Monday, October 05, 2015

IFR, Fish v. Coal: The Chuitna Water Decision Due October 6

Tuesday, Oct. 6, 2015 is the court ordered deadline for the Department of Natural Resources to make its decision on the Instream Flow Reservation application by the Chuitna Citizens Coalition.  I did a brief post during the lunch break for the hearing back in August and was hoping to try to give a better sense of what was argued.  But as a presidential candidate recently said, "stuff happens" and I didn't get around to it.

But tomorrow the decision is due and so I feel a need to at least say something here.  For a more organized view of the hearing itself, you can check Zaz Hollander's ADN article

Above everything, you need to understand what an IFR application is, because this hearing was about such an application.

This is important if you are to understand anything about this, because those opposing the application from the Chuitna Citizens' Coalition argued they had no business filing for this application in the first place and that DNR has only one option:  to reject it.   So Read Carefully.

So here's from DNR's own website:
What is reservation of water for instream use?
A reservation of water for instream use is a water right that protects specific instream water uses,such as fish spawning or recreation. It sets aside the water necessary for these activities and keeps later water users from appropriating water that may affect the instream activity.
Water can be reserved for one or more permissible uses on a particular part of a stream or lake during a certain period of time. Under AS 46.15.145, permissible instream uses include:
  • Protection of fish and wildlife habitat, migration, and propagation
  • Recreation and parks
  • Navigation and transportation
  • Sanitation and water quality
A reservation of water for one use may also allow that same water to be used or reserved for another purpose. For example, a reservation for recreation may also benefit fish spawning.
Like an out-of-stream water right, an instream reservation of water is similar to a property right. It cannot be abandoned,transferred, assigned, or converted to another use without approval of the Department of Natural Resources.
Who can apply for a reservation of water?
Private individuals,organizations, and government agencies may apply for a reservation of water for instream use.  

Underlying Conflict

Essentially, the hearing exemplified the two narratives that were spelled out by sociobiologist E. O. Wilson's two narratives as he spells them out in his book The Future of Life.

"It's a battle between two narratives:

Narrative 1:

The free market is the most economical system for bringing prosperity to the world and government regulation just screws things up.

Narrative 2:
The free market has many positive benefits, but it also commodifies our collective resources resulting in the catastrophic destruction of the Earth's species and if we don't stop this trend immediately, we will destroy those things that makes life possible on earth."
 Essentially, the testimony given by the Chuitna Citizens' Coalition followed Narrative 2.  The testimony by PacRim and their supporters was based on Narrative 1.

It's sort of like the flat earth battling the round earth people.  Their predictions will be wildly different because they are beginning from wildly different assumptions about the nature of the world.  

This is going to be pretty quick and dirty because I squandered the month I had to write this.  (Presumably DNR's decision maker on this, Dave Schade. made better use of his time than I have.)

PacRim proposes to build a mine.  Part of the plans call for them to excavate down 300 feet for thousands of acres, essentially wiping out the river.  Then they plan to restore that river to better than it was.  The Chuitna group doesn't believe that can happen.  They're applying for an instream flow reservation mainly because they are concerned about the salmon whose path to the tributary will be interrupted for the years that the mine exists. 

Also, there are different water bodies referred to.  There's the Chuitna and then the tributaries. 

Some issues that were raised at the testimony:

Procedural Issues

1.  PacRim argued that the Chuitna Citizens' Coalition shouldn't even be able to apply for an IFR.  They said this amounted to private citizens taking over public policy decisions the state should make.  CCC argued they would get no regulatory power, only the right to protect the river by getting the state to enforce their IFR.

2.  PacRim argued it's too early for them to apply for their own permit and CCC's permit shouldn't be reviewed until they are ready to have a competing permit.

3.  PacRim argued that if CCC got the IFR, it would kill the mine.  CCC argued PacRim's process could then keep going, but PacRim reps said their financial backers would all pull out because it would show the state opposed the mine.

4.  PacRim took the unusual position for a coal mining company (and it was echoed by the other resource extraction groups that testified) that the state and feds had excellent, rigorous regulatory processes that should be followed through that will protect the public and thus this IFR application was not only unnecessary, but counter to the process.   I don't recall so much praise for regulation by such organizations ever before. 

Measurement Issues

1.  Technical data about river, fish, flow, etc.  PacRim said that CCC's application was invalid because they had no data.  And what they had was methodologically flawed.  From my rough notes on the PacRim's first go at it:
"Lack of specific data.  Not even stream based data in places.  If the citizens coalition is asking to fulfill the role of government,  they should be at least as prepared as the government as another applicant.  That is the way it should be.  Huge problem.  Did not have site specific info.  Info about flow levels, specific features - ripples, spawning habitats.  At least one field season of work.  Methodology of their study is flawed.  Not appropriate here.  Quick and dirty method.  Hasn’t been validated for small streams like this."
The CCC argued there data and methodology were good, but PacRim's were bad.

2.  Economic Impact Data - PacRim's data focused on financial value of the coal.  CCC disputed their projections, saying there was nothing there to back them up.  Furthermore, given the change in the price of oil and the decline of coal everywhere, the PacRim project would now lose money.  CCC (different groups like Inlet Keepers also testified for CCC and I'm not distinguishing here who said what) also argued for considering a much wider range of economic impacts to be measured - the cost of the salmon fishery's damage, and even the cost of environmental infrastructure which helps clean the water and air and keeps the salmon and other species healthy.  They also talked about the recreational value of the land.  This is where the E.O. Wilson narratives seemed most obvious.

 Other Issues

There were a number of other interesting twists and I won't try to cover them all.  But a key one was the presence of the Alaska Mental Health Trust which stands to gain income from the mining on their land.  This income would be used to help provide mental health services in the state.

But I think the key issue is the conflicting narratives about the use of collective resources and private entities - whether they are coal companies or private citizens.

The impact of coal on climate change was also raised and how Alaska is the most impacted state already with melting glaciers and permafrost, eroding shorelines, ocean acidification, and loss of polar bear and walrus habitat. 

Criteria for the Decision

The criteria for making the decision are also listed on the DNR website: (I've reformatted them a bit to make it easier to read)

"When your application is complete, it will be reviewed to determine
  • the need for the reservation of water and 
  • its impact on other water right holders and 
  • the public interest. 
An assessment will be made to determine if water is available for the reservation and if the information in the application is accurate and adequate. Public notice of the application must be given."
[UPDATE 10:41pm - here are the more detailed criteria I published in the August 20 post on this:

AS 46.15.080. Criteria For Issuance of Permit.

(a) The commissioner shall issue a permit if the commissioner finds that
(1) rights of a prior appropriator will not be unduly affected;
(2) the proposed means of diversion or construction are adequate;
(3) the proposed use of water is beneficial; and
(4) the proposed appropriation is in the public interest.
(b) In determining the public interest, the commissioner shall consider
(1) the benefit to the applicant resulting from the proposed appropriation;
(2) the effect of the economic activity resulting from the proposed appropriation;
(3) the effect on fish and game resources and on public recreational opportunities;
(4) the effect on public health;
(5) the effect of loss of alternate uses of water that might be made within a reasonable time if not precluded or hindered by the proposed appropriation;
(6) harm to other persons resulting from the proposed appropriation;
(7) the intent and ability of the applicant to complete the appropriation; and
(8) the effect upon access to navigable or public water.]
But whatever decision is announced tomorrow, you can rest assured it will be challenged by the party whose argument did not prevail.  This is just the beginning.  

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