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Assembly introduces repeal of anadromous protection expansion

Posted: April 3, 2013 - 7:26am  |  Updated: April 3, 2013 - 2:07pm

The Kenai Peninsula Borough Assembly has introduced an ordinance that would rollback anadromous waters habitat protection regulations to include only a handful of the area’s largest rivers and tributaries.

The assembly pulled Ordinance 2013-12 off its consent agenda and discussed it before a 7-2 vote to introduce it and set it for a public hearing at its regular Tuesday meeting. The measure seeks to repeal Ordinance 2011-12 — a previously approved, but half implemented measure that expands existing protections included in the habitat protection district to all anadromous streams and lakes in the borough. Assembly member Mako Haggerty and assembly president Linda Murphy voted against introduction of the measure.

Assembly member Kelly Wolf is sponsoring the ordinance — his second such attempt to repeal the recent expansion of the habitat protection district. He withdrew in early January a prior attempt to repeal the expansion citing concerns about potential violations of the open meeting act relating to an email he sent to all assembly members.

The anadromous habitat protection expansion measure passed in June 2011 and added 2,317 stream miles to the 602 previously included in the district, which falls under borough code 21.18. The zone protects the near-stream and near-lake habitat of all anadromous streams and lakes — which host fish migrating from the sea to spawn in fresh water — in the borough 50 feet up the bank.

The idea is by protecting the habitat, the future of the fish — primarily salmon — are better secured, advocates of the measure contend. Opponents contend the measure is onerous and infringes on private property rights.

Borough code includes a prior use rule, creates tax incentives for improvement and compliance and creates a permitting system for property owners to receive approval for certain projects on their property in the protection district.

The code hasn’t yet been implemented on the east side of the borough, but notice of the ordinance’s rules and regulations was mailed to some residents causing a stir. In June 2012, the borough denied a group’s petition to scratch the measure from the books.

Continued public criticism lead Kenai Peninsula Borough Mayor Mike Navarre to organize a task force, which met for several months, has organized draft changes to recommend to the assembly and is currently hosting town hall meetings to receive public testimony on those changes.

Assembly comments Tuesday on the measure were limited to discussion of when the assembly should set Wolf’s ordinance for public hearing. The assembly landed on a public hearing date of June 18 to allow an ordinance filled with task force recommendations to be considered by the assembly at the same time, and for the assembly to give its full attention to the borough budget before.

Paul Ostrander, borough chief of staff and task force facilitator, said if the task force were to complete its work within one additional meeting after an April 9 town hall meeting in Moose Pass, it could have a resolution to the assembly by its May 21 meeting. However, that’s provided borough administration or an assembly member sponsors what the group generates.

If introduced, the task force’s recommendation would mirror the same hearing schedule as Wolf’s repeal ordinance giving all sides equal opportunity to make their case to the assembly.

The measure the task force has taken to town halls in Nikiski and Anchor Point makes changes both big and small. It repeals and reintroduces the ordinance for the east side of the borough, eliminates at least 100 streams previously included in code that lacked biological justification, severs a link between the state’s anadromous streams atlas and the borough’s habitat protection code and would restart the public comment process, triggering a massive direct notification of property owners.

Murphy said she felt Wolf’s repeal ordinance was premature.

“Had we had a report from the task force, while I might not have wanted to repeal the ordinance, I wouldn’t have objected to introduction of the ordinance because I think it does deserve a public hearing,” she said. “However, I just think we are putting the cart before the horse and we need to get that information before.”

Navarre said he is frustrated by “a lot of misinformation, disinformation and some fear tactics” that have been stirring up opposition to what the task force attempts. He asked those who have tirelessly called for a repeal to give the process time to work and to consider that the task force’s work accomplishes their goals.

“Even though (the task force’s work) really does repeal 2011-12 and replaces it with something that is better and perhaps more deliberately crafted, it doesn’t seem to be enough for people,” he said. “They keep saying, ‘Do it now, do it now, do it now,’ and there’s a process. People have invested a great deal of time at my request to try and educate people and my administration and the assembly on the issue. ... Give it time to let this process work and at the end of it if you are still not happy with this deliberative, responsible, public process that we are going through, then call us to task.”

When asked if he would veto an ordinance repealing the anadromous expansion, Navarre said it is too soon to speculate. However, he said he is optimistic — despite frustrations — that the borough can find a balance between private property rights and a responsibility to future generations.

“I guess I wouldn’t expect that,” he said of the repeal ordinance passing. “I think they are more likely to pass some protection. I think everybody agrees there should be some protection — it’s just (a matter of) what that looks like.”

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