Lawsuit filed over Chuitna permits

Groups claim state ignored water rights applications

The Chuitna Citizens Coalition and Cook Inletkeeper have filed a lawsuit against the state, claiming officials have ignored their water rights permit applications to protect salmon in the area of a proposed coal mine.

The groups filed a lawsuit over the issue on Nov. 10, asserting that the state's Department of Natural Resources has not acted on citizen's instream flow applications, but has provided corporations with water use permits, said Cook Inletkeeper's Bob Shavelson.

State law allows the Department of Natural Resources to grant in-stream rights to protect salmon breeding or other stream values, attorney Valerie Brown said Tuesday. Once given, the department cannot give water in the stream to anyone else if it conflicts with the rights granted to the first applicant.

The coalition in 2009 applied for water rights on Middle Creek, said Brown, who represents the coalition and Cook Inletkeeper. The state's position is that the group has no standing for water rights until they've been granted, yet the state refuses to process the application, she said.

In this case, the reservations would preserve salmon habitat in Middle Creek, which is in the area of the proposed Chuitna coal project.

Pac-Rim Coal LP, based in Delaware, has proposed the Chuitna mine project for the west side of Cook Inlet, near the community of Beluga. The 25-year mining plan calls for removing area waterways, and replacing them after mining is done. According to the plans, about 300 million metric tons of coal would be removed. Most would be sent to Asia. Cook Inletkeeper and the citizens coalition filed three permit applications for instream flow reservation on Middle Creek, Shavelson said.

The state has been unresponsive, said Judy Heilman, from the citizen's group.

"We haven't gotten any answer," Heilman said. "It shouldn't take this long to get a water rights permit."

Heilman said the permits would preserve enough water to keep the creek from freezing, which would allow fry to survive.

"We need the water in the stream to protect salmon," Heilman said.

Department of Natural Resources spokesperson Elizabeth Bluemink said in a statement that those organizations filed permits that would preserve between 61 and 100 percent of the flow of Middle Creek and four other surface water sources from mid-February through April.

Those applications have not been acted on, Heilman said.

"In the meantime, they're giving the coal company water use permits," Shavelson said.

According to information from DNR's water resources program, the department issued a Temporary Water Use Authorization to PacRim in February 2011 to enable the company to drill six groundwater monitoring wells. The company was authorized to use 5,000 gallons of water per day between February 18 and April 30, which was less than 1 percent of the stream's flow. DNR determined that the taking of 5,000 gallons would not affect the flows needed for fish and fish habitat, according to the department.

Although the state has not issued the water rights requested by Cook Inletkeeper and Chuitna Citizens Coalition, those rights would not necessarily have prevented the temporary use permits granted to Pac-Rim.

"There was water available for the drilling program and to cover the water requested in the reservation of water," the department said in statement.

But the organizations disagree with the philosophical implications of the state's action.

"The state's ignoring fish and they're going ahead with development, and we think that fish should come first," Shavelson said.

The Pac-Rim project is still in the permitting phases, and has not yet been given the go-ahead to begin mining from the state.

Heilman and Shavelson said they are not against the mine entirely, but they do not want to see mining supercede salmon habitat.

"Fish should come first. It shouldn't be corporations and money in pockets," Heilman said. "... If we allow one of our salmon streams to be mined, it's going to set a precedent for the whole state."

The Associated Press contributed to this report.

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