Water rights debate on again

PALMER — Competing letters revived debate Tuesday over a piece of pending state legislation that the Mat-Su Borough Assembly has twice declined to endorse.

The legislation in question is House Bill 77, which does everything from changing the way the state leases or sells land to permits issued to use state land to clearing the way for a hydroelectric site at Chikuminuk Lake to changing the way the state deals with water rights.

It’s that last item that has some concerned.

“HB 77 is an extraordinarily bad piece of legislation,” former Mat-Su Borough Assemblyman Warren Keogh, who twice while in office tried to get the assembly to oppose the bill, testified Tuesday. “HB 77 takes away a person’s right to acquire water rights, called an in-stream flow reservation, that insures there is always the minimum amount of water in streams necessary to protect fish migration and salmon spawning habitat.”

One group that has come out in opposition to the bill is the Chickaloon Village Traditional Council, which has obtained an in-stream flow reservation as part of its work to restore salmon habitat in Moose Creek. That work has lasted years and expended a million dollars.

In crafting a letter to the governor, the borough’s Fish and Wildlife Commission cited this work as being an example of the type of permit the state would no longer be able to issue if HB 77 passes.

“This bill would not only eliminate private non-governmental organization abilities to obtain in-stream flow reservations, but would render all the prior activities and pending applications useless, which is not in the best interests of protecting salmon and other fish,” the commission’s letter reads.

The letter was sent Dec. 16. A week later, on Dec. 23, Mat-Su Borough Mayor Larry DeVilbiss sent a letter contradicting that position.

“Recently, you received a letter of non-support from our (Fish and Wildlife Commission) regarding House Bill 77. I wanted to let you know that in 2013, the Mat-Su Borough Assembly voted not to weigh in on this piece of legislation not once, but twice. We understand that fish habitat protections are within state statues and regulations and are not diminished by this proposed bill,” DeVilbiss wrote.

Tuesday’s meeting had been called to talk about the way the commission recommended the borough spend money received to work on addressing declining fish returns to the Mat-Su. Commission members actually didn’t mention HB 77 until Assemblyman Jim Sykes brought it up.

Commission member Larry Engel, who signed the commission’s letter, told the assembly that flow reservations are important — fish can’t live out of water and “in stream flow reservations are to insure an adequate amount of water is in the stream.”

After that, a pair of audience members — Keogh and Palmer attorney Krista Maciolek — excoriated DeVilbiss for writing his letter.

“I would not be making comments on this if the assembly hadn’t twice voted on it,” DeVilbiss replied.

Sykes later tried to get the assembly to rescind DeVilbiss’ letter and submit one of its own siding with the commission.

“It should be clear and it should say that we support the facts that the commission set forward,” Sykes said.

Assemblyman Steve Colligan pooh-poohed that in short order. He said weighing in is important, but shouldn’t be rushed.

“It’s also important that we educate ourselves to what HB 77 is and not the narrow view of the Castle Mountain Coalition and Chickaloon Tribe,” he said.

The Castle Mountain Coalition is a group primarily involved in the struggle over potential coal mining in the Sutton area.

Eventually, the assembly decided to put off any third letter until it’s able to get state representatives before the assembly to discuss the changes. He promised to invite the Fish and Wildlife Commission members to that meeting.

“You have not been exposed to the state’s side of the picture,” DeVilbiss said.

Former Department of Natural Resources Commissioner Dan Sullivan lays out that perspective in a letter written to Rep. Bryce Edgmon, D-Dillingham, dated March 2013.

“The goal of the proposed change to the water reservation statute is certainly not to stop the placement of water reservations on Alaskan water bodies, or to diminish the protection of fish habitat,” Sullivan writes. “Rather, the goal of this change is to ensure that water reservations are issued to and held in perpetuity by public agencies for the protection of public resources, rather than to enable private organizations and individuals to manage the state’s resources.”

He goes on to say that private organizations can still pursue their goals.

“HB 77 does not prevent private organizations, individuals or tribes from pursuing water reservations; but, if passed, would require them to work with a public entity, whether a state or federal agency, a borough or municipality, to submit that application to (the Department of Natural Resources),” Sullivan writes.

Contact Andrew Wellner at 352-2270 or andrew.wellner@frontiersman.com.