Legislature(2021 - 2022)ANCH LIO DENALI Rm
07/27/2021 10:00 AM House FISHERIES
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| Presentation(s): Dnr Water Regulations | |
| Adjourn |
* first hearing in first committee of referral
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+ teleconferenced
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ALASKA STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON FISHERIES
July 27, 2021
10:03 a.m.
MEMBERS PRESENT
Representative Geran Tarr, Chair
Representative Louise Stutes, Vice Chair (via teleconference)
Representative Dan Ortiz (via teleconference)
Representative Sarah Vance (via teleconference)
Representative Kevin McCabe (via teleconference)
MEMBERS ABSENT
Representative Jonathan Kreiss-Tomkins
Representative Andi Story
COMMITTEE CALENDAR
PRESENTATION(S): DNR WATER REGULATIONS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
DAVID SONG, Staff
Representative Geran Tarr
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: On behalf of Representative Tarr, committee
chair, reviewed the proposed regulations by the Department of
Natural Resources (DNR) for instream flow reservations.
ERIC FJELSTAD
Resource Development Council
Anchorage, Alaska
POSITION STATEMENT: Provided a presentation regarding the
proposed regulations from the Department of Natural Resources
for instream water reservations.
BOB SHAVELSON, Advocacy Director
Cook Inletkeeper
Homer, Alaska
POSITION STATEMENT: Regarding the proposed regulations from the
Department of Natural Resources, provided a PowerPoint
presentation, titled "Instream Flow Reservations: Proposed DNR
Rules Repeat Mistakes from Outside."
ACTION NARRATIVE
10:03:43 AM
CHAIR GERAN TARR called the House Special Committee on Fisheries
meeting to order at 10:03 a.m. Representatives Stutes (via
teleconference), Vance (via teleconference), and Tarr were
present at the call to order. Representatives Ortiz (via
teleconference) and McCabe (via teleconference) arrived as the
meeting was in progress.
^PRESENTATION(S): DNR Water Regulations
PRESENTATION(S): DNR Water Regulations
10:04:08 AM
CHAIR TARR announced that the only order of business would be
presentations by Eric Fjelstad of the Resource Development
Council and Bob Shavelson of the Cook Inletkeeper regarding the
proposed regulations from the Department of Natural Resources
for instream flow reservations.
10:04:54 AM
DAVID SONG, Staff, Representative Geran Tarr, Alaska State
Legislature, on behalf of Representative Tarr, committee chair,
reviewed the proposed regulations by the Department of Natural
Resources (DNR) for instream flow reservations. He paraphrased
from a document on Representative Tarr's letterhead entitled,
"Summary of DNR Water Regulation Changes," which read (original
punctuation provided, with some formatting changes):
The Department of Natural Resources recently announced
regulatory changes regarding water management
regulations, specifically Title 11 of the Alaska
Administrative Code. These regulatory changes have
potentially significant impacts on instream flow
reservation procedures and the larger debate on water
rights. The changes are summarized below:
1. 11 AAC 93.115 (Closure of an application for a water
right):
This code was changed to remove the appeal process
for water right applications that were closed at the
discretion of the Commissioner.
2. 11 AAC 93.142 (Content of application):
This code was changed to add qualifying language to
the existing code, such as saying "purported need"
instead of simply stating the "need" for water
reservation. It also states that applications must
include "applicable" data to substantiate the
"purported need." By adding this qualifying and
subjective language, it gives DNR more flexibility
to determine whether or not an application is valid.
3. 11 AAC 93.146 (Issuance of a certificate of water
reservation):
This code was changed significantly to alter the
recipient of the certificate of water reservation.
Under the new changes, only applicants that are
state or federal agencies will receive the
certificate directly. Individuals or NGOs [non-
governmental organizations], for instance, will not
receive the certificate instead DNR will be the
certificate holder (and will be responsible for
compliance).
Additionally, the certificate holder (and applicant)
will have the ability to participate/initiate any
administrative/judicial proceedings re: the
application decision or the management of the
certificate.
4. 11 AAC 93.147 (Review of reservation of water):
This code is changed slightly for grammatical and
procedural clarity (inserting the words "original"
in front of the word "purpose," and "subsequent" in
front of the word "applicant").
5. 11 AAC 93.210 (Temporary water use):
This code is changed to say that instead of being
able to extend a temporary permit for an additional
5 years, a temporary use of water can only be
extended for a maximum of 5 years (including "time
served").
6. 11 AAC 93.220 (Procedure for temporary water use):
This code is changed to specify that an application
must also include the point of discharge or return
flow, if there are any.
7. 11 AAC 93.510 (Public notice and hearing):
This code is completely rewritten to remove the
requirement of DNR to publish proposed water
reservations in the local community's newspaper. It
also removes the requirement of DNR to hold a public
hearing with oral/written testimony. A public
meeting (not hearing) may be held at the
Commissioner's discretion, but public input must be
provided through the Alaska Online Public Notice
System. Only affected property owners, applicants,
governmental agencies, and "appropriators of record"
will be notified of DNR water management
designations.
