An anadromous overreach? Assembly mulls future of ordinance as residents speak out

Stacy Oliva talks to her dog, Lakota, and cat, Tiger, on the dock of her family’s home on Daniels Lake in Nikiski last week. The Oliva family is concerned about loosing control over about half the lawn that separates their home from the lake if a Kenai Peninsula Borough ordinance stands as it was written.

Residents, property owners and members of the Kenai Peninsula Borough Assembly called regulations designed to protect the near shore habitat of anadromous water bodies in the borough an overstep and asked for them to be taken off the books last week.


On Friday, a citizen's petition was filed with the borough clerk's office to repeal the anadromous streams ordinance, listed in code as KPB 21.18. Several assembly members even said they would consider sponsoring an ordinance to repeal those rules, but Borough Mayor Mike Navarre said he would not support such an action.

The assembly approved the anadromous streams ordinance last summer and it was implemented for the west side of the borough at the beginning of this year. Implementation for the east side of the borough is scheduled for 2013, but notice of the ordinance's rules and regulations has already been mailed out to some areas causing property owner concerns.

Currently, the Kenai River, 10 of its tributaries and 14 other streams in the area, are managed under habitat protection. The anadromous streams ordinance passed in late June 2011 added 2,317 stream miles to the 602 stream miles previously included in the district.

The ordinance protects the near-stream habitat of all anadromous streams -- which host fish that migrate from the sea and breed in fresh water -- in the borough 50 feet up the bank from the ordinary high water mark. The idea is by protecting the habitat, the safety and future of the fish -- primarily salmon -- are better secured, advocates of the measure contend.

"I would be more than willing to sponsor a repeal of this if I felt like there would be the courage of five individuals up here to say, 'No, maybe we have gone too far,'" assembly member Charlie Pierce said at the assembly's May 15 meeting.

Several residents testified to the assembly about the issue. They were concerned the rules would limit their ability to develop their property near anadromous streams.

Also, some assembly members and borough administration said they were surprised to hear the ordinance also included lakes that anadromous streams flow into, including Navarre.

"I'm not sure the public was fully aware of what the impacts were and I'm not sure the assembly was aware of all the impacts, not to say it is not good to try and protect habitat," Navarre said.

Stacy Oliva, a North Kenai resident who lives next to Daniels Lake, told the assembly last Tuesday she opposed the ordinance because of the precedent it sets.

"My whole front lawn is in a habitat protected area," said Oliva, who recently received a pamphlet in the mail detailing the new rules and regulations that apply to her property.

While maintaining healthy salmon runs is important to Oliva, she feels the actions the ordinance prohibits are "extensive," she said. She and several neighbors have discussed the ordinance and will further protest the borough assembly.

"Unfortunately I was not awake, I was not paying attention to this ordinance," Oliva said. "... I had no idea how encompassing this was."

River Center staff educating public

John Mohorcich, Donald E. Gilman River Center Director, said his staff has tried to give an extensive heads up to property owners about the new regulations and give them resources and education to pursue. So far staff has mailed out thousands of letters, he said.

Mohorcich said he knew the staff was going to have an "educational curve" with residents. However, most people asked questions and took the time to try and decipher the information. They wanted to understand what it meant to them and why the borough had enacted the protections.

The habitat district ordinance provides multiple avenues to receive approval for activities, to construct structures or to utilize the property, Mohorcich said. There are also activities that don't require permits and there are different rules for businesses and non-commercial uses.

"If it is a non-commercial use you can still utilize that property probably just exactly the way you are accessing it and utilizing it right now," Mohorcich said.

The River Center can also issue staff permits for those applying to do certain activities such as vegetation management, removal of hazardous trees, installing elevated walkways, stairs or fish cleaning tables. Staff can usually turn around a permit in 14 days, Mohorcich said.

"All of these properties are site specific ... (and) we would encourage people to contact us to see if a permit would be required if they did need to remove trees or thin some trees down in the habitat protection district," he said.

The streams ordinance also includes a prior use section. Under those rules the River Center staff could only make recommendations on what activities are best for the riparian habitat, but final action is left with the property owner.

"If there was an activity, use, or structure already established at the time of the implementation of this ordinance, those ... get to continue," Mohorcich said. "I think that's not very well understood at this point.

"If people already have a lawn established or already have a beach, or whatever ... that use, activity and structure are allowed to continue. We hear a lot about 'Oh, I can't cut my grass anymore.' Well that is definitely an existing use.'"

Mohorcich said lakes were included in the protection district because the River Center uses the Alaska Department of Fish and Game's "Atlas and Catalogue of Waters Important for the Spawning, Rearing or Migration of Anadromous Fish" as outlined by the ordinance.

"Maybe it was one of those things that we are too near and dear to (the atlas) and we're working with it everyday and we knew what that meant in the total definition of all the (anadromous) water bodies in the borough," he said. "I guess it is surprising to me that there are so many people that didn't understand that lakes would be included."

