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June 17, 2021

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The Simple Truth Behind Ballot Initiative No. 1

There is a lot of money being spent to get Alaskans to “Vote No” on Ballot Measure No. 1, with those opponents painting pictures of certain doom for Alaska’s economy. But what those opponents don’t say speaks volumes as to their motivations. Unfortunately, the messaging about what Ballot Measure No. 1 truly does is rather scattered, so let’s bring it all together.

First, let’s start with a little history. One of the principal reasons for becoming a state, which was discussed over and over again at the Alaska Constitutional Convention in Fairbanks in November 1955, was the mismanagement of our resources by outside concerns. Principal focus was placed on mismanagement of our fisheries by federal territorial managers, who essentially let the foreign fish processing companies control our fisheries. There are three specific provisions in the Alaska Constitution that deal with waters and fisheries exclusively (Article VIII, Sections 13-15). Additionally, Article VIII, Section 3 reserves waters and fish for the “common use,” and Section 4 requires fish and waters to be managed on a “sustained yield” principle. Thus, the Alaska Constitution places a lot of importance on managing public waters and fish in a way that avoids their demise, ensures they are utilized for a public benefit.

Some also will complain about the use of the ballot initiative process to enact these provisions into law. What is not often disclosed is that there has been a companion bill (HB199) that has been attempting to work its way through the Alaska Legislature. But it has not progressed beyond committee. Hence, Ballot Measure No. 1 is on the table for a vote this November.

Ballot Measure No. 1, the “Save Our Salmon” ballot initiative, would modify Alaska’s current permitting method to scale permitting requirements based upon the potential to impact anadromous fish (i.e., fish which are born in fresh water, spend most of its life in the sea, and return to fresh water to spawn such as salmon). Most activities that involve work in or use of water with fish (river, stream, lakes) require a fish habitat permit. This includes withdrawing water, installing culverts, diversion of water, constructing a dock or ramp, mining, and bank stabilization or restoration. Ballot Measure No. 1 will add the following elements to the existing fish habitat permitting scheme in Alaska:

  1. Consider Alaska state waters (including seasonal floodplains and seasonal waterbodies) to be anadromous fish habitat unless determined otherwise by the ADF&G commissioner.
  2. Create a tiered permitting system based upon the potential to impact fish habitat, where minor activities would have less scrutiny, and activities that have the potential to cause “significant adverse effects to anadromous fish habitat” (and providing a definition of that term) have more scrutiny. The permit types are General Permit for minor activities, Minor Permit, and Major Permit.
  3. Require public comment on draft permits prior to being issued.
  4. Create a performance bond requirement to ensure that permit conditions are met for Major Permits
  5. Require a “permit assessment” to identify impacts, alternatives, and potential permit conditions and mitigation measures for Major Permits. The assessment would state if the proposed activity would cause substantial damage to anadromous fish habitat.

Originally, Ballot Measure No. 1 had an additional component. Under the original language, activities that “cause substantial damage to anadromous fish habitat; fails to protect fish and wildlife; involve storage of mining waste in a way that could result in release of acids, toxic pollutants, or other compounds that adversely affect anadromous fish habitat; replace a wild fish population with a hatchery-dependent population; withdraws water in amounts that will adversely affect anadromous fish habitat, fish, or wildlife; or dewater or relocate a stream/river if relocation does not allow for fish passage or will adversely affect anadromous fish habitat, fish, or wildlife” could not be permitted.

However, the Alaska Supreme Court stripped that language from the ballot initiative in a decision that was published on August 8, 2018. Yes, this case was published nearly three months ago but the “No On 1” messaging has not acknowledged it. The decision on Mallott v. Stand for Salmon determined that not allowing an activity that would cause “substantial damage to anadromous fish habitat” was an unconstitutional appropriation; it was up to the legislature to determine when permits could be denied. The decision also determined that this portion of the initiative was severable and that the initiative could be presented on the ballot with the offending provision removed. That means that ADF&G still retains its authority to grant fish habitat permits as it sees fit – Ballot Measure No. 1 no longer has the authority to require ADF&G to deny a permit.

 

So, what really is this fight all about? The “Stand for Salmon” group and the opposing organization “Stand for Alaska – Vote No On 1” each have fact sheets identifying “myths” and “facts” about the initiative. These two fact sheets are worlds apart – Stand for Salmon describes the Initiative as being a reasonable changes in current permitting that would projects protect salmon habitat. Stand for Alaska describes the Initiative as being a project and job-killer that would do nothing to impact reducing salmon runs.

Well, you may ask, who is being more truthful in their messaging?

What Ballot Measure No. 1 WOULD Do

The Stand for Salmon Initiative would revise the existing Alaska Statutes – Fish and Game Code, Article 8, Protection of Waterways for Anadromous Fish (AS 16.05.871 through 16.05.901). These changes would provide specific language for protecting fish habitat (AS 16.05.867), provide 3 tiers of permits (AS 16.05.871 – 16.05.885), require permit conditions and mitigation measures, and better define permit violations (AS 16.05.901). It would also establish a public review and comment opportunity that currently does not exist.