8. 11 AAC 93.970 (Definitions)
"Appropriators of record" are redefined to be the
"holders of a permit," rather than the applicants
for the permit. The Division of Land and Water
Management is also redefined as the Division of
Mining, Land, and Water.
10:10:04 AM
CHAIR TARR noted that today's meeting was originally scheduled
to have DNR staff provide the committee with an introduction.
However, she said, DNR notified the committee last week that it
would be unable to participate because it is at the point in the
process that is considered the quiet period where DNR has
received and is reviewing public comments. So, DNR was not
comfortable presenting at this hearing and Mr. Song therefore
provided this brief overview of the proposed changes, which is
available on BASIS. She requested that committee members with
questions follow up with DNR.
CHAIR TARR invited Mr. Fjelstad to begin his presentation.
10:11:47 AM
ERIC FJELSTAD, Resource Development Council (RDC), provided a
presentation regarding the proposed regulations from the
Department of Natural Resources (DNR) for instream water
reservations (IFRs). He noted he is an attorney with Perkins
Coie, a past president of RDC, and that RDC represents a variety
of interests including tourism, fishing, mining, oil and gas,
and Alaska Native corporations. He maintained that the instream
flow regulatory scheme has been inaccurately reduced to either
"support fish or you don't."
MR. FJELSTAD stated that the issue in play over the past 10
years regarding the instream flow regulatory process is that the
existing process doesn't protect fish and therefore these
instream flow regulations are needed, which he and most of RDC's
membership emphatically disagree with. He asserted that Alaska
has a robust process for protecting fish, given it cuts across
the jurisdictions of the Alaska Department of Fish and Game
(ADF&G) through habitat permitting, DNR through water rights,
and the Department of Environmental Conservation (DEC) through
corresponding federal agencies. In large project permitting, he
said, protection of fish is the number one issue, not an
ancillary issue, there is no gap that needs to be filled.
10:16:10 AM
MR. FJELSTAD described instream flow reservation as a form of
water rights where the water is kept in the stream system, the
opposite of agriculture where water is piped from a stream and
pumped onto a field. He said instream flow reservation has been
reduced to using it for fish, which is the concern largely being
talked about here, but it can be for any purpose. It has an
impact on anyone wanting water, he stated. A right to keep that
water in the stream can make it hard or impossible to get water
out of the stream for a use. Use of water is not just the
resource community needing water, he continued, communities all
over Alaska draw water from rivers and other waterbodies for a
variety of reasons including drinking water. So, a water right
that says the water must stay in the waterbody has the potential
to create issues, he stated, and that is part of RDC's concern.
MR. FJELSTAD said RDC has monitored the regulatory process
currently underway described by Mr. Song. As well, RDC has
monitored the specific instream flow reservations granted over
the last decade and found that DNR routinely provides a
reservation where more than 100 percent of the water has been
reserved for a third or more of the year. This means more water
has been reserved than is literally in the stream, but it isn't
supposed to work that way. In theory, he explained, it should
work such that the quantum of water necessary to protect fish is
determined and that's the reservation, there is still water left
so to speak. This is a big and unresolved technical problem in
the process, he specified, not a legal problem. Mr. Fjelstad
qualified that DNR isn't doing this intentionally, it's just
hard to get this right because rain, dry periods, and other
things make water levels go up and down. However, he noted,
it's a real problem to a user, like a community trying to get
drinking water when, through an instream flow reservation, the
community is subject to a regime that says it must be in the
stream and it's all the water.
10:18:20 AM
MR. FJELSTAD stated that RDC's second point and key comment is
who should hold the certificate and who should enforce it. He
said RDC believes water is a public asset while protection of
water, and specifically fish, is a public priority. Fish
protection is one of the highest charges given to the experts at
ADF&G, DNR, DEC, and other agencies, he argued, and to vest that
responsibility in a private party from a policy perspective is
not supported by RDC and doesn't make sense. Alaska is unique
in that it currently allows any person to seek, hold, and
enforce a certificate. That is not a positive attribute or good
policy, he opined, and it is amongst the changes that Mr. Song
described. The changes would shift who can hold the certificate
to public entities, and RDC believes that the State of Alaska
should be holding these certificates, Mr. Fjelstad said. The
State of Alaska has the people with the responsibility and
expertise to protect fish, resources, and water. The State of
Alaska and its political subdivisions should be holding that and
enforcing it, he continued, which is one of the issues in these
regulations. So, he said, RDC doesn't support the regulations
as currently proposed because while DNR tried to make some
progress on that it's still muddled and needs to be clarified
that the state and its political subdivisions will hold and
enforce the certificates.
