Morris News Service-Alaska/ Peninsula Clarion

Kenai finalizes pot regulations, doubles schools setback

KENAI — Prospective marijuana businesses in Kenai will have to observe 1,000-foot setbacks from schools, 500-foot setbacks from other sensitive areas — measured two different ways — a list of zones in which they can establish themselves with permission from the Kenai Planning and Zoning Commission, and two zones in which one business type can operate unpermitted. The Kenai City Council amended and unanimously passed the city’s final marijuana regulations during a four-and-a-half hour meeting Jan. 20. At the final meeting in which they could pass law that would be in effect before the state begins accepting commercial marijuana license applications on Feb. 24, the council edited and passed a set of marijuana regulations originally created by the Kenai Planning and Zoning commission. The regulations mandate minimum distances between marijuana businesses and schools, recreation centers, churches, correctional facilities, or drug abuse treatment centers. In the case of schools, this setback is 1,000 feet, measured from the outer wall of the marijuana business’s building to the property line of the school. The 500-foot setback from recreational centers is measured the same way. The 500-foot setback from churches, correctional facilities, and drug abuse treatment centers is measured from the marijuana business’s outer wall to the nearest pedestrian entrance. Five principals from area schools testified at the meeting to their personal support of the 1,000-foot school setback. The setback, which is double the state-mandated 500-foot school setback, was recommended by Kenai City Attorney Scott Bloom, who said it complied with the federal Drug-Free School Zone Act. Marijuana establishments will also be constrained by zone. Of the four state-licensed establishment types, only one will be allowed without planning and zoning permission, and only in two zones. Establishments licensed to test marijuana for contamination and potency will be allowed in Kenai’s light industrial zone — concentrated near the airport and a spot along the Spur Highway at the northern edge of town — and the heavy industrial zone — located near the Kenai River along Bridge Access Road. Holders of the other license types — for marijuana cultivation, retail, and the manufacture of marijuana products such as concentrates and edibles — will have to seek conditional use permits from the planning and zoning commission before opening in allowed zones. The change allowing unpermitted testing in industrial zones was proposed by council member Bob Molloy and passed unanimously. Motions by council member Terry Bookey to also allow planning and zoning-permitted cultivation and retail establishments in the industrial zones failed, with council members Brian Gabriel, Henry Knackstedt, Tim Navarre, and Kenai Mayor Pat Porter voting against both motions. Bookey made a successful motion to allow retail establishments with planning and zoning permission in the central mixed-use zone, where they had been banned under the planning and zoning commission’s draft regulations. The central mixed-use zone is located around the intersection of Bridge Access Road and the Kenai Spur Highway, and north of the Kenai Spur Highway across from Old Town. A resolution passed by the seven members of the Kenaitze Tribal Council requested that the Kenai City Council exempt Old Town Kenai, defined in the Kenaitze resolution as the area between Broad Street and Petersen Way, from all four commercial marijuana license types. The resolution stated “the Kenaitze Tribe has a firm belief that substance use negatively impacts our traditional ways of living, culture, and values” and referred to the tribe’s large presence in Old Town Kenai through its Dena’ina Wellness Center and Tyotkas Elder Center. Although the zone Bookey proposed opening to commercial marijuana lies near Old Town Kenai, it is mostly separated from it by the Kenai Spur Highway, with only a few highway-fronting lots directly bordering Old Town. Bookey said these would be accessible by vehicle from the highway, but not from Old Town. The change was made with opposing votes by Gabriel and Porter. Bookey also made a successful motion to allow small-scale marijuana growers to operate with conditional use permits in residential and limited commercial lots less than 40,000 square feet, which was opposed by votes from Navarre, Porter, and Gabriel. Bookey, who had recently been traveling out of state, said he had seen marijuana regulations at work in Washington and Oregon, and the experience — along with the finalized set of Alaska regulations expected to be signed officially by Lieutenant Governor Byron Mallot on Jan. 24 — had reassured him that marijuana could be commercialized safely. “With the regulation that’s going to be put forth for cannabis, I’m less scared than I was before — and I wasn’t that scared to begin with — about it getting to unintended users,” Bookey said. Reach Ben Boettger at [email protected]

ADFG reports show sportfishing may damage Kenai River

