The Alaska Supreme Court will still have its say, but there’s a good chance voters will be asked whether or not the state should overhaul its permitting regime for construction projects impacting salmon habitat.
It’s the latest battle in the ongoing debate over how far the state should go to protect its prized fish resources while at the same time promoting development of the state’s renowned petroleum and mineral resources.
The sponsors of the Stand for Salmon ballot initiative — Alaskans with commercial, sport and subsistence fishing interests — contend Title 16, the state statute for permitting projects in fish and wildlife habitat that has not been updated since statehood, needs serious strengthening to continue protecting anadromous fish as the state continues to grow.
They argue the ambiguous wording of the law, which directs the commissioner of Fish and Game to approve projects that provide for the “proper protection of fish and game,” is too open for interpretation by political appointees who could be swayed to overlook stringent construction requirements for potentially profitable developments.
Opponents of the initiative — led by trade groups for the state’s oil and gas and mining industries and Alaska Native corporations with huge land holdings that are also heavily involved in those industries — point to Alaska’s generally prosperous salmon runs as proof the significant changes to Title 16 the initiative would institute are unnecessary and would debilitate an economy dependent on resource development.
They have formed their own campaign group, Stand for Alaska. The Supreme Court will hear arguments in April over whether the initiative is unconstitutional after conflicting opinions have been handed down from the Alaska Department of Law and Superior Court.
The sponsors, who collected enough signatures to place it on this November’s general election ballot, retort that to date Alaska has for the most part been “lucky” that large developments have occurred outside of major salmon fisheries so the inadequacies in Title 16 haven’t been exposed.
Gov. Bill Walker is among the opponents of the Stand for Salmon initiative. He insists such fundamental law changes should be left to the legislative process so the statute can be crafted with input from all impacted parties.
The initiative would apply to all waters that support anadromous fish — those species that migrate freely between fresh and salt water — that, in addition to salmon, include everything from steelhead to smelt and lampreys. However, salmon are king in Alaska and therefore dominate the discussion.
It should be noted that the Stand for Salmon sponsors did not stir this political hornets’ nest on their own. In January 2017 the Board of Fisheries wrote a letter to legislative leaders requesting revisions to Title 16. The seven-member board is comprised of individuals first appointed by pro-development Govs. Frank Murkowski, Sean Parnell and Walker.
“Additional guidance is warranted for the protection of fish, to set clear expectations for permit applicants and to reduce uncertainty in predevelopment planning costs,” the letter states. “To strengthen ADF&G’s implementation and enforcement of the permitting program, the legislature may want to consider creating enforceable standards in statute to protect fish habitat, and to guide and create a more certain permitting system.”
Kodiak Rep. Louise Stutes, who chairs the House Fisheries Committee, is currently working on a new draft to House Bill 199, which she submitted last year and originally mirrored the initiative.
She decided to rework HB 199 after hearing testimony from supporters, detractors and regulatory agencies involved in development projects.
What’s in it?
Specifically, the eight-page initiative would start by setting up a two-tiered permitting regime for projects in salmon habitat. “Minor” habitat permit applications could be issued quickly and generally for projects deemed to have an insignificant impact on salmon waters.
“Major” permits for larger projects such as mines, dams and anything determined to potentially have a significant impact on salmon-bearing waters would require the project sponsor to prove the project would not damage salmon habitat.
Supporters assert upwards of three-quarters of the habitat development permit applications Fish and Game currently adjudicates would fall in the minor category and what exactly constitutes unacceptable or “significant adverse affects” on anadromous fish habitat would still be up to the Legislature and Fish and Game commissioners to determine.
Additionally, the project sponsor would have to prove that impacted waters are not salmon habitat during any stage of the fish life cycle if the waters are connected to proven salmon habitat in any way but not yet listed in the state’s Anadromous Waters Catalog.
Among other changes, it would also limit mitigation of habitat impacts by major projects to the impacted watershed, thereby eliminating offsite compensatory mitigation to other anadromous waters, and require sufficient fish passage be maintained throughout the life of the project.
Finally, it would provide for public comment periods on major project permits, a provision the Board of Fisheries advocated for in its letter that is not part of the current permitting process.
What’s the standard now?
