Having served in elected office in Alaska for many years I understand the give and take required to create jobs and balance responsible development. House Bill 77 did not strike a reasonable balance when introduced last year and the "fixes" introduced yesterday in some areas make the bill even worse.
I'd like to address my main concerns with proposed amended version of HB 77:
• The authority given to the commissioner in Section One of the bill to issue general permits for an activity on state land while allowing him to override DNR's own laws and statutes is an overreach of power and authority.
General permits allow DNR to issue one permit for a wide range of activities over broad geographic areas -- all potentially before an actual application for a specific operation or activity is even submitted. Subsequent activities, authorized under a general permit, do not require any public notice.
Furthermore, the amended version of HB 77 fails to define "likely significant or irreparable harm" in Section One. Does this mean that the commissioner can issue a general permit if he or she is 51 percent certain the harm can be repaired? The terms need to be defined in the bill.
• You have to be "substantially and adversely impacted" to appeal a DNR decision, yet there is no definition of that term in the bill, except for one section where it is defined as "physical or financial detriment."
The process of listening to the public, even allowing Alaskans to disagree with decisions, is a time-consuming but necessary principal of democracy. A fair and reasonable democratic process requires notice, access to information and appeals that are predictable and transparent. It is a system that's been developed through all the compromises and activities since statehood. All of which is being reversed in this bill. This unreasonably high standard will surely drive more Alaskans to seek recourse from the court system.
• Last year's bill would not allow individuals, tribes or corporations to apply for water reservations. This year's version guts the entire system of reservations by taking out the only provision that has any hope of protecting in-stream flow, which is the priority order of applications. HB 77 grants legislative approval of a new reservation system in which applications are not part of the first-in-time, first-in-right policy of Western water law. For example, even if a municipality has had a complete application on file, with five years of data and the application has been sitting on DNR's desk for a decade there is no requirement that it be adjudicated before permanent rights to that same body of water can be given away forever to a foreign corporation within a year of its application.
DNR referred to water reservations as a "lock-up" at Monday's hearing, but in reality, water reservations protect a fraction of the stream flow for fish, transportation and other public uses, while making the rest of the water in the stream available for appropriation. Remember that water appropriations are a property right and once you give them away they can be sold by their owner. Water reservations, on the other hand, are not a permanent property right and are reversible by the state. DNR's proposed change isn't about "streamlining." It simply guts the law that already favors out-of-stream use over in-stream protections.
Everyone who looks at this should learn something from the Lower 48 examples of multibillion dollar battles around over-appropriated, out-of-stream water rights. Water is the life of land, and water, by our constitution, is an interest in land.
The Alaska Constitution is one of the nation's best in that it says that out of stream uses are subject "to the general reservation of fish and wildlife." Alaska's water law is, although in many ways unimplemented, a model law.
The changes proposed in the amended House Bill 77 turn a blind eye to all of the lessons of the western United States. Such shortsightedness ignores our obligation to protect future generations of Alaskans from the potential greed of the present.
Rick Halford is a former president of the Alaska State Senate.
BY RICK HALFORD