In a years-long fight that pitted a sizable coal prospect against conservationists, the Walker Administration on Tuesday reversed a historic 2015 decision that granted water rights to a citizens group seeking to protect a salmon stream in the Cook Inlet region.
Environmental groups seized on the state's decision, saying it underscores why the Stand for Salmon ballot measure, to be decided by voters in November, is needed to strengthen protections for fish.
Deantha Crockett, executive director of Alaska Miners Association, quickly rebuffed that assertion. She said there was no link between the state's balanced decision involving water reservations, and the ballot measure that addresses fish habitat, not water reservations.
"I can't stress enough that it's fundamental the state should never delegate authority of water to a private party," Crockett said. "We need water as a public resource and it needs to be managed by public agencies, not private parties."
Andy Mack, commissioner for Alaska Department of Natural Resources, said circumstances have changed since the agency originally approved the water reservation in the lower reach of Middle Creek, following a request from Chuitna Citizens Coalition of Homer.
There is no longer a coal project also seeking to use the stream, said Mack, who signed Tuesday's decision. PacRim Coal, the company that had been pursuing the Chuitna coal mine, abandoned the project in 2017.
"The water is in the stream and there are no current proposed water uses that threaten the resources," Mack wrote.
The group's president, Judy Heilman, said Mack's decision is a slap in the face to everyday Alaskans hoping to protect salmon and the industry they support, including commercial fishing.
The creek feeds into the Chuitna River, providing spawning grounds for salmon heading to Cook Inlet. The coal project had been proposed for the west side of Cook Inlet near the small community of Beluga.
The citizens group applied for the water rights about a decade ago, and soon sued the agency to force a decision. After years of legal battles, the Superior Court in 2018 issued the deadline leading to Mack's decision.
"Our salmon in Alaska are not what they used to be, and if citizens have to stand up and fight the agency and the governor to protect them, that's not right," Heilman said. "We have agencies in Alaska that are supposed to be doing these things."
The state's original decision favoring the group in 2015 was considered historic, the first time water rights had been granted to a citizen group. Traditionally, grants to protect instream flow had gone to government agencies.
At the same time, the state rejected two other applications from the group seeking to reserve the main and middle stretches of Middle Creek. Those decisions favored PacRim, which also wanted to use the stream's water.
[State decision on water rights disappoints coal mine opponents.]
But 10 parties, including Alaska Miners Association, appealed the decision favoring the citizen group. After PacRim canceled the project in early 2017, Mack sent the dispute back to the agency's Division of Mining, Land and Water for further review.
The decision says another industrial project could "reasonably" come along in the future, seeking to use the water in the stream's lower reach, or its streambed.
The agency must balance competing uses for that water, Mack wrote. It's not in the public interest to grant a water reservation that could prevent a future, alternate use, such as a project, without having full information about that project.
[Controversial coal mine shelved after investor leaves.]
The leases PacRim abandoned were on land owned by the Alaska Mental Health Trust Authority. Mack must give strong consideration to the state agency's concern that a water reservation that stops development could cost the trust up to $300 million, affecting its ability to provide for its 72,000 mental health beneficiaries statewide, he wrote.
The authority was one of the parties that appealed the 2015 decision.
The authority is looking for ways to monetize the coal resource it owns, Mack said in an interview Wednesday.
"There's some moral obligation to make sure the beneficiaries, people with disabilities in Alaska, get the benefit of that deal," Mack said. "Our hope is to find a solution for (the trust) and to protect the water in the stream."
The group said in a statement Mack's reversal weakened the interpretation of the state law allowing Alaskans to reserve stream water to protect fish and wildlife.
"With this decision by DNR, (the Walker Administration) is saying that we can't protect the river until the mining company comes back to challenge us? That makes no sense," said Ron Burnett, a coalition member. "The whole point is to reserve the water for fish so that future users know it's reserved for fish."
Mack said Wednesday the state respects "citizens ability to identify where we need to keep water. We'll continue to work with (the coalition) to find solutions."
The coalition has 30 days to appeal. The coalition's statement called the decision a "flagrant abuse of power" highlighting why the ballot measure must pass.
Crockett, part of the Stand for Alaska group opposing the ballot measure, said the decision balances Alaska's economic and conservation needs.
"It's in line with our state statutes and constitution," she said.