10:20:37 AM
MR. FJELSTAD closed his presentation by asking the question: Is
there a need for instream flow reservations (IFRs)? He said the
answer is probably yes. He pointed out that RDC has never been
on the record saying it doesn't support these or wants to do
away with the program. In the context of large project
development, he said, RDC's view is that the question of
protecting fish is front and center and is addressed in the
process. Instream flow reservations, he maintained, don't serve
a purpose there because specific permits and other programs
address this question head-on.
MR. FJELSTAD stated that if project development isn't happening,
there can over time be death by a thousand cuts with water
resources. For example, with urban sprawl someone can take a
little water out of a stream here and someone take a little
water out there, and over time it adds up. The difference
between that scenario and a large project, he said, is the large
project process drives an outcome where the stream is looked at
holistically and scrutinized over time through monitoring. He
maintained that if large project permitting isn't happening,
there can be various withdrawals of water that are unaccounted
for. So, he continued, in the absence of large projects, if
there is a threat to a waterbody an IFR can serve a purpose if
done right. If the technical analysis is good, he said,
preserving a minimum amount of water in some of these streams
probably is sensible, but RDC thinks it should be a limited tool
limited to DNR for situations where truly needed.
10:22:54 AM
CHAIR TARR invited questions from the committee.
10:23:42 AM
REPRESENTATIVE ORTIZ pointed out that when talking about a
particular stream or project and water, the water itself is
intermixable with a much broader area than just the stream being
talked about. He agreed Alaska probably has some good
protections but stated that the result is declining fish numbers
where the cause is not any specific project or development, but
the net effect of everything and not doing a very good job. He
asked Mr. Fjelstad whether he agrees that this is the case.
MR. FJELSTAD replied that when standing in the Kenai River one
wonders where all the king salmon are. But, he continued,
different conclusions are drawn in different places - Bristol
Bay right now has a record run - so he doesn't agree across the
board that salmon are in trouble categorically. Causes for the
variations in the runs probably are myriad. He said RDC's focus
is ensuring that regulatory regimes are rational, that there is
cause and effect between what the regulatory regime is trying to
do and the problem. For example, if it is assumed there is a
challenge with salmon, taking the measures here doesn't make a
lot of sense, it's an add-on that doesn't bring a lot of value,
it brings a huge amount of complexity to this. Mr. Fjelstad
posed a scenario in which the DNR regulations die on the vine
and are not finalized. He said the statute was any person could
seek an instream flow reservation, and while there is a burden
of gathering the data one doesn't even have to be an Alaska
resident. Someone could move to Florida and seek an IFR and
become a player at that point from the standing perspective,
roughly comparable to the State of Alaska itself. He said RDC
believes that that is not the right policy for Alaska and that
policy decisions should be vested with the State of Alaska's
salmon experts. He added that RDC agrees there is concern about
salmon but disagrees that this is the right mechanism to address
the broader concern on what's happening with salmon.
10:27:54 AM
REPRESENTATIVE ORTIZ acknowledged that salmon receive the most
attention when talking about protection of Alaska's resources.
He stated that there should be concern about the broader
picture, which includes salmon, and whether it is halibut,
rockfish, or hooligan the situation is in a general decline.
Resource development or not on rivers, he continued, is just one
piece of a big picture that is going on and he is troubled that
there is much talk about protecting resources, but the net
result is losing the battle.
MR. FJELSTAD, in reply to Chair Tarr, said he had no further
response.
CHAIR TARR noted that the current regulatory proposal is similar
to legislation considered in 2013. She said the question and
characterization about who should hold the certificate, such as
individuals, NGOs, or out-of-state residents, seem valid. She
asked whether RDC has taken a position about tribes and stated
she is troubled that this may be a place where the proposal has
gone too far.
MR. FJELSTAD responded that RDC's view is consistent across
resources, which is that the State of Alaska should be managing
its resources in all situations where it can, including the
debate with the federal government about resources. He said
Bristol Bay's success story is probably because it is the most
actively managed fishery resource in the state. Reservation of
rights and the management of fish, he continued, are intertwined
in a way that cannot be disconnected, so RDC thinks the state
has the resources and is accountable to the people through the
political process, and that's relevant here. He said RDC
believes that both holding the certificate and enforcing it
should be vested in the State of Alaska.
10:31:33 AM
CHAIR TARR summarized that Mr. Fjelstad spoke to technical
challenges and who should hold and enforce the certificate. She
asked whether she is correct that at this time RDC has submitted
comments which state that RDC doesn't support the current draft
regulations because it is still muddled about who should hold
and enforce the certificate.
MR. FJELSTAD confirmed the summary about the two points but
cautioned about over-simplifying. He stated that RDC supports
directionally what DNR is trying to do but doesn't agree with
the end point where DNR has come out on this, so RDC's comments
urge that DNR do some more work.
CHAIR TARR thanked Mr. Fjelstad. She invited Mr. Shavelson to
begin his presentation.
