WASILLA -- The state is taking comments on a precedent-setting and long-sought water-rights petition filed by a citizen group fighting a coal mine west of Cook Inlet.
At stake, supporters say, is whether the water in Middle Creek goes to protect salmon runs or to Delaware-based PacRim Coal LLC for its proposed Chuitna coal mine near Tyonek.
A series of water-rights applications filed in 2009 by the Chuitna Citizens Coalition ask the Alaska Department of Natural Resources to "reserve" water rights in Middle Creek, a tributary of the Chuitna River (sometimes referred to as the Chuit River). DNR is moving ahead on the applications after a lawsuit pushed the state to act. A public comment period ?on the coalition's applications closes March 10.
The upper section of the 18-mile creek runs through land that would become, if approved, Alaska's largest coal strip mine, according to opponents. The coalition composed of Beluga residents and commercial setnet fishermen wants the state to guarantee water in the stream to protect salmon.
PacRim in 2013 filed more traditional water-rights applications to divert the stream to mine the underlying coal. A public comment period hasn't yet been set for applications filed by PacRim, which must satisfy other regulatory steps before its applications reach the public comment stage.
PacRim, backed by investors including Dallas billionaire William Herbert Hunt, hopes to extract up to 12 million tons of coal a year.
Only one of the water-rights applicants will prevail.
State water resources section chief Dave Schade said Monday he can side with either the coalition or the mine -- but not both -- in a decision he called "absolutely precedent-setting."
"If I would grant the reservation of water in the footprint of the mine … (PacRim) could not dig up this stream," Schade said. "This is a question that comes down to yes to one, no to the other. That is the reality."
The water-rights decision is made more complicated by an Anchorage Superior Court judge's ruling, he said.
The coalition in 2011 sued the state for neglecting its water-rights applications. The 2013 Superior Court decision came as former Gov. Sean Parnell's administration proposed eliminating the ability of private groups to file for water reservations like the ones the coalition sought.
Anchorage Superior Court Judge Mark Rindner didn't find the state in contempt, as the coalition hoped, but did order the state to prioritize the coalition's applications.
Because of the order, Schade said, he will have to weigh the coalition applications before he can get complete permit information for the mine. PacRim still hasn't filed all required applications with the state's coal regulatory program or the Alaska Department of Fish and Game.
Schade said he'd hoped to weigh both water-rights applications simultaneously so he would know what the final permits would require in terms of fish and other protections, but now he'll have to make assumptions.
"I would know the answers to a number of questions that I will not have at this time," he said. "We've been very clear on the record that we didn't think the timing was right. But I follow court orders."
The state has already examined the potential for lost fish over the anticipated 25-year life of the mine.
The value of the coho salmon lost to PacRim's operation could be anywhere from more than $36,000 to over $265,000, according to an analysis by statewide water reservation specialist Kim Sager. The analysis is based in part on Kenai Peninsula Borough commercial fisheries data on price per fish in 2012.
Estimates of the number of adult coho salmon in Middle Creek range from about 250 to about 1,800, with about 780 caught by fishermen and the rest returning to spawn, according to a different analysis by state natural resource manager Carl Reese. Those estimates come from data taken from four years of in-stream smolt research as well as hatchery and catch information.
It's possible the creek could produce more than 3,000 adult salmon in some years and as low as 300 in others, Reese wrote.
Some 15 to 20 percent of the Chuitna River's coho salmon spawn in Middle Creek, according to Judy Heilman, the coalition's president and founder, who has battled the mine from her Beluga home for about a decade.
"We want to save the water in the stream, the one that they want to mine through, for the salmon," Heilman said Monday. "They want 100 percent."
PacRim's Chuitna project manager, Dan Graham, said in an email that the company was reviewing the public notice and the water reservation applications on file and had no further comment.
The company has submitted permit documents for facilities such as a miles-long conveyor, shops and coal export terminal, said Russell Kirkham, the state's coal program manager. Applications for housing and the actual mining operation, however, are still pending, Kirkham said.
The comment period for the Chuitna coalition's water reservation applications ends March 10, but Schade said he could approve an extension based on requests.
Anyone, including PacRim or the coalition, can also request a hearing.
A final decision on the Chuitna coalition's water reservation application could come within 30 days of the last objection if there's no hearing. Otherwise, the decision will take six months.