On January 15, the Dunleavy Administration welcomed-in 2021 with new proposed rules to strip Alaskans of our rights to keep water in our streams and lakes to protect our fish (see original post, below).
Now, in response to strong public pushback, the Alaska Department of Natural Resources (DNR) has extended the public comment period until April 2, 2021 and issued a response to various questions presented about the proposed rules.
[Take a minute to submit your comments here]
The debate over so-called instream flow rights has intensified, and from Inletkeeper’s perspective, the reason is obvious: warming temperatures are wreaking havoc on our freshwater systems, and our wild salmon will increasingly need ample water supplies to roll with the punches of climate change.
Inletkeeper pioneered the science to show Alaska’s salmon streams are warming at a disturbing rate, and we’ve been vocal in sounding the alarm. And we recognize a simple truth: wild Alaskan salmon need fresh, cool and abundant waters not only to thrive, but to survive in the face of sweeping climate disruptions.
So, it makes little sense today to snuff-out the rights of Alaskans to keep water in our wild fish streams, while continuing to allow big Outside mining, oil and gas corporations to take water out of these same waterbodies.
Things might be different if the Alaska DNR didn’t have such a blatant conflict of interest. But as the state agency charged with resource development – and for issuing permits for large oil, gas and mining projects – DNR has an engrained governmental bias towards resource development over salmon protection.
Fortunately, there’s a solution to this dilemma: the state can simply declare all state waters to be “reserved” in-place to protect fish and wildlife. Then, if some big corporation wants to take the water from a waterbody for industrial uses, it simply has to show it will not harm the fish and wildlife supported by the waterbody.
It’s a simple and commonsense solution.
In fact, our Constitutional Framers arguably included that very such provision in Article VIII, Section 3 of the Alaska Constitution, which states: “Common Use – Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use.”
Alaska courts, however, have yet to interpret this constitutional provision with regard to automatic instream flow reservations, and until they do, we’ll need our elected officials to take action.
Recognizing the dysfunction gripping the Alaska Legislature these days, that’s a big lift. In the meantime, we need to stop DNR from stripping away our rights to keep water in our streams and lakes.
Take 5 minutes to send DNR your comments by 5 PM on April 2.
Click Here to submit comments.
For more information contact Bob at 907.299.3277 or email@example.com
ORIGINAL POST – JANUARY 15, 2021
It was just another Friday in the Great Land, which meant just another assault from the Dunleavy Administration on Alaska wild salmon and the people who try to protect them.
Today the Dunleavy Administration announced new proposed rules to strip Alaskans of their right to keep water in wild salmon streams. Not surprisingly, the proposed rules don’t upend the status quo for big oil, gas and mining corporations, which still get to take water OUT of our fish streams at will.
Some quick background.
Alaska water law follows the prior appropriation doctrine, which holds that the first person to secure water for a beneficial use has a superior right over anyone who comes after them (“first in time, first in right”).
Water rights are broken into two categories. Instream flow reservations – as the name implies – keep water in a stream or other waterbody to protect fish, wildlife, recreation or other uses. Out of stream diversions – or water withdrawals – allow a user to take water out of a stream or waterbody for drinking water, farming and other uses.
So, if you hold a water right – whether it’s an instream flow or a withdrawal – you have a legally enforceable right to stop anyone from harming your water use if they come along after you’ve secured your water right.
In its newly proposed rules, the Dunleavy Administration wants to take away the right Alaskans currently have to hold instream flow reservations. While Alaskans can spend the considerable time and money to apply for an instream flow right – and the time and cost are considerable – they would not be allowed to actually hold the right; only the Alaska Department of Natural Resources could do that.
Compare this to a water withdrawal, where an oil or mining company wants to pull millions of gallons of water from a fish stream to build a road or cool engines or whatever. These corporations not only get to pull water OUT of our fish streams, but they get to HOLD the water right too.
So, Alaskans who want to keep water in a stream to protect fish don’t get to hold the water right, but big corporations looking to take water out of a fish stream do.
Doesn’t sound fair, right?
Well, there’s a little thing called the Alaska Constitution, and our constitutional framers envisioned people like Mike Dunleavy trying to do this very thing.
Article VIII, Section 17 of the Alaska Constitution reads:
“Laws and regulations governing the use or disposal of natural resources shall apply equally to all persons similarly situated with reference to the subject matter and purpose to be served by the law or regulation.”
We know from experience that constitutional mandates mean little to the Dunleavy Administration. But in their defense, they didn’t come up with the idea.
The credit for gutting the rules around instream flow reservations goes to our friends at the big corporate trade groups, namely the Alaska Miners Association, the Resource Development Council and the Alaska Oil & Gas Association.
They’ve fought for years to stop Alaskans from securing instream flow rights to protect wild salmon, and now with a malleable governor like Mike Dunleavy, their members are reaping the rewards of their campaign contributions.
You can read the proposed rules here. Comments are due February 26, 2021, and Inletkeeper will be providing more information soon. In the meantime, if you have any questions, contact firstname.lastname@example.org