Erosion plan legality questioned

April 23, 2006

By DARRELL L. BREESE

Frontiersman

SUTTON - In January, raging waters of the Matanuska River threatened the Sutton home of 89 year old Eimo Kuoppala, frequently flooding his basement. The residents of the small community on the river kept busy fighting off the water as it surged over its banks for nearly a month.

Mat-Su Borough Assembly member Lynne Woods, who also lives in Sutton, thought she had found a solution when she drafted a memorandum to allow the borough to enter into an agreement with the state to build a temporary gravel embankment to divert the river.

Little did she know her proposal would open a debate regarding the legality of the borough acting in the matter.

&#8220I just wanted to find a solution and protect the homes of those who live along the river,” Woods said. &#8220Once the ice melts, they will be facing flooding again and I'm not sure we can hold off the river this summer without doing something.”

The problem with the action proposed by Woods stems from the opinion of acting borough attorney John Aschenbrenner. He indicated that, according to state law, the borough does not have erosion control powers, and may not construct permanent structures to manage or control river erosion.

Despite that advice, the borough administration allowed the memorandum to be placed on the assembly agenda.

But assemblyman Talis Colberg, also an attorney, cautioned the assembly from moving ahead against the advice of its attorney, and in clear conflict of state law.

&#8220I'm not concerned with the merits of the project,” Colberg said. &#8220I'm concerned with the borough overstepping its legal authority. We can't simply enter into an international treaty with Albania because we want too, and the borough simply doesn't have the authority to act to prevent the erosion.”

Borough manager John Duffy, who has been dealing with flooding along both the Matanuska and Knik Rivers for years, agreed with Colberg's assessment of the legal issues.

&#8220The general rule for years in each of the erosion situations has been that the borough doesn't have the power to go into the river,” Duffy said. &#8220The only way we can act in if the governor or president declares a state of emergency and that hasn't happened yet.”

Woods understood the legal limitations, but wondered how she could tell that to residents of her district affected by the flooding and erosion when the borough has helped with erosion in other situations.

&#8220They're asking the borough for help because they have seen dikes put in the river in the past to address erosion in the Circle View Estates subdivision,” Woods said.

While state law prohibits the borough from going into the river to address erosion in the case of those in Sutton, it does allow it in the Circle View area because residents of the subdivision established a limited service area.

Assembly member Betty Vehrs requested that the assembly postpone action until May 9, giving the body time to get a second legal opinion and to seek an emergency declaration from the governor.

&#8220We'll just have to wait,” Woods said. &#8220But the longer we wait, that more likely the flooding and erosion will begin again.”

The assembly will consider an ordinance May 16 that would allow voluntary acquisition of privately owned parcels in the area by the borough in cooperation with the federal government. Properties in the Matanuska River area in Sutton and Circle View Estates would be eligible for the program, if approved.

&#8220I don't want to sell,” Kuoppala said. &#8220I homesteaded here and don't want to give it up or lose my home to the river.”

Contact Darrell L. Breese at 352-2267 or at darrell.breese@ frontiersman.com.