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Fish First!

Posted by Bob Shavelson at Nov 22, 2011 03:00 AM |
The State of Alaska is violating Alaskans' rights to keep water in streams for wild salmon.
Fish First!

Salmon from above by Utah~Dave AA7IZ

When it comes to allocating Alaska’s waters, we must put fish first.

We’ve all heard the expression “like a fish out of water.” Everybody knows fish need water.
But our state government still seems a little confused. That’s why Cook Inletkeeper recently
had to sue the state to make sure our salmon have enough water in their streams to migrate,
spawn and rear.

Before getting into the specifics, let’s talk a little about water law. Alaska operates under a
water law system called the prior appropriation doctrine. Under prior appropriation, anyone
can get a right to use water by withdrawing or reserving it from a ground or surface waterbody,
then putting that water to a beneficial use, such as for drinking water, crop irrigation or even
industrial use (e.g., cooling water for an engine).

The key behind the prior appropriation doctrine is that it’s based on the notion of “first in time,
first in right” – which means the first person to appropriate water from a specific waterbody
has a superior right to that water than anyone who appropriates water afterward (the prior
appropriation doctrine has been embraced by western states, because it’s better suited to
dryer areas containing fewer rivers; in eastern states, the riparian doctrine typically applies,
which allows anyone along a waterbody to make “reasonable use” of the water unless it
adversely affects another user. This doesn’t necessarily make sense for a wet state like Alaska,
but water law is a creature of a long, tangled web of history).

Appropriating water, however, does not always mean the water must be removed from the
system. In fact, in Alaska there is a specific law (Alaska Statute 46.15.145) allowing citizens
to “reserve” water in streams and lakes to support salmon. It’s called an instream flow
and it carries the same legal weight as an out-of-stream diversion.

So, under Alaska water law, if a party files for an instream flow reservation, that water right
is superior to any proposed water uses that may come later in time. If we’re going to allow
out-of-stream uses and diversions, it’s only logical to make sure we leave enough water in the
stream for fish.

But there’s a catch. The state actually has to “adjudicate” – or process – an application for
an instream flow right before it can have any legal effect. That job is left to our resource
development agency, the Alaska Department of Natural Resources (DNR), which has dragged
its feet for decades. For example, there are over 350 instream flow applications currently
pending; DNR failed to process any instream flow applications in 2008, and only 2 in 2009.
Clearly, salmon protection is not a priority for DNR.

In the meantime, DNR issues temporary water use permits (TWUP) at the drop of a hat,
allowing corporate users to obtain out-of-stream withdrawals for “significant” withdrawals of
30,000 gallons per day and more. DNR makes no effort to understand if these TWUP’s will
undermine a previously filed instream flow reservation, and the result is a misguided public
policy that’s blind to salmon protection. To compound matters, DNR doesn’t provide public notice on upcoming TWUP’s, so Alaskans have no opportunity to weigh in.

In 1996, the state’s own biologists applied for an instream flow reservation for the Chuitna
River, to protect the River’s five species of wild, Pacific salmon. But DNR has not lifted a finger
to process the application.

Fast forward to the 2009. With DNR working with PacRim Coal to facilitate the development of
the proposed Chuitna coal strip mine, local property owners with the Chuitna Citizens Coalition – through the public interest law firm Trustees for Alaska – filed
applications for instream flow reservations on Middle Creek, which drains into the Chuitna and
which would be ground zero for the proposed coal strip mine.

Not surprisingly, DNR failed to act on our instream flow applications. In the meantime, it has
granted PacRim Coal several water use permits to take water from the very same area. Having
waited over two and a half years for the state to do the right thing, we were forced earlier this
month to file a lawsuit in state court attempting to get DNR to obey the law and to put fish first
when it comes to appropriating our public waters.

Cook Inletkeeper believes the state’s policy favoring corporate water users over salmon – and
the countless families and communities salmon support – is wrongheaded and illegal. We
believe fish must come first when it comes to water allocation decisions. Because if they don’t, it won’t be long before we’re in the same boat as Oregon, Washington and other places that once supported vibrant salmon runs. So, we carry forth with a new mantra: fish first!

Learn more about instream flow reservations here: Instream Flow Protection in Alaska, 1999-2009

Application for instream flow reservation for the main stem of the Chuitna River here.
Application for instream flow reservation for the middle reach of the Chuitna River here.
Application for instream flow reservation for the lower reach of the Chuitna River here.

Read the press release here.