10:33:37 AM
BOB SHAVELSON, Advocacy Director, Cook Inletkeeper, regarding
the proposed regulations from the Department of Natural
Resources (DNR), provided a PowerPoint presentation, titled
"Instream Flow Reservations: Proposed DNR Rules Repeat Mistakes
from Outside." He noted that Cook Inletkeeper is a nonprofit
organization and said he has been looking at salmon habitat
protection and water management issues for the past 27 years.
He displayed the second slide, titled "Topics for Today," and
stated that Alaska prides itself on being different, yet DNR's
proposal for Alaska will be repeating the same mistakes in
fisheries resource management as were made in Washington,
Oregon, and California. He said he will focus on one issue
within these rule changes, which is the stripping away of the
rights of Alaska residents and Native tribes to keep water in
fish streams. He added that he will also describe a fix for
keeping a certain amount of water in the streams.
10:35:22 AM
MR. SHAVELSON continued to the third slide, titled "Background,"
and explained that as a western state Alaska operates under the
Prior Appropriation Doctrine of first in time, first in right,
meaning the first entity to have a water right has a superior
right to use that water over anyone who comes after them. He
further explained that there are two types of water rights. The
first type is an out-of-steam diversion or appropriation for
"beneficial use" of the water or a temporary water use
authorization, which is a lesser water right but still an
authorization from the state to use the water for a limited
time. The second type is an instream flow reservation (IFR),
which is what is being talked about here. This is where water
can be kept in a stream and under this statute it is for
protecting fish, recreational uses, and aesthetic values. Under
Alaska's current rules, he pointed out, anyone may apply for and
hold a certificate to take water out of a stream or to keep
water in a stream.
10:36:38 AM
MR. SHAVELSON proceeded to the fourth slide, titled "DNR
Proposal," and specified that the DNR proposal would strip away
the rights of Alaskans to hold certificates for instream flow
reservations. Alaskans could still incur the substantial time
and cost to apply for the certificate, but they could not hold
the certificate, he said, DNR would be the holder of that water
right. He compared this proposal with the current DNR rules
that will continue to allow outside corporations to hold water
rights to take water out of a salmon stream, yet Alaskans
couldn't hold the certificate to keep water in a stream. That
is the crux of the issue here, he stated.
10:37:40 AM
MR. SHAVELSON displayed the fifth slide, titled "Government
Knows Best," and argued that this proposal takes a government-
knows-best attitude by stripping away the rights of Alaska
residents and tribes to protect their fish while empowering
state and federal agencies and bureaucrats to exclusively hold
these instream flow rights. This is a failed approach in the
Lower 48, he stated.
MR. SHAVELSON moved to the sixth slide, titled "Why the
Changes?" He said DNR has refused to explain to Alaskans why
it's pursuing these significant changes, although some lip
service was given about DNR wanting some statutory consistency,
but that makes no sense. Also, he opined, DNR's refusal to come
before the committee today to talk about such significant
changes is alarming because there is no such thing as a quiet
period after an agency has taken public comment on rules. He
added that these are the same positions that have been heard for
many years from the Resource Development Council (RDC), the
Alaska Oil and Gas Association (AOGA), and the Alaska Miners
Association (AMA).
10:39:16 AM
REPRESENTATIVE VANCE asked how Mr. Shavelson knew ahead of time
that DNR wouldn't be testifying given the committee was only
informed today that DNR would be unable to join the meeting.
MR. SHAVELSON offered his belief that DNR pulled back several
days ago.
REPRESENTATIVE VANCE asked how Mr. Shavelson learned about that.
CHAIR TARR stated that DNR was heard from on either Wednesday or
Thursday of last week and she shared that during a conversation
about the scheduling and flow of presentations for today. She
apologized if it came as a surprise to Representative Vance.
t
REPRESENTATIVE VANCE said it seems inappropriate to use this
against DNR in the slide show when it wasn't communicated to
committee members and the public; DNR has no recourse at this
point to explain why it was unable to attend. She told Mr.
Shavelson that she is listening to his concerns but said it
would be best to leave out this rhetoric.
CHAIR TARR apologized for inadvertently not removing DNR from
the BASIS [schedule]. She related that DNR requested she share
with the committee that the agency is in the quiet period. She
recommended that people follow up with DNR directly and noted
her disappointment about the late date of cancellation.
REPRESENTATIVE VANCE stated she has questions for DNR but noted
the legislature has no authority to amend these regulations.
She said it is in the hands of the public to submit comments,
questions, and concerns about the proposal.
MR. SHAVELSON concurred that these are regulatory changes but
pointed out that the legislature can amend statute. He said the
regulations are implementing the Alaska Water Use Act, Title 46.
He suggested that that's where the focus should be; if the
executive branch agencies refuse to come before the legislature
to explain these things, the legislature must recognize how
serious these issues are and act on it.
