Following an unprecedented grass-roots campaign during last year's legislative session, opponents defeated a bill that would have substantially limited the public's ability to participate in water and land resource decision making in Alaska. The death of the bill, which, in part, would have stripped away the ability of Alaska Native tribes and the public to apply for in-stream water rights, was more than just a victory for protecting water and fishery resources. The real legacy of HB 77 was the coming together of tribes and everyday citizens in overwhelming numbers to say a big "NO" to turning over water and subsistence resources to private interests.
The bill was proposed by former Gov. Sean Parnell's administration around the same time that a citizens' group sued the Department of Natural Resources to protect in-stream flows in the Chuitna River west of Cook Inlet. The dispute centered around several 2009 in-stream flow water rights applications filed by the group that would require the state to leave water in-stream to protect prime salmon habitat.
Then in 2013, Delaware-based PacRim Coal, LLC filed a water-right application to divert the same water so that it could develop the coal located under the river bed. As part of the lawsuit, the group asked the court to force DNR to process the water rights applications filed in 2009, claiming that the agency was giving away water to PacRim without requiring a permit, while placing the group's simultaneously or previously filed applications to keep water in-stream, on the back burner.
That HB 77 appeared around the same time as the Chuitna lawsuit was probably no coincidence. Industry supporters in the Legislature and Parnell administration were probably aware that the rights of Alaska Native tribal entities and citizens to protect salmon and other fish species are protected by a litany of state laws -- including Article VIII of the Alaska Constitution which subjects the authority of the state to issue water right permits for private use, "to the general reservation of fish and wildlife." In other words, while the state is authorized to issue water right permits to private entities (such as a coal company for mining purposes), this authority is limited by the rights of the public to protect water and fishery resources when and where they so choose.
This conclusion was supported in Anchorage Superior Court, which in 2013 agreed with the Chuitna citizens' group that the state violated the law by not prioritizing the in-stream flow applications. Most notable was the court's rejection of the state's argument that it didn't have enough staff and other resources to process years of backlogged in-stream water rights applications, but somehow managed to find the missing resources when it came time to defend, in court, it's failure to process those same applications.
Yet, the work of tribes and citizens in Alaska to defend the right to protect in-stream flows is not done yet. With the state taking comments on the in-stream flow water rights applications until April 9, the hard fought victory over HB 77 is being put to the test. Because, only PacRim's or the citizens group's water-right applications on the Chuitna River can prevail, this is a clear test case for the state's constitution and other water laws. Stating in a recent ADN interview that, "This is a question that comes down to yes to one, no to the other," David Schade, the state water resources section chief, has agreed that if he grants the reservation of water in the footprint of the mine, PacRim will not be able to dig up the river. Because the Alaska Constitution requires public uses of water (in particular, protection of fish and wildlife) to take precedence over "privatization" of water rights, it seems pretty clear what Mr. Schade's decision should be.
The hope is that under the Walker administration, the state will be more inclined to support the constitutional rights of all Alaskans. There is little doubt, therefore, that this decision could set a precedent for now and into the future for preserving the rights of Alaska citizens to protect in-stream flows and salmon ... or, continue to deliver the same water and salmon to private uses.
Hal Shepherd is a water policy consultant and writer living in Homer.