in those cases. In Alaska,
though, we are just beginning to get the final court decisions that are necessary to provide legal guidance for accurate
navigability determinations.
The physical characteristics and uses of a water body used by the state for asserting navigability, commonly referred to as
navigability "criteria", are based upon legal principles that have been established by the federal courts. These criteria are
applied to rivers, lakes, and streams throughout the state and take into account Alaska's geography, economy, customary
modes of water -based transportation, and the particular physical characteristics of the water body under consideration.
The federal test for determining navigability was established over a hundred years ago. In the landmark decision of The
Daniel Ball, 77 U.S. (19 Wall.) 557, 563, (1870), the Supreme Court declared:
Those rivers must be regarded as public navigable rivers in law, which are navigable in fact. And they are navigable
in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways of commerce,
over which trade and travel are or may be conducted in the customary modes of trade and travel on water.
Although The Daniel Ball test is accepted as the correct standard for determining navigability, there has been a lot of
disagreement over application of many of the terms and phrases used in The Daniel Ball test to the specific uses of Alaska's
lakes, rivers and streams. The State of Alaska uses the following interpretation of that test as the basis for its navigability
program.
The Water body Must Be Usable As a Highway For the Transportation of People or Goods. Interpreting the requirements
that navigable water bodies be used or usable as "highways of commerce", the courts have ruled that the central theme of title
navigability is that the water body be capable of use as a highway which people can use for transporting goods or for travel.
Neither the type of goods being transported nor the purpose of the travel is important in determining navigability.
Transportation on water associated with recognized commercial activities in Alaska, such as mining, timber harvesting, and
trapping is, evidence of navigability. The use of water bodies for transportation in connection with natural resources
exploration or development, government land management, management of fish and game resources, or scientific research is
also evidence of navigability. Travel by local residents or visitors for the purpose of hunting, fishing, and trapping or as a
means of access to an area can be used to establish navigability. The same holds for recreational transportation, including
personal travel and professionally guided trips.
Waters Which Are Capable of Being Used For Transporting Persons and Goods, Although Not Actually Used, Are
Navigable. It is not necessary that a water body be actually used for transportation to be found navigable. It is enough that it
is susceptible, or physically capable, of being used. Whether a water body is susceptible of use for transportation depends
upon the physical characteristics of the watercourse such as length, width, depth, and, for a river, current and gradient. if
those physical characteristics demonstrate that a water body could be used for the transportation of persons or goods, it is
legally navigable.
The susceptibility element of title navigability is very important for the identification of navigable water bodies in Alaska.
Because of Alaska's sparse population and lack of development, there are hundreds of remote rivers, lakes, and streams
where there is little or no evidence of actual use. Because of their physical characteristics, however, many of these remote
water bodies could be used for transporting people or goods if there was a need. Under these circumstances, they are
State Policy on Navigability -3- 07/04/99
25
considered legally navigable
Transportation Must Be Conducted In the Customary Modes of Trade and Travel On Water. A finding of navigability does
not require use or capability of use by any particular mode of transportation, only that the mode be customary. The courts
have held that customary modes of transportation on water include all recognized types and methods of water carriage.
Unusual or freak contrivances adapted for use only on a particular stream are excluded. Customary modes of trade and travel
on water in Alaska include, but are not limited to, barges, stows, tunnel boats, flat -bottom boats, poling boats, river boats,
boats propelled by jet units, inflatable boats, and canoes. In places suitable for harvesting timber, the flotation of logs is
considered a customary mode of transportation.
The mode of travel must also be primarily waterbome. Boats which may be taken for short, overland portages qualify. The
courts have ruled that the use of a lake for takeoffs and landings by tloatplanes is insufficient, in and of itself, to establish
navigability.
Without expressly rejecting the claim, at least two court decisions in Alaska have suggested that winter travel on the surface
of a frozen river or lake is probably not evidence of navigability. The rivers involved in the two adjudicated cases were both
found navigable based upon summer use by boats, however, and it appears likely that most water bodies in Alaska that are
used as highways in winter can also be traveled by at least small boats in the summer. Because of this, the state need not rely
upon winter travel to support navigability.
Waters Must Be Navigable In Their Natural and Ordinary Condition. A water body, which can be used for transportation
only because of substantial man-made improvements to the condition of the watercourse, is not navigable for title purposes.
However, if transportation does or could occur on the water body even without the improvements and the improvements
would only make transportation easier or faster or possible for larger boats (e.g., dredging), it is still considered navigable for
title purposes.
The presence of physical obstructions to navigation (rapids, falls, log -jams, etc.) does not render a waterway non- navigable
if the obstruction can be navigated despite the difficulties or if the obstruction can be avoided by other means, such as
portaging, lining, or poling. A water body is also navigable even if seasonal fluctuations do not allow it to be navigated at all
times of the year. However, a water body, which is only navigable at infrequent and unpredictable periods of high water, is
not normally considered navigable. The fact that a water body may be frozen for several months of the year does not render
it non -navigable if it is navigable in its unfrozen condition.
Title Navigability Is Determined As Of The Date Of Statehood. To be considered navigable for title purposes, the water
body must have been navigable in 1959 (when Alaska became a state). This element of the navigability test focuses on the
physical characteristics of the water body and whether those characteristics have changed significantly since statehood. Most
water bodies have not physically changed enough since statehood to alter their navigability. Assuming there have been no
significant changes in the physical characteristics of the water body, a water body that is navigable today would be
considered legally navigable in 1959 as well. Exceptions might include the creation, by natural or man-made causes after
statehood, of a totally new lake, river, or canal now used for navigation. Such a water body would not be considered
navigable for title purposes. Conversely, a water body which was navigable in 1959 but, because of natural or man-made
physical changes, is no longer navigable in fact would still be considered navigable for title purposes.
NAVIGABILITY CRITERIA DISPUTES
Because of differing legal interpretations of court navigability decisions, several aspects of the criteria used by the state to
determine navigability have been disputed by the federal government. As a direct result of these criteria disputes, many water
bodies considered navigable by the state have been determined non -navigable by the federal government.
The major criteria dispute has been over the type or purpose of the transportation required to establish navigability. The
federal government has asserted that a waterway must be used, or capable of use, for transporting commerce to be considered
navigable. Other, "noncommercial" transportation uses are not considered sufficient to establish navigability. In this context,
the federal government has claimed that the only relevant "commercial" transportation is the distribution of goods for sale or
barter, or the transportation for hire of people or things. The federal government has admitted that professionally guided
transportation on Alaska's rivers, lakes and streams constitutes commerce, but nevertheless has argued that the waters are not
being used as a navigable "highway" when recreation is involved, but rather more as an amusement park. The federal
government has therefore claimed that waters used only for commercial recreation are legally nonnavigable even though they
may be navigable in fact.
