Alaska’s natural resource industries are worried about a voter initiative that would create a complex new permitting system for construction projects near streams or other water bodies. “Save Our Salmon,” the ballot initiative, is being opposed in court by the state of Alaska. The state says that only the Legislature can make decisions on allocation of state resources, which is what the ballot proposition would do, state attorneys argue.

A state Superior Court has approved the proposal going on the election ballot but that was appealed by the state to Alaska’s Supreme Court, which will have the final say. The justices will hear oral arguments in April and if the lower court decision is upheld voters will make the final decision.

“Not just about protecting salmon,” – Deantha Crockett

Meanwhile, on a parallel track, a bill is pending in the Legislature that would essentially create the permitting system proposed in the initiative. It is House Bill 199, with Kodiak’s Rep. Louise Stutes, a Republican, as prime sponsor. The bill is in the House Fisheries Committee, which Stutes chairs.

“This is not just about salmon. It’s about setting up a new permitting system,” on top of other state and federal permits needed for construction, said Deantha Crockett, executive director of the Alaska Miners Association. Not only are the miners concerned but also other Alaska industries engaged in development or construction along with organized labor. Rural leaders are also worried because their communities depend on infrastructure like roads and airports as well as sewer and water systems.

Crockett said the new permit system created by the initiative would impose standards so stringent that no new mine could be developed, and even operating mines could be in jeopardy because the new procedure would apply to renewals of operating permits the mines must obtain periodically. Similar problems could be created for other Alaska projects, large and small, that affect water bodies, such as rural water and sewer systems – which also need periodic renewals of permits – as well as highway and hydroelectric projects, along with timber harvesting.

Even while the issue was in legal limbo the initiative organizers continued gathering signatures on petitions at grocery stores and other retail outlets, using hired workers including many brought in from the Lower 48. Signature gatherers were paid $1 per signature, one told this writer. A sufficient number of signatures were gathered and turned in to the Division of Elections in January, although the validity of the signatures must still be determined. The initiative backers were allowed to gather signatures that can be counted if the Supreme Court upholds the initiative, according to Cori Mills, spokeswoman for the state Department of Law. It is not clear who paid the signature-gatherers but the funding appears to be coming from environmental groups in the U.S. Pacific Northwest.

Meanwhile, as the Supreme Court deals with the initiative the Legislature is continues work on HB 199. Under state law, if the Legislature passes a bill before the election in which a ballot proposition is at stake, and if it is considered similar enough to the proposition, the measure can be withdrawn from the ballot so that the statute passed by the Legislature is in effect. This is a way the Legislature can enact a bill that is more functional than what is in a ballot proposition, where the language can be less flexible having not gone through the legislative process. However, if the Legislature does not act on HB 199 this session and the ballot proposition is upheld by the supreme court, and approved by voters, lawmakers cannot amend it for two years.

State fisheries board letter kicked off initiative drive

Legislators are meanwhile working on HB 199 in the House Fisheries committee. Revisions are being made, but it is still similar in structure to the proposed ballot proposition, however.

What the Board of Fisheries said

This is a substantial revision of the state’s permitting system. How did it come about? It started with a recommendation from the state Board of Fisheries in January, 2017, that the state’s current permit system for projects affecting salmon habitat needs updating. The board highlighted two issues: One was a need for more public notice (the habitat permits are typically issued within four days of an application, the board noted), and second, “enforceable standards” for habitat protection. Current standards for salmon protection for the permits in Title 16, the state law governing sh and game, are too ill-de ned, the board said.

State-level EIS process established?

While the board’s letter put things in motion the critics of Save Our Salmon, and HB 199, say what is being proposed in the initiative appears to go beyond what may have been intended by the sheries board. Alaska’s current habitat protection law, in Title 16, requires prior authorization from the habitat division of the Department of Fish and Game, or ADF&G, for any action affecting anadromous (main- ly salmon bearing) habitat or streams. This includes road crossings, gravel extraction, mining, water withdrawals, use of equipment in water, bank stabilization, and other activities.

According to an analysis by the Alaska Miners Association, here’s what the initiative, and HB 199, would do:

• The procedure laid out for a major permit would be similar to that of the federal Environmental Impact Statement process, with an analysis of alternatives and performance bonding.

• A priority would be for habitat to be kept in its natural state, meaning no alteration through a construction activity. This includes any “activity that would use, divert, obstruct, pollute or otherwise alter sh habitat,” according to the language of the initiative.

• All waters of the state would be considered anadromous, whether they support salmon or not. Currently, the ADF&G reviews only projects affecting streams that are known to support salmon, and maintains a census of streams that are known to be salmon-bearing.

This is still in the initiative but the language in HB 199 has backed off on this and the effort now seems aimed at something similar to the state Forest Practices Act, which deals with similar issues.

Projects requiring perpetual water processing would be denied

• Although the initiative, and bill, allow for “minor” projects that do not require a stringent new review process, if a project “has the potential to cause signi cant adverse effects,” it becomes a “major” permit, requiring the review.

• In the initiative, even if mitigation is proposed to offset effects on habitat the commissioner of ADF&G is required to make a nding of potential “signi cant adverse effects,” and deny the permit. This removes any flexibility for the sh and game department to allow mitigation, and appears to con ict with the U.S. Clean Water Act’s Section 404 regulatory process, which allows developers to propose environmental restoration and enhancement to offset negative impacts.

