Is Alaska Turning into a Corpocracy? Part one: Privatization of Alaska Water Resources

By Hal Shepherd

This is the first in a series of Articles sponsored by Shepherd Alaska addressing the question “Is Alaska Turning into a Corpocracy?” This series will focus on the progressive environmental policies established at the time of Alaska statehood and ongoing efforts to roll back those policies in favor of extraction interests.

Because Salmon and other species need cold water in order to survive at every life stage while northern latitudes are warming almost three times as fast as the rest of the globe, Alaska freshwater ecosystems are beginning to unravel. To their credit, almost 50 years ago, the Alaska legislature had the foresight to establish state critical habitat areas, parks and wilderness. This foresight is helping to retain habitat connectivity and cooler temperatures for salmon. Why then is the Dunleavy administration working on a plan that will reduce flows and increase temperature to the list of threats to fish and wildlife species? 

During the early years of statehood, as a means of protecting the state’s remarkable salmon and other water-related resources, the legislature adopted fairly progressive laws for managing and protecting Alaska’s unique environment. In fact, the move for statehood was partially an effort to give the boot to outside corporations, particularly salmon canneries who, with the full support of the federal government, were profiting at the expense of such resources. Without statehood, Alaska residence did not have rights to protect the fish or to economically gain from this practice. The success of resource protection was also due, in part, to Alaska Native communities who stood against the federal and state government in the 1950s in an attempt to protect traditional subsistence practices, stop land giveaways, and prevent the detonation of a nuclear bomb in the Arctic.

In fact, illustrating a surprising amount of vision for the times, during the debates of Alaska’s Constitutional Convention, there were strong arguments for preserving important public rights to water and other natural resources. As a result, the State’s Constitution provides that water may be appropriated for beneficial uses, subject to a “general reservation for fish and wildlife.” It is clear the constitutional framers wished to ensure that the new state strictly adhered to the “Public Trust Doctrine,” which mandates that the waters of the state are reserved as a common resource and must be protected and managed accordingly.

As the environmental movement gained traction throughout the country, Alaska’s legislature, determined not to make the same mistakes as other states had regarding declining salmon and other species. They established strict permitting requirements for development in order to protect Alaska’s unique natural and subsistence resources. Even today, Alaska’s official state policy is still “to conserve, improve, and protect its natural resources and environment, and control water, land, and air pollution, in order to enhance the health, safety, and welfare of the people of the state and their overall economic and social well-being.”

That all changed after oil was discovered in Prudhoe Bay. Seen by many as a means of reversing Alaska’s economic dependence on the federal government, the rich oil fields in the far north led instead to a dependence on Alaska’s natural resources as the primary source of state revenue. Not only was Prudhoe Bay seen as a way to economic independence, but it was also a kind of Nirvana for politicians who found that they could use the state’s newfound wealth, to not only eliminate taxes and fuel fiscal growth, but actually give money to every Alaskan each year just for living here. 

Eventually something had to give as result of relying on a single source of income to fuel the economy, and the first thing to go was the state’s once progressive, environmental protection standards. In his book “Battleground Alaska: Fighting Federal Power in America’s Last Wilderness” long-time Alaskan historian Stephen Haycox says that, “Alaskans, particularly the state’s political leaders, have persistently fought environmental protection and regulation in the state while at the same time embracing virtually any economic development project that holds the promise of jobs and alternatively contributions to the state’s economy.”

Perhaps nothing illustrates the state’s short-lived environmental idealism and burgeoning love affair with the extraction industry better than then the efforts to privatize the state’s water resources. For over 40 years Alaska has had an instream flow law which has been referred to by water law experts as “one of the best in the country.” This is primarily because Alaska is one of the few states in which citizens and tribes have the right, along with federal and state agencies, to apply for and hold instream flow reservations to protect fish and wildlife habitat. 

But in the 2013 - 2014 legislative year, the Parnell administration sponsored a bill (HB 77) to eliminate the rights of citizens and tribes to apply for instream flows on critical salmon rivers and streams in order to maintain sufficient flows and colder temperatures that salmon need to survive. Opposition to the bill grew into a grassroots statewide campaign to protect these constitutional rights of everyday Alaskans and federally recognized tribal entities. As a result, the bill was tabled during the first legislative session and finally died after the second.

Now Governor Michael Dunleavy is proposing yet another assault on the state’s Public Trust Doctrine by quietly resurrecting parts of HB 77 using a more subtle administrative rulemaking process. Under the proposed changes to 11 AAC 93.115, tribes and the general public may still put in the substantial time and resources it takes to develop an instream flow water right application for submission to 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. In addition, the proposed rule would strengthen ADNR authority to, at virtually any time, determine whether to retain the instream flow right or to modify it. 

Giving ADNR enforcement and management control of water right certificates and the authorization to revoke or amend the original water reservation subjects the process to the political ideology of the administration in office at the time. Robert Anderson, who teaches water and Indian law at the University of Washington and who is a former Alaskan resident, states that under such circumstances, it “would be quite easy for a hostile state administration to, if not eliminate, at least significantly reduce instream flows that were granted under that law in order to facilitate economic development based on the circumstances at the time of review.”

Moreover, the proposed rule would allow mining companies and others to take water out of a stream or river simply by submitting a request for a Temporary Water Use Authorization (TWUA) which ADNR routinely grants. The premise upon which a TWUA can be issued without substantially impacting instream flows needed for fish habitat has always been that the use of water must not be “significant.” In 2008, however, an industry-sympathetic legislature, gutted the law by stating that the prohibition on significant uses of water does not apply to the issuance of a TWUA as long as that TWUA does not exceed a 5-year term.

While Alaskans can’t stop the impacts of climate change on Alaska freshwater ecosystems, we can stop disastrous policies like the proposed rule changes that make the situation worse and violate constitutional rights of every Alaskan. The Dunleavy Administration, therefore, should scrap the Proposed Regulations in their entirety and instead, propose laws creating an automatic reservation of water in all rivers, streams and lakes to protect fish and wildlife habitat from warming water temperatures, drought and other effects of climate change. 

Comments on the proposed rule may be sent by e-mail to dnr.water.regulation@alaska.gov, or by fax to 907-269-8904. The comments must be received not later than 5:00 p.m. on February 26, 2021.