Through the work of the state's navigability program, this definition has been repeatedly rejected by the courts, most recently
in the Gulkana River case. Alaska v. United States, 662 F.Supp.455 (D.Alaska 1986), affirmed sub nom. Alaska v. Ahtna,
State Policy on Navigability 4- 07/04/99
0
Inc., 891 F.2d 1401 (9th Cir. 1989). Applying the correct definition of navigability, many of the submerged lands that the
federal government attempted to convey to ANCSA corporations should have been recognized as belonging to the state. The
state appealed many conveyances to protect its title. As occurred in the Kandik-Nation Rivers appeal, Appeal of Doyon, 86
I.D. 692 (ANCAB 1979), Alaska Native Corporations also found it necessary to challenge erroneous federal determinations
of non -navigability to insure they would not be deprived of any portion of their entitlement by being charged for submerged
land owned by the state.
The federal government has also argued that aluminum boats, boats propelled by jet units, inflatable boats, and canoes are not
customary modes of travel for the purpose of determining navigability in Alaska. As a result, many water bodies navigated
by these types of watercraft have been found legally non -navigable by the federal government. The claim is that these boats
represent post -statehood technological advances, are too small to be considered "commercial", or that most "commercial" use
of the watercraft developed after statehood.
Another navigability dispute involves remote, isolated lakes. The federal government has found many of these lakes legally
non -navigable, even though they are physically capable of being navigated. The federal government's contention is that a
navigable connection to another area is necessary to make travel on a remote lake worthwhile. Otherwise, the federal
government views the lack of development in the area around the isolated lake as an indication that the lake will never be
used for commercial transportation.
To resolve these navigability criteria disputes, the state has actively pursued a limited number of court cases challenging
particular findings of non -navigability by the federal government. With the sole exception of floatplanes, the courts have
agreed with the navigability criteria presented by the State of Alaska and have rejected the limitations suggested by the
federal government. These cases include:
Gulkana River. In this case, both in the U.S. District Court and on appeal to the U.S. Court of Appeals, the federal courts
rejected the federal government's restrictive interpretation of the phrase " highway of commerce" in the title navigability test.
The federal district court stated that to demonstrate navigability, it is only necessary to show that the water body is physically
capable of "the most basic form of commercial use: the transportation of people or goods." Because the Gulkana River can
be used for the transportation of people or goods, the Gulkana River was found navigable. Alaska v. United States, 662
F.Supp.455 (D.Alaska 1987). On appeal, the court of appeals affirmed the district court's finding of navigability. Alaska v.
Ahtna, Inc., 892 F.2d 1401 (9th Cir. 1989). The court of appeals found that the modem use of the Gulkana River for guided
hunting, fishing, and sightseeing trips is a commercial use and, since the physical characteristics of the river have not
significantly changed since 1959, provides conclusive evidence that the river was susceptible of commercial use at statehood.
The court also found that modem inflatable rafts can be used to establish navigability. In April 1990, the United States
Supreme court denied a request by Ahtna, Inc. to reconsider and overturn the court of appeals decision. The Gulkana River
precedent is now binding on all future navigability determinations in Alaska.
Kandik and Nation Rivers. In this administrative appeal, the State of Alaska and Doyon Limited, an ANCSA regional
corporation, successfully established that the use or susceptibility of use of a river or stream by an 18-24 foot wooden
riverboat capable of carrying at least 1,000 pounds of gear or supplies is sufficient to establish navigability. Based upon the
use of these types of boats for the transportation of goods and supplies by fur trappers, as well as extensive historic and
contemporary canoe use, the court found the Kandik and Nation rivers, in Interior Alaska, navigable. Appeal of Doyon, 86
I.D.692 (ANCAB 1979).
Alagnak River. In this federal district court case, the Alagnak River, the Nonvianuk River, Kukaklek Lake and Nonvianuk
Lake were all found navigable. These interconnected waterbodies are located in the Bristol Bay region of Alaska, south of
Lake Iliamna. Their primary transportation use is for commercially guided hunting, fishing, and sightseeing and for
government research and management. They also serve as a means of access for local residents to their homes and to the
surrounding areas for subsistence hunting and fishing. After several years of litigation, the federal government conceded that
these rivers and lakes are navigable. Alaska v. United States, No. 82-201 (D.Alaska Feb. 2, 1985).
Matanuska River. The recommended decision in this administrative appeal agreed with the State of Alaska's position that
post -statehood commercial river rafting operations are sufficient to establish navigability. Based upon that type of use, the
administrative law judge who heard the case recommended that the Matanuska River, in Southcentral Alaska, be found
navigable. The Secretary of Interior, over the state's objections, assumed jurisdiction over the case and stayed
implementation of the recommended decision. No action has been taken in the case since that time. Appeal of Alaska, No.
82-1133 (IBLA Rec. Decision Aug. 18, 1983)
Slopbucket Lake. The state claimed that the extensive use of floatplanes on Slopbucket Lake, a twenty acre lake adjacent to
Lake Iliamna, was sufficient to establish navigability. The federal courts rejected this view. The courts reasoned that
floatplanes do not use the lake as a navigable highway; they just take off and land there. Alaska v. United States, 754 F.2d
851 (9th Cir.) cen denied, 106 S. Ct. 333 (1985).
State Policy on Navigability -5- 07/04/99
27
IDENTIFICATION OF NAVIGABLE WATERS
Even if the criteria for determining navigability in Alaska were totally agreed upon, it still would be difficult to prepare a
complete list of all of the navigable lakes, rivers, and streams in the state. Much of Alaska has not yet been surveyed and
many maps are inaccurate and out-of-date. It is an immense and complex task simply to identify and locate all of the
thousands of named and unnamed lakes, rivers, and streams in the state which might be considered navigable. Furthermore,
once a potentially navigable lake, river, or stream has been identified, detailed information about its size and uses is
necessary for an accurate navigability determination. Because of Alaska's undeveloped and remote character, gathering
navigability information is both time consuming and expensive. Finally, administrative navigability determinations made by
the state or the federal government are always subject to legal challenge, since only the courts can authoritatively determine
title to submerged lands.
Despite these difficulties, both the state and the federal government are frequently called upon to issue navigability
determinations. Although the requirement that BLM adhere to the meandering requirements of the BLM Survey Manual has
eliminated the need for navigability determinations on the larger rivers, lakes, and streams, which must now be meandered
regardless of navigability, navigability determinations are still required for the smaller rivers, lakes, and streams to determine
if they are to be meandered at the time of survey. Because of this, some navigability determinations are still made for nearly
every federal land conveyance under ANCSA or the Alaska Statehood Act. The management plan for nearly every federal
Conservation System Unit (CSU) also addresses the navigability issue.
Federal navigability determinations are reviewed by the state to insure that available information sources were used and
interpreted correctly. Where the federal government determines non -navigable a water body which is considered navigable
by the state, the state may provide the government with supplemental information about the uses and characteristics of the
water body to obtain a re -determination of navigability. Under some circumstances the state needs to make its own
navigability determinations, such as for a oil and gas lease sale, land disposal, material sale, mining claim, or another use of
state land or resources requiring a determination of ownership of submerged lands within the affected area.