Jason Tauriainen, a borough planning commission member, said last Tuesday the commission voted 6-5 on a motion to exclude lakes from the district, save for Kenai and Skilak lakes. He said the ordinance "doesn't really fit lakes," is specifically written for rivers and streams and he would like the assembly to revisit the issue more closely.

"I don't think anybody understood that lakes would be part of this when it went in," Tauriainen said. "I know I didn't when I voted to recommend it."

Borough assembly, residents react

Oliva said exempting lakes from the protection district would be a good start, but she would like to see the additional regulations approved last summer taken off the books and the assembly start from scratch. It's simply "too big, too broad," she said.

"There are already enough regulations in place for protecting the habitat, for protecting our resources and the borough just doesn't need to add to it," she said. She added several of her neighbors agree with that stance.

She thinks the responsibility should rest with property owners to be good stewards of their land. Oliva said she also gets the feeling the ordinance was "pushed" by River Center staff, and not residents.

"I think that we can all work together for a common solution that's not part of a government overreach," she said.

Oliva's family has a history of commercial fishing and she said she understands the importance of salmon returns.

"But, we have taken action over the last several years to improve (streams), try and deal with erosion in those high-use areas, and try to implement good practices on fishing," she said. "I don't think that what they are doing by encompassing all these water bodies is what the issue is.

"It is a greater issue than that. It does need to go to the usage issue. That's a big issue and it is not a comfortable issue."

Assembly member Charlie Pierce said the assembly might be "missing the real issue of protecting the habitat."

"I ask you (to consider) the policies and the restrictions we are placing on the land owners of mowing a lawn or cutting a bush that's within 50 feet of the (stream)," he said. "Come on. Is that reasonable?"

Pierce said he was concerned the ordinance is "growing legs."

"How many people are we going to have to hire Mr. Mayor to do this?" he said. "I'd ask the tax payer to look at their tax bill when they get it and say, 'Where's the added value to me as a taxpayer by what you have done here at the borough?'"

Assembly member Ray Tauriainen said he agreed the borough had overstepped.

"I don't like the idea of taking away property rights like we have," he said.

Brent Johnson, assembly member from Kasilof, said he supported the ordinance and said the assembly only extended rules that have been lived with for years on the Kenai River.

"There is a huge issue of taking care of streams, an issue that wasn't dealt with in the Lower 48 ... and so what do they have now? Nothing," he said. "But what we have here still is fish. There is no other agency that takes care of the property next to the river."

He said the vegetation next to the stream is important for fish and lakes are also an important component.

"I don't view it as though we made some horrible mistake somewhere along the way here," Johnson said. "... Our authority is on the land that is next to rivers -- we can protect that and so I think that we should protect that."

Assembly member Mako Haggerty echoed a similar thought, adding salmon and habitat are also important to the quality of life for many residents. He said the loss of a salmon run is "devastating" to Lower 48 communities who have experienced it and the borough has a responsibility to protect those runs.

"Those runs didn't disappear because of any one thing," he said. "They disappeared for a thousand reasons, they died a death of one thousand cuts."

Assembly president Gary Knopp called for the ordinance to be "repealed" and "re-thought."

"Even when we had the 13 original water bodies I could live with it then, but here's my feeling on it today -- it is very overreaching, it is somewhat onerous when you look at staff permits and what you have to do," he said. "It is a democratic world, not socialist or communist here and now you have to go and get a staff permit."

Navarre considers next steps

Navarre said the borough delayed implementation of the ordinance on the east side of Cook Inlet until 2013 so staff could notify residents and "figure out ... whether it is too far reaching, whether we need to have more hearings on it or whether it needs to be scaled back in some areas."

Navarre said he would not support a full repeal of the ordinance, but would support revisiting it and looking at "what makes sense and scaling it or narrowing it as necessary."

"It is partly growing pains and maybe not enough notification of what the impacts might be," he said. "We'll figure it out."

There are currently no plans to add additional staff to manage the ordinance, Navarre said, and any estimates of additional costs to the borough as a result are simply "speculation" at this point.

Navarre said he expects an ordinance -- one addressing the lakes issue or otherwise -- to be introduced by administration or the assembly at its June 5 meeting. He said he would take the week to consider his next step.

However, a repeal of the ordinance would not be in the borough's best interest, Navarre said, also mentioning the existing habitat protection district, including the Kenai River, as an example.

"People talk about how restrictive it is and there's ways to get permitted for the activities that you want to do if it's reasonable," he said. "I think what we are going through right now is a bit of the education process. Having experienced and dealt with it on the Kenai River we have got a good indication that an ordinance that protects habitat and also that ensures property rights can work. I think that's what were trying to do is find that balance."

Brian Smith can be reached at

River Center's "Protecting the Anadromous Streams of the Kenai Peninsula."