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Reservations of Water
“What are reservations of water and why do we need them? There’s plenty of water for fish – why do we need to worry about water uses and water rights? Doesn’t Fish and Game already have other permits to protect fish and wildlife habitat?”
Questions like these come up frequently, most recently at a Chamber of Commerce meeting in Haines. Haines, like so many other communities across Alaska, depends on the health and abundance of salmon and other fish for its livelihood. But it is also looking at supplementing and diversifying its economic opportunities. There are plans for a proposed mine, hydroelectric project, residential land development, and a port-expansion project. Experience from other states indicates that it is in the best interests of Alaskans to be proactive stewards of fish and wildlife resources if we want to assure that future generations will enjoy the same bounty that we enjoy today.
Over the past 170 years, similar sentiments were expressed all over the western United States as it developed and grew. People either thought there was too much water to ever run short or they thought there was no value or benefit to leave water within a river or lake. The prevailing notion was “Use it or lose it!” Leaving water in a river was considered wasteful. This resulted in many rivers in the western U.S. becoming over-appropriated, as water rights were issued for more water to be taken out than was naturally flowing in the river. In some instances, this resulted in dry river reaches. Changing the quantity and timing of river flows has had major effects on native fish species, as well as other ecological impacts. For example, on the Colorado River several native fish species have become endangered while non-native fish species have been thriving due largely to reduce flows from the construction of dams and diversions for out-of-stream uses of the water and the introduction of non-native fish. Today, millions of dollars are spent to buy and lease back small amounts of water in attempts to restore river flows and stop fish declines or possible extinction.
We are fortunate in Alaska to have not experienced a similar fate, but we are not immune to the same pressures for water. Our fish and wildlife populations are healthy, but much of that is dependent on healthy habitats, which includes the quantity and quality of our waters. Water rights in Alaska are allocated based on the Prior Appropriation Doctrine; the first person to file gets the first right to the water (“first in time, first in right”). However, in most areas of the state, there is limited or no streamflow or lake data to know how much is available for out-of-stream uses or should remain to sustain fish and wildlife and other purposes. Without knowing how much or how clean the water is, how can we effectively manage it? This also poses major challenges to regulators whose job it is to investigate the potential impacts of a development on fish and wildlife resources.
Despite these somewhat daunting challenges, Alaska has a distinct advantage compared to our counterparts in the Lower 48. We are fortunate that the hard lessons learned by other states were used to change our laws with the help of one of our key biologists, Christopher Estes. Christopher helped champion passage of Alaska’s instream flow (reservation of water) law. He noted that “the legislature amended the Alaska Water Use Act (AS 46.15) in 1980 in recognition of the economic and social benefits that would be derived from retaining sufficient amounts of water in rivers and lakes.” This amendment provides a legal tool, called a reservation of water (reservation), which provides the opportunity for wise management and conservation our fish and wildlife habitat. Reservations can be for rivers or lakes and are acquired from the Alaska Department of Natural Resources (DNR). A private individual, group, or government agency can file for a reservation for one or a combination of four purposes: protection of fish and wildlife habitat, migration, and propagation; recreation and park purposes; navigation and transportation purposes; and sanitary and water quality purposes. The water right and a summary of the administrative decision are formalized in two legal documents: a Certificate of Reservation and a Findings of Fact, Conclusion of Law and Decision.
Christopher was also instrumental in creating the department’s Statewide Aquatic Resources Coordination Unit, SARCU, or the Water Shop as it’s more commonly known. This program was created within the Division of Sport Fish to provide the information and tools to meet the water demands of the department for sustaining healthy fish and wildlife production for all divisions. SARCU provides recommendations to other permitting entities regarding the amounts of water that should be left within rivers and lakes for fish and wildlife and also files and processes reservations on behalf of the department. In some cases, sufficient data exist to file, and in others SARCU biologists go into the field and collect data to support these applications. In most cases, five or more years of data are needed in order to file and process a reservation of water application.
The scope and range of where SARCU can file reservations are limited by program funding. The primary source of funding comes from the U.S. Fish and Wildlife Service Sport Fish Restoration program (federal aid). Other funds such as the Alaska Sustainable Salmon Fund and cooperative ventures with private conservation organizations, and most recently the National Fish Habitat Action Plan, have also contributed to activities related to filing reservations.
