Of the more than 100 residents who filled the Nikiski Community Center to near capacity on Monday evening, none spoke in favor of a recent expansion of the Kenai Peninsula Borough’s anadromous habitat protection district.
The meeting was designed to collect feedback on the Anadromous Fish Habitat Protection Task Force’s work — a proposed ordinance assembled from months of meetings and research that would make several adjustments to the existing but not yet fully implemented code.
However, the majority of those who testified before the task force did not speak to its recommendation. Instead, they took aim at the code itself, turning the dialogue into a debate on government regulation and zoning while pressing the task force members on a variety of issues.
Monday’s meeting was one of three the task force will host in coming months before meeting again to consider the public’s feedback and making a recommendation to borough administration and Kenai Peninsula Borough Assembly.
The three hour meeting was at times tense and heated and filled with public testimony and dialogue with members of the task force.
Residents who testified focused their comments on concerns about private property rights, fears that the regulations would spread to other waters once implemented and that the regulation amounted to a “land grab.” Others asked specific questions of the task force, including those about the science used during the borough’s process, the need for various types of permits under the code and how much it will cost the borough to enforce the expansion.
Others, however, used their time to bemoan their perception of the state of the borough government and one resident referred to the code as “the bogeyman.”
Nikiski resident Richard McGahan said he didn’t understand how the area’s “homesteaders could ever touch a thing” considering the Kenai River isn’t “ruined” and still maintains world renowned salmon runs after “all it has been through.”
McGahan also asked who gave the borough the authority to make habitat regulations.
“Who? We didn’t. The taxpayer didn’t,” McGahan said. “It is time that the people of this area, this Peninsula, get rid of the outsiders that want to make it like California, Oregon or some place else like that.”
Resident Jason Carroll said there would be no salmon in Daniels Lake if it weren’t for the residents living on the lake. Moreover, he said that “no one loves those fish” more than the residents, evidenced by prior private work on the creeks.
“So before you go and talk about a 50-foot land grab — which is kind of what it equates to, you are taking the most valuable parts of our properties and telling us what we can and can’t do with them — please consider the fact that those salmon wouldn’t even be here today,” Carroll said.
Nikiski resident Mike Peek said he was “more worried about what they are not telling us than what is being printed.”
“To cover the entire Kenai Peninsula we are going to have to have somewhere between five and 10 enforcement officers, which the borough itself doesn’t even have enforcement powers so that makes it harder and we’re going to have to go to a sheriff department throughout the borough and that’s another roundabout way of getting more tax dollars for the borough,” he said.
Kasilof resident George Pierce asked the audience how many were against Ordinance 2011-12 and most raised their hands.
“How can nine people outweigh all these people in this room and the 1,600 signatures that are against it?” he said. “You are trying to fix an ordinance that needs to be thrown in the trash, not fixed. Repeal the whole thing, be done with it and we can go on instead of coming to these meetings week after week.”
Pierce asked “how many state agencies already do this?” Task force member and retired fisheries biologist Ken Tarbox said “zero.”
“You have Fish and Game that has authority from ordinary high water down, so that’s within the stream channel, and the Corps (Army Corps of Engineers) has some authority over wetlands fill and drain, but in terms of the other aspects of that riparian zone, that critical zone along river streams, there is no agency dealing with that except the Kenai Peninsula Borough through this ordinance,” he said.
Tarbox said that biologists widely recognize that protecting habitat is critical to protecting salmon and that most habitat buffers are 100 feet.
“This is a minimum buffer,” he said. “So the question comes down to, ‘What is the trade off and balance between private property rights and stream protection?’ The reason you have buffers and the government comes into it is that we know that the impacts of private property use goes beyond private property lines into common property resource, which is the salmon resource of this state.”
Tarbox said there is “no doubt about it” that private residents are having an impact on adjacent streams.
“The question is what degree of impact do you have and what degree of protection,” he said.
One resident asked if there were studies done to show what damage private landowners have done to streams or lakes that would necessitate borough regulation.
Ostrander said there have not been specific studies to that end.
“That would be a little bit difficult to do at this point because obviously there hasn’t been a whole lot of damage at this point, but there is damage done,” said Ginny Litchfield, area manager of Fish and Game’s habitat division. “... A lot of this doesn’t happen until it is too late and you’ve already lost the habitat. So you should be happy there aren’t any because that means there are still salmon.”
Among other questions, residents testifying also asked:
— What will the code cost to enforce?
Paul Ostrander, borough chief of staff and task force facilitator, said there have been various estimates generated, at first for two additional employees.
“What we have done right now is we added a half-time position administratively and until this thing is implemented, which it has not been yet, we really won’t know necessarily what that additional staffing we will need,” he said. “But I do believe it will be significantly less than what was originally thought.”
— Why was the ordinance not put to a vote?
Ostrander said the ordinance fits within the assembly’s legislative jurisdiction. Assembly member Kelly Wolf said, during his testimony, that he would support an ordinance to take the matter to public vote.
— Why are some places such as the Seward Bear Creek Flood Service area, Seldovia and Alaska Native lands excluded?
Ostrander said the Seward-Bear Creek area was excluded because the rivers in the area move so much so that it is hard to find an ordinary high water line.
The Seldovia portion, Ostrander said, was excluded because the water there was primarily saltwater and “it was determined because in those areas with the tidal action it just didn’t make a lot of sense to include those.”
Native corporation land is subject to 21.18, Ostrander said, but Native allotments are exempt because of the way they were created by the federal government.
— What permits are required and what do they cost?
Borough resource planner John Czarnezki said there is no permit needed or annual application fee to use or maintain existing structures under the code.
“If you have something that exists before the code is adopted you are allowed to keep it and maintain it,” he said. “If you want to expand it, you would have to apply for a permit and that’s only if the structure was within 50 feet of the water body. Then an application and a fee would be required.”
Staff permits are usually $50. If the project is not covered under a staff permit, it would need a conditional use permit, which requires approval from the planning commission. A conditional use permit is $300.
“Conditional use permits, as they have been described, are everything from float plane landings and basins to boat launches and those types of activities would have a $300 fee associated with them,” he said.
Czarnezki said there are a numbers of penalties cited in the code, but the minimum penalty is $300 per day per violation. He said that the borough’s code compliance officer first seeks voluntary compliance before issuing a citation. The borough has only issued one $300 fine since the code was first implemented on the Kenai River in 1996, he said.
The task force will meet again to take public testimony 6 p.m., March 25 at the Anchor Point Senior Center; and at 6 p.m., April 9 at the Moose Pass Community Center.
Brian Smith can be reached at email@example.com.