For large, undeveloped regions of Alaska there may be little or no accurate water body use or physical characteristics
information available for making navigability determinations. When information is lacking, and it must make a navigability
determination, the state is forced to rely solely upon the physical characteristics shown on maps and aerial photographs. In
these cases, the state identifies as navigable all streams depicted on the U.S.G.S. maps with double lines (generally at least 70
feet wide) and having an average gradient over the length of the stream of no more than 50 feet per mile. With rare
exceptions, the state's experience has been that streams of this type are deep enough and wide enough to be navigable by
boats carrying persons or goods and must, therefore, be considered legally navigable. Streams depicted with single lines,
although narrower in width, may also be listed as potentially navigable if they have gradients of substantially less than 50 feet
per mile and are at least 10 miles.
If there is no public use or physical characteristics information readily available for lakes, those lakes which are shown on
maps and aerial photographs as having a navigable water connection with other navigable waters, or which are accessible by
short overland portages, are considered navigable regardless of the size of the lake. These lakes are part of a system of
interconnected navigable waters. If a lake is totally isolated, it will be included on the state's navigability maps if it is at least
1 1/2 miles long. That length insures that the lake can be used as a "highway". Future judicial decisions interpreting the
"highway" requirement for isolated lakes could shorten or lengthen this 1 1/2 mile "rule of thumb."
The state recognizes that, under some circumstances, lakes smaller than 1 1/2 miles long can be and are used as navigable
highways. In those cases, when known, these smaller lakes are also depicted on the state's navigability map. Moreover, as a
matter of administrative policy and convenience only, the state may sometimes make an exception to the 1 1/2 mile standard
in the extremely wet regions of the state, including some areas in the Yukon- Kuskokwim Delta, Yukon Flats, and on the
North Slope. In these areas, an isolated lake might need to be 2-3 miles long to be included on the state's navigability maps.
Although smaller lakes in these areas are capable of being used for transportation and should be found navigable by the
courts, the state has decided to concentrate its limited resources in protecting the larger water bodies first.
NAVIGABLE WATERS WITHIN PRE -STATEHOOD FEDERAL WITHDRAWALS
Although disputes over which waters in Alaska are navigable are the most frequent cause of submerged land ownership
disputes, there is another major legal issue which poses a threat to Alaska's sovereign claim to the beds of navigable waters.
Even where navigability is conceded, the federal government often contends that title to the submerged lands did not vest in
the state if the area was withdrawn or reserved by the federal government on the date of statehood. Within native conveyance
areas, the federal government has used this claim of "reserved submerged lands" to justify its attempts to convey the beds of
navigable waters in fulfillment of the native entitlements. Within state selections, the federal government has used the same
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claim to charge the acreage of submerged lands against the state's entitlement
The state strongly disagrees with this federal claim and has actively pursued a number of court challenges to resolve the
issue. In addition to numerous appeals from federal decisions to convey or charge for the beds of navigable waters, the state
was actively involved as a friend of the court in one case before the United States Supreme Court and continues to be
involved in another Supreme Court case which presents this issue. The pending case is United States v. Alaska, U.S.
Supreme Court 84 Original (filed June, 1979).
On June 8, 1987 the Court issued its decision in Utah v. United States, No. 85-1772 (filed Oct. 14, 1986). In this case the
federal government, in 1976, issued oil and gas leases for land underlying Utah Lake, a navigable water body located in Utah
The suit sought a declaratory judgement that Utah, rather than the United States, holds the lands under navigable waters in
the territories in trust for future states, and, absent a prior conveyance by the federal government to third parties, a state
acquires title to such land upon entering the Union on an "equal footing" with the original 13 states.
The Supreme Court held that title did pass to the state upon Utah's admission to the Union. They held that there is a strong
presumption against finding congressional intent to defeat a state's title, and, that in light of the longstanding policy of the
federal government's holding land under navigable waters for the ultimate benefit of future state absent exceptional
circumstances, an intent to defeat a state's equal footing entitlement could not be inferred from the mere act of the reservation
itself. The United States would not merely be required to establish that Congress clearly intended to include land under
navigable waters within the federal reservation, but would additionally have to establish that Congress affirmatively intended
to defeat the future state's title to such land.
This decision has silmificant ramifications within Alaska, since over 95 million acres - more than 25
of the total area of the state - was enclosed within various federal withdrawals and reservations at the time Alaska became a
state.
NAVIGABLE WATERS WITHIN ANILCA CONSERVATION SYSTEM UNITS
On December 2, 1980, the Alaska National Interest Lands Conservation Act became law. This act created or added 104.3
million acres to various federal conservation system units. Because these "withdrawals" occurred after the date of statehood,
there is no disagreement between the state and federal governments that navigable waters within the various CSU's are owned
by the state. However, there is some disagreement on the amount of authority the federal land managers may have to regulate
these state owned submerged lands.
The U.S. Constitution gives Congress certain limited powers to control uses on state owned submerged land. These are
known as the Property Clause, Navigational Servitude and the Commerce Clause. The extent of these powers involves
complex legal questions. However, even assuming that Congress has the power to regulate state-owned submerged lands in
Alaska, the United States Supreme Court has ruled that Congress may choose not to exercise that power, thus leaving
regulation totally up to the state. Escanaba Co. v. Chicago, 107 U.S. (17 Otto.) 678 (1883). Whether Congress has done that
can only be determined by examining the federal laws passed by Congress dealing with Alaska lands. Another possibility is
that the state and federal governments have concurrent jurisdiction, sharing the authority to regulate submerged lands.
In ANILCA, Congress did not take away the state's power to regulate state-owned submerged lands within federal CSU's in
Alaska. Numerous provisions in ANILCA recognize and respect the state's authority over state-owned land. In some cases,
however, Congress may have attempted to give the federal land managers some concurrent authority to regulate navigable
waters within CSU's.
The state, where possible, cooperates with rather than confronts the federal land managers. This cooperation often takes the
form of a memorandum of understanding that discusses management issues and how they will be resolved. Differences do
occur, however, over issues such as column management and restrictions on mining.
H. LEGAL AND POLICY GUIDELINES GOVERNING MANAGEMENT OF SUBMERGED LANDS AND
PUBLIC WATERS
PUBLIC TRUST DOCTRINE
The state has special duties and management constraints with respect to state-owned land underlying navigable waters.
These special duties and management constraints arise from the Alaska Constitution. The .Alaska Constitution contains
State Policy on Navigability -7- 07/04/99
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numerous provisions embracing the principles commonly known as the public trust doctrine. The public trust doctrine is
remarkable both for its age and for its vigor. Rooted in the customs of the seafaring Greeks and Romans, it has evolved to
become one of the most effective safeguards of public rights. Basically, the trust reflects an understanding of the ancient
concept that navigable waters, their beds and their banks, should be enjoyed by all the people because they are too important
to be reserved for private use.
In America, the concept of public rights to public waters was recognized since the early days of the Massachusetts Bay
Colony where the great Pond Ordinance of 1641 guaranteed the right to fish and fowl in ponds greater than 10 acres, along
with the freedom to pass through private property to do so.