So, other than lacking public participation, which initiative opponents note is usually available through other permits developments need, what does the current anadromous waters permitting process consist of?
That’s the question Ron Benkert with the Department of Fish and Game attempted to answer for the Journal during an hour-long interview. A fisheries biologist by trade, Benkert has been with the Habitat Division for 10 years after many years of salmonid experience through various research positions in the Pacific Northwest and California.
In discussing what it takes to design, dig and develop in salmon habitat in Alaska, Benkert likes to start with what goes into the seemingly simple task of installing culverts in small salmon streams, which he refers to as one of the “bread and butter” projects the department oversees.
“It’s one of the things we do an awful lot of because we have assessed a lot of the culverts in the state and obviously DOT and the boroughs and other entities have all got a lot of bad culverts out there,” he said. “We all recognize the problem out there and I think DOT and the boroughs are really stringently trying to correct those as funding becomes available.”
The problem often lies in what work originally went into culverts set in road and rail beds decades ago — but under the same Title 16 — before rigorous design standards were applied that allow for fish passage. If not in the original installation, the issue is likely because of erosion or a changing stream channel that has made a once-suitable culvert impassable.
ADFG has a catalog of “bad pipes,” as Benkert calls them, which officials reference each time there is roadwork scheduled, he said.
“Every time DOT conducts some kind of maintenance or road construction DOT has been very responsive, as well as the boroughs, at recognizing that (a culvert) needs to be fixed as part of the project,” Benkert said.
Installing a fish-friendly pipe is more than burying a culvert big enough for a few chinook salmon to squeeze through.
In 2001, the departments of Transportation and Fish and Game signed a memorandum of agreement, or MOA, detailing how the former will ensure the culverts it puts in its roads are compatible with the species in a given stream. The 33-page document delves into the particulars of how to design a culvert to simulate stream water flow conditions as well as the sustained and burst swimming performance at varying water temperatures of 15 fish species common to Alaska.
ADFG has enforcement authority over DOT projects despite the two being equal state agencies.
Benkert said he considers the agreement to be a prime example of how Fish and Game works with project proponents to achieve specific but important characteristics of a project under the broad “proper protection” mandate.
And while a culvert replacement isn’t the kind of project that garners headlines, the cumulative effects of restoring the ability of fish to move through small, seemingly insignificant braids of water can’t be overstated, according to Benkert.
“Connectivity is huge,” he stressed. “You reconnect fish to habitats they haven’t been able to access; especially up in the headwater areas that are big rearing areas (for juvenile salmon). You’re just really expanding fish habitat or at least reestablishing fish habitat that was available to them before urbanization occurred.”
At the same time, habitat regulators must be pragmatic and evaluate the practicability of improving fish passage. Benkert said in some instances — for example when the upstream portion viable fish habitat is particularly small, as can be the case where roads parallel mountainsides — the department won’t apply the MOA standards if the added costs are into the millions of dollars to restore access to a couple hundred feet or less of stream.
“We like to put our money where it’s going to get the best bang for the buck,” he added.
On larger projects things can get increasingly more complex. That’s where the department’s habitat impact mitigation sequence of avoid, minimize, rectify and reduce or, as a last line of defense, compensatory mitigation comes into play.
It’s also why project plans rarely look the same after applying for an anadromous fish habitat permit.
“That’s our first line of defense, if you will, as far as negotiating with an applicant. How can we change the project footprint or how you’re operating so that you’re not even having an issue with an anadromous water body,” Benkert said.
In Feb. 15 testimony before the House Fisheries Committee, he said the department rarely denies a habitat application because proponents usually withdraw them first if it becomes clear that the project won’t be able to meet the department’s thresholds.
“We have mid-sized placer miners that want to relocate anadromous streams all the time and I’ve still to this day not had one come in with a plan that’s good enough for us to permit,” Benkert said. “They usually withdraw their application because of that high bar.”
Such small business miners simply don’t have the financial wherewithal or the “quiver of biologists and bioengineers” needed to succeed in that type of work, he added.
However, on the largest projects such as major mines, dams or oil developments, significant restoration or mitigation can become viable.
