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Navigability decision made: DNR submits determination; Seward flood summit planned

Posted: Thursday, October 07, 2010

Salmon Creek Navigability Determination (pdf)

Clarion File Photo
Clarion File Photo
Seward homeowners use a raft to reach their flooded home four years ago this week following a period of heavy rain. The "navigability" of Salmon Creek, one of the bodies of water that occasionally floods in Seward, is a concern for property owners in the surrounding area.

Salmon Creek Navigability Determination Maps (pdf)

Many people in Seward have been worrying that the state might seize their property rights with the stroke of the pen.

On Sept. 28, the Alaska Department of Natural Resources made a determination that should free up some residents' worries but may leave other residents to wonder if the state could cloud the titles to their land.

At issue is the "navigability" of Salmon Creek near Seward. Basically, it's up to DNR to determine if the state's waterways are navigable, meaning they could be used to transport people or goods. If a creek, river, or other waterbody is determined to be navigable, the state asserts ownership of the waterway up to its ordinary high watermark.

The navigability program, part of a nationwide effort dating back to the original 13 colonies, is meant to preserve public access to important American watersheds.

What complicates the determination is that the state also owns the land where a navigable waterway flowed in the past. So, if a riverbed has moved over time, the state asserts ownership over the current riverbed as well as the dry land that was previously under navigable water. If people own property on such land, the state could cloud their titles.

In the Salmon Creek case, DNR determined the waterway to be navigable from the confluence of Clear Creek and Salmon Creek to Salmon Creek's mouth entering the Resurrection River. The upper two thirds of Salmon Creek, upstream from its confluence with Clear Creek to the Bear Lake Glacier, is non-navigable.

Scott Ogan, a natural resource manager with DNR, said the state made its navigability determination using many guidelines, but a good, unofficial "yardstick" was whether the waterbody would be wide enough, deep enough, etc., for a commercial fishing guide or a rafting company.

"My guiding principles were to be fair, consistent and defendable," Ogan said. "We want to make sure that we're consistent and defendable so we don't compromise navigable determinations in other areas."

The determination means the state could potentially cloud property titles of residents on the lower third of the creek. The good news, state officials said, is that the lower section of the creek has a fairly well delineated riverbed, meaning titles should not be clouded on land surrounding the river.

Conversely, if the upper section had been deemed navigable, determining ownership boundaries would have been more complicated because the upper section has changed significantly over time, DNR leaders said.

"We're real pleased with the determination we have," Ogan said. "It's generally good news for most of the residents."

Still, there's troubling news for the residents of the lower section of the creek. First, even though the state says it won't scrutinize high water marks to assert ownership over dry land, the possibility of clouding titles remains.

Second, Salmon Creek is prone to flooding. To alleviate the problems associated with flooding, residents remove gravel from the riverbed. Because the state has asserted ownership over the lower third of the river with its navigable determination, it will also charge a $3.25 per cubic yard royalty if residents want to remove gravel from the navigable section of the river. The fee is not in place in the non-navigable upper section of the river.

Dan Mahalak, a Kenai Peninsula Borough hydrologist who focuses on flooding in Seward, said the navigable determination and the gravel royalty complicate flood mitigation.

"Gravel hauling is very expensive. Reducing cost and simplifying the process is one of the many objectives that the citizens want accomplished," Mahalak said. "If you're doing flood control you have to have permission from the landowner. If you don't know who the owner is, you can't do any flood control."

Ogan, with DNR, said the navigability determination should actually improve flood protection in the non-navigable section of the river.

"We think it's going to streamline the process for people who want to mitigate water damage," Ogan said. "It makes one less hoop to jump through."

Flood mitigation in Seward is an issue that Kenai Peninsula Borough Mayor Dave Carey has championed. He, along with Seward's mayor and the Seward/Bear Creek Flood Service Area board's chairman, is hosting a one-day public summit in Seward on Oct. 8 beginning at 8 a.m.

The summit will focus on long-term plans for flood mitigation in Seward, what can be done about eliminating or lessening the state's gravel royalty, and educating the public about the effects of the recent navigability determination, according to Carey.

DNR's Ogan and Wyn Menefee, chief of operations with the mining, land and water division, will attend, but commissioner Tom Irwin and Gov. Sean Parnell turned down invitations.

Carey said the summit should allow Seward to move flood discussions forward.

"We can truly focus on the gravel issue and talk about getting a mitigation plan and grants approved," Carey said.

The mayor is hoping to begin the process toward eliminating the state's gravel removal fees on navigable waterways.

"Gravel, when causing floods, does not have a positive use. There should be no charge for removal," Carey said. "I hope that officials can be given the discretion that, in this area, they do not have to charge for gravel removal."

DNR leaders are hoping to use the summit to educate the public.

"I'm expecting some confusion," Menefee said. "I was hoping that (the navigability determination) would actually be a little sigh of relief, but there may still be confusion."

Skepticism is apparent when talking to Seward residents.

"Personal property owners just want the DNR to go away," Mahalak said.

Bill Williamson, the chairman of the flood service area board, expressed similar views, saying Ogan speaks with a "forked tongue."

"Every time I've dealt with anybody, there's always something hidden. I hope that's not the issue here," Williamson said.

Williamson questions why the state would want to assert ownership of a river prone to causing flood damage.

"I wish the state realized that we have to work together as far as waterways are concerned," Williamson said. "What is their other agenda? Do you really want to be responsible for this?"

Andrew Waite can be reached at andrew.waite@peninsulaclarion.com.



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