10:43:57 AM
MR. SHAVELSON continued his presentation. He turned to the
seventh slide, titled "Zero Fiscal Note," and stated that what
is being talked about here is the political will and desire for
DNR to move forward in a constructive way with instream flows.
Under the proposed rules, he noted, an entity coming forward
with an instream flow application would incur the time and cost
to apply, but DNR would hold the certificate for the instream
flow reservation which would entail more work for DNR. Yet, he
argued, DNR put a zero fiscal note on this rule which indicates
that DNR isn't taking this very seriously. He turned to the
eighth slide, titled "Alaska Values?" He read the quote
depicted on the slide: "Don't tell me what you value, show me
your budget, and I'll tell you what you value." The zero fiscal
note, Mr. Shavelson said, tells him there isn't much interest in
moving forward with instream flows from this development agency.
10:44:58 AM
MR. SHAVELSON spoke to the nineth slide, titled "Unfair." He
argued it is unfair that a private outside corporation can still
take water out of a waterbody, but an Alaska resident or Native
tribe cannot hold the right to keep water in a waterbody.
Similarly situated people and groups are treated differently
under DNR's proposal, he continued, and this creates a bias.
MR. SHAVELSON proceeded to the tenth slide, titled "Mixed
Messages." Corporations want the whole pie, he asserted, they
want private certificates to hold the right to take public water
out of the stream, but they don't want anyone to be able to keep
water in that stream. He noted that the Alaska Chamber of
Commerce, the Alaska Oil and Gas Association, and the Resource
Development Council all submitted the same words in their
comments on 4/2/[21]: "Private parties must not have control
over public water." This is exactly what is had with an out-of-
stream diversion, he stated, it is taking a public resource and
putting it into private hands.
MR. SHAVELSON showed the eleventh slide, titled "Constitutional
Questions." He maintained there are substantial constitutional
questions. He read from the Alaska Constitution, Article VIII,
Section 3. Common Use, which states: "Wherever occurring in
their natural state, fish, wildlife, and waters are reserved to
the people for common use." He said it doesn't seem like common
use if one party can take it for one purpose and another party
can't use it for another. He held that this really stands out
in Article VIII, Section 17. Uniform Application, which states:
"Laws and regulations governing the use or disposal of natural
resources shall apply equally to all persons similarly situated
with reference to the subject matter and purpose to be served by
the law or regulation."
10:47:40 AM
MR. SHAVELSON moved to the twelfth slide, titled "DNR Conflict
of Interest," and noted that there can be monetary, political,
or policy conflicts. He noted that DNR is the state's lead
resource development agency and related that during his 27 years
of doing this work he has never seen DNR deny a permit for a
large oil and gas or mining project; development is presumed and
always moves forward. Therefore, he asserted, it doesn't make
sense for DNR to be the de facto agency to hold instream flow
reservations because it doesn't have the political will to
support fish protection through instream flow reservations.
10:50:18 AM
MR. SHAVELSON addressed the thirteenth slide, titled "Current
System Failures." He argued that there is an inherent bias in
the current system where the agencies favor the out-of-stream
diversions because the agencies process appropriations or
temporary water use authorizations all the time, while instream
flow applications are backlogged. He took issue with Mr.
Fjelstad's statement that Alaska has a robust permitting regime
that protects fish. This isn't true, he said, an example being
that on 2/21/[21] ADF&G Commissioner Doug Vincent-Lang told the
House Resources Standing Committee that the state would "never"
allow a fish stream to be dewatered, yet DNR is currently
processing water right applications for the Donlin Mine that
would allow the dewatering of fish streams. There is no
political will to protect fish and wildlife and the people and
communities they support, he opined, and that's why a statutory
change makes sense.
MR. SHAVELSON reviewed the fourteenth slide, titled "Temperature
Data." He related that Cook Inletkeeper pioneered the work of
looking at stream temperatures in recognition that salmon and
other resident fish are cold water fish and warming temperatures
were creating stress in fish. For the past 20 years Cook
Inletkeeper has kept data loggers around Cook Inlet, he said,
and the results are alarming. Temperatures routinely exceed the
levels that the Department of Environmental Conservation (DEC)
says are safe for fish in the state's water quality standards.
MR. SHAVELSON continued to the fifteenth slide, titled "Heat
Creates Stress." He pointed out that heat stress makes salmon
more vulnerable to pollution, predation, and disease, and
increases mortality events. For example, he reported, fish were
having heart attacks in the Kuskokwim River because they were so
hot and the river's oxygen level was low. He stressed that as
Alaska continues to warm, it is even more imperative to keep
enough water in the streams to give Alaska's fish a chance.
MR. SHAVELSON displayed the sixteenth slide, titled "Alaska Fish
Need Cold Water." He stated that instream flow reservations are
one of the most important tools to help Alaska wild fish
populations roll with the punches of ever-warming Alaska. He
pointed out that Bristol Bay is a success story because of that
area's intact systems and relatively cold water, while
Southcentral and Southeast Alaska haven't been so fortunate and
are seeing the intersection between development and fisheries
declines. Bristol Bay, he added, is a shining example for
keeping a holistic management regime for fisheries, including
instream flows.