SARCU can use federal aid funds to file reservation of water applications on any water body of importance to sport fishing statewide. On the other hand, Alaska Sustainable Salmon Funds permit the department to file for water rights for anadromous salmon or steelhead species in Southeast Alaska even if they are not considered as significant to a recreational fishery. Fortunately, most water bodies in either of these cases provide benefits to other users dependent on fish and wildlife (for example, commercial fisheries, wildlife and subsistence).
Selections on specific water bodies to file an application are made in consultation with SARCU liaisons for each region of the Division of Sport Fish and with all divisions in the department for Southeast water bodies. Nominations and prioritization are based on the importance of a waterbody to sport fishery resources and/or occurrence of anadromous species, the likelihood for competing out-of-stream uses, whether existing hydrologic and biologic data are adequate to support application analyses, and whether other state and federal legal mechanisms would provide better or more cost effective protection. Reservations for rivers are filed with the goal of maintaining seasonal streamflow regimes that mimic natural conditions to which fish have adapted and similarly, lake levels that mimic natural lake variability. To date, 121 reservations have been filed by the department to the DNR. This has resulted in ADF&G acquiring protection for 31 river reaches totaling 215 river miles and one lake.
While other permits issued by the department provide important protections, reservations are water rights that are recorded in the State of Alaska’s Recorder’s Office for archival purposes and public review. This process provides for easy access and review of reservations to evaluate future water use proposals versus project specific permits and resulting decisions which may not be readily accessible or possibly even overlooked during project reviews. A reservation of water remains in effect for perpetuity unless DNR determines the purpose for which it was filed has changed, whereas permits only remain in effect for the period specified in the permit. Reservations are also considered a proactive tool since they can be completed before development is proposed. One of the benefits to the public of the department filing a reservation is that this helps to provide an idea of how much water should remain in a river or lake for fish and wildlife and related purposes. This is expected to minimize future conflicts and allow prospective users to plan ahead and if needed, explore alternatives to meet their water needs.
In the case of Haines, a reservation was filed on the Klehini River in 1996. The Klehini River supports all five species of anadromous salmon as well as steelhead, cutthroat, and resident fish species. Proponents of the proposed mine were concerned about potential water use conflicts if their project was developed. Upon review of the available streamflow data, DNR determined there would be enough water most of the time for the mine, as well as other future uses, while providing protection for fish resources in the Klehini River. River flows vary naturally and if there are periods when the river will naturally flow at levels below the reservation amount or if other water rights holders have a right to use excess water, the mine developers will need to obtain water from off-site storage areas or other sources. During the discussions whether to grant the department’s requested reservation, the developers acknowledged they had planned for alternative water sources as part of their project design. This example shows the benefit of filing a reservation in advance and the opportunity provided to discuss the issues and seek an agreeable solution before the situation rises to a conflict. Furthermore, the mine developer has the opportunity to conduct more detailed studies to better understand instream flow needs for fish. If the DNR concludes the studies demonstrate that a lower amount of water would provide the same level of protection, DNR can amend the reservation.
It was also noted at the public hearings in Haines that reservations of water for fish and wildlife may also benefit other users such as an existing river boat operator for navigation and wildlife viewing opportunities. Other benefits to the department and public may include transportation and access purposes for motorized and non-motorized users on open and frozen water (e.g. boats, float planes, snow machines and sled dogs) and the ability to operate boat ramps. Similarly, business operators that required a continuous supply of water to maintain mixing zones, for dilution purposes to meet total maximum daily limit (TMDL) permits or other water quality purposes, can file for a reservation of water to retain sufficient water volumes in the river or lake to assure they will be able to meet permitted water quality conditions and obtain a measure of protection for their investment.
In short, reservations are an important tool that helps the department fulfill its mission. We have made progress, but much work remains. Alaska has the opportunity to take advantage of the state’s infancy to maintain healthy fish and wildlife habitat – we are working hard to do just that.
For more background information on reservations of water and related publications, see http://www.adfg.alaska.gov/index.cfm?adfg=fishingSport.main
Any questions or comments about reservations of water or the SARCU program, please contact Joe Klein at 267-2148 or email@example.com.
Joe Klein is the supervisor for the aquatic resources unit, under the Division of Sportfish at the Alaska Department of Fish and Game. He is based in Anchorage.
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