DNR proposes changes to water reservation process

The Department of Natural Resources is pitching reforms to Alaska’s water reservation program via regulation that previously failed to make it through the Legislature.

State Division of Mining Land and Water officials published new proposed water reservation regulations that, among numerous technical updates and phrasing changes, would add language stating that water reservation certificates currently issued to private parties would instead be held by the Department of Natural Resources, which adjudicates water use 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.

Alaska Miners Association Executive Director Deantha Skibinski said the policy of DNR holding water reservations is something that her group believes is “absolutely critical.”

“I think we could all agree on having a state agency managing state water is the right thing to do,” Skibinski said.

In-stream flow reservations have been used as a tool to stop projects such as North Slope oil exploration in the past, which “just provides a ton of instability and uncertainty in our process,” she said, adding that there are likely many individuals who would not want the Alaska Miners Association to hold water reservations in the state.

“Ultimately I think the state having control over (water reservations) is one of the ways that gets us to a more fair system for both sides,” Skibinski said.

Bob Shavelson, advocacy director for Homer-based Cook Inletkeeper stressed the change would give an agency that is “controlled” by resource companies further discretion in how to allocate the state’s water.

“From our perspective it’s just a matter of fairness,” Shavelson said, noting that companies can and would continue to be able to remove water from streams with temporary use authorizations from DNR. “A big mining corporation, Pebble, Donlin, anybody, they can take water out of the stream but now Alaskans can’t keep water in the stream. To us, that’s unfair.”

He contended the change could also raise constitutional issues regarding how the state would treat similarly situated parties.

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.

DNR officials said they could not comment in detail on the proposed regulations during the public comment period but Water Section Chief Tom Barrett said in an interview that the agency takes water reservations very seriously.

“These flow reservations are pretty significant and they can have an impact on other water users or potential users,” Barrett said.

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.

Skibinski said the odds of DNR leaders ever invoking their authority to revoke a water right are very slim.

However, former DNR Commissioner Andy Mack in 2017 reversed a 2015 decision to grant an in-stream flow reservation to the Chuitna Citizens Coalition, a group aimed at stopping the since-abandoned Chuitna coal project on the west side of Cook Inlet. Mack ruled that because PacRim Coal scrapped the project, the circumstances that led the agency to issue the reservation had changed and therefore it was no longer needed.

Legislators contacted to discuss the proposed changes were not aware of them, but former House Resources co-chair Rep. Andy Josephson, D-Anchorage, said it initially sounds to him like another attempt to make the changes in HB 77 and they will likely be challenged on whether or not the changes can be made by regulation.

Currently, the Department of Fish and Game holds the vast majority of flow reservations; Barrett estimated approximately 95 percent. 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.

TNC Alaska representatives said they were reviewing the regulations and couldn’t yet comment on them.

DNR’s public comment period closes Feb. 26.

Elwood Brehmer can be reached at [email protected].

Updated: 
01/27/2021 - 9:20am