10:52:31 AM
MR. SHAVELSON spoke to the seventeenth slide, titled "What Can
We Do?" He said the system is currently broken instream flow
reservations are not being processed and are backlogged, while
out-of-stream diversions are prioritized. He stated that it
isn't going to work if Alaska has a development-at-all-costs
regime, which has been the case in the Lower 48.
MR. SHAVELSON proceeded to the eighteenth slide, titled "A
Simple Solution." He said the solution is automatic instream
flow reservations the requirement that all that all out-of-
stream appropriations leave behind enough water to protect fish.
This solution is common sense, more efficient, and saves time
and money, he stated. This kind of statutory change is needed,
he advised, because it will not be seen through the current
rulemaking at DNR. This would be the legislature making simple,
common-sense changes to the Alaska Water Use Act, he said.
10:53:54 AM
MR. SHAVELSON turned to the nineteenth slide, titled "Repeating
Mistakes." He urged committee members to read King of Fish, a
book by Professor David R. Montgomery of the University of
Washington. He related that the book documents the loss of
salmon from Europe, New England, and the Pacific Northwest. The
author's research found that it wasn't simple negligence that
led to the demise of these once prolific salmon runs across the
globe, it was willful negligence where people knew what they
were doing was wrong but did it anyway. "That's where we're at
right now," he opined. "We're at a crossroads, we know that if
we strip away the right to keep water in our streams, we're
going to be going down the very same path that they did in the
Lower 48 and that's not going to be successful for salmon or the
communities they support."
MR. SHAVELSON concluded his presentation with the twentieth
slide, titled "Public Input Needed." He said it's vitally
important for the legislature to hear from the public through
more hearings to understand this issue because it is a threshold
issue for the future of Alaska's wild salmon populations. He
urged that the legislature encourage DNR to delay the rule
making and to go forward with legislation if needed. He
displayed the twenty-first slide and offered to take questions.
10:55:38 AM
CHAIR TARR noted that the Alaska Miners Association (AMA) was
invited to provide a presentation before the committee but
declined; as well, AMA was asked to share comments, but none
were received. She further noted that there was outreach to
tribes and others for information and feedback. Any comments
received from the public can be found online in BASIS, she said.
10:57:07 AM
REPRESENTATIVE ORTIZ thanked both presenters.
10:57:31 AM
REPRESENTATIVE MCCABE recalled hearing or reading somewhere that
DNR doesn't reserve some of the water all the time, it reserves
more than all the water at least a third of the time in any
year. He questioned how the state can reserve more water than
is naturally in the stream and said it appears to come down to a
competition between resources. Alaska needs to find a neutral
ground for all the resources, he opined, there can't be battles
all the time over scarce resources, a path forward needs to be
found. He requested Mr. Shavelson's ideas.
MR. SHAVELSON replied that those are the technical issues
referred to by Mr. Fjelstad and DNR would be the entity able to
answer. He stated that in a management system with a prior
appropriation regime, waterbodies are frequently over
appropriated, an example being the Colorado River. There are
many vagaries in water flow, he explained, there isn't perfect
information, and it's hard to quantify. He pointed to the
simplicity of having the requirement that when someone wants to
use water there must be enough water left for the fish.
10:59:45 AM
REPRESENTATIVE MCCABE offered his belief that for four months of
the year DNR is reserving more water for fish than the stream
carries and opined that there needs to be a commonsense
approach. He posed a scenario of a private person holding the
property rights to all the water in a stream and asked whether
there can be a court case. He said those kinds of questions
need to be resolved.
MR. FJELSTAD agreed with Mr. Shavelson that the technical points
are a DNR issue, a resource question. He said IFRs are being
finalized without really understanding the particulars of a
given stream, and the net effect is allocation of more water
than is in the stream, which is a problem. Regarding his
statement that RDC supports water being instream, he clarified
that the context was that there is a specific situation here,
and this is key to RDC's position on this. He said RDC thinks
that the large permit process itself brings a holistic approach
to protecting fish habitat and water, and that process may or
may not generate an IFR in the context for that process. But
that's not his point, Mr. Fjelstad noted, his point is that in
the absence of that process there are impacts on fish and water
because there is no large permitting process happening, it takes
place one diversion at a time over years. Arguably, there is a
place for instream flows in those circumstances because of the
absence of a permitting process that pulls it all together, but
that would be a very limited use of this. He said RDC doesn't
support the concept that Mr. Shavelson raised of having in
statute or regulation a universal instream flow that applies to
every stream across the board. But, he said, there may be a use
for specific technically sound IFRs for situations where there
isn't development and this large-scale permitting process.
11:03:10 AM
CHAIR TARR asked whether Mr. Shavelson has any comments on the
question about the private property rights.
