Borough’s anadromous streams protections survive another challenge

  • By Rashah McChesney
  • Wednesday, July 8, 2015 3:26pm
  • News

When it’s all tallied up, members of the Kenai Peninsula Borough Assembly spent well over 6 hours listening to testimony on an ordinance that would have repealed portions of the borough’s controversial riparian habitat protection program.

But that time is a drop in the long stream of oral and written public comment that has come before the borough assembly since it voted to expand habitat protections on anadromous streams in 2011. Assembly president Dale Bagley and members Wayne Ogle and Kelly Wolf introduced an ordinance in May which would have dramatically scaled back the number of water bodies on the Kenai Peninsula currently subject to the 50-foot anadromous habitat setback. Instead, the proposed rule would have focused protections on the Kenai and Kasilof watersheds.

The setback was born from an anadromous streams habitat protection measure that first covered about 600 stream miles before it was expanded in June 2011 to include an additional 2,317 stream miles in the borough. The measure protects the near-stream habitat of all the borough’s anadromous streams and lakes — where fish migrate from sea to spawn in fresh water — 50 feet up from the bank.

The idea is to protect habitat and therefore salmon, according to advocates of the setback. But opponents say the measure is restrictive, is an overreach of the borough’s powers and violates personal property rights.

Since the 2011 expansion, the borough’s anadromous streams protections have faced a number of challenges, including a petition application in 2012 that would have led to a citizen vote deciding the fate of the anadromous protections. Another in 2013, brought forward by assembly member Kelly Wolf, would have repealed the anadromous streams ordinance.

The latest challenge drew many of the same arguments as it has in the past, namely that the anadromous fish protections were not backed up by data proving that fish were threatened in all of the waterbodies covered under the 50-foot setback rule.

“This ordinance is not a fish ordinance,” said Nikiski resident Michele Hartline. “It’s not a fish issue. If it was a fish issue, we would close all of those fisheries. No, this is definitely an overreach-by-government-on-private-property-rights issue.”

Others asked why the borough focused on private property owners rather than some of the personal-use and sport fishing impacts that can be seen on salmon-bearing streams.

“You guys can’t even fix the destruction that’s going on the Kasilof and Kenai River,” said Kasilof resident George Pierce. “We’ve got a king run that has been destroyed by all the boats on the river, now we’re getting ready to be invaded by thousands of dipnetters trampling the beaches, destroying the dunes … why aren’t you saying squat about that?”

Opponents of the latest challenge said the time to protect anadromous streams was when they were healthy and not threatened.

“I spent five years working on tributaries of the Columbia River,” said Lisa Beranek.

Beranek said she spent those years planting native trees, battling non-native invasive plants and administering projects focused on restoring salmon habitat.

“I worked with private landowners who, if given the opportunity to be in your position today, would give anything to go back and not remove the trees along their river bank,” she said. “Give anything to vote to keep an ordinance intact, if not increasing the footage of it.”

On the 9-person assembly, members made clear which way they would vote early in the process with Ogle, Bagley, Wolf and Stan Welles advocating strongly for a repeal of the current anadromous protections.

Brent Johnson, Mako Haggerty, Sue McClure and Kelly Cooper were opposed to the changes, making recently-elected Blaine Gilman a deciding vote on the matter.

While campaigning for his seat, Gilman said he thought the anadromous streams ordinance needed tweaking and was concerned about the layers of regulation that could discourage development.

However, when the assembly called for a vote, he was one of the first to register a no-vote in opposition to the proposed changes.

After the meeting, Gilman said his thinking on the matter had evolved as he learned more about the importance of riparian habitat.

“This has to be a balance between property rights and protection of watersheds,” he said. “We’ve had so much consternation in the community with us imposing these regulations on people that already owned their property. What’s going to happen as we grow is there are going to be more and more people moving into different watersheds and areas.”

Gilman said new residents would, in theory, be less concerned with the idea of a property-grab as they would buy their property knowing that the 50-foot setback is in place.

“It’s not the right reaction to just go for one water body and say ‘oh, it’s distressed and we should put regulations on it.’ It should be a preventative measure,” Gilman said. “It’s good for the health of the streams.”

Reach Rashah McChesney at or follow her on Twitter @litmuslens

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