By 1821, American courts were pronouncing the law of public trust as we know it today. This does not mean that no water -
related development can take place. The public trust doctrine permits states to improve waterways by constructing ports,
docks and wharves, thus furthering the purposes of the trust. Generally speaking, the people's trust rights maybe alienated
only in ways that further overall trust uses, and in relatively small parcels.
Illinois Central Railroad Company v. Illinois, 146 U.S. 387,452 (1982), involved a grant by the State of Illinois of one
thousand acres of the bed of Lake Michigan, constituting the entire harbor of the City of Chicago, to the Illinois Central
Railroad. The U.S. Supreme Court held that the grant was revocable, that the state held the land in trust for the public, and
that it was powerless to relinquish its rights as trustee.
The court went on to say that land underlying navigable waters is much more than a simple property right.
[I]t is a title different in character from that which the state holds in lands intended for sale. It is different from the
title which the United States holds in the public lands which are open to preemption and sale. It is a title held in
trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them, and
have liberty of fishing therein freed from the obstruction or interference of private parties... The trust devolving
upon the state for the public, and which can only be discharged by the management and control of property in which
the public has an interest, cannot be relinquished by a transfer of the property.
In the 19th century the purposes of the trust were generally described as "commerce, navigation and fishery." This was
logical because the major waterways were essential highways of commerce. But as other values became increasingly
important, courts began to recognize recreation and environmental protection among the purposes for which the trust exists.
As a California court said in 1971, "with our ever increasing leisure time ... and the ever increasing need for recreational areas
it is extremely important that the public need not be denied use of recreational water ... the rule is that a navigable stream may
be used by the public for boating, swimming, fishing, hunting and all recreational purposes." People ex rel. Baker v. Mack,
19 Cal. App. 3d 1040, 1044 (1971).
The Alaska constitution provides protections similar to the public trust doctrine protections that cannot be disregarded by the
legislature or overruled by the courts. Article VIII, Sec. 3 provides; "Wherever occurring in their natural state, fish, wildlife
and waters are reserved to the people for common use." After reviewing the public trust doctrine in Owsichek v. State, Guide
Licensing, 763 P.2d 488 (Alaska 1988), the Alaska Supreme Court explained that "the common use clause was intended to
engraft in our constitution certain trust principles guaranteeing access to the fish, wildlife and water resources of the state."
In CWC Fisheries, Inc. v. Bunker, 755 P2.d 1 1 15 (Alaska 1988), the Alaska Supreme Court applied the public trust doctrine
to tidelands, holding that, even after conveyance, the title remains subject to continuing public easements for purposes of
navigation, commerce and fishery.
The 1985 Alaska legislature recognized the constitution application of public trust doctrine principles in Alaska. In an Act
relating to the public or navigable waters of the state, the legislature found that "the people of the state have a constitutional
right to free access to the navigable or public waters of the state" and that the state "holds and controls all navigable or public
waters in trust for the use of the people of the state". 85 SLA Ch. 82. In the same act, the legislature ruled that submerged
lands are "subject to the rights of the people of the state to use and have access to the water for recreational purposes or any
other public purpose for which the water is used or capable of being used consistent with the public trust."
Courts in other states over the years have defined in somewhat different ways the public uses that are permitted and protected
by the public trust as it applies to submerged lands. In reviewing these other cases, it can clearly be seen that through time an
ever-expanding definition of the public uses protected by the public trust doctrine is being adopted. The California Supreme
Court recently held that:
Although early cases had expressed the scope of the public's right in (lands subject to the public trust) as
encompassing navigation, commerce and fishing, the permissible range of public uses is far broader, including the
right to hunt, bathe or swim, and the right to preserve the (public trust) lands in their natural state as ecological units
for scientific study. City of Berkeley v. Superior Court of Alameda, 606 P.2d 362, 365 (Cal. 1980)
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It is clear under the Alaska Constitution that the State of Alaska has the responsibilities of a trustee with respect to
management of land underlying navigable waters. Moreover, the Alaska legislature has adopted a broad view of the public
uses protected or permitted by the public trust. Accordingly, the Alaska Attorney General's Office has determined that, until
the Alaska Supreme Court rules on the question, the state should assume that a broad definition of public rights protected by
the Alaska Constitution and the public trust doctrine applies in Alaska, similar to the one adopted by the California Supreme
Court. 1982 Arty. Gen. Op. No. 3 (June 10, 1982).
PUBLIC WATERS
It is not only the beds of navigable waters in Alaska that are reserved in public ownership for public use. Under article VIII,
Section 3 of the Alaska Constitution, all waters occurring in their natural state are reserved to the people for common use.
Article VIII, Section 14 of the Alaska Constitution also provides for the broadest possible access to and use of state waters by
the general public.
Section 14. Access to Navigable Waters. Free access to the navigable or public waters of the state, as defined by
the legislature, shall not be denied any citizen of the United States or resident of the state, except that the legislature
may by general law regulate and limit such access for other beneficial uses or public purposes.
Pursuant to this grant of authority, the Alaska State Legislature, in AS 38.05.365(12), defined "navigable waters" as follows:
"navigable waters" means any water of the state forming a river, stream, lake, pond, slough, creek, bay, sound,
estuary, inlet, strait, passage, canal sea or ocean, or any other body of water or waterway within the territorial limits
of the state or subject to its jurisdiction, that is navigable in fact for any useful public purpose, including but not
limited to water suitable for commercial navigation, floating of logs, landing and takeoff of aircraft, and public
boating, trapping, hunting waterfowl and aquatic animals, fishing, or other public recreational purposes.
This definition of navigable waters does not define state ownership of submerged land in Alaska. The definition of
navigability for ownership purposes was discussed earlier in this paper. This definition, however, does define what types of
water bodies in Alaska are available for public use under the Alaska statutes.
The Alaska State Legislature has broadly construed the constitutional protections for public use of the waters of the state. In
an Act (85 SLA chap. 82, codified as AS 38.05.128) relating to the navigable or public waters of the state, the state
legislature found:
(a)The people of the state have a constitutional right to free access to the navigable or public waters of the state.
(b) Subject to the federal navigational servitude, the state has full power and control of all of the navigable or public
waters of the state, both meandered and un-meandered, and it holds and controls all navigable or public waters in
trust for the use of the people of the state.
(c) Ownership of land bordering navigable or public waters does not grant an exclusive right to the use of the water
and any rights of title to the land below the ordinary high water mark or subject to the rights of the people of the
state to use and have access to the water for recreational purposes or any other public purposes for which the water
is used or capable of being used consistent with the public trust.
(d) This Act may not be construed to affect or abridge valid existing rights or create any right or privilege of the
public to cross or enter private land.
AS 38.05.128 provides:
OBSTRUCTIONS TO NAVIGABLE WATER
(a) A person may not obstruct or interfere with the free passage by a member of the public on any navigable water as
defined in AS 38.05.965 unless the obstruction or interference is:
(1) authorized by a federal or state agency;
(2) authorized under a federal or state law or permit;
(3) exempt under 33 U.S.C. 1344(f) (Clean Water Act);
(4) caused by the normal operation of freight barging that is otherwise consistent with law; or
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(5) authorized by the commissioner after reasonable public notice.