• Any project that requires treatment of water in perpetuity, would dewater sh habitat or a relocation of a stream and disrupting sh passage, would automatically be denied. This would foreclose a Red Dog Mine, Pebble, and certain large highway projects.

ADF&G agrees on large project impacts

ADF&G staff agree on this point. “My interpretation of these provisions (in the initiative and bill) is that we would not be able to permit larger hydro projects which by de nition change (water) ows and alter natural and seasonal ow regimes,” said Al Ott, operations manager for ADF&G’s habitat division, in a deposition in the law case.

“In my view the proposed Donlin mine would not be developed at all under this initiative,” Ott said. Donlin Gold is a possible large gold mine in the middle Kuskokwim River region west of Anchorage.

Surface transportation projects would also be affected. “Major highway projects parallel to streams and rivers are often in close proximity to water bodies, and require extensive erosion control measures to keep the highway intact and passable,” Ott said in the deposition. These types of projects have adverse effects on anadromous sh habitat and, therefore, could not be permitted,” he said.

Karen Matthias, who heads the Council of Alaska Producers, an association of large mine operators, said there would be a lot of effects at the local level. “Just doing a road culvert could require a ‘major’ permit requiring a public comment period, and a speci c decision by the commissioner (of Fish and Game). The commissioner’s decisions could be appealed,” she said.

Other businesses could be affected

Tourism and some sheries operators are concerned too: “We build docks, airstrips and hotels, so we’re affected just like any business operator,” said Ralph Samuels, Alaska vice president for Holland America.

Fisheries groups have mixed view on initiative

Stephanie Madsen, executive director of the At-Sea Processors Association, which represents operators of shing vessels, said her group opposes the initiative. “My group understands the downsides of this. We rely on (shoreside) docks, which need permits, and we understand the need for coastal communities to grow,” she said. “Our lifeblood is also in protecting sheries habitat and we don’t like the ‘sound- bites’ being used to support this initiative,” Madsen said. Signi cantly, Alaska’s largest commercial shing organization, United Fishermen of Alaska, is staying neutral, saying it does not endorse, or oppose, the proposed ballot initiative. “We do not have a position on managing salmon by the ballot box,” through the initiative, said UFA’s president, Jerry McCune, in an e-mail.

Problems best solved through cooperation

John Sturgeon, president of Koncor Forest Products, said the initiative or HB 199 “would be devastating” for the state’s few remaining timber operators. “We don’t understand what’s broken in the habitat permit system we have,” he said. He doesn’t see a need to x anything.

Sturgeon said problems affecting salmon and habitat are best solved through collaboration between the affected parties. An example was the effort by forest companies, community leaders and conservation groups to work together in development of the state’s current forest practices act, which contains rules protecting habitat including provisions for stream buffers where logging is not allowed. He said the forest practices act also created the Board of Forestry with a broad cross-section of interest groups to resolve problems with habitat protection. It allows affected interests to work together. There’s wide agreement that the system has worked well because of its flexibility, Sturgeon said.

Initiative could undercut rural development

Rural Alaska leaders worry about the initiative and HB 199 affecting local economic development. Andrew Guy, president and CEO of Calista Corp., the Alaska Native regional corporation for the lower Kuskokwim and Yukon regions of Southwest Alaska, said the initiative would undercut efforts to build economic security for 56 small rural villages in Calista’s region. “Our communities need airport upgrades, village roads, water and sewer projects and the ability to grow. Our residents need jobs and business opportunities that resource development brings to rural Alaska,” Guy wrote in a letter to legislators. Calista and The Kuskokwim Corp. own the subsurface and surface lands at the planned Donlin Gold project, which would be adversely affected by the initiative.

Impacts on rural community water and sewage systems

Another impact on rural communities would be how the initiative and at least the initial form of HB 199 would affect rural water and sewage systems, most which require “mixing zones” in streams or water bodies, or areas in which treated discharges are diluted to levels that are not harmful and that meet standards. In a statement on HB 199 provided last April to the House Fisheries Committee, Wade Strickland, the Department of Environmental Conservation’s wastewater program manager, said: “Under the proposal (HB 199 and the initiative) all existing DEC permitted wastewater discharges to freshwater with authorized mixing zones will be out of compliance unless a site-speci c determination is completed and rebutted by Fish and Game or additional treatment is added to the wastewater facility,” Strickland said in the statement.

“Accordingly, many communities and industries statewide that discharge treated wastewater to freshwater will likely need to engineer and fund improvements to their wastewater treatment facility to comply with the requirements. In addition, DEC permit application reviews are expected to increase in complexity as communities and industry work within the legal framework,” established by the initiative or HB 199, Strickland said. That will add to the permit review cost for the agency.

Fisheries groups appear divided

While UFA, the state’s largest fish harvester group, is neutral on the initiative, some harvester groups are expressing concerns. In letters to the House Fisheries Committee last April David Harsila, president of the Bristol Bay Fishermen’s Association, and Anchorage attorney Geoffey Parker, who represents harvester groups, raised concerns over the rigidity of the proposed new permit system. Both pointed to ways it could actually undercut the ability of the sh and game department to protect habitat by removing the flexibility the agency has under the current system.

What has perplexed many is that there have not been problems so far in the state’s Title 16 habitat permits, although state officials acknowledge improvements, like more public notice, can be made. “This (the initiative) is a problem in search of the solution,” said Marleanna Hall, director of Alaska’s Resource Development Council. The push for the initiative appears to be coming from outside Alaska.