In-stream flow reservation for Chuitna’s Middle Creek open to comment

Update: As of February 26, Alaska Department of Natural Resources has granted Cook Inletkeeper’s request to extend the comment period to April 9 from the original deadline of March 10. 

On Feb. 23 the Alaska Department of Natural Resources announced that it would receive public comment on an application for legal protection of the flow of Middle Creek, a tributary of the west Cook Inlet’s Chuitna River. The application was made by the nonprofit Chuitna Citizen’s Coalition in 2009 in order to preserve the salmon habitat of Middle Creek against a proposed coal mining operation by Delaware-based PacRim Coal that would de-water the creek and remove the streambed.

An in-stream flow reservation is a water right granted to preserve the value of a body of water in its natural setting. The reservation can be granted for uses such as recreation, sanitation, navigation, and habitat protection — as in the case of Chuitna Citizens’ Coalition, which hopes to protect Middle Creek’s salmon spawning ground.

During the 15-day comment period, ending on March 10, members of the public will be able to submit comments on the proposed reservation via email, fax, or in person at DNR’s Anchorage office. The comment period is part of the adjudication process that DNR began in 2013 at the instigation of a state court after a lawsuit by the Chuitna Citizens’ Coalition regarding DNR’s inaction since their 2009 application. Judge Mark Rindner ruled that DNR must begin adjudicating the decision within 30 days of the ruling on October 14 of that year.

Dave Schade, DNR’s Chief of Water Resources, will decide whether or not to grant the in-stream flow reservation. Schade said that since the court ruling, he has been gathering information to complete the case file for the decision.

“We now have complete files,” Schade said. “We’ve done analysis of the information that the applicant, Chuitna Citizen’s Coalition Inc., has submitted, so now we’re going out to public notice, so that people can view the file, add information, act in support of, object if they have any adverse position to take, and then we can do analysis of the information we have at hand.”

After the end of the 15-day comment period, Schade will analyze the information against criteria for water use given in Alaska statute, which he said include “the benefit to the applicant, the effect on economic activity, the effect on fish and game resources, the effect on public recreational opportunities, the effect on public health, (and) the effect of loss of alternate uses that might be made in a reasonable time.”

Schade that he will be seeking new information through the comments, in order to have the most complete set of data in his case file when making his decision.

“It’s an extensive file now,” Schade said. “I’ve lost count of the documents. If you laid the files on their side, and added in everything, it would be over a foot of paperwork at this point.”

Schade said the file will be publicly available at his Anchorage office, and that he “would love to have people look at the file, and if anything’s missing, point out what’s missing, so we can have as complete and accurate a file as we can.”

Schade said that a lack of information ­— specifically, the incomplete state of PacRim’s application for its mining permit ­— was his reason for delaying the start of the adjudication process between 2009 and 2013. Schade said that the validity of PacRim’s mining permit (currently pending) would have been a factor in weighing the competing usages of PacRim and the Chuitna Citizen’s Council.

“I would have preferred to be adjudicating these reservations of water (the in-stream flow decision), and the traditional water-right applications (from PacRim) concurrently,” said Schade. “Then I would have better information. … Since we were ordered to move forward, I will have to make certain assumptions and consider that as fact, i.e that there’s a competing project that will be able to get its macro-permit.”

In weighing the competing usage rights of PacRim and the Chuitna Citizen’s Council, Schade said he will have to assume “that PacRim Coal will get its permits.”

“What I won’t know is, what are the stipulations of those permits?” Schade said. “What are the balances that will be set with those? So I’m going to have to make certain assumptions and look at worst-case scenarios and best-case scenarios, and kind of make a decision based on the best information available.”

Schade elaborated on what information he would hope to have about the competing interest if the mine permitting process had been completed before adjudication.

“I’m hoping that we’ll have better information on some of the potential value of the economics of the (coal-mining) project,” Schade said. “We haven’t got a detailed mine analysis or proposal yet, so that leaves us kind of up in the air about the final design and how they plan to operate and how that might impact this decision.”

When asked how an in-stream flow reservation on Middle Creek would alter PacRim’s ongoing permitting process, Schade said, “I can put it this way: this is a yes or no question. I cannot give the in-stream flow reservation in the mine-site area and also give a water right to PacRim.”

PacRim declined to comment for this article.

Bob Shavelson, executive director of environmental nonprofit Cook Inletkeeper, which assisted Chuitna Citizen’s Coalition in its application for the in-stream flow reservation, said that his group has applied for an 45-day extension to the comment period because “a 15-day comment period is not enough time for Alaskans to understand the complexities of this issue and write meaningful comments.”

“There’s a variety of elements here,” Shavelson said. “It’s not just a simple ‘yes I support this.’ There should be a meaningful rationale, and it’s going to take Alaskans a little bit of time to understand what this is.”

Shavelson said that the information submitted to DNR required extensive research by Cook Inletkeeper.

“The applications are very involved,” Shavelson said. “You have to provide information on the flows in these water-bodies, the variations in these flows, the fish populations that are supported in those areas, and the other public resource values that come with it. It’s not just about fish. It’s about habitat for all the fish and wildlife that exist in these areas, because the coal company has applied for dozens and dozens of water right applications that would drain this whole very wet area and completely change the hydrology and the geology.”

Shavelson said that Cook Inletkeeper had no anticipation of which way the decision would go.

“DNR has put out the applications and they’re going to weigh the comment and they’re going to make a decision that hopefully reflects the public interest,” Shavelson said. “We believe that the public interest tilts strongly towards sustainable salmon populations instead of a one-time use of giving away a very productive ecosystem for coal-mining.”

Schade said that if the extended comment period is granted, “the shortest timeline (for the decision) would be “45 days and 30 days thereafter.” If one of the interests involved calls for an appeal of his decision, Schade said that “it could go up to 45 days and 6 months thereafter.”

Alaska is one of the few states, along with Arizona and Nevada, to grant in-stream flow reservations to private groups and individuals rather than making them exclusive to state agencies. However, no such privately-held reservation has yet been granted in Alaska. DNR’s previous in-stream flows have gone to the Alaska Department of Fish and Game, Bureau of Land Management, and U.S. Fish and Wildlife Service.

If granted, the reservation of the Chuitna Citizens’ Coalition will be the first issued to a private group, although Schade said that other in-stream reservation applications are awaiting adjudication by DNR from non-governmental organizations, tribal organizations, and individuals.

 

Reach Ben Boettger at ben.boettger@peninsulaclarion.com.

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