Conflicting Water Rights at the Heart of Chuitna Mining Debate

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PacRim Coal is proposing a strip mining operation on the west side of Cook Inlet, in the Chuitna watershed. It proposes removing the water completely from a tributary of the Chuitna River, which is a salmon stream.

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On August 21st, there will be a public hearing in Anchorage about the reservation of water applications for the area near the proposed mine. The decision that follows could determine the possible future of the watershed.

With regard to water rights, Alaska, is a prior appropriation state. It follows the logic of first in right, first in time. Basically, the first person to take water from an area for beneficial use, gets the rights. David Schade is the Chief of Water Resources for the Department of Natural Resources, or DNR.

“In 1984, the legislature allowed reservation of water applications, or what some people call instream flow reservations,” says Schade. “Part of that was that a traditional water right, as long as you perfect that right, and use that water, it’s a perpetual right. Reservation of water rights are reviewable.”

So, one is perpetual, one is reviewable.

Bob Shavelson, executive director of Cook Inletkeeper, says it was through this process that local citizens first showed their opposition to the mine.

“There’s been a very strong effort to understand how can we protect this resource without getting sucked into a process we know has a predetermined outcome. So, local citizens with the Chuitna Citizens’ Coalition, on the west side of Cook Inlet, filed to keep the water in Middle Creek,” says Shavelson. “It’s called a reservation of water or instream flow reservation. It’s simply there to say the water belongs in the stream for salmon and other wildlife.”

On the other hand, PacRim Coal has filed for traditional water rights. Schade, for DNR, is currently considering the three applications from the citizens’ coalition.

“So what we have now is a traditional water right that is behind a reviewable water right and it creates a little bit of conflict.”

The purpose of the public hearing is to gather more information on objections to the applications. On one side, there will be people who believe DNR underestimated the value of the fisheries that will be lost if the stream is destroyed in its initial analysis.

Two of the applications are in the footprint of the proposed mine area, while the third is not, which speaks to this group, says Schade.

“In those instances, there’s a direct conflict between reservation of water, leaving the stream there, and the ability or not to mine,” says Schade.

On the other side, there are those who believe it’s not in the public interest to grant any reservation of water at this point in time.

The timeline isn’t standard says Schade. Typically, DNR would look at reservation of water versus traditional water rights at the end of the permitting process, once the mine is given the go-ahead.

“So unfortunately, I’m having to make certain assumptions that these permits will be granted and I will clearly lay out what those assumptions are,” says Schade. “But I’m going to have to assume that these things are going to be able to be put in place as part of my decision, or if I think they’re not going to be put in place because of any further information I get.”

In 2013, the Superior Court ruled that DNR had violated the citizens’ coalition’s right to due process and hadn’t followed the law when they allowed their water applications to sit for four years without consideration. Hence the accelerated timeline.

As part of that, DNR received more than 7,000 public comments on the applications. The majority, like Coalition member Judy Heilman, wanted protection for salmon habitat.

“There’s never been a salmon stream that’s been restored that’s been destroyed like that. I can’t tell you how important it is for us to stop this before it starts,” says Heilman.

But others were vehement that DNR should follow the standard permitting process.

“What I see in the discussion is you have various groups with very specific viewpoints. You have the fisheries viewpoint and they’re very focused on that and that’s a very viable viewpoint to have. You have industry on the other side that has the viewpoint of trying to be able to develop resources,” says Schade.

After the hearing, Schade will make a decision on the applications. That will come by October 6th.

“So it’s a challenge. DNR is a multi-use agency. We have to balance all the uses. The good news, is I have a statute which gives me criteria.”

He says he’ll follow that and, because reservation of water applications are reviewable, will possibly return to the decision once again down the line.