Dunleavy Administration Ominously Quiet About Proposal to Change Alaska’s Water Reservation Regulations

By Hal Shepherd

Preventing development from diverting instream flows critical for fish and wildlife habitat is exactly what the instream flow reservation is intended to do.  

The Department of Natural Resources has been suspiciously quiet regarding its plan to overhaul Alaska’s water regulations. Under proposed changes, tribes and the general public may continue to develop an instream flow water right application for submission to the Alaska Department of Natural Resources (ADNR), however, the rights to the reservation of water, once issued, would no longer be held by such applicants but by ADNR instead

Since proposing the regulations last winter, ADNR has failed to respond to requests for an update on the final decision and even declined to attend a July 27 House Fisheries Committee hearing on the proposed changes because the agency says that it is in a “quiet period” while it continues to review public comments. For an agency to take over four months to review public comments on a proposed rulemaking, however, is uncommon and there is some speculation that the delay is because the Dunleavy administration is attempting to resolve multiple legal issues that environmentalist and tribal entities have raised regarding the proposed rule.

The resource extraction industry and ADNR claim, for example, that new regulations are necessary to keep management of a public resource within a public agency by preventing the obstruction of development through obtaining instream flow water rights for a particular river or stream. This misses the point, however, that preventing development from diverting instream flows critical for fish and wildlife habitat is exactly what the instream flow reservation is intended to do.  

DNR’s claim that “Traditional water right certificates are issued to persons for a specific beneficial use. Reservations of water are a reserved level or flow that is reserved for a specific public purpose, not the sole use or benefit of the applicant,” is misleading. This is because an instream reservations is inherently contrary to the concept of “sole use or benefit” of one person or entity as in the case of a water right, because such reservations are intended to protect fish and wildlife resources which are for the benefit of the public as a whole. In fact, the proposed changes to the current regulations turn the concept of water privatization on its head by strengthening the authority of mining, oil and gas, and other private companies to take water out of critical fish-bearing rivers and streams. 

The new regulations, for example, would strengthen ADNR’s authority to determine whether to retain the instream flow right or to modify it at the request of development interests competing for the same water. This would raise serious questions about the rights of every Alaskan citizen to oversee the management and protection of water resources as required by the state Constitution, the Public Trust Doctrine, state law, tribal sovereignty, and other laws.

And if that’s not enough to illustrate the Dunleavy administration’s attempt to privatize Alaska’s water resources, there’s the state’s current unofficial policy of simply refusing to process legitimate instream flow reservation applications that potentially compete with water desired by a private company. This writer, and others who work with tribes and NGOs to conduct the resource-intensive and exacting tasks necessary to collect sufficient data necessary to even begin the instream flow application process, were informed by resource agency representatives that any application for instream flow reservations that would compete with the same water needed for any proposed or existing mining project will not be processed. 

More evidence that the proposed changes to the water are, in reality, just another part of Governor Dunleavy’s larger plan to eliminate regulations designed to protect water and subsistence resources can be found in his vow to assert control over navigable waters and submerged lands located within the state. Although, the Governor claims that this is so that such waters can be “managed in the best interest of Alaskans,” Dunleavy’s real motivation is to prevent the federal government from protecting such water and subsistence resources. 

This is best illustrated by the Governor’s praise, as part of the navigable waters campaign, of a hover-craft owner who won a lawsuit against the federal government in the U.S. Supreme court, thereby, single-handedly dismantling environmental protections in the Yukon-Charley Rivers National Preserve so that he could gain motorized access via hovercraft on the remote and pristine Nation River for moose hunting. In fact, the Governor recently established the “statehood defense initiative” directly aimed at the Biden administration’s land and water protection programs and is designed to defend “attempts from President Joe Biden’s federal agencies to overregulate Alaskans.” 

In addition, Dunleavy’s claim, that “Alaska’s destiny lies in full ownership of our natural resources,” is consistent with historical right-wing resistance to  “any attempts at an ambitious federal public-land policy. ”  This Sagebrush Rebellion strategy is also illustrated by his administration’s elimination of bans on jet-skis, attempts to open up state critical habitat areas to the extraction industry, and selling millions of acres of state land to private interests.

The framers of the Alaska Constitution and legislature clearly foresaw the consequences of politically motivated efforts to move control of the state’s water resource out of the public realm and into the private sector for purposes of profit. In fact, the legislature rejected changes to the state water code when the Parnell administration attempted to push through similar changes to those now proposed by Governor Dunleavy just a few years ago

Because Alaska’s instream flow regulations are subject to the political whims of whichever party is in power, the legislature needs to step in and clarify the law once and for all. The legislature should clarify the Alaska Water Use Act that supports the constitutional mandate that the state’s water belongs to the public trust and the litany of state laws that give the public the right to protect instream flows and fish and wildlife resources by creating an automatic reservation of water sufficient to sustain water and subsistence resources throughout the state.