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Will the Legislature protect instream flows?

Posted: November 4, 2013 - 7:31pm

In response to significant public opposition to House Bill 77 that arose in last year’s legislative session, the Alaska Department of Natural Resources, recently, released a fact sheet entitled “Modernizing Alaska’s Permitting System” which provides that “DNR and the Governor … introduced [the Bill] as part of an initiative to … ensure that projects are permitted in a timely, predictable and efficient manner while safeguarding the environment.” Some would suggest, however, that the Bill is more likely the result of the Parnell administration’s intimate relationship with the energy industry than any need to fix inconsistencies in the water right permitting process.

The Courts, for one, don’t appear to be on board with DNR’s argument that Bill “would help prevent an individual or organization from trying to use water reservations as a tool to stop any development by ‘locking up’ water” in reference to the most controversial provision of the Bill which would strip away the ability of Native Alaskan tribal governments and the public to apply for instream water rights. In fact, the Alaska Superior Court, recently, upheld the rights of a citizens group to protect instream flows in the Chuitna River from DNR’s practice of, routinely, giving away water to the energy industry without requiring a permit, while placing on the back burner, simultaneously or previously filed applications to keep water instream. The group sued to force DNR to process several water right applications that they filed in 2009 in an effort to protect the Chuitna River from construction of the largest mine ever developed in the State’s salmon habitat. Most notable, was the Court’s rejection of DNR’s argument that it didn’t have enough staff and other resources to process years of back-logged instream flow water right applications but suddenly managed to find those missing resources when it came time to defend, in court, it’s failure to process those same applications.

Alaska’s dysfunctional water right permitting system, however, is probably best illustrated by Governor Parnell’s infatuation with the Susitna-Watana Hydropower Project that would include construction of the second largest dam in the United States in the middle of the biologically rich Susitna River Watershed. When, in November 2011, for example, an advocate for habitat protection, filed an instream flow reservation on the Susitna River, DNR, initially, rejected the application claiming it was incomplete on somewhat questionable grounds. Although a second application, filed a few days later by the same individual, was eventually accepted, this was not until a separate application for use of water by the hydropower project in the same reach referenced in the water right application was granted to the Alaska Energy Authority. It was not the fact, however, that the instream flow application was rejected because it was not the first in time and under the law but that the AEA application was filed just hours before the original applicant (who was never informed either before or after it was filed), that has left many critics of DNR’s water right permitting practices scratching their heads.

Ironically, it is the Court’s rejection of such water right application shell games that may lead to the biggest threat to the instream flow protection process. This is because HB 77 represents a classic example of the time honored, legislative tactic of changing the law when the government, itself, is the one in violating it. In particular, is the Court’s conclusions in the Chuitna River litigation that Alaska citizens have a constitutionally protected interest in due process and that DNR violated its own rules by denying such citizens the right to keep water in streams to protect wild salmon runs. It can only be imagined how such conclusions have scandalized those ardent foes of constitutional and human rights in the state government making them all the more determined to change the law.

Worse, politicians who support HB 77 and who failed to gather the votes needed to pass it in 2013, plan to run the bill through (possibly as early as January) before the public has a chance to stop it a second time. This session, therefore, Alaskans will need to be ready to tell legislators to protect the rights of every day citizens (for the second time) — on day one.

Hal Shepherd is director of the Center for Water Advocacy.

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