Ballot measure would give greater say to ADFG
Alaska fishing groups concerned about the impacts that large-scale development projects could have on salmon habitat are pushing to reform the state’s permitting requirements through a voter initiative on the 2018 ballot.
The initiative would primarily establish a two-tiered permitting structure for projects with the potential to impact salmon-bearing waters. It would give the Department of Fish and Game commissioner the authority to issue broad approval for projects deemed “minor,” but also require proponents of larger projects to prove they would not have a significant adverse impact on salmon habitat.
Additionally, it would require project advocates to prove to Fish and Game that the area of the water body the development could damage is not used by salmon sometime in their life cycle if the water is connected to one known to have salmon.
The initiative was sponsored by Cook Inlet commercial fisherman Mike Wood, Bristol Bay lodge owner Brian Kraft and Gayla Hoseth of Bristol Bay Native Association. Lt. Gov. Byron Mallott will decide whether to certify the initiative by Sept. 12.
In an interview, Wood said it is not intended to stop development projects, but rather to simply update the state’s protections for salmon as the Board of Fisheries requested.
Current law directs the Fish and Game commissioner to approve fish habitat permits if a project is deemed to provide “the proper protection for fish and game.”
Board of Fisheries Chair John Jensen wrote in a Jan. 19 letter to House and Senate leaders that there is nothing in current state laws or regulations defining what is a proper protection.
“Additional guidance is warranted for the protection of fish, to set clear expectations for permit applicants and to reduce uncertainty in predevelopment planning costs,” Jensen wrote. “To strengthen ADF&G’s implementation enforcement of the permitting program, the Legislature may want to consider creating enforceable standards in statute to protect fish habitat, and to guide and create a more certain permitting system.”
The Board of Fisheries letter was spurred by public pressure to amend Title 16, the state’s general laws relating to Fish and Game, according to Jensen.
To that end, the initiative, which would rewrite state law, is mirrored after House Bill 199 sponsored by Rep. Louise Stutes, R-Kodiak.
“We don’t want to stop (development); we want to make sure that the permitting process is rigorous so that we don’t destroy the fish habitat that we need to get the returns that are so important to the Alaska economy,” Wood said.
The Alaska Constitution was written with a huge amount of thought toward salmon resources and the effort is to get back to that mindset in the state, he added.
“It’s gotten a little blown out of proportion because this won’t stop things; it’s just trying to elevate the level of accountability back to where we believe it began at statehood. Over the years the regulations have been whittled away from administration to administration,” Wood said.
Initiative opponents have cited federal laws, such as the Clean Water Act and National Environmental Policy Act that guides the environmental impact statement process as additional adequate salmon habitat protections; meaning an update to Title 16 is unnecessary.
“I think there was a time when we thought we could have faith in the feds, the EPA, to have those standards and I think now we’re seeing that we can’t and it’s just part of the state having a greater say in its own outcome to have those high (permitting) standards,” Wood said.
Wood characterized Alaska as simply “lucky” it hasn’t seen a large-scale manmade disaster of late similar to the 2014 Mount Polley mine tailings dam failure in British Columbia. He noted many of the state’s largest mines and other developments are in the Interior region or otherwise away from major salmon-bearing watersheds.
The Department of Law deemed an earlier iteration of the initiative as a means to allocate resources and prohibit projects such as the Pebble and Chuitna mines and Susitna-Watana dam, which the initiative sponsors have opposed.
A June 30 Department of Law letter to the sponsors outlined the provisions in the first draft of the initiative that would not pass legal muster.
Assistant Attorney General Elizabeth Bakalar emphasized in an interview that the letter was in large part a response to industry concerns about the initiative that the department heard and is the same type of opinion state attorneys issue on any ballot measure — just earlier.
She commented that the department isn’t likely to issue “courtesy” opinions in the future because this one has been incorrectly perceived as the state helping the petitioners. However, it could just as easily be seen as a way to calm development industry concerns by clarifying ahead of time that the initiative would not be ratified.
“It’s just a heads up; do with it what you will,” Bakalar said.
Wood said small changes were made to the latest version to hopefully meet the Department of Law standards.
He acknowledged that the preferable vehicle to address salmon habitat protections would be through HB 199, which could be amended to include input from development proponents, but characterized the ballot proposal as a “belt and suspenders” approach to the issue.
The Resource Development Council and other pro-development groups stressed in testimony on HB 199 that reforming the state’s habitat permit requirements is a solution searching for a problem.
“The intent to safeguard Alaska’s salmon fisheries is an objective we share and it is why we support Alaska’s existing rigorous and science-based regulatory system,” wrote a coalition including the Alaska Chamber, Southeast Conference and the Anchorage and Fairbanks economic development corporations in an April letter to legislators.
“As a coalition that includes urban and rural Alaskans and businesses and associations representing tens of thousands of jobs for our state’s citizens, we cannot overstate how important it is to have consistent regulator and permitting processes.”
They continued to contend that HB 199 or the initiative would likely cause delays to smaller community projects like wastewater facility upgrades or airport expansions while worsening the state’s fiscal crisis by slowing or stopping economic development without any true benefits to fish habitat.
Alaska Native corporations such as Cook Inlet Region Inc., Calista Corp. and Doyon Ltd. have opposed the measures, while Native tribal organizations such as the Tanana Chiefs Conference and the Native Village of Eklutna support it.
The Kenai Peninsula Borough Assembly unanimously approved a resolution in September 2016 supporting an update to Title 16 to further protect fish habitat.
A 2014 state ballot measure requiring legislative approval for a large mine in Bristol Bay — which Pebble argues is a blatant violation of the Alaska Constitution — was billed as a way to protect the region’s salmon and passed with 66 percent support among Alaska voters. It was supported by 72 percent of voters in Bristol Bay and greater southwest Alaska, according to Division of Election results.
Elwood Brehmer can be reached at [email protected].