DNR rules on water rights petitions

Editor’s note: An earlier version of this article, which appeared in the Oct. 8 edition of the Homer News, said Alaska Center for the Environment and Cook Inletkeeper filed for instream flow reservations, in addition to Chuitna Citizens Coalition. ACE and Cook Inletkeeper only filed objections to PacRim’s competing water right. 


By DJ Summers

Morris News Service – Alaska

Alaska salmon scored a partial victory on Oct. 6, but PacRim’s coal mine could still happen.

The Alaska Department of Natural Resources granted an instream flow reservation, or IFR, to Chuitna Citizens Coalition for the for the lower section of Middle Creek. Middle Creek is part of the watershed for a proposed coal mine, and an integral part of the drainage process necessary to complete the mine.

Only Chuitna Citizens Coalition’s IFR for the lower section was granted by DNR. The coalition also had filed IFR requests for the middle and upper reaches.

The coalition characterizes DNR’s decision as a “dodge,” and a concession to the coal industry at the expense of Alaska salmon.

“Make no mistake, DNR is saying that a potential coal strip mine is more valuable to the public than protecting wild salmon habitat,” said Ron Burnett, a Beluga homeowner and founding member of the Chuitna Citizens Coalition, in a statement. “This decision doesn’t do enough to protect fish in the Chuitna River because it doesn’t keep water flowing in the salmon-spawning areas of Middle Creek.”

Indeed, the decision has little direct effect on PacRim’s operations. The mine will still go through the permitting process over the next several years.

DNR’s Water Resources Section Chief David Schade said the decision can be easily misunderstood, and cautions that Chuitna Citizens Coalition’s IFR does not grant the organization direct control of Middle Creek’s lower reach, nor does it forbid the 

mine from operating. The coalition will not be able to simply exercise any litigation against PacRim, or refuse to let PacRim operate simply on principle.

Rather, it gives an entry point for bringing complaints to DNR. Chuitna Citizens Coalition will be able to bring issues to DNR for adjudication if it has evidence that the completed mine will affect Middle Creek’s lower reach flow quality.

“This is not at all an operational decision for the mine,” Schade said. “It is a limited decision for instream flow. This is not a traditional water right. It’s different with the reservation certificate. It gives Chuitna Citizens Coalition the right to request that DNR look into any activity of upstream users if there’s some evidence upstream activity is affecting the downstream flow. They don’t have administrative rights.”

Schade does believe the decision will help protect the stream.

“We will protect the stream through the permitting process,” Schade said. “Before there will be any kind of activity at a mine site, we will have gotten a bigger picture of the water rights.”

This marks the first time DNR has granted an IFR to a private party.

IFRs are typically reserved for state and local governments, rather than private citizens or coalitions, though certain isolated cases exist giving IFRs to non-governmental organizations, according to Trustees for Alaska legal director Valerie Brown.

Both PacRim and the mine opponents had filed applications for water reservations. PacRim representatives objected to Chuitna Citizens Coalition’s IFR, arguing that opening IFRs to private entities will open a Pandora’s box of complications in the future.

“The big issue for us is the policy issue, whether DNR should allow private citizens to take part in the permitting process,” said Eric Fjelstad, an attorney representing PacRim, during an August DNR hearing. “We think that answer should clearly be no.”

Schade said he doesn’t agree with PacRim’s argument, and thinks water rights are inherently public and subject to DNR’s discretion.

“Water is a public resource, and clearly delegated to DNR,” Schade said. “The rights of the holder of an (IFR) boils down to two things: the rights to be a party to any future reviews, and also have a right to ask DNR to adjudicate.”

PacRim’s proposal has seen intense criticism from Alaskans, who have collectively sent more than 7,500 letters of public comment to the Department of Natural Resources opposing the mine and supporting the establishment of water rights aimed at salmon habitat preservation.

The mine would require PacRim to dewater salmon habitat to dig a strip mine for low sulfur coal.

DJ Summers is a reporter for the Alaska Journal of Commerce.