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Anadromous group to mull combined overhaul proposal

Posted: February 18, 2013 - 8:44pm

The Anadromous Fish Habitat Protection Task Force will review an all-encompassing proposed ordinance born from three task force members combining and adjusting a variety of their recommended changes to the borough’s habitat protection code and its recent expansion.

The proposed ordinance combines the recommendations of task force members Ken Tarbox, Bill Smith and Ray Tauriainen and will be up for review at the task force’s Thursday meeting. The meeting has been billed as the last meeting of the task force before takes its recommendations to the public to gather comments.

However, the task force’s timeline could be pushed back depending on the review of two, newly-introduced ordinances from members Stacy Oliva and Fred Braun. Both measures would repeal the protection district expansion created by Ordinance 2011-12, but one goes further to add stipulations for review, a sunset clause and deletes the code’s dependency on the state’s atlas of anadromous waters.

Task force facilitator Paul Ostrander said that while the task force process is “still fluid,” the Thursday meeting will be the last opportunity the task force intends to accept new amendments.

Ostrander praised the Tarbox-Smith-Tauriainen amendment and said their willingness to work together embodied the intended spirit of the task force.

“They have put in an enormous amount of work on this — it is impressive the amount of time and energy that those three put into this based on the information that was accumulated through this task force process,” he said. “They have tried to account for a lot of these concerns and tried to make this thing much, much better based on that information.”

Ostrander said the Tarbox-Smith-Tauriainen measure would repeal Ordinance 2011-12 and reintroduce a new set of waters to be regulated under the code. The new set would be without more than 100 streams that lacked what Ostrander described as “insufficient back-up documentation” from the state on their fish-bearing importance.

The proposed ordinance would also sever the direct link between the state’s anadromous streams atlas and the borough’s habitat protection code so that state additions are not automatically included in borough code. It would also give the public an opportunity to comment on any future stream additions or deletions through planning commission and assembly processes.

If eventually approved by the task force and introduced for consideration by the assembly, the ordinance would trigger a massive direct notification of property owners thanks to the recent assembly passage of Ordinance 2012-39, Ostrander said. That measure — created in response to public outcry about notification of Ordinance 2011-12 — requires property owners to be noticed by mail anytime they are inside of a zoning district that is proposed to be created, amended or abolished.

“This is basically what (task force member) Fred Braun has been asking for, which is to eliminate what was put in (Ordinance) 2011-12 and start over,” Smith said. “We are starting over, we have a completely different approach, we are individually listing every stream, notifying every property owner and we’ll be eliminating those that don’t have adequate documentation.”

According to borough information, the Tarbox-Smith-Tauriainen proposed ordinance would also:

■ Replace the word ‘streams’ with ‘waters’ in the code’s official name and throughout the code, making it the “Anadromous Waters Habitat Protection.”

■ Add additional definitions to the code’s purpose, namely decreasing erosion, sedimentation, damage to protection district, ground or surface water pollution and damage to riparian wetlands.

■ Divide the code into five districts — Kenai River, Major Waters, West, North and South.

■ Define the date the waters were, or are to be made subject to the regulations for the West district (Jan. 1, 2012) and the North and South Districts (Jan. 1, 2014).

■ Exclude the Seward-Bear Creek Flood Service Area and other seawater bodies like braided channels, tide-dominated deltas, estuaries, and lagoons from the code.

■ Define that lands within the district near waterbodies added to the code are subject to portions of the code allowing prior existing uses and structures.

■ Establish a periodic review of the state’s anadromous waters atlas every three years and stipulate additions or deletions from that document will be presented to the borough planning commission and the borough assembly as proposed amendments, allowing for public comment. It further stipulates that any additions for consideration will be supported by fish data, and de-listings from the state’s atlas will be presented to the planning commission and assembly as they occur.

■ Expand and further define portions of the code dealing with activities that do not require a permit, including routine maintenance of existing landscape features like mowing, pruning, weeding, removing downed trees and planting native vegetation.

■ Expand and further define portions of the code dealing with activities requiring a permit, including tree management, specifically if the tree is dead, is a hazard, or to prevent the spread of disease to other trees.

■ Expand and further define portions of the code dealing with activities requiring a conditional use permit, including water-dependant, lakeshore-related uses or structures including watercraft and floatplane landings and haul-outs.

Two proposed ordinances co-sponsored by task force members Stacy Oliva and Fred Braun would both repeal the habitation protection district expansion outlined in the previously approved Ordinance 2011-12.

One of those would go a step further to enhance periodic review of the entire code and require a sunset, or elimination of the code if the planning commission determines the code is no longer serving the public interest and the assembly approves that recommendation.

The aforementioned proposed ordinance would require that any waterbodies added to the habitat protection district would need to be recommended by the borough planning department on an individual basis.

That proposed ordinance would also:

■ Require the planning department to collect a variety of data related to the implementation and enforcement of all habitat protection ordinances. The data to be collected are similar to those requirements also being currently considered by the borough assembly in a newly-introduced measure from assembly member Kelly Wolf.

■ Require the planning commission hold a public hearing for each annual permit and activity report and each three-year review.

■ Stipulate that after each three-year review, the planning commission recommend to the borough assembly whether the habitation protection code continues to “serve the public interest.” If deemed that it does not serve the public interest, and if the assembly approves, the code will “sunset 90 days from the date of the planning commissions recommendation.”

■ Defines public interest as the “cost and burden to KPB citizens and property owners versus the measurable benefit generated by the ordinance.”

Braun did not return Clarion phone calls seeking comment.

Oliva said she felt a repeal was the best approach from the beginning and that hasn’t changed. She said to make the process healthy, the assembly needs to start over.

Moreover, Oliva said the assembly took away the public process when the borough merged its code with the state’s anadromous atlas and even though future notification-enhancing measures have been approved, they didn’t address notification of Ordinance 2011-12.

“The only reasonable fix to that downfall would be to repeal it and take it back to that onset, what they did prior to 2011,” she said.

Oliva said she thought there had been good information brought forward during the task force meetings, “but unfortunately the legislative part is a little separate from the environmental part.”

“There absolutely is a place for habitat protection districts,” she said. “Absolutely needs to be there — we can look at the Kenai River and see how and why it needs to be in place. There’s good information coming forward, but does it sway the notification process? Does it sway how this came about? Does it sway how it was introduced by calling it a streams ordinance when that was not what it was? No. It was deceptive in its language from the onset.”

Included in the task force’s packet were notifications of the assembly’s town hall meeting schedule:

■ Nikiski Community Center, March 4, 6 p.m.

■ Anchor Point Senior Center, March 25, 6 p.m.

■ Moose Pass Community Center, April 9, 6 p.m.

However, Ostrander said that schedule could change depending on the actions of the task force on the proposed amends before it.

“What could happen is that we could decide to add another task force meeting and at that point we would consider that Braun-Oliva amendments again,” Ostrander said. “It is really up to the task force at this point. ... One has been worked on for several meetings, but they are essentially on equal footing even though one has been around a little bit longer.”

The task force will meet Thursday at 7 p.m. in the assembly chambers at the George A. Navarre Borough Building, 144 N. Binkley Street in Soldotna.

Brian Smith can be reached at brian.smith@peninsulaclarion.com.

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