(b) A violation of (a) of this section is a class B misdemeanor.
(c) An unauthorized obstruction or interference is a public nuisance and is subject to abatement. The cost of
abatement shall be bome by the violator and is in addition to any penalty imposed by the court.
(d) This section may not be construed to affect or abridge valid existing rights.
Thus, under the Alaska Constitution and this statute, any surface waters capable of use by the public defined in AS
38.05.365(12) are available to the public, irrespective of streambed ownership. Further, such public use is not considered a
taking and is not subject to inverse condemnation action. Private ownership is subject to the public rights that are protected
by the public trust.
In two Montana Supreme Court cases involving the nature of public rights where the submerged lands are privately owned,
the court rules that public portaging, anchoring, and other uses incidental to the use of the water are allowed. The court also
found that if travel on the water or streambed is obstructed, the public is allowed to use the adjacent private land to portage
around the barrier in the least intrusive way possible, avoiding damage to the property holder's rights. However, the public
does not have the right to enter into or trespass across private property in order to enjoy the recreational use of state-owned
waters. The State of Alaska agrees with this ruling and believes a similar ruling would be made by our state courts.
BOUNDARIES OF NAVIGABLE WATERS
The state is often asked where public ownership of water bodies ends and private ownership begins. There are two types of
water body boundaries to address: 1) non -tidal water boundaries and 2) tidal water boundaries. Non -tidal boundaries are
boundaries of lakes, rivers, and streams. Tidal boundaries are the boundaries along any body of water which is influenced by
the rise and fall of the tides.
1. Non -tidal Water Boundaries The boundary between public and private ownership is the "Ordinary High Water Mark"
which is defined in 11 AAC 53.900(23) as being -The mark along the bank or shore up to which the presence and action of
the non -tidal water are so common and usual, and so long continued in all ordinary years, as to leave a natural line impressed
on the bank or shore and indicated by erosion, shelving, vegetation, or other distinctive physical characteristics. Also see the
Alaska State Supreme Court definition in Department of Natural Resources v. Pankrantz 538 P.2d 984, 988-89 (Alaska
1975). The ordinary high water line can usually be observed by the laymen simply by noting the vegetation line or well
defined stream banks.
2. Tidal Water Boundaries The boundary between tidal water bodies and private/public owned uplands is the Mean High
Water Line. Mean high water line as defined by I I AAC 53.900(15) is: The tidal datum plane of the average of all the high
tides, as would be established by the National Geodetic Survey, at any place subject to tidal influence.
This line is not readily observable because it is a line of known elevation which intersects the land surface. The mean high
water line can be a considerable distance below the vegetation line because extreme high water will denude the beach above
the line of mean high water. The only way that the location of mean high water line can be accurately determined is by
differential leveling from known bench marks or by operating a tide gauge for a sufficient period of time to determine the
mean high water elevation. The line of mean high water line can be approximated by time coordinated observations of the
daily predictions for high and low waters, predicted by NOAA, as they relate to the published mean high water elevation.
This method can be highly unreliable because small errors in the predictions or observations can transform into large errors in
the horizontal location; this is especially true in areas where the beach gradient is very flat.
It is important to note that in some areas, such as Prince William Sound, the mean high water line boundary is considerably
higher than the current mean high water line because the boundary became fixed at the 1964 pre -quake location. In this
instance the boundary between state-owned tidelands and the uplands would be established at an elevation which equals the
sum of the mean high water elevation plus the published amount of uplift or, in some cases, submergence.
CONCLUSION
This paper describes the state's policies and procedures for managing and protecting state submerged lands and public waters.
As further legal and practical developments occur in this area, these policies and procedures will be reexamined by the state
and, if necessary, appropriate changes will be made.
State Policy on Navigability -10- 07/04/99
32
;ENAI PENINSULA BOROUGH
44 North Binkley Street • Soldotna, Alaska 99669-7520
Toll -free within the Borough: 1-800-478-4441
PHONE: (907) 262-4441 • FAX: (907) 262-1892
www.borough.kenai.ak.us
DAVE CAREY
BOROUGH MAYOR
April 7, 2009
Mr. Scott Ogan
Natural Resource Manager II
Department of Natural Resources
Division of Mining, Land & Water
Public Access Assertion & Defense Unit
550 W. 7' Ave., Suite 1330
Anchorage, AK 99501-3514
Re: State of Alaska Navigability Determination of March 20, 2006
Dear Mr. Ogan:
Based on the following facts, the Kenai Peninsula Borough administration respectfully requests
that the state revoke its March 20, 2006 Navigability Determination as to Salmon Creek, Fourth
of July Creek and Sawmill Creek, all located in the vicinity of Seward, Alaska. The Borough
does not dispute the determination that Resurrection River is navigable at this time. If there is an
applicable appeal process governing this request, please advise us as to that process. The
determination notice contained no such information.
In 1999 Japp Creek was the only stream of those listed in the 2006 determination that was
determined navigable. Kathy Atkinson, Division of Lands, subsequently revoked that
determination, with the result that in 1999 the state determined all of the creeks listed in the 2006
letter were non -navigable. (Letter to Seward City Council 1999).
The letter of March 20, 2006, overturning portions of the 1999 determination, provides only
cursory and anecdotal information supporting the conclusion that the above creeks should now
be classified as navigable. It does not provide enough information for the borough to determine
to what extent the state considered the relevant factors when it reversed its long-standing
determination that these creeks are not navigable.
BLM recommends that all water bodies, with the exception of Bear Lake, be considered
administratively non -navigable in TAN R. IE, T. 1N R. 1W, T.2N RAW, TASR. 1W, T. 1S
RAE. This was determined in accordance to the Daniel Ball test and best survey practices
which, according to State of Alaska policy on Navigability, on the website
http://dnr.alaska.gov/mlw/nav/nav policy. htm, is the accepted and correct standard for
determining navigability.
33
The above -mentioned website also indicates on page 3, paragraphs 6 and 7, that Alaska policy
interprets the Daniel Ball test as requiring the water body to be usable as a highway for the
transportation of people or goods. Additional elaboration is found on page 4, paragraph 7, which
provides that waters that are only navigable at infrequent and unpredictable periods of high water
are not normally considered navigable". None of these streams are capable of fulfilling this
requirement except at infrequent and unpredictable periods. Further, if the interpretation
according to State of Alaska policy includes recreational uses such as fishing, trapping, shooting
or transportation of personal goods, there is no evidence that the streams in question have ever
been capable of supporting such activities, anadromous or not. Albert Schaffer, Afognak
Logging Co., in 1955 logged substantial portions of Fourth of July Creek and was unable to
"float logs" down this stream. (Verbal Communications 2009.) This lack of ability to float logs is
in concurrence of Alaska policy and interpretations of policy for a non -navigable determination.
The March 20, 2006 Determination of Navigability refers to extreme gradients as conclusive
evidence of non -navigability on Spruce Creek. However, all of the creeks listed as navigable in
the 2006 determination contain reaches of these, same "extreme" gradients as expressed in
percent slope derived from LIDAR dataset 2006 and pertinent cross sections.