MR. SHAVELSON responded no, but said he is curious about RDC's
policy rationale behind not supporting a solution that requires
keeping enough water in streams to protect fish.
CHAIR TARR said she will try to come back to that after
Representative McCabe asks his next question.
11:03:45 AM
REPRESENTATIVE MCCABE said his understanding is that IFRs are
property rights. He posed a scenario in which he has an IFR in
a stream and asked whether he could shut down the stream, bill
someone for using the water, or take someone to court. He
opined that this seems like it is creating big government and
pitting agencies against each other. He surmised that ADF&G
already regulates a certain amount of the fish in a stream and
said this seems to be adding fuel to the fish-war fire.
MR. FJELSTAD answered that a group of lawyers would probably
have an all-day debate on what is the nature of that IFR right.
He noted that generally in western water law, a water right to
take water out of a stream is a form of property right. Keeping
water in a stream through an IFR is some form of right, he said,
and the particulars would engender a long debate about what is
the nature of it. It can be a bridge through this process as
DNR contemplates regulation changes. It is different than a
permit, a license, or something, it puts the holder of that in a
special place and that is one of the concerns. These issues
play off against each other, he added; the technical challenges
are one reason why RDC believes this should be vested in the
state. These technical problems need to be worked out and
working them out with the state agencies that are charged by
statute with overseeing these issues is the sensible way to do
that. It is hard to work something out with someone who may be
fundamentally opposed to working things out, he stated.
11:06:19 AM
CHAIR TARR invited Mr. Shavelson to respond to Representative
McCabe's questions.
MR. SHAVELSON answered that he agrees with Mr. Fjelstad that it
is not well-defined as to what that property right looks like
for an instream flow. The same argument could be made for an
out-of-stream appropriation right, he stated. For example, how
would it play out if Exxon holds a water right for an ice road
and the state says it needs that water for something else? In
any case the government is always going to have an overriding
public interest, he continued. There are a variety of ways
that the government, through regulation or law, can come back in
and protect the public interest.
11:07:50 AM
REPRESENTATIVE MCCABE noted that IFRs are private property
rights that delegate to an individual the ability to control all
land use upstream. He asked whether a conservation group could
acquire an IFR, and would the state be able to take it back. He
recalled Mr. Shavelson mentioning that the state would always be
able to take it back, such as with an ice road.
MR. SHAVELSON responded that in any realistic vision of water
management in Alaska these kinds of lockups are not going to be
seen. Whether looking at them hypothetically or realistically,
he added, they would play out on both the out-of-stream
appropriation side and the instream appropriation side. He said
he doesn't think Alaska will see corporations locking up all the
water by taking it out of a stream and he doesn't think Alaska
will see anybody locking it up by keeping it all in the stream.
REPRESENTATIVE MCCABE recounted reading an article while in high
school that said water was going to become a bigger issue in the
world than fuel and electricity. He said he thinks it has come
to that.
CHAIR TARR concurred. She related that she participated in a
panel discussion on water issues at a Pacific Northwest Economic
Region conference and said Alaska is in a much better position
regarding the things being dealt with. She remarked that it
seems there is an opportunity here to address some of these
challenges and not repeat the mistakes of the past. She offered
her understanding that Mr. Shavelson supports Alaskans and
tribes being able to apply for instream flow reservations, but
noted that the current setup would allow, for example, non-
Alaskans or out of state NGOs. She asked Mr. Shavelson whether
that is a place where the state might want to limit those
applications to Alaskans and tribes to moderate the current
situation and the concern had by others.
MR. SHAVELSON replied that he has heard these concerns before
but hasn't seen them play out, which is why the hypotheticals
can be distracting. He said the goal here is Alaskans managing
Alaska's resources. The system is broken, he stated, and the
simple solution is to automatically keep enough water in
Alaska's streams to protect fish whenever looking at an out-of-
stream diversion.
11:11:43 AM
CHAIR TARR invited Mr. Fjelstad to provide closing comments or
respond to questions.
MR. FJELSTAD responded to Mr. Shavelson's comment. He said
RDC's viewpoint is that the technical process is broken. Every
IFR has resulted in an over-allocation of water, meaning it's a
counter for more water in the stream than is there in actuality.
However, he continued, the process isn't broken in the context
of permitting that happens for major developments; a robust
process accounts for fish, water, and habitat, it's all pulled
together in that process. That process works and is working on
an ongoing basis, he maintained.
11:12:57 AM
CHAIR TARR noted DNR would be the certificate holder and
recalled Mr. Shavelson's statement about conflict of interest.
She posed a scenario in which this proposal goes forward, but
with ADF&G being the certificate holder. She asked whether such
a scenario would change Mr. Shavelson's perspective or address
the conflict of interest.
