Water rights dispute generates thousands of comments

On Thursday, a controversial and precedent-setting decision on whether to grant water rights for a west-side Cook Inlet stream to the salmon conservation group Chuitna Citizens Coalition passed an important milestone.

Dave Schade, Chief of the Alaska Department of Natural Resources’ Water Resources Section, said that his office had received an estimated 5,000 comments since the coalition’s application for instream flow rights for Middle Creek, a tributary of the Chuitna River, opened for public comment on Feb. 23 of this year. The comment period closed at 5 p.m on Thursday.

“For a reservation of water application, this is quite out of the ordinary,” Schade said, adding that his office more often receives between 15 and 20 comments on water-rights cases.

The application by the Chuitna Citizens Coalition, however, has two unique aspects.

“It’s the first reservation of water application that has a competing application, and it’s the first private reservation of water application that’s been done,” Schade said.

Seeking legal protection for what it said were Middle Creek’s valuable salmon-spawning waters, the Chuitna Citizens Coalition in 2009 filed three applications for instream flow reservations — a right to the value of water in its natural location. Although Alaska is one of the few states that allows instream flow rights to be held by private groups and individuals in addition to the state and federal agencies that hold them in most other states, it has never before granted such a right.

Another application is pending for water rights in the Chuitna region. The Delaware-based PacRim Coal Company has also applied to DNR for rights to water in the same region as part of its Chuitna Coal Project, a proposed surface mining operation intended to extract coal from deposits beneath the Chuitna watershed.

The Chuitna Citizens Coalition was organized by residents of the nearby villages of Beluga and Tyonek in response to the Chuitna Coal Project, which it has claimed would irreparably destroy the salmon habitat of the Chuitna watershed.

PacRim’s application for extraction rights to the area’s water will be adjudicated by DNR after the Chuitna application. Schade said that PacRim Coal still has to obtain other permits from agencies including Fish and Game and the Army Corps of Engineers before its case can be considered.

A campaign against PacRim’s mining proposal by the Chuitna Citizens Coalition and the conservation groups Cook Inletkeeper and Alaskans First produced many of the comments given to DNR. According to an April 7 Chuitna Citizens Coalition press release, it had presented 4,800 comments to DNR.

“We’ve still got people sending comments in,” Chuitna Citizens Coalition President Judy Heilman said on Thursday, a few hours before the comment deadline.

As part of the campaign to generate comments, Alaskans First produced “Chuitna: More than Salmon on the Line,” a documentary film about the conservation efforts of Chuitna-area residents, which toured Alaska beginning in February. Heilman said other efforts have involved direct interactions with the public.

“We’ve been at the (Great Alaskan Sportsman Show, in Anchorage) for four days, and we’ve been talking to people all over,” Heilman said.

Other groups have campaigned opposing the reservation, including the Alaska Industry Support Alliance and the Resource Development Council, an association including Alaska business, industry, and labor groups, and state and federal government agencies. PacRim Coal and Tyonek Native Corporation are among the Resource Development Council’s members, which also include the Department of Natural Resources and the Army Corps of Engineers.

Rick Rogers, Executive Director of the Resource Development Council, said the group took issue with what he claimed was a more-than-necessary volume of water requested in the reservation application, “the notion that the state would adjudicate a water right to one use without having the other uses on the table,” and the legal precedent the granting of the application would set.

“Another problem we have with the entire process is the notion that a private interest would hold water reservations for a public purpose,” Rogers said. “We think that if there is indeed a need to reserve instream flow to protect fisheries, then that should be invested with the state Department of Fish and Game, and not with a private interest. … If you can go in without sufficient justification and just demand that a private entity holds the water in the stream and no one else can use it, then it limits opportunities for the public to make use of their resources.”

The Tyonek Native Corporation, which owns land included in the proposed project site, submitted a comment to DNR that states, “Ensuring continued subsistence and commercial fishing opportunities for our shareholders is a priority. But TNC must also foster economic development and promote jobs for our shareholders. For these reasons, TNC supports responsible coal development, and has supported the Chuitna Coal project.”

The village of Tyonek, where 20 percent of Tyonek Native Corporation’s stockholders live according to a press release accompanying Tyonek Native Corporation’s comment, is near the proposed coal-mining site. Some members of the village have opposed the mining proposal, including Village President Al Goozmer, who appeared in “More than Salmon on the Line” speaking of how the proposed mine would damage his village’s subsistence fishery. Heilman, a resident of the nearby town of Beluga, said that support for the reservation was strong in Tyonek. Tyonek village residents contacted declined to speak for this article.

On Thursday, Schade said that at least two groups — Cook Inletkeeper and the Alaska Mental Health Trust, which owns the land bordering Middle Creek, as well as leasing rights to nearby coal resources — had issued objections to DNR’s adjudication of the instream flow reservation. Schade said he was inclined to allow a hearing for the objections, but as of Saturday had not done so.

In her group’s objection letter, Mental Health Trust Land Office Executive Director Marcie Menefee estimated that PacRim’s coal project would bring the fund between $200 million and $300 million over the mine’s 25 year operating life, and would create 500 construction jobs and 350 permanent jobs which could potentially go to Trust beneficiaries. She wrote that the Trust “strongly objects to any administrative actions that would prohibit or impair the ability of the Trust to develop its land and resources, or diminish the value of the resource to the Trust and its beneficiaries.” Menefee also stated that the competing applications should be considered simultaneously.

Menefee referred in her letter to a DNR review that valued the fish in Middle Creek at a maximum of $10,688 per year. In Cook Inletkeeper’s objection letter, executive director Bob Shavelson wrote that DNR had incorrectly put “an economic value of this water reservation at a maximum of $10,600 a year,” and had released public information stating that “a water reservation precludes all future economic activity.”

Shavelson asked DNR to “provide a hearing where these issues can be addressed based on all relevant information.”

If granted, the hearings must take place within 180 days, after which Schade will begin the decision of the Chuitna Citizens Coalition’s instream flow right.

In the meantime, he has several comments to read.

 

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

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