DNR commissioner reverses water reservation decision on Chuitna

A citizens’ group won’t receive a water reservation in a stream on the west side of Cook Inlet after all.

Alaska Department of Natural Resources Commissioner Andy Mack issued a decision Tuesday denying an application from the Chuitna Citizens Coalition for an instream flow reservation — essentially, the right to a minimum amount of water in a stream — on a tributary of the Chuitna River on the west side of Cook Inlet near Tyonek. The area became a political minefield for a number of years as PacRim Coal applied for permits to develop a coal seam beneath the Chuitna River, which sustains fish used for subsistence and commercial harvest in the area.

In response to concerns about the mine’s effect on fish and the environment, the Chuitna Citizens Coalition — an activist group including Alaska Native residents of the neighboring villages of Tyonek and Beluga — filed an application for the instream flow reservation on Middle Creek, a tributary of the Chuitna River, in 2009. The application wound its way through the regulatory process and court system for the next six years before the DNR granted a reservation in the lower reach of the creek in October 2015.

Mack wrote in his decision that after PacRim announced its intention to stop seeking permits for the project in May 2017, he issued another decision remanding the matter for further consideration. In response to a request from the Chuitna Citizens Coalition, a court ordered the DNR to issue a final decision on the reservation by Aug. 28.

There’s no longer any threat to the water now that the company has stopped seeking permits for the project, and without the risk to the water, there’s no reason for the reservation, he wrote in the decision.

“Putting it into perspective with other DNR business, CCC’s application is to reserve a particular flow in a creek on which there currently are no competing uses of the water sought,” he wrote. “The water is in the stream and there are no current proposed water uses that threaten the resources. There would be no immediate practical benefit to CCC or the resources it seeks to protect by the issuance of a certificate of reservation.”

DNR doesn’t have the full and complete information available on the potential loss of alternate uses of water in the future, which Mack wrote that he considers to be “ an extremely important factor in determining whether or not the proposed reservation is in the public interest.” In 2015, the state had to make some assumptions to meet the deadline for the decision, and now that PacRim has withdrawn its intention to seek permits, less information is available.

Another project may come forward on that land in the future, too, he wrote. Granting the reservation would block any project that required the water to be drained from that creek.

“It is not in the public interest to grant a reservation that could completely preclude or significantly hinder a future potential use without full information on the potential use and options, especially where resources can be protected through DNR’ s other permitting and regulatory processes if an actual threat to such resources arises,” he wrote.

In a press release, the Chuitna Citizens Coalition said the DNR’s decision “bowed to corporate pressure, and rejected efforts by Alaskan citizens to protect wild salmon in the Chuitna River watershed on the west side of Cook Inlet.”

The group asserted in its release that the DNR went against the ruling of the court and that the decision goes against state policies on water reservations. Homer-based environmental advocacy group Cook Inletkeeper sent a letter to Gov. Bill Walker addressing the issue, asking Walker to intervene in the decision.

“As a Governor, as a lawyer and as an Alaskan, you have a legal and a moral duty to uphold the law,” wrote Cook Inletkeeper Advocacy Director Bob Shavelson in the letter. “The Chuitna Citizens Coalition does not have the financial wherewithal to generate the political clout of the big oil, gas and mining corporations. All they can do is appeal to your sense of right and wrong.”

Deantha Crockett, the executive director of the Alaska Miners Association, said Mack’s decision falls within a clear legal outline and agreed that with PacRim’s exit, there is no basis for the group’s argument of risk to the stream. The Alaska Miners Association asserted that PacRim’s plans didn’t risk the fish anyway, Crockett said.

“Commissioner Mack provides some information as to the authority that the department has to issue a certificate reserving water … one of them is the applicant has demonstrated that a need exists,” she said. “At the time of filing, CCC asserted that the need existed that the fish in the stream and the level of water in the stream was threatened by upstream mining development. They can’t make that argument anymore now that PacRim has exited.”

Alaska has a constitutional mandate to manage all resources to the maximum benefit for Alaskans, and conveying regulation of water resources to any individual or group goes against that, Crockett said.

“I think it jeopardizes our economy when we prioritize one resource over another,” she said. “We should never have to make that decision. We should be able to find a way (to preserve the environment) … if we can’t find a way, we don’t develop.”

In its response to the decision, the Chuitna Citizens Coalition referenced the need for Ballot Measure 1 — often referred to as the Stand for Salmon initiative — which will appear on the ballot this November, asking voters to approve changes to the state’s fish habitat permitting laws that resource development and the Alaska Department of Transportation and Public Facilities says will significantly hamper development. Advocates say the bill will only hamper irresponsible development and protect salmon habitat in streams.

“In light of the State’s flagrant abuse of power, the need to strengthen Alaska’s 60-year-old salmon habitat protection law through Ballot Measure 1 becomes even more critical,” the Chuitna Citizens Coalition wrote in its response.

Crockett clarified that the two decisions are separate — Ballot Measure 1 would only change laws administered by the Alaska Department of Fish and Game through Title 16, while the instream flow reservation is administered by the Department of Natural Resources through the Division of Mining, Land and Water.

Reach Elizabeth Earl at eearl@peninsulaclarion.com.

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