Dunleavy administration maintains silence on plan to change Alaska’s water rights system

Mum’s the word from Department of Natural Resources officials regarding their plan to fundamentally change the state’s water rights system.

House Fisheries Committee chair Rep. Geran Tarr, D-Anchorage, said DNR representatives declined to attend a July 27 hearing on the agency’s proposed changes to in-stream flow reservations and other water regulations because she was told they are in a “quiet period” while they respond to public comments from the extended period that closed April 2.

Tops among the changes first suggested by the Division of Mining, Land and Water in mid-January is adding new language to water reservation regulations stating that water reservation certificates currently issued to private parties would instead be held by DNR, which adjudicates water rights and reservation applications.

Resource development advocates insist the change is needed so control of a public resource is kept within a public agency and to prevent opponents of a given project from attempting to impede development by chasing water rights.

For their part, conservation groups insist the change would strip Alaskans of their rights to protect the fish — another public resource — in waters vulnerable to development.

Alaska’s current system of water rights is generally viewed as one of the most open in the country; it allows anyone to apply for temporary water use authorizations as well as water reservation, or in-stream flow, rights to maintain sufficient stream flows for fish and other wildlife.

Reviewing water reservation applications often takes DNR years in coordination with the departments of Fish and Game and Environmental Conservation, a situation Bob Shavelson, advocacy director for the Homer-based conservation group Cook Inletkeeper, said in the hearing is the result of traditionally pro-development state administrations prioritizing water rights, or use, authorizations over flow reservations to protect habitat.

Currently, the Department of Fish and Game holds the vast majority of flow reservations; another handful is held by federal resource agencies such as the U.S. Fish and Wildlife Service.

The Nature Conservancy is one of the few private entities to hold water reservations. It secured four flow reservations near the Pebble deposit in 2017.

DNR officials also said during the public comment period that they could not comment specifically on the proposed regulations. At the time, they cited a section from the Administrative Procedures Act that state’s agency officials proposing a regulatory action “shall make a good faith effort to answer, before the end of the comment period, a question that is relevant to the proposed action, if the question is received in writing or at least 10 days before the end of the public comment period.”

The section of the APA goes on to state that common questions can be answered in a consolidated form on the Alaska Online Public Notice System.

State officials have historically discussed proposed regulatory changes and officials in other agencies have as well during the Dunleavy administration.

Water Section Chief Tom Barrett said more broadly that flow reservations are “significant” in that they can impact other water users in a January interview. He added that the state is not trying to withhold water rights for any one group, noting the DNR commissioner — who approves water reservations — currently has the discretion to discontinue them as well.

According to such answers posted by Mining, Land and Water officials, the changes are meant to better distinguish water reservations from more traditional water right appropriations.

“Traditional water right certificates are issued to persons for a specific beneficial use. Reservations of water are a reserved level or flow that is reserved for a specific public purpose, not the sole use or benefit of the applicant.”

Barrett wrote via email to the Journal on July 27 that it’s unclear exactly when DNR leaders plan to finalize the water regulations but it probably won’t happen for several months.

The proposed regulations are a continuation of an attempt by former Gov. Sean Parnell’s administration to overhaul the water reservation structure, according to Shavelson.

House Bill 77, which drew strong public opposition and died in the Senate in early 2014, would have limited water reservations to public agencies among many other revisions to state resource policies.

While development advocates have long advocated for changes to Alaska’s water use regulations and statutes, one of the state’s largest pro-development lobbying groups is against the current regulations proposed by the Dunleavy administration because they don’t go far enough.

Natural resources attorney Eric Fjelstad testified on behalf of the Resource Development Council for Alaska that the new proposed language also gives the in-stream flow reservation applicant legal standing to manage the reservation, even if DNR is technically the certificate holder.

“We think (in-stream flow reservations) should be a limited tool held by DNR and state subdivisions,” Fjelstad said.

The state’s multilayered process for permitting large development projects addresses the concerns of many who are concerned about the impacts of development on water bodies and fish, notably salmon and the place for instream flow reservations is in a more subtle situation, according to Fjelstad.

He suggested several small water withdrawals along a stream or river is a more likely scenario to result in cumulative damage to the watershed and its inhabitants.

“If you don’t have that large project permitting you can have water withdrawals that aren’t accounted for,” he said.

RDC Executive Director Marleanna Hall wrote in official comments to DNR that giving legal standing to private parties potentially managing in-stream flow reservations “an even more powerful tool for those who oppose development from Alaska. This provision should be removed from the regulations.”

Shavelson contended the insistence by RDC and other development advocates that private parties should not be able to hold in-stream flow reservations as a means for protecting fish habitat is inherently hypocritical because developers, and other private groups, can hold water rights and temporary water use authorizations to divert water out of a lake or stream.

“A Canadian mining company could hold rights to take water out of a salmon stream but Alaskans couldn’t hold the reservation to keep water in the stream and that’s the crux of it,” Shavelson said. “The DNR proposal really takes a government knows best approach to water reservations.”

He urged lawmakers to amend the Alaska Water Use Act to mandate DNR to apply a corresponding water reservation sufficient to preserve fish and wildlife populations — which varies in each water body — to counter each water withdrawal authorization.

“This would be the Alaska Legislature looking at the Water Use Act and making some simple but common sense changes,” Shavelson said.