Currently, activities that involve work in or use of water from a river, lake, or stream (including water withdrawal, culvert installation, and temporary diversion of water) that support fish (resident or anadromous) require a fish habitat permit. The revised process would also require a permit prior to starting any work that may use, divert, obstruct, pollute, disturb, or otherwise alter anadromous fish habitat. Three types of permits would be available: authorization under a General Permit, a Minor Individual Permit, or a Major Individual Permit.

A General Permit for Minor Activities (General Permit) is a type of permit developed for activities that are common and have well-known, limited impacts. General permits may be developed for activities that are similar, are in a specific geographic area, would not cause significant adverse effect on anadromous fish habitat, would not be related to large-scale development, and would have enforceable permit conditions. Potentially, this could include activities such as water withdrawal or placement of structures such as docks. General permits are commonly used in environmental permitting – such as Nationwide Permits for dredge and fill issued by the U.S. Army Corps of Engineers, and discharge into water under the Alaska Pollution Discharge Elimination System (APDES) and National Pollution Discharge Elimination System (NPDES).

Under the initiative, a Minor Individual Anadromous Fish Habitat Permit (Minor Permit) may be issued for a specific activity if the activity avoids significant adverse effects to anadromous fish habitat. A permit cannot be issued if the activity causes substantial damage to anadromous fish habitat or fails to protect fish and wildlife. A complete application, including a description of the activity and proposed mitigation measures, must be submitted to initiate the process and a public notice will be issued upon permit issuance.

Under the initiative, if ADF&G determines that the proposed activity has the potential to cause significant adverse effects to anadromous fish habitat (see definition below), a Major Individual Anadromous Fish Habitat Permit (Major Permit) will be required. ADF&G would prepare a draft Major Permit assessment that describes the proposed activity, potential alternatives, potential permit conditions, the required performance bond, and ADF&G’s determination of if the proposed significant impact can be prevented or minimized OR will cause substantial damage to anadromous fish habitat (AS 16.05.887(b). The draft assessment will be made available for a minimum 30 day public comment period. Upon completion of the public comment period, a final assessment and permit determination will be published.

Additionally, the initiative would create a permit assessment, which would describe the proposed activity, potential adverse effects on anadromous fish habitat and other fish and wildlife, possible alternatives or modifications, and potential permit conditions and mitigation measures. The assessment would also state if, based upon the project description, the proposed activity would cause substantial damage to anadromous fish habitat.

In its editorial opposing Ballot Measure No. 1, the Anchorage Daily News cites to the anadromous fish provisions in the ballot measure as objectionable. But the ADN’s objection shows its lack of knowledge about existing fish habitat permitting practices. Currently, ADF&G requires that a permittee either establish that fish are there, or show they are not. Many existing permitting requirements also provide for the protection of aquatic life automatically, such as placing screen boxes on water intake hoses and ensuring a certain amount of water volume in a lake or pond, or a certain amount of instream flow. Thus, the assumption that fish are present in streams is not meaningfully distinct from existing permitting practices.

Finally, the initiative would define “Substantial Damage to Anadromous Fish Habitat” as activities that “if, despite the application of scientifically proven, peer reviewed and accepted mitigation measures under AS 16.05.887, the anadromous fish habitat will be adversely affected such that it will not likely recover or be restored within a reasonable period to a level that sustains the water body’s, or portion of the water body’s, anadromous fish, other fish, and wildlife that depend on the health and productivity of that anadromous fish habitat.

What the Initiative WOULD NOT Do

Contrary to the messaging of the No On 1 folks, development in Alaska would not come to a screeching halt. The majority of projects in Alaska would be permitted under either a General Permit or Minor Permit. Only those projects that have “the potential to cause significant adverse effects to anadromous fish habitat” would be required to obtain a Major Permit. But they would still get a permit and would be able to proceed, they would just require a public process and may be required to mitigate damage to streams.

Under existing laws and procedures, all projects that could potentially damage anadromous fish habitat already undergo an extensive review and permitting process. If destruction of certain waters and wetlands is a potential impact, then the Clean Water Act is invoked, requiring a permit from the U.S. Army Corps of Engineers. That triggers an environmental review under the National Environmental Policy Act (NEPA), like an Environmental Impact Statement (EIS).

When you see the “No On 1” materials, you always find broad generalizations without any specific references to the ballot measure language or even specific projects. So, in order to fairly evaluate the claim that Ballot Measure No. 1 would kill development, let’s look at some specific examples of recent projects that have undergone the EIS process:

  • Greater Mooses Tooth (GMT) 2 – ConocoPhillips oil development project on the North Slope
  • Sterling Hwy MP 45-60 – ADOT&PF project to upgrade portions of the Sterling Hwy near Cooper Landing.
  • Donlin Gold Mine – a large mining project on the Kuskokwim River

GMT 2

GMT 2 is a satellite oil field located within the National Petroleum Reserve – Alaska (NPR-A) on the North Slope, including a 9 acre pad, a 6.3 mile long road, and a 6.4 mile long pipeline. The total footprint was 78.0 acres. To support construction activities, ice roads would be required. The only stream crossing is a culverted crossing over a small beaded stream pool outlet where ninespine stickleback have been observed. Water would be withdrawn from area lakes that may have fish. Seven freshwater fish, 10 anadromous fish, and one coastal marine fish are located in the vicinity of the project. Arctic cisco and broad whitefish are generally the top harvested species fish species with over 90 percent of local (Nuiqsut) households participating in subsistence activities.

