Alaska has some of the world’s most stringent standards to protect the state’s waterways and fish like this Kenai river silver salmon.
water,” said Brent Goodrum, Deputy Commissioner for the Department of Natural Resources and previous Director of the Division of Mining, Land and Water. Typically agencies like the Department of Fish & Game and U.S. Fish & Wildlife Service use in-stream flow reservations as part of their management re- sponsibility to protect wildlife, but these are actions grounded in science, not politics. The wake-up call for the state in how the water rights allocations could be used to block development came when the Nature Conservancy, an environmen- tal organization, filed for in-stream flow reservations in waters downstream from the proposed Pebble project near Iliamna, southwest of Anchorage. DNR was obligated to grant the in-stream flow rights and they are still held by the Nature Conservancy. Similarly, the U.S. Fish & Wildlife Service has filed several applications for in-stream flow reservations in the coastal plain of the Arctic National Wildlife Refuge, where oil exploration is now planned. Those applica- tions have not been granted but they are on file, Good- rum said, but they put the USF&W first in line for any appropriation of water rights in the refuge. It’s unknown whether the Nature Conservancy will try use its water rights near Pebble to impede that project or the USF&W to use any rights it may obtain to complicate oil and gas development in the coast- al plain. In ANWR, water is needed for ice and snow roads, among other things. Just the potential for abuse and problems, however, were enough to motivate DNR to attempt legislation
several years ago to establish some guidelines. The proposal was rolled into a DNR permitting “omnibus” bill, House Bill 77, that included legislative fixes for a wide range of land and permitting problems, most of them technical. While the water rights allocations were the most controversial of these there were enough concerns raised over even the simple technical-fix proposals that the bill bogged down and the state administra- tion abandoned the original proposal at the conclu- sion of the two year legislative session. Given the pro-mining stance of Gov. Mike Dun- leavy and a Legislature that is pro-business there may be an effort this year to revisit the still appropri- ate and necessary statutory changes to resolve these significant problems, including the more stringent guidelines for in-stream flow reservations. In-stream flow rights shouldn’t be confused with DNR’s long-standing grants of temporary and perma- nent water rights, temporary rights being traditionally granted by permit for placer mines, as an example, and permanent rights to property owners. Temporary water use authorizations can be granted for up to five years. To date there has been no claim that water has been diverted or withheld in a way that would impede water volumes in downstream, but the claim will probably be made. Procedurally, the holder of an in- stream flow right would notify the DNR that a flow of water has been adversely affected. It’s unclear just how conflicts will be resolved. Water rights and uses are a touchy issue in many
The Alaska Miner
January 2019
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