Moreover, on page 7 of the Navigability Policy, the first full paragraph indicates that when
information is lacking, the state is forced to rely on the physical characteristics shown on maps
and aerial photographs. In those cases, the state identifies as navigable all streams depicted on
the USGS maps with double lines (generally at least 70 feet wide) and having an average
gradient over the length of the stream of no more than 50 feet per mile. As the state reversed its
prior ruling without the benefit of an on -site inspection, it seems appropriate to use these
guidelines.
Following is more information concerning the issue of navigability of the streams at issue:
Salmon Creek: In the 2006 determination, Salmon Creek headwaters are said to be derived from
Bear Lake Glacier melt (page 4 paragraph 2), which is not correct. Bear Creek/Salmon Creek
confluence, also stated in the determination document, clearly supports this. In fact, Glacier
Creek (Kwechak), not Salmon Creek, flows from Bear Lake Glacier. Instead, Salmon Creek
flows from Lost Creek and runs approximately 5.6 miles to its confluence with Resurrection
River. Further, the determination notes that the creek is shown to have significant width along
most of its channel, in some places more than 400 feet. This width is attributable to the
meandering nature of this creek; only during floods would it possibly reach such a large width.
As indicated by Mr. Bardarson, Salmon Creek is often very shallow. Although he states it is
floatable in most areas, there is nothing provided to indicate what could float on it in most areas.
Fourth of July Creek: The determination letter indicates that this creek runs approximately 1.14
miles into the Resurrection Bay, and that the lower reaches of this creek are anadromous and
tidally influenced. 43 USC § 1301(a)(2) defines lands beneath navigable waters as
(2) all lands permanently or periodically covered by tidal waters up to but not above the
line of mean high tide and seaward to a line three geographical miles distant from the
Page 2 of 3
34
coast line of each such State and to the boundary line of each such State where in any
case such boundary as it existed at the time such State became a member of the Union, or
as heretofore approved by Congress, extends seaward (or into the Gulf of Mexico)
beyond three geographical miles ...
However, this creek has not significantly changed since the 1980 determination. Please provide
information supporting the conclusion that the creek is now tidally influenced and therefore
subject to the Submerged Lands Act. Further, the Fourth of July Creek gradient exceeds the 50
feet in one mule standard.
Sawmill Creek: Please provide information supporting the conclusion that the creek is now
tidally influenced and therefore subject to the Submerged Lands Act and how this Creek has
changed from the 1980 determination. Also, Sawmill Creek gradient exceeds the 50 feet in one
mile standard.
The determination document dated March 20, 2006, refers to NHD datasets at pages 2 and 4.
Please advise us what kind of data the referenced USGS dataset was used in the previous
mentioned determination.
We would appreciate your reversing the determination of navigability dated March 20, 2006, or
providing us with additional information supporting the conclusions as to these three creeks.
Thank you for your consideration.
Page 3 of 3
Sincerely,
kk.,! �- eauq
David R. Carey
Borough Mayor
35
Kenai Peninsula Borough
Flood Plain Task Force
Meetina Summary
April 1, 2009 - 6:00 p.m, Regular Meeting Seward City Hall, 401 Adams Street, Seward
CALL TO ORDER
A regular meeting of the Flood Plain Task Force was held on April 1, 2009, in the Council Chambers
of Seward City Hall, Seward, Alaska. Chair Long called the meeting to order at 6:00 p.m.
There were present:
Absent:
Ron Long, Chair
Kevin Lyon
Charlie Pierce, Vice Chair
Dan Mahalak
Colette Thompson
Mary Toll
Bill Williamson
Jane Gabler
Randy Stauffer
Jim McCracken
Ron Wille
Matt Gray
Todd Petersen
Christy Terry
Sue McClure
Scott Walden (Excused)
Bob Hicks (Excused)
Also in attendance was:
Shellie Morgan, Deputy Clerk
WELCOME AND INTRODUCTIONS
Chair Long thanked everyone for coming. He amended the agenda by adding two additional items,
one being the introduction of two Resolutions and a Take Away Item, requesting all members come
to the April 15, 2009 meeting with one item they would like to see completed by the Task Force.
PUBLIC COMMENT - None.
(06:03:56)
RESOLUTION INTRODUCTION
41
Mr. Wille said Flood Plain Task Force Resolution 2009-01 was a request for the State to remove its
March 20, 2006 navigability determination of Salmon Creek, Forth of July Creek and Sawmill Creek.
He stated Flood Plain Task Force Resolution 2009-02, requested the State remove the current
extraction fee being charged on gravel removal. He said if approved by the Task Force, the
resolutions would be introduced at the next Road Board Meeting, from there it would be forwarded
to the City of Seward and Planning Commission. He said this would allow for more local support
to be gathered prior to introduction to the Kenai Peninsula Borough Assembly.
Flood Plain Task Force Kenai Peninsula Borough
April 1, 2009 Page 1 of 10
:I�
Flood Plain Task Force Resolution 2009-01
Chair Long stated there was currently a Bill in Congress that would strike the word navigability from
water within the United States, and proposed amendments to the Clean Water Act would allow the
US Congress to be the regulatory body on all running waters within the United States. He stated
this was the proper time to address the navigability issue.
[Clerks Note: Flood Plain Task Force Resolution 2009-01 was amended as follows: The third
whereas to read, "The State of Alaska Department of Natural Resources (DNR) charges a [LEVY]
royalty fee on all gravel materials removed from these areas; and"; The fourth whereas to read,
"This [LEVY] royalty fee makes flood control projects more expensive and cost prohibitive; and";
Section 1 to read, "That Salmon Creek, Fourth of July Creek and Sawmill Creek are not navigable,
as defined by and in to the Daniel Ball test, [AND] best survey practices, and are not subject to the
Submerged Land Act, which, according to State of Alaska policy on Navigability, on the website
http://dnr.aaska.gov/mlw/nav/nav_policy.htm, is the accepted and correct standard for
determining navigability." A new Section 3 to read, "The Kenai Peninsula Borough Task Force
requests that other concerned local boards and commissions pass similar declarations in support
of this resolution."]
Mr. Gray asked if the Task Force Members felt it was appropriate to address the royalty fee from
the two different angles.
Mr. Wille stated approaching the State from both angles was the correct way to move forward.
Mr. McCracken stated the Task Force should concentrate on Resolution 2009-01, if the Task Force
had the determination on navigability changed, it would then resolve the issues addressed in
Resolution 2009-02.
Ms. Thompson said she believed it was the correct approach to focus on the administrative aspect,
by addressing the mistake made when Salmon Creek, Forth of July Creek and Sawmill Creek were
determined navigable, when just two years prior the creeks had been determined non -navigable.
She said regarding the royalty fees, the State was attempting not to give away property that was
subject to the constitutional prohibition against private use of public assets.
Mr. Stauffer stated that he agreed the Task Force should initially go after the definition of
navigability; however, eventually the royalty fee charged by DNR had to be addressed. He said
language needed to be added stating the royalty fee would not be charged when mitigating against
natural disasters.
