Court fight over water rights raises question:Whose side is DNR on?

As water becomes more of valuable commodity in the United States, competition between public and private uses for this resource is heating up. This has caused a disturbing trend in governmental sector which seems to be succumbing to political pressure to side more often with corporate interest wishing to privatize water use. 

In Alaska, one of the most visible examples of this trend is illustrated by a recent lawsuit filed by the Chuitna Citizens’ Coalition to force the Department of Natural Resources to process water reservation applications filed in 2009 to protect in-stream flows in the Chuitna River west of Cook Inlet. The coalition claimed that the state was violating the state’s reservation of water instream statute by delivering water that was included in the reservation requests to Delaware-based PacRim Coal LLC for mining purposes instead of processing the reservation requests. 

The statute’s inclusion of everyday citizens and not just governmental agencies among those authorized to apply for and hold instream flow reservations is supported by a litany of other state laws including the Constitution and Public Trust doctrine which condition the authority of the state to issue water right permits for private use on the rights of the public to protect water and fishery resources when and where they so choose. It was no surprise, therefore, when the Anchorage Superior Court agreed with the coalition and ordered DNR to proceed with processing the instream flow applications. 

After the court ruling, PacRim Coal filed a water right permit application, this time, so that it can divert the entire flow of the river reaches to which the reservation applications apply so that it can develop the coal located under the river bed. In addition to the fact that under Alaska’s “prior appropriation” statute the coalition’s instream flow reservations have precedence over PacRim’s requested water right, based on the complete and irreversible impact of the proposed diversion on fish and wildlife habitat, it is hard to imagine a more appropriate application for the reservation of water statute.

Given the substantial precedent in favor of granting the instream reservations over PacRim’s water right application, the corporation’s arguments for denying the reservations have been, somewhat, awkward. During a recent hearing held by DNR in downtown Anchorage in order to hear testimony from both sides of the dispute, for example, PacRim and other industry representatives argued that water is inherently a private property right and should, therefore, not be available for public uses like instream flow reservations. Not only does this argument completely ignore the instream reservation statute but it miss-represents the inherent nature of water rights which are, at their core, a public resource. In fact, the Alaska Supreme Court has concluded that, while the state owns and manages water, it cannot impair the public interest by managing water resources as private owner seeking maximize income.

Perhaps, realizing the risk of arguing in favor of privatizing water rights, PacRim, alternatively claims that allowing private non-governmental parties to file and hold instream reservations is, actually, privatizing such reservations. This, however, conveniently, ignores the fact that saving water instream preserves fish and wildlife resources and benefits the broader public as a whole, while a conventional water right takes water out of the stream which only in rare cases, benefits anyone other than the private entity granted the right.

Finally, PacRim argues that, instead of authorizing the public to enforce environmental regulations by reserving water instream, DNR should defer to the multiple federal and state environmental regulations that have been designed to protect water and fishery resources through the permitting process. This, however, is a common industry tactic that takes advantage of the, unfortunate, reality that (especially when politics are involved) state agencies, often, fail to enforce the law. This is best illustrated by the coalition’s need to take DNR to court, in the first place, to get them to implement the reservation of water statute while the agency was giving away water to a mining company without requiring a permit. 

Last month’s hearing is the final step before DNR’s commissioner decides on whether to grant the coalition’s or PacRim’s competing water applications. One thing is certain: Should the agency deny the reservations, not only would this result in the irreversible destruction of productive salmon habitat, but it is likely that a this would render the right of Alaska citizens to protect water instream essentially meaningless. At the very least, it’s hard to imagine how such a decision could be justified.

Hal Shepherd is a writer and a consultant on water policy issues in Homer.

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