The EIS states that the potential impacts of the project to fish include injury for water withdrawal sites (for ice roads), altered water quality, physical habitat changes (water quantity, flow patterns, and geomorphology), point and non-point source pollution, increased turbidity and sedimentation, and barriers to fish movement. Collectively, these could contribute to reduced success at different life history stages, behavioral changes, diminished condition, susceptibility to pollutants or disease, shifts in fish species distribution, and mortality. However, the intensity of these effects would likely be “low” and the duration would likely be “temporary”.

Based upon the EIS, it does not appear that the impacts to fish/fish habitat meets the definition of “Substantial Damage to Anadromous Fish Habitat” under the proposed AS 16.05.887(b), and a Minor Permit would be required.

Sterling Hwy MP 45-60 Improvements

The Sterling Hwy MP 45-60 Improvement project would upgrade portions of the Sterling Hwy near Cooper Landing along the Kenai River to reduce highway congestion, meet current highway design standards, and improve highway safety. The Kenai River supports 34 fish species; 30 are native to the Kenai River and 4 are introduced species. Twelve species are residents (spend their entire life cycle in the river); 11 anadromous; and 11 found in the lower river and are associated with the marine or brackish water. Eighteen species of resident and anadromous fish are located in the project area.

All alternatives could result in some direct and indirect impacts to fish and EFH as a result of the installation of culverts. The primary impacts of culverts would be 1) permanent changes in stream flow that could affect fish passage under the highway (making it potentially more difficult or easier for fish to pass), and 2) elimination of habitat, including loss of riparian vegetation, and reduction of habitat quality where culverts would replace natural habitat. Where old culverts under the existing highway would be replaced with new culverts built to modern standards and often at larger diameter, it is possible that fish passage would be established where it had previously been cut off.

Based upon the EIS, it is possible, though relatively unlikely, that the impacts to fish/fish habitat meets the definition of “Substantial Damage to Anadromous Fish Habitat” under AS 16.05.887(b). If impacts associated with placement of new culverts are mitigated, then a Minor Permit would be required. If they could not be mitigated, a Major Permit would be required.

Donlin Gold Mine

The Donlin Gold Mine is a large mining project on the Kuskokwim River. The mine and related facilities would have a total footprint of approximately 16,300 acres located throughout 80,600 acres. The affected watershed has populations of Chinook, Chum, and Coho salmon and limited numbers of Sockeye and Pink salmon have been recorded. In addition, 12 species of resident fish, including Dolly Varden, rainbow trout, Arctic grayling, burbot, and two species of whitefish, have been documented. In addition, the Kuskokwim River subsistence fishery is one of the largest in Alaska. The Kuskokwim drainage contains about 4,600 households within 38 communities. More than 1,500 households engage in subsistence fishing.

Based upon the Donlin EIS, the project would result in direct habitat removal (i.e., filling streams), wetland removal (filling wetlands), streamflow and temperature changes, and sedimentation resulting in impacts on These effects would impact migration, spawning, or rearing life stages of Pacific salmon and other anadromous or resident fish species and aquatic habitat. For example, the Donlin Gold mine would result in filling 8 miles of stream (8 percent of the Crooked Creek watershed), some of which support juvenile Coho salmon. The project would also result in reduction of streamflow and temperature increases resulting from construction and operations.

Along the Transportation Corridor (the Kuskokwim River), barge/tug wakes and propeller forces may accelerate bank erosion and create riverbed scour, particularly in narrow and shallow segments of the river over the life of the project. This could degrade habitat and disturb or destroy fish eggs, larvae, or juveniles. Various measures would be mandated to control potential water quality effects.

Based upon the EIS, the impacts to fish/fish habitat from Donlin Mine would certainly meet the definition of “Substantial Damage to Anadromous Fish Habitat” under AS 16.05.887(b), and the more stringent Major Permit would be required.

But in each of these three cases, although some sort of permit would be required, the projects would not be prohibited under the Ballot Measure No. 1 as revised by the Alaska Supreme Court. The only differences between the current permitting process and what would follow if Ballot Measure No. 1 passes is that Alaskans would be notified that applications for fish habitat permits had been received and they would be provided the opportunity to comment, and there would be a bond requirement to ensure that permit conditions are met for Major Permits.

In each of these three sample projects, there are already a myriad of permits required at the state and federal level, even fish habitat permits issued by ADF&G. This would just provide the public greater participation at the state permitting level and make sure that projects do what they promised to protect fish habitat.

So why, exactly, are opponents of Ballot Measure No.1 against that?

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