KENAI — The increasing numbers of bank anglers and powerboats on the Kenai River may be damaging the river habitat. The Alaska Department of Fish & Game released two long-delayed reports in October addressing the effect of bank angling and powerboat use on bank erosion in the Kenai River. The reports, covering the years 2000 and 2001, found that as more anglers fished the river, the more banks crumbled and vegetation disappeared. The reports are the final two installments of a series commissioned by the Board of Fisheries in 1996 to study the effects of increased sport fishing participation on the Kenai River after the board increased the sockeye salmon escapement goal. Sport fishing participation more than tripled on the Kenai River between 1977 and 1995. The Board of Fisheries requested that the ADF&G monitor angler use and impacts to the habitats on the river, which was done from 1997 to 2001. Although the reports from 1997, 1998 and 1999 were published within two or three years, the reports from 2000 and 2001 never appeared. At first, the research team encountered some snarls with methodology, said Mary King, a former fisheries biologist who served as the principal investigator for the study. When they began in 1997, there was no definitive methodology for studying bank change over time. By 1998, they had determined how to approach the measurements and were getting observable results by 1999. “The reports that were published in ‘97 and ‘98, we were stumbling around trying to find a method that the Board of Fisheries asked us to do,” King said. “Once we found a method and were getting results, they never got published.” The researchers focused on the herbaceous lands and shrublands to study angler effect because they would be more sensitive to foot traffic, said Patricia Hansen, King’s co-author on the study. They also tried to select an even number of sites on both sides of the river, she said. “For each macrohabitat type, sites were selected as randomly as possible allowing for various levels of angler use,” Hansen wrote in an email. “We also checked to be sure both bank and meander were represented within each habitat type.” The plant habitat on the banks was significantly impacted because of trampling by anglers, according to the 2001 report. As vegetation was trampled, bare ground and water cover increased. Invasive species moved into the damaged soil — dandelions, grass and horsetails. Low angler effort areas had a small increase and areas with many anglers saw less grass but more horsetails and dandelions. About half the sites showed bank gain while the other half showed bank loss. Bank gain largely occurs when the bank has broken but not separated yet in a process called calving. The average bank loss came out to about .28 meters, slightly more than 10 inches, King said. Some of the accelerated erosion underneath the edge of the bank can be attributed to the wake from powerboats and some is due to the increased presence of sport anglers, she said. “What the conclusions indicated was that there are measurable changes in habitat that can be attributed to the presence of sport fishing on the Kenai River,” King said. “If you compound (powerboats) with whatever shore angling is going on, we saw changes in vegetation that were damaging to the natural habitat.” Stuck in draft That significant changes were detected over only three seasons was “cause for concern,” the researchers wrote in the conclusion. They recommended the fisheries managers reevaluate how sport fisheries are prosecuted on the Kenai River to minimize damage to the riparian habitats. Though the results were presented to the Board of Fisheries in 2002, the studies were never published. King said she did not want to speculate as to why they were not published, but said the results had been filed on time and presented as requested. In her presentation to the board in 2002, King made three recommendations: to continue assessment of shore angler use and bank position change until better methods are developed, to finish the aerial photogrammetry feasibility study and make recommendations for future application river-wide and to develop better programs to educate anglers on how to preserve the environment. The second two were carried through, but the shore angler and bank change assessments were abandoned. Jim Hasbrouck, the chief fisheries scientist for the Fish & Game in Anchorage, said the reports were delayed because of staffing changes. The reports were classified as “draft” for that time period. “The information was presented to the Board of Fisheries, but several staffing changes happened at the time, people moving around into different positions,” Hasbrouck said. During the 14 years it took to release the reports, several people called for their release at Board of Fisheries meetings, but the logs held at the Alaska Department of Fish and Game commissioner’s Office have no record of anyone ever submitting a public records request for the reports, said Lisa Evans, assistant director of Fish and Game’s Division of Sport Fish. There are also no records of correspondence about the reports between 2000 and the present between staff at the Soldotna Fish & Game office and the Commissioner’s office, Evans wrote in an email. In a public comment submitted at the 2008 meeting, Gary Hollier of the Kenai Peninsula Fisherman’s Association cited King’s presentation in 2002 on the damage to the riverbanks and asked why there were no updated habitat reports in the years since. Two other members of the public also asked why there had been no updates on the habitat reports in 2008. In 2014, Lisa Gabriel, also of the Kenai Peninsula Fisherman’s Association, submitted a public comment to the Board of Fisheries detailing that she knew the reports existed and asking why they hadn’t been published. Gabriel said she never submitted a formal records request for the 2000 and 2001 reports because she was able to find the draft versions on the Internet. When she requested a copy of the most current habitat report, she was given another Kenai River habitat assessment from 2010 from a team of researchers from Inter-fluve, a river restoration research firm, and Cramer Fish Sciences, a fisheries research firm. The report had been presented to Fish & Game and to the Kenai River Sportfishing Association. It primarily focused on restoration efforts, but in the section addressing bank erosion said some reports had indicated that increased angler traffic caused bank loss. The report concluded that there is insufficient information about the scale of habitat changes and what causes them. “There was nothing on biological habitat information,” Gabriel said. “(The report said) we’re repairing walkways, that sort of thing. All of the reports we were seeing at the Board of Fish level, none of them were official reports.”  ‘Appropriate modification’ King, who retired from Fish & Game in 2010, said she did not change offices for some time after the reports were filed and did not know why the reports had not been published. In a presentation she gave to the Kenai River Special Management Area board in February 2015, she said she requested the status of the reports when she retired in 2010 and was told they had never been peer-reviewed. The project ended in 2001 and has not been revived, she said. There are no ongoing habitat research projects on the Kenai River through Fish & Game, according to Habitat Division director Ginny Litchfield. Fish & Game is required by statute in the late-run salmon management plan to conduct habitat studies “to the extent practicable” for the Board of Fisheries meetings on the Upper Cook Inlet. It also requires the board to make “appropriate modification” if the studies show a net loss of riparian habitat, according to the management plan. To be published, Fish & Game’s research reports must first be compiled, sent through the peer review process, edited, reviewed again and then sent to Research and Technical Services in Anchorage to be published. Sometimes this process takes years, with backup through the system. However, King and Hansen’s report remained in publishing purgatory for an exceptionally long time compared to other reports published by Fish & Game. Other reports are published within five or six years; some are published in less time. The first reports they wrote were published in fewer than three years. Jeff Fox, the former Director of Commercial Fisheries based in Soldotna, said people repeatedly came in asking for those reports and that they were demanded at various meetings. The department is required to perform yearly assessments on the habitat quality of the river but has not done so in years, he said. At this point, King’s reports are so old as to be irrelevant, he said. “That’s the interesting thing,” Fox said. “If you hang onto something long enough, it doesn’t matter what the conclusions are.” Under the Alaska open records laws, oral requests are usually considered valid requests for public records. If the oral request is denied, the requester is supposed to follow up with a written request. The department can ask that the request be submitted in writing, but it is still a valid request. Fish & Game has been investigated for noncompliance with the open records laws before. In 2009, an incident at the Anchorage office over the disclosure of a public document led to the Alaska Ombudsman’s Office investigating Fish & Game and recommending that the department release the record, train its staff how to comply with records requests and consult with the Assistant Attorney General on how to better fulfill requests in the future. The department did release the record requested, but the investigation was closed as “partially rectified” because the agency did not fully implement the ombudsman’s recommendations, according to the investigation archives. No further reports have been funded by Fish & Game on the habitat of the Kenai River. King said the studies were cut off, but they would have likely continued to show damage. “Had the project continued, we probably would have found further correlations with the sport fishery,” King said. “But the hard part of it is the teasing out of what the natural process was. The correlations were to look at whether or not something was significant accelerating the erosion.” Reach Elizabeth Earl at [email protected]

Borough officials brief Peninsula residents on AK LNG impacts

NIKISKI — Nikiski residents gathered at the Nikiski Recreation Center on Nov. 12 for another discussion on the local effects of the Alaska LNG Project — hosted this time not by AK LNG staff, but by the Kenai Peninsula Borough. Borough Mayor Mike Navarre and Larry Persily, the mayor’s special assistant on oil and gas projects, gave their perspective on the project in an expansive question-and-answer session that ranged from the Kenai Spur Highway relocation project to Navarre’s role on the state Municipal Advisory Gas Project Review Board to the scope of future property purchases in Nikiski. Navarre and Persily, whom the Borough hired in March 2015 to monitor the LNG project, plan to host talks in Nikiski every second Thursday of the month. The next is tentatively scheduled for Dec. 10. Persily began by outlining the LNG project’s summer activity in Nikiski, where the project plans to end its natural gas pipeline from the North Slope in a liquefaction plant and export terminal to be built on 800 or 900 acres of Cook Inlet-fronting land, near ConocoPhillips’ current LNG export terminal, between miles 19.5 and 21 of the current Kenai Spur Highway. Persily said the only work the LNG project has planned for the winter in Nikiski is to demolish some buildings — he estimated about 