Chair Long stated he was seeing a definite pattern to take when approaching the problem, and
listed the pattern in order.
1. Navigability
2. Classification of Debris
3. Legislative Fix
Ms. Terry asked why Resurrection River had been removed from the non -navigable list? Mr.
Mahalak said the Federal determination on navigability stated various things; such as, if you could
float trees down the river, hunt, fish, or any commercial activities were taking place, the river was
then considered navigable.
Kenai Peninsula Borough
Page 2 of 10
Flood Plain Task Force
April 1, 2009
37
(06:26:00)
Flood Plain Task Force Resolution 2009-02
Mr. Wille said he felt introducing both Resolution 2009-01 and Resolution 2009-02 would not cause
any harm in the process of either Resolution.
Chair Long stated he was concerned that if both Resolutions were introduced, there would be the
possibility of both the Legislature and the Administration waiting to see how the other department
would act on the resolutions.
Ms. Terry stated she felt moving forward on Resolution 2009-02 would have a positive effect,
allowing extraction of gravel from other creeks in the area that were navigable.
[Clerk's Note: Flood Plain Task Force Resolution 2009-02 was amended as follows: Title to read,
"A Resolution Recommending that the State of Alaska [RESCINDS ITS GRAVEL EXTRACTION FEE AS IT
APPLIES TO SALMON CREEK, FOURTH OF JULY CREEK AND SAWMILL CREEK, ALL LOCATED IN THE VICINITY OF
SEWARD, ALASKA] Exempt Flood Mitigation Projects in the Seward Area from the Gravel Royalty Fee
as it Applies to all Flowing Waters into Resurrection bay in the Vicinity of Seward, Alaska"; the
second whereas to read, "The state of Alaska Department of Natural Resources charges a mineral
resources extraction royal fee of $3.25 per cubic yard for gravel; and"; the third whereas to
read,"This extraction royalty fee makes flood control projects more expensive and cost prohibitive;
and", Insert a new fourth whereas to read, "charging a royalty fee for gravel extraction for flood
Mitigation projects is contrary to protecting public health and safety; and"; Section 1 to read, "That
Salmon Creek, Fourth of July Creek, and Sawmill Creek are continually filling with sediment and
debris that must be removed to lessen flood events [IN THE SEWARD AREA] as it applies to all flowing
waters into Resurrection Bay in the vicinity of Seward, Alaska." Insert a new Section 3 to read,
"That the Kenai Peninsula Borough Flood Plain Task Force requests that the State exempt from its
gravel extraction royalty fee, flood mitigation projects in the Seward area." Insert a new Section
4 to read, "The Kenai Peninsula Borough Task Force request that other concerned local boards and
commissions pass similar declarations in support of this resolution."1
Mr. McCracken spoke in opposition to Flood Plain Task Force Resolution 2009-02.
Chair Long stated the Flood Plain Task Force Resolution 2009-02 as amended was asking other
boards to pass similar resolutions, and stated it would be a subject for the second half of the
Legislative Session.
The Task Force agreed to postpone Flood Plain Task Force Resolution 2009-02 until April 15, 2009.
(06:49:12)
AMENDMENTS TO ROAD CODES - Ingress & Egress
Mr. Wille stated he had spoken to the Roads Director, Staff and the Inspector for the Seward area
regarding building roads in the community as a whole. He said the Borough had a template for
building roads, and if a builder were to go outside of the normal road building template, an
engineer would then be required to explain how the road was to be built, the engineer would be
required to sign off on the plan, it could then be approved by the Roads Board. He said the Roads
Board may want to consider all roads within the Seward area be designed by an engineer, due to
the numerous road failures in the area, including roads that were not in flood zones.
Flood Plain Task Force
April 1, 2009
Kenai Peninsula Borough
Page 3 of 10
W
Planning and Zoning Commission Agenda Statement
Meeting Date: May 19, 2009
To: Planning and Zoning Commission
From: Community Development Director Christy ' rry
Agenda Item: Schedule Public Meetings to update Title 15
BACKGROUND & JUSTIFICATION:
The Seward City Council and the Planning and Zoning Commission have agreed that updating
Seward City Code Title 15 is a priority in 2009. The process will be long and labor intensive as the
Commission works closely with staff and citizens to incorporate all the necessary updates.
Community Development will conduct a major information campaign to solicit as much public
involvement as possible. This will involve radio, internet notices, flyers, newspaper articles and
other public avenues for advertising.
The Commission should decide on their calendar of public meetings. I propose the following
aggressive schedule:
Suggestion 1:
Tuesday May 19th 1 hour work session 6:30 - 7:30pm. This work session was scheduled and will
be conducted prior to this Special Meeting. Topic: Administration questions to Commission on
Policy in the Seward Zoning Code (SCC 15.10). Copies of the code updates will be distributed at
this meeting.
Thursday May 281h 3 hour work session 6:30-9:30pm. Topic: Seward City Code (SCC) Chapter
15.01 General Provisions and SCC Chapter 15.05 Land Use Planning.
Tuesday June 9th 3 hour work session 6:30-9:30pm. Topic: SCC Chapters 15.01, 15.05, and
SCC Chapter 15.10 Land Use Planning.
Tuesday June 16th 3 hour work session 6:30-9:30pm. Topic: SCC Chapters 15.01, 15.05, 15.10,
and Chapter 15.15 Historic Preservation
Wednesday June 17`h 1 hour PACAB/PZ joint work session 12:00 — 1:OOpm. Topic: Title 15
code overview, comments and questions to staff.
Wednesday June 17th 3 hour work session 6:30-9:30pm. Topic: SCC Chapters 15.01, 15.05,
15.10, 15.15 and Chapter 15.20 Signs.
Wednesday June 24th 3 work session 6:30-9:30pm. Topic: Title 15 to include Chapter 15.25
Floodplain Management.
Please note that the Planning and Zoning Commission has a quarterly work session scheduled with
the Flood Board on June 1"beginning at 6:30pm at the SeaView Plaza. Additionally, as of Mayl5th
there are no public hearing items and no new business items for the Commission's regular meeting
scheduled for June 2"d. With no objections from the Commission, administration will cancel the
June 2"d Regular Meeting.
K7
Schedule Public Meetings to update Title 15
Page 2 of 2
Once the above work sessions are completed, Administration and the Commission can evaluate if the
updates to Title 15 were adequately discusses and incorporated. Two additional work sessions, prior
to Title 15 being brought to the Commission for recommendation at a business meeting, will be held
in August at Legends on a Tuesday and Thursday for at least 2.5 hours each. These will be
scheduled at a later date. Council will be invited to be part of these meetings and administration will
conduct another major advertising campaign. Additionally, holding these meetings during the month
of August will help insure additional public involvement for those heavily involved with work
obligations during the summer months.
Suggestion 2:
The Commission may decide to postpone their update to SCC Tile 15 until fall when citizens have
more time to attend these meetings. During August and September administration and the
Commission would have to pursue an equally aggressive schedule to hold an adequate amount of
public meetings.
