Comments to Senate Resources Committee on HB 77 from Tim Troll, Executive Director of the Bristol Bay Heritage Land Trust. 12/17/2014
My name is Tim Troll. I am a 34 year resident of Alaska and Executive Director of the Bristol Bay Heritage Land Trust. The land trust was formed in Dillingham and incorporated as an Alaska non-profit corporation in 2000. I offer these comments on behalf of the Bristol Bay Heritage Land Trust (BBHLT). Thank you for providing this opportunity.
Chikuminuk Lake Hydro Project: Initially, I am grateful the Committee has removed those parts of the legislation authorizing permits to advance the study of a hydroelectric dam at the outlet of Chikuminuk Lake in Wood-Tikchik State Park. BBHLT has helped raise millions of dollars to protect the integrity of the park by securing conservation protections for private inholdings within the park, including the only inholding on Chikuminuk Lake. We now feel that our ability to continue doing so to further the State’s interest in the values of the park has not been compromised. Thank you.
Instream Flow Reservations: BBHLT is also heavily invested in instream flow reservations on five river systems in the Nushagak and Kvichak watersheds to protect the State’s and the public’s interest in water levels for fish. As the Executive Director of the Land Trust I have been involved in raising approximately more than $700,000 to file, collect and compile the five years of flow data required by DNR in order to have the applications prepared for adjudication. The following are a few of my concerns:
* DNR did not extend us the courtesy of consultation: BBHLT and its partners (e.g. Curyung Tribe, SW Alaska Salmon Habitat Partnership, New Stuyahok Village Council, among others) are perhaps the largest stakeholders in the integrity of the existing law. We are extremely disappointed that DNR chose not to consult with us on the current rewrite of this section of HB 77 before it was submitted to your committee. We are Alaskans and deserve better treatment from our state. Former DNR Commissioner Sullivan was made aware of our concerns in a lengthy letter I wrote to him last year. Given the fact that we filed some of these reservations with both the encouragement and support of the State, we feel that same spirit of cooperation should have been extended to us in the rewrite of this law. We were not invited to even one meeting as the new language was being developed, and the advice we did offer when we invited DNR to one of our meetings was all but dismissed in the rewrite. The language in the proposed revision strongly suggests other interests were consulted. Our only resort now is to respond to the flaws in the changes proposed by DNR; changes we did not see until they came before your Committee.
* The current law is not broken: The existing law for instream flow reservations does not prevent development as some suggest. The Commissioner of DNR already has the power under the existing law to cancel or reduce an instream flow reservation in favor of a subsequently filed water withdrawal application. The law simply imposes a requirement that the Commissioner choose between the interests protected by a reservation (fish, navigation etc.) and the interest served by the withdrawal (development, jobs etc.) and make a finding that the best interests of the State are served by the choice he or she makes. It is very likely that in most cases a choice will not be required as water levels will be enough to accommodate both needs. Yes, an instream flow reservation can be a hindrance for those wishing to withdraw water from a stream subject to a prior reservation, but that is how it should be. Public input is always a hindrance. The current law, through the application of the principle of first in time – first in right, provides the pause and the public decision point needed for the Commissioner to fully evaluate the resource impacts based upon the best available data. An instream flow reservation is not absolute under existing law. It does not block development. The real problem is DNR is underfunded, or not interested enough to address these instream flow reservations in the correct and most timely and efficient manner.
* We only acted because the State was not acting to protect flows. The use of “private” applications would not be necessary if the public had confidence that the State was giving due consideration to the protection of water flows for fish. Given the vast number of salmon bearing streams in Alaska, the public would expect the State to be prudent and prioritize its instream flow efforts to steams most likely to be threatened. In our particular case we were witnessing the largest potential development impact ever to water flows on salmon bearing streams in Bristol Bay, and no action by ADF&G. We were given the impression that ADF&G did not have the funding to pursue instream flow reservations on the most threatened systems, so we, and our partners, raised the money and stepped in where ADF&G either could not or chose not to act and filed reservations for fish on behalf of the public on the Mulchatna, Stuyahok, Koktuli, Kaskanak and Upper Talarik systems. (It should be noted the Mulchatna, Stuyahok and Koktuli provide key habitat for the consistently productive Chinook runs of the Nushagak drainage) We undertook this effort fully aware that these instream flow reservations were not absolute and afforded no guarantee other than a measure of standing that accorded us an opportunity to be notified of a temporary or permanent withdrawal application and an opportunity to participate and be heard in DNR decisions that could adversely affect the reservation. BBHLT and its partners want to know that DNR will give due consideration to fish habitat when human induced disruptions of flow could compromise that habitat. The current instream flow law provides that assurance because there is a transparent decision point at which DNR must consider the evidence and address the question of flow. Under the current proposed revisions the public loses this assurance because DNR can effectively ignore the reservation and there is no adequate recourse for this failure to consider the reservation.
* The proposed legislation does not streamline water reservation law. Rather, the proposed legislation introduces more uncertainty. An example is the first appearance of the term “nonproprietary public domain hydrologic data” used in Sec. 42 (j). What does this language mean? If something is in the public domain is it not by definition “non-proprietary.” What is proprietary public domain data? For example, BBHLT and partners have been paying USGS to collect hydrologic data. The USGS will only do so if we are willing to make the data publically available. Does this mean that someone who wants to withdraw water cannot use our data to prove a proposed withdrawal will not affect fish because we paid for the data? How would this provision be enforced? Is our permission needed to use the data we paid for and put in the public domain? Even if we give the permission can DNR refuse to consider it?
Likewise, it is not entirely clear in the proposed HB 77 to what extent the “person” tribe, municipality or federal agency that paid for the reservation has standing and can act if ADF&G or DNR cannot by virtue of funding or will not by virtue of politics assert the reservation.
Also, what does it mean in 42(i) that the right to appeal may not be transferred? If an individual “person” files a reservation it can only be done on behalf of the public. Is the reservation extinguished when the individual dies, or just the right to appeal any decision affecting the reservation? Because these rights are only held for the public benefit is it not really the public that may be “adversely” affected by a Commissioner’s decision? If an entity changes a name or consolidates with another entity is the reservation or the right to appeal lost?
These are only some of the uncertainties that arise upon a close examination of the language in the proposed revisions to HB 77. We strongly recommend that the provisions of this law relating to instream flow reservations be removed from HB 77
* Grandfather existing instream flow reservations. If the committee rejects the suggestion that instream flow be removed from HB 77, fundamental fairness warrants allowing the pending reservations to proceed under current law. We filed our instream flow applications on behalf of the public and raised substantial amounts of money in good faith. We followed rules and guidelines established by the State, and, as noted above, in some cases with the support of the State. We should not be punished for relying on the long established existing law by the de facto repeal of that law and the unprecedented ex post facto application of a new law. At a minimum our applications should be allowed to proceed under the existing law.
Tim Troll, Executive Director
BRISTOL BAY HERITAGE LAND TRUST
P.O. Box 1388, Dillingham, Alaska 99576