10 — on recently bought property. “They’ve shut down their field work, and they’ll be back next summer to do more hole-drilling or water-well testing,” Persily said. He said the project’s summer 2016 fieldwork will be planned in a meeting on Dec. 4. Possible work may include digging a test trench in the Inlet floor in front of the export terminal site, in order to observe how quickly the dredged Inlet bottom fills back in. As for the Kenai Spur Highway relocation project — in which the AK LNG Project will plan, permit, and construct a new segment of the highway that would swerve around the future export terminal and give the road to the Alaska Department of Transportation afterward — Persily said “their plan is to spend pretty much all of 2016 planning.” In summer 2017, Persily said that the project will decide on a preferred route for the new road. Persily distributed copies of a borough-created map showing the projected terminal site and 12 possible routes the relocated Spur Highway may take around it, a tangle of possibilities he jokingly called the “spaghetti bowl.” Persily estimated that to move the road and build the terminal, the LNG project will need to buy about 600 properties in the area. He emphasized that AK LNG does not have a power of eminent domain — the power to force landowners to sell their property — and said the variety of potential routes allows the project to operate flexibly without it. “They need to pick a preferred route,” Persily said. “If they can’t buy the land, then it isn’t going to be their preferred route anymore.” In order to get eminent domain, AK LNG would have to be granted the power by the state Legislature. Both Persily and Navarre said the LNG pipeline and the Spur Highway relocation were separate projects, although both are being carried out by the same organization for the same ultimate goal. Persily said there was a possible, though unlikely, scenario in which the highway would be relocated even if the export terminal and pipeline are never built. The export terminal is scheduled to begin construction in 2019, with the relocated highway already planned to be in place by the end of 2018. If AK LNG decides to cancel the pipeline project between the two construction periods, the Nikiski area could be left with a new highway and no plant or terminal. “Maybe in 2019, if they don’t get their final permit, or there’s a lawsuit, or the market’s crappier than it is now, they could decide ‘we’re not going to build the plant this year,’” he said. “But we’ve already got the highway. So we may end up with a relocated highway regardless of whether the LNG plant goes in. But given how much it’s going to cost them to build the highway, before they start the construction I bet you they’ll be pretty sure they’re going to go ahead with the LNG plant.” Navarre, a member of the Municipal Advisory Gas Project Review Board created to advise the Legislature on local effects of gasline projects, spoke to the attendees about one of that group’s activities. Navarre said that the Municipal Advisory Board was currently negotiating for $800 million in local impact aid money during the project’s five-year construction — equaling $160 million each year — to be given to local governments to pay for new costs brought on by construction activity and the large number of people it will bring to the area. Navarre gave examples of needs that could be funded with the impact aid money: hiring new teachers for an increased number of students in local schools, or hiring new emergency response personnel. Navarre said the local impact aid money would not fund impacts of the highway relocation. Ultimately, he said, the money would be distributed by the Legislature with advice from the Municipal Advisory Board. Nikiski resident Heidi Hatch asked what would happen to the local impact aid money on the borough level. “What safeguards will be in place that the borough doesn’t just disperse this money to other communities that aren’t impacted like Nikiski?” Hatch asked. “How will we be sure Nikiski is getting that?” “Not everybody who works on this project or is part of this project is going to live in Nikiski,” Navarre said. “But Nikiski is going to have a big part of this aid. But for example the airport in Kenai may need something done for the different flights and activities that are going on. ... So I can’t say with any certainty how the money will be dispersed.” Persily gave another caveat. “The impact aid is not like punitive damages in court, where you get $1,000 to pay your medical bills and you get $100,000 for pain and suffering. The impact aid, as it’s intended, is to cover direct costs of the project. Expanding the parking lot or terminal at the Kenai airport, or roads in Nikiski, or adding another firetruck and six more full-time staffers and an ambulance. That’s what the impact aid is going to be.” Many questions received only speculative answers, such as the logistics of the 5,000-person man-camp to be built for workers during the terminal’s construction and the long-term future of the global LNG market. The most consistent message Persily and Navarre gave was that the project is still full of unknowns. “There are a lot of unknowns at this point,” Navarre said. “There is not even certainty that the project is going to go forward.” Persily said the next opportunity for public input on the AK LNG project will come after public comment period on the Federal Energy Regulatory Commission’s environmental permitting process ends on Dec. 4. Reach Ben Boettger at [email protected]
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