Anchorage Assembly approves legal action over Eklutna dam mitigation

The Anchorage Assembly has authorized its attorneys to take legal action in an ongoing disagreement with three Southcentral Alaska utilities over their draft plan to restore water flow and fish to the long-dammed Eklutna River.

After holding a closed-door session with Assembly attorneys during a special meeting on Friday, members approved a resolution in a 9-0 vote. (Members Randy Sulte, Scott Myers and Anna Brawley were not present for the vote.) The measure allows Assembly attorneys to negotiate, mediate and litigate, if necessary, over issues surrounding the historic and legally required effort to mitigate impacts of the dam at the base of Eklutna Lake.

“Authorizing litigation is not done lightly and only after several attempts to bring about resolution otherwise,” Assembly leaders said in a statement. “But given the firm stance by the owners of the Eklutna Hydroelectric Project to push toward forwarding the Portal Valve option to the Governor instead of taking a pause to address the myriad of outstanding issues and concerns, we have no other choice.”

The Chugach and Matanuska electric associations and the municipality’s Anchorage Hydropower Utility own the Eklutna Hydroelectric Project, and last fall released the draft Fish and Wildlife Program.

The Assembly and Native Village of Eklutna have called for full restoration of the river and have opposed the utilities’ draft plan, which would leave 1 mile of the 12-mile river dry, and would not allow for fish passage into Eklutna Lake. The $57 million plan would rely heavily on the city’s existing water supply infrastructure to replenish flow.

The city in 2017 first made its policy that the river should be fully replenished, and last year laid out that policy in city code.

An agreement made in 1991 between the state of Alaska, two federal agencies and the three utilities outlined the current process to mitigate the dam’s impacts. But there’s disagreement between the hydroelectric project owners and the Assembly and Native Village of Eklutna over whether the process has been followed.

That could lead to a lawsuit from an outside entity, Assembly leaders said.

“There is a proposal to spend $57 million — of tax and rate increases — that doesn’t actually achieve the goal that’s required. So we could spend $57 million and after a lawsuit would have to spend $57 million more, net present value, to achieve the goal of the program,” Assembly Chair Christopher Constant said. “Or we can spend the time now to square the difference between what is proposed and what is in the terms of the 1991 agreement.”

Mayor Dave Bronson in a letter earlier this week expressed his support for the utilities’ draft plan, saying that preserving hydropower and the city’s water is critical.

The Assembly’s measure to authorize potential litigation follows the revelation that the Anchorage Water and Wastewater Utility signed a binding term sheet with the hydropower owners based on the draft plan, before the draft was publicly released.

The term agreement would govern the city’s rights and access to drinking water if the Alaska governor approves the current draft plan, the resolution said.

AWWU gets most of the city’s drinking water from the lake, and its current water rights and access agreement, signed in 1993, is set to expire in 2025.

Assembly members called for the term agreement’s public release, but the utilities have kept the agreement confidential.

It remains unclear what the exact terms of the agreement are, how they intersect with the dam mitigation project or how they may affect taxpayers, utility ratepayers, the city’s water rights and water rates.

“We believe the administration has overstepped their bounds in binding decisions that are the Assembly’s to make,” Constant said.

The Assembly reviewed the document in a closed session earlier this month, and then called for a two-year delay to allow for a deeper assessment, citing concerns over poorly understood impacts to taxpayers and ratepayers, impacts to the city’s drinking water and doubts over the plan’s feasibility.

The three utilities rejected the delay request in a letter last week and defended the plan and their decision to keep the binding agreement confidential, saying that while it’s binding in its basic terms, it would be terminated if the governor does not approve the plan.

But Assembly leaders say that the administration and hydroelectric owners have essentially entered the city into an agreement that would affect taxpayers, ratepayers and city water — areas of city governance that are generally the purview of the Assembly.

“The Assembly finds sufficient basis to conclude that the actions of Administration and the Eklutna Owners Group subvert both the intent and plain language of the Anchorage Municipal Code, Anchorage Municipal Charter, and Alaska Public Records Act and patently ignores the stated policy of the Municipality,” the Assembly’s Friday resolution said.

After the Assembly’s vote, member Kevin Cross said, “It’s frustrating, because I don’t believe government should be done in secret. And these executive sessions are exhausting.”

He assured constituents that his decision to vote in favor of the measure was not made in haste.

“I look forward to the day that all is revealed,” Cross added.

A spokeswoman for Chugach Electric declined to comment on the Assembly’s action.