Task force suggests changes — Habitat protection proposal OK’d

After almost nine months of presentations, countless discussions, consideration of hours of public comments, hundreds of letters, thousands of signatures and three town hall meetings where residents dissected their efforts, the Anadromous Fish Habitat Protection Task Force finished its work Monday.


The group voted to send the Kenai Peninsula Borough Assembly and Borough Mayor Mike Navarre a packaged recommendation that repeals the controversial Ordinance 2011-12, reintroduces a modified set of streams and lakes for protection and makes significant changes to borough code 21.18, which regulates the anadromous habitat protection district.

The package includes a large proposed ordinance, two separate recommendations, and a final report penned by the group’s facilitator, Paul Ostrander, and other members of the task force.

The recommendations would need to be sponsored by Navarre or an assembly member, and the earliest an ordinance can be introduced before the assembly would be at its May 21 meeting.

Those members who favored the package said it struck a balance between habitat protection and private property rights. Those who opposed the ordinance cited a number of reasons, mainly that they felt the measure should be wiped from the books completely.

The anadromous habitat protection expansion ordinance passed in June 2011. It 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 — is better secured, advocates of the measure contend. Opponents contend the measure is onerous and infringes on private property rights.

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 Navarre to organize the task force, which approved three main recommendations after their months of work.

Those three recommendations are:

■ A proposed ordinance called “the big amendment” that repeals Ordinance 2011-12 in its entirety and replaces that language with new code in 21.18 shaped by the task force members to address a variety of public concerns.

The ordinance also severs a link between the state’s anadromous streams atlas and the borough’s habitat protection code by creating a borough-managed appendix of anadromous waters. The appendix excludes about 170 waters previously included in the district that lacked biological justification or proof that anadromous fish existed in them. If the ordinance is taken up by the assembly, it would restart the public comment process and trigger a massive direct notification of affected property owners.

■ A recommendation that the borough planning department analyze the waters proposed to be added to the protection district appendix, examine the Alaska Department of Fish and Game documentation to ensure the presence of anadromous fish in those waters, and finalize the appendix with a certification before it is considered by the assembly.

■ A recommendation that the borough administration permanently eliminate the $50 staff and $300 conditional use permit fees associated with the ordinance.

The proposed ordinance also addresses five areas of concern many people who testified to the assembly mentioned, including:

■ Notification — If the assembly takes up the task force’s proposed ordinance, every property owner affected will be noticed by the borough through the mail of the proposed changes before the assembly’s public hearing in accordance with Ordinance 2012-39.

■ Public comment — The ordinance will allow the public to be involved in the public process again, with several opportunities to testify to both the borough planning commission and the assembly before any action is taken.

■ Transparency — The ordinance severs a connection with the hard-to-find state atlas of anadromous waters and creates a detailed appendix of regulated waters, identified and located by which river or lake they connect with that will be available in borough code for public inspection.

■ Co-dependence — The proposed ordinance eliminates the prior automatic inclusion of waters selected through the Fish and Game’s anadromous atlas into borough code. In addition it would establish a periodic review of the state’s anadromous waters atlas every three years and require that additions to the atlas will be presented to the borough planning commission and the borough assembly as proposed amendments, allowing for more opportunities for public comment.

■ Allowed uses — The proposed ordinance would expand and further define portions of the code dealing with activities that do not require a permit — routine maintenance of existing landscape features like mowing, pruning, weeding, removing downed trees and planting native vegetation. It would also expand and further define portions of the code dealing with activities requiring just a staff permit, and those requiring the more lengthy and intensive conditional use permit.

The proposed ordinance also:

■ Replaces the word “streams” with “waters” in the code’s official name.

■ Adds additional definitions to the code’s purpose, namely curbing removal of near shore native vegetation, decreasing erosion, sedimentation, damage to the protection district, ground or surface water pollution and damage to riparian wetlands.

■ Stipulates that the educational materials be provided to the public that outline best management practices.

■ Divides the code into five districts — Kenai River, Major Waters, West, North and South and define that the north and south districts are made subject to the ordinance on Jan. 1, 2014.

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

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

■ Stipulates that any waters added to the appendix will be supported by adequate data, and de-listings from the state’s atlas will be presented to the planning commission and assembly as they occur for consideration.

■ Defines clearly how waterbodies are nominated for additions and deletions to the anadromous waters atlas.

■ Expands and further defines 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.

■ Expands and further defines 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.

■ Expands and further defines 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.

■ Increases the time the owner has to apply to rebuild a prior existing structure within the district after its accidental or intentional destruction from six months to 24 months, increase the allowed amount of time from the permit approval to the end of reconstruction from 24 months to 36 months, with an additional 36 month extension permit subject to approval.

■ Allows a property owner to intentionally destroy and rebuild a non-compliant structure in the same location inside the district if it has the same footprint and height and exists prior to 2016 in the north and south districts.

■ Stipulates that the planning department has the authority to require removal of structures that are a public nuisance, health or fire hazard.

■ Removes the definition of an abandoned structure and stipulation that an abandoned structure can be ordered to be removed.

■ Stipulates a specific use has been abandoned and may not continue if it has not been employed in 48 consecutive months.


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