Anchorage Assembly activates subpoena powers in dispute over Eklutna dam mitigation project

In an extraordinary step, the Anchorage Assembly this week authorized its chair to subpoena the Bronson administration and three Southcentral Alaska utilities that own the Eklutna Hydroelectric Project for documents related to the ongoing historic and legally required effort to restore water flow to the long-dammed Eklutna River.

An earthen dam, owned by the Chugach and Matanuska electric associations and the Anchorage Hydropower Utility, sits at the base of Eklutna Lake and dries up the 12-mile river.

Assembly members approved the resolution activating subpoena powers in an 8-4 vote during a special meeting Wednesday. Under Anchorage city code, the Assembly chair, by a majority vote of the Assembly, can issue subpoenas that compel the release of documents and/or sworn testimony for information regarding public matters that the Assembly is considering. Generally, Assembly subpoenas are a rarely used tool, though the Assembly has issued several since Mayor Dave Bronson was elected in 2021.

The resolution allows Assembly Chair Christopher Constant to call for the administration and/or utilities to hand over a copy of a binding term sheet on the city’s water rights, an agreement between the Eklutna hydropower utility owners and the city’s water utility that has been kept confidential from the public.

In a 9-3 vote, Assembly members also passed an ordinance that changes city code to spell out the Assembly’s oversight of any changes to the city’s property rights related to water, mineral, wind and solar resources. The measure also adds to code that the Draft Fish and Wildlife program to mitigate the dam’s impacts “shall be subject to Assembly approval” before it’s submitted to Alaska’s governor.

Both measures arise from a power dispute between the Assembly and Mayor Dave Bronson’s administration and an ongoing disagreement over the draft Fish and Wildlife program proposed by the utilities last fall.

The situation is complicated.

The Assembly, Native Village of Eklutna and conservation organizations want to see Eklutna River fully restored. The hydroelectric project owners’ $57 million plan would still leave dry a 1-mile stretch of the riverbed directly below the dam, and wouldn’t restore fish to Eklutna Lake and the mountain streams that feed the lake. Bronson supports the draft program, which would use the city’s existing water supply infrastructure to replenish flow to 11 miles of the river via a portal valve.

The disagreement boiled over last month as Assembly members learned that the city’s water utility signed a confidential and binding term sheet with the hydroelectric owners based on the draft program — and as the hydroelectric project owners rejected the Assembly’s call for a two-year delay to further assess mitigation options. The Anchorage Assembly later authorized its attorneys to take legal action in the ongoing disagreement.

That term sheet — which the Bronson administration and utilities have so far declined to make public — would govern Anchorage’s rights and access to drinking water from Eklutna Lake for the next 25 years, if the Alaska governor approves the draft program, according to city officials. The current drinking water agreement expires in 2025.

Assembly members reviewed the term sheet during a February closed-door session and have called for the administration and utilities to make the document public. At Wednesday’s meeting, Municipal Attorney Anne Helzer again said the administration can’t make the document public because of another legal agreement requiring it be kept confidential.

After issuing a subpoena and obtaining a copy of the term sheet for a legal review, the Assembly will decide whether to make it public, according to Wednesday’s resolution. If a subpoena is refused, Assembly attorneys could take the issue to court for a judge to decide.

Assembly leaders say the Bronson administration usurped the Assembly’s legislative authority when it bound the Anchorage Water and Wastewater Utility to the agreement terms without first getting Assembly review or approval. Assembly Vice Chair Meg Zaletel said the ordinance clarifies in code the Assembly’s longstanding right to oversee fiscal decisions and policy regarding city utilities, including water rights, utility rates and the disposing, acquiring and leasing of land.

“That has always been within the Assembly’s purview. It has been usurped by the administration,” Constant said.

The Bronson administration disagreed, saying the ordinance takes power away from the mayor.

“We see this as but the latest in a series of encroachments upon the executive authority,” Mario Bird, Bronson’s chief of staff, said during Wednesday’s meeting.

Another wrinkle in the situation: The city, which currently owns 53% of the hydroelectric project, for years hasn’t had voting rights within the ownership group. That has ultimately left the Chugach and Matanuska electric utilities in charge of the draft Fish and Wildlife program.

An order from the Regulatory Commission of Alaska in 2020 removed the city’s voting rights, because the municipality does not have a qualified executive overseeing the Anchorage Hydropower Utility, a position that is still vacant.

The dam mitigation project also has implications for Anchorage property taxpayers, because the city would be responsible for paying for a portion of the project — while the Assembly, the city’s fiduciary authority, has had no real oversight, Assembly leaders said.

The final proposed Fish and Wildlife program will go to the governor in April.

“If that entire agreement goes into effect, it completely circumvents the Assembly from substantial authorizations,” Constant said. On top of water rights, that includes “how the city will pay for certain items that are required under the binding term sheet,” he said.

Once the dam mitigation project is approved, “they will hand us a bill of $10 or more million, and they’ll just say, ‘You have to figure out how to pay this even though you didn’t agree or have any prior approval,’” Constant said.