CONSISTENCY CHECKLIST: Where applicable, this proposed schedule is consistent with the
Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council
Rules of Procedures.
Other: Planning and Zoning Priority List
RECOMMENDATION:
The Commission should make a motion to approve the proposed schedule. Once this motion is
made, then the Commission can amend the dates and times as necessary. Another option would be
to make a motion to postpone all public meetings until after the summer season.
40
City o}'Seward, Alaska
April21, 2009
Planning Commission Minutes
Volume 6, Page 2 3 6
Call to Order
The April 21, 2009 Special Meeting of the Seward Planning & Zoning Commission was
called to order at 7:30 p.m. by Chair Roach'.
Opening Ceremony
Commissioner Heinrich led the Pledge of Allegiance to the flag.
Roll Call
There were present:
Sandie Roach' presiding, and
Sue McClure Cindy Ecklund Christina Stauffer
Steven Heinrich Tena Morgan
comprising a quorum of the Conrunission; and
Donna Glenz, Associate Planner
Anne Bailey, Executive Liaison
City Administration Report
Associate Planner Donna Glenz updated the Commission of the following business items:
• The Seward Highway would have a full road closure Friday, April 24, 2009 at 10:00 p.m.
through Monday, April 27, 2009 at 5:00 a.m. There would be further restrictions to
commercial vehicles weighing over 30,000 pounds from May through September. Contact
Christy Terry for more information.
• A Flood Plain Development Pen -nit had been applied for the Sheffler Creek/Dairy Hill
culvert replacement and the fish ditch improvements. The City had work with the Kenai
Peninsula Watershed Forum on the project.
• The Port and Commerce Advisory Board reviewed and postponed a resolution in support of
the Polar Consult Fourth of July Creek hydro -project. The Board requested more
information from the company.
• The Seward Community was invited to assist with the Pavilion Project. Volunteers were
needed from May 18-27, 2009. If interested call 224-4049.
• Still need one Planning and Zoning Commissioner and the City had not received any
applications.
• The Forest Service would hold an open house on May 13, 2009 at the Loussac Library in
Anchorage and one on May 14, 2009 in Girdwood to discuss the Whistle Stop Project.
Other Reports, Announcements & Presentations — None
Citizens' Comments on any subject except those items scheduled for Public Hearing — None
Approval of Agenda and Consent Agenda —
41
City of Seward, Alaska Planning Commission Minutes
April21, 2009 Volume 6, Page 237
Motion (Ecklund/McClure) Approve the Agenda and the Consent
Agenda
Motion Passed
Unanimous Consent
The following items were approved on the Consent Agenda:
April 7, 2009 Regular Meeting Minutes
Unfinished Business Items requiring a Public Hearing — None
New Business Items requiring a Public Hearing —
RESOLUTION 2009-09 Granting a Sign Ordinance Variance to Vanta Shafer, DBA
Cover to Cover Bookstore, for a Non -Illuminated Projecting Sign without a
Marquee, Approximately 7.5 Square Feet (30 inches by 35 inches), at Lot 12A,
Block 10, Original Townsite of Seward, 215 Fourth Avenue, Central Business
District (CDB)
Glenz reviewed Resolution 2009-09 and discussed the Seward City Sign Code. She stated
the Building Department was concerned about the extreme winds and the sign design meeting the
wind loads. She stated staff recommended approval of Resolution 2009-09 if the conditions were
met.
McClure noted she volunteered at the book store but received no compensation.
Roach' determined McClure did not have a conflict in interest.
Morgan stated she would work for the book store this summer.
Roach' determined Morgan did not have a conflict in interest.
In response to Stauffer, Glenz stated the signs hanging under marquees were allowed by
code and were not considered projecting signs.
In response to Ecklund, Glenz stated there were projecting signs over marquees in the
downtown area, she explained hanging sign requirements, and discussed the signs in the public
right-of-way.
In response to Heinrich, Glenz explained how the sign would be projected, there was not an
official process requiring an engineered sign, and the ultimate responsibility of the sign design was
the owner.
Heinrich voiced concern about the sign falling and possibly hurting someone in the public
right-of-way.
42
City of Seward, Alaska Planning Commission Minutes
April21, 2009 Volume 6, Page 238
Glenz further explained the public right-of-way.
In response to Morgan, Glenz stated there were not any illegal signs or variances regarding
projecting signs downtown and explained there was a section of the code that addressed non-
conforming issues. She explained the Seward Alehouse sign was a legal non -conforming sign of
which could not increased in any way.
Ecklund clarified the hanging signs were allowed by code ni the public right -of way and
discussed liability if someone was injured.
In response to Ecklund, Glenz stated the hanging signs were allowed and a variance was not
needed.
The Commission suspended the rules to allow Vanta Shafer to speak.
Shafer discussed the size of the Cover to Cover sign.
Notice of public hearing being posted and published as required by law was noted and the
public hearing was opened.
Vanta Shafer, inside City limits, appreciated the Commission's time on reviewing the
variance. She stated she was concerned with the wind and a company was creating and anchoring
the sign. She noted that if the sign hurt someone she would ultimately be held liable but the City
should be concerned with sidewalk snow removal. She discussed the code and the importance of a
business being noticeable.
No one else requested to be heard and the public hearing was closed.
Motion (Heinrich/Ecklund) Approve Resolution 2009-09
Heinrich confirmed the sign would be installed by a professional.
Stauffer supported Resolution 2009-09, stated the City needed a bookstore, and the sign
would be attractive on the building.
McClure thought the City needed to encourage business, stated this was a well thought out
plan, and supported the Resolution.
Morgan stated she did not want to see condemned buildings downtown and wanted to
encourage business.
Roach' read Seward City Code section 15.36 granting variances into the record and she
thought there was no reason to deny this variance request.
43
City of Seward, Alaska
April21, 2009
Planning Commission Minutes
Volume 6, Page 2 3 9
Glenz pointed out Roach' had read the Zoning and Land Use Variance Procedures and the
Sign Variance Procedures were written in Resolution 2009-09.
Motion Passed
Unanimous
Unfinished Business- None
New Business — None
Informational Items and Reports (No action required) — None
Commission Comments -
Stauffer stated she liked the nice, focused, and short meeting.
Heinrich thought this was a way to bring people into compliance.
Roach' commented it was nice to have Shafer follow the proper sign variance procedures.
Citizens' Comments —
Vanta Shafer thanked the Commission and discussed the $250 fee to apply for a variance.
She recommended the fees be looked at.
Commissions and Administration Response to Citizens' Comments —
Roach' discussed the fee and said she understood Shafer's concern.
Glenz said the fees were set by Council, it had been suggested the fees be increased, the fees
went to the general fund, and it paid for the mail outs and other expenses.
Stauffer discussed reorganizing the code.
Ecklund stated she was confused with the fees and understood there should be a nominal
fee.
Roach' agreed she did not want to make a hardship on businesses and thought it could be
addressed in the code.
Adjournment
Meeting adjourned at 8:18 p.m.
Anne Bailey
Executive Liaison
(City Sea])
Sandie Roach'
Chair
44
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