MR. SHAVELSON answered that ADF&G has a different mandate and
would look at this through a different lens. He said the
technical problems mentioned by Mr. Fjelstad would still need to
be addressed and added that the slate needs to be wiped clean to
recognize the long history of out-of-stream diversions getting
up-to-date prioritization while the instream flows with ADF&G at
the lead are lagging considerably. This is about political
will, he reiterated, so this brings him back to his [proposed]
solution of just leaving enough water in Alaska's streams and
waterbodies for fish if water is going to be taken out of them.
CHAIR TARR related that in looking at a list of applications on
the docket there were some circumstances where there wasn't an
active out-stream flow application so there wasn't a project
necessarily that was applying for that. She recalled that Trout
Unlimited and other groups had interest in the Bristol Bay area
and said that is one of the reasons she asked the question about
limitations to Alaskans or Alaska entities. Given that Mr.
Shavelson's [proposed] solution is to have those things
corresponding to each other, she asked whether, absent that,
instream flow reservations would not happen.
MR. SHAVELSON noted that Trout Unlimited has offices in Alaska
and has many local members, so he doesn't know that it could be
characterized as an outside interest. He said people in groups
that care about the resource are trying to be proactive here,
but the agencies are saying that they're going to wait until
there is an actual conflict, which flies in the face of this
idea of having a holistic management regime where "we don't
always have to have our hair on fire before we take action."
He stated that [Cook Inletkeeper] is willing to come to the
table and have the discussion and say, "Let's just assume we're
going to protect our fish and anytime somebody wants to take the
water out we just leave enough to protect those fish."
CHAIR TARR clarified that in mentioning Trout Unlimited she was
thinking about groups that have a national presence in addition
to an Alaska presence.
MR. SHAVELSON pointed out that Canadian and other outside
corporations not residing in Alaska are routinely seen taking
water out of Alaska's streams with out-of-stream diversions.
CHAIR TARR responded that she hadn't contextualized it that way,
so this gives her a new way to evaluate it.
11:17:06 AM
REPRESENTATIVE VANCE commented that the presentations helped in
understanding the bigger picture, but technical questions need
to be asked of DNR to further understand this. She encouraged
the public to continue asking questions and submitting comments.
11:17:41 AM
REPRESENTATIVE ORTIZ noted that throughout today's presentation
Mr. Shavelson has said one of the simplest solutions is to
"leave enough water in the streams to protect the fish." He
inquired as to whether this is a commonly known standard and
whether it would be easy to determine how much water would need
to be in a stream to protect fish.
MR. SHAVELSON replied that there are vagaries in the natural
systems and those complexities require data collection. He said
many things need to be taken into consideration, such as
rainfall, precipitation, snowmelt, and groundwater influx.
Every stream is going to be different at the point of diversion
or where the water is being kept in the stream, so it requires
research, but it can be quantified.
11:19:20 AM
REPRESENTATIVE MCCABE thanked the presenters and expressed his
appreciation for hearing all sides of the issue so that members
can make intelligent decisions.
11:19:38 AM
CHAIR TARR invited Mr. Shavelson to provide closing comments.
MR. SHAVELSON encouraged committee members to consider the vast
number of opposing comments from Alaska tribes and Alaskans who
regarding DNR's [proposed] rule changes. That will give members
a strong sense of how Alaskans feel about the issue, he said,
and will hopefully help drive additional legislative scrutiny.
11:20:13 AM
CHAIR TARR stated that people were very interested in having a
hearing on this issue during the legislative session, but time
didn't allow for that to happen. She offered her appreciation
to committee members for attending today's presentation. She
said she is open to suggestions from members as to any follow-up
meetings or action that members want to take.
11:22:07 AM
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Fisheries meeting was adjourned at 11:22
a.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| 2016 dnr 11 AAC 93 scoping comments request - March 18 2016 deadline.pdf |
HFSH 7/27/2021 10:00:00 AM |
|
| 2021 04 02 _SS comments_DNR Water Regs.pdf |
HFSH 7/27/2021 10:00:00 AM |
|
| 2021 04 02 CVTC Water Reservation Comments to DNR.pdf |
HFSH 7/27/2021 10:00:00 AM |
|
| Inletkeeper - DNR Instream Flow Comments 20210401.pdf |
HFSH 7/27/2021 10:00:00 AM |
|
| DNR Regs Memo.pdf |
HFSH 7/27/2021 10:00:00 AM |
|
| Comments to DNR on Water Regs..pdf |
HFSH 7/27/2021 10:00:00 AM |
|
| Curyung Comments on DNR Water Regulations.pdf |
HFSH 7/27/2021 10:00:00 AM |
|
| Inletkeeper - Instream Flow Presentation 20210727.pdf |
HFSH 7/27/2021 10:00:00 AM |
|
| AMA Comments DNR Water Regulations.pdf |
HFSH 7/27/2021 10:00:00 AM |
|
| RDC Comment on DNR Water Regs.pdf |
HFSH 7/27/2021 10:00:00 AM |