Stream bank protection at issue in new ordinance

In early May, more than a dozen recreational miners filled the Kenai Peninsula Borough Assembly chambers to speak out against an introduced ordinance they feel would severely limit access to, and activity on riverbeds and banks.


That measure — Ordinance 2011-12, introduced by assembly member Bill Smith — seeks to expand the borough’s anadromous stream habitat protection district to almost all anadromous streams in the borough, save for the Seward-Bear Creek Flood Service area.

However, Smith said he doesn’t agree with the contention that such an ordinance would limit access. Rather, it would provide for better protection for those streams and fish habitat, he said.

“Habitat protection is important for our fisheries and how you get there is what we are looking at,” he said. “I’d like to do it with minimal government influence, interference and with minimal cost to the property owners.

“If we wait 50 years and we have another 50 years worth of development and then we try to protect the streams, what are we going to be looking at? It is time for us to move on and finish the job that was started here 15, 16 years ago.”

Smith’s ordinance will be up for final review at the borough assembly’s June 7 meeting.

Currently, the Kenai River, ten of its tributaries and 14 other streams in the area are managed under the habitat protection.

“It won’t do anything that we are not already doing on 25 of the anadromous streams and rivers in the borough,” Smith said.

Primarily, the ordinance would protect the near-stream habitat of all anadromous streams on the peninsula 50 feet up the bank from the ordinary high water mark.

“It is preserving habitat for fish and wildlife and when you maintain habitat on your bank — like willows, natural grasses, overhanging trees — that provides fish habitat for juvenile salmon by providing cover for them,” said borough planning assistant Dan Nelson.

Joe Demaree, state director of the Gold Prospectors Association of America, said setting those protections on more streams would be stepping on gold miner’s toes.

“They already have the Kenai River closed up,” Demaree said. “You can’t do anything on it.”

Demaree thinks the regulations could also hinder other forms of recreation on the stream — such as fishing.

“Once they start getting these bills passed then they can start finding some way to stop you from doing that and put a police force on it and how are you going to fish in the stream?” he said. “You can’t fish from the stream, you can’t walk on it, you can’t run a 4-wheeler on it, you can’t do anything.”

Smith said Demaree’s claims are false and unfounded.

“It is not true that you can’t walk on it or fish on it or drive on it,” he said. “That’s not at all prohibited … so maybe they should talk to the folks at the River Center and find out rather than just speculating and conjecturing about, ‘I can’t do this or I can’t do that.’”

John Czarnezki, borough resource planner, said the borough works with miners to permit their activities. The borough has issued more than 20 mining permits this year in the 50-foot protection zone, many of which are on Quartz Creek.

“One section of the code states that as long as the non-commercial, recreational activities are non-intrusive, and they don’t involve construction, excavation or fill of land and don’t result in erosion, damage to the habitat protection district or increase water pollution, they are good to go,” he said. “In fact, in many cases, a permit is not even necessary.”

If the ordinance passes, Czarnezki said there would be “no restriction” from the borough in regards to river access provided activities don’t result in damage to the habitat protection district.

“They can use traditional means, whether it is hiking, biking, four-wheeling and if there is an established road next to it they can drive up to it and unload their sluice box and hop into the stream and do their thing,” he said.

Demaree said the issue is larger than just the current action being considered.

“Once they get their foot in the door, it just goes on and on and on and pretty soon they’ve got it all locked up and you can’t do anything,” he said.

Demaree said stream access is important to thousands of recreational miners. He also said he has had to turn away about 300 people requesting information on mining due to other state restrictions this year.

He said it is the “Alaskan experience” to fish and mine for gold on stream banks, but contradictions arise when the state spends money marketing such experiences and then local municipalities consider ordinances like Smith’s.

“It’s ludicrous — they are talking out of both sides of their mouths on this,” he said.

Demaree noted the already stringent rules miners follow both due to permitting and ethical standards.

“You must put it back like you found it,” he said. “If you dig a hole, you must fill it back in. If you leave trash up there, you must pack it out. We are the last ones that want to see the salmon streams destroyed or anything on the environment, but you have to have a happy medium here.”

Smith said he proposed the ordinance now so the borough could get ahead of future development, which he thinks will make enforcement easier in the future with fewer monetary pains from property owners along the river.

“If you have an issue that you want people to be aware of, then the sooner you address it, the better,” he said. “If you wait until a development has already happened as we did on the Kenai River, then you can see from the permitting activity that the first five or six years we had a lot of conditional use permits a lot of grandfathering in. There was a lot of work that went on.

“People, if they understand a reasonable set of regulations, they will build according to that and it doesn’t cost them anything and it’s pretty easy to comply with.”

The thought that all activity would stop on the stream banks in the borough if the ordinance passes is an “assumption” based on emotion, rather than fact, Smith said.

“I don’t know what to do about that except try and reach out to these folks and explain that imagined impact is just not there,” he said.

Demaree said he and other concerned miners plan to show up in force to protest the ordinance at the borough’s June 7 meeting.

“Once they get this initiated, however small it is, then it keeps growing until they have it all locked up,” Demaree said. “And what do they want to lock it up for? If nobody can use it, what good is it?”