Real world examples
Habitat Division Operations Manager Alvin Ott wrote in a Sept. 27 Superior Court affidavit for Stand for Salmon’s appeal of Lt. Gov. Byron Mallott’s rejection of the initiative that Donlin Gold — in the upper Kuskokwim River drainage — is proposing to destroy two anadromous streams, American and Anaconda creeks, to build the tailings dam and impoundment for its proposed gold mine.
In exchange, the company would offset the loss of that habitat by restoring coho salmon rearing habitat damaged by historic placer mining activity in the nearby Crooked Creek watershed, according to Ott.
He wrote further that he believes such offsite compensatory mitigation would not be permitted under the initiative language.
Benkert acknowledged that constructing or restoring anadromous fish habitat is a tremendous undertaking that’s as much an “art form” as it is science.
“It doesn’t matter how good the design looks, if you’ve got an operator that’s saying ‘that’s good enough;’ it’s a very precise thing. You’re talking (bank) elevations within tenths of an inch; making sure everything’s just right so when a big storm hits it doesn’t just unravel,” Benkert said. “It’s a very rigorous process if we’re going to try to replace some kind of anadromous habitat with something that’s artificially created that’s supposed to be able to maintain itself into perpetuity.”
As a result, Fish and Game rarely agrees to a 1-1 tradeoff during mitigation negotiations; project proponents are expected to replace more than is damaged, according to Benkert.
However, he was enthusiastic to discuss the artificial wetlands complex built similarly from what was placer mine waste below the tailings dam to the Fort Knox gold mine near Fairbanks.
It’s not an anadromous system, Benkert conceded, but the department has been monitoring it for nearly 15 years and has many positives to report.
“It went from a place that was fairly low density population of fish and wildlife because it was just trashed landscape,” he said. “Now we have huge numbers of grayling and burbot in that system; all kinds of wildlife that’s associated with that habitat.”
He noted there are ospreys nesting in the area because there are enough fish — ospreys’ almost exclusive prey — in the system to support them.
Whether a simple culvert replacement or a total rebuild to a former salmon stream, Fish and Game relies on best practices learned in Alaska or elsewhere and a lot of professional judgment to determine what activities will be permitted and what mitigation will be deemed sufficient, he said. It’s for that reason that the department has no regulations to accompany the Title 16 statute; the best way to do things is in constant evolution.
Benkert said Fish and Game codifies in its own way what is “proper protection” through the information department officials rely on to make decisions.
“There’s not a list of things in regulation that says you have to do this, this, this and this but we’ve got all kinds of guidance documents, technical reports, working guidelines and then we go to the literature, too,” he explained. “We always look to see what’s happening in the Pacific Northwest because there’s a lot of new technology out there and it keeps changing.”
The 2001 agreement with DOT, for example, specifies culverts should be 0.9 bank full widths of the stream channel in diameter. Benkert described the rule as “old school now,” noting the latest recommendations out of Washington and Oregon call for culverts equal to 1.2 bank widths plus two feet, which DOT has agreed to abide by.
Beyond advancing technical standards for development projects, the Habitat Division has expanded the areas it classifies as anadromous waters in the state’s catalog to wetlands in recent years as well. Wetlands, now understood to often be critical juvenile salmon habitat, can be afforded the same protections as well-known rivers under the Anadromous Fish Act if Fish and Game confirms a wetlands area to be anadromous fish habitat.
The entire Colville River delta on the North Slope, which includes ConocoPhillips’ Alpine oil field and the large Nanushuk oil project that is in permitting, is officially anadromous territory, according to the state.
Though the Department of Fish and Game has considerable leeway in how far it can go to demand fish protections, Benkert noted the state is obligated to accept all factors and utilize, develop and conserve “all natural resources belonging to the state, including land and waters, for the maximum benefit of its people.”
“The wrinkle we always have to remember here is our constitutional mandate. It doesn’t say you’re just going to protect fish; you need to protect fish but consider the economic welfare and development of the state, too. Our mandate here is specific. We are supposed to figure out how to allow development in the stat with minimal or avoiding impacts to the fish. That’s something we need to consider all the time,” he continued.
“We can’t just say no because the fish may have the potential of being impacted by it; that’s why we have this whole process. That’s the tricky part. The fish come first at the end of the day but we try really hard to get the project to the point where it can be environmentally acceptable.”
It all comes back to differing views as to what’s acceptable.
Elwood Brehmer can be reached at [email protected]