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Public testimony on anadromous stream ordinance clear: Repeal it

Posted: March 27, 2013 - 3:48pm

A political science student could have garnered good field research Monday night at the Anchor Point Senior Center when the Kenai Peninsula Borough Anadromous Fish Habitat Task Force held a town hall meeting. Public testimony spoke to a classic question that has vexed American political theory since the American Revolution: What is the role of government in protecting the common good?

Formed by Borough Mayor Mike Navarre in response to criticisms of borough ordinance 2011-12, which expanded habitat protection to many of the borough’s anadromous fish — salmon and trout — streams, the task force has been meeting since August 2012 to consider changes to that ordinance. It includes representatives from the Kenai River Center, state biologists and assembly member Bill Smith of Homer. 

Monday’s meeting was the second of three Kenai Peninsula town hall meetings. The next meeting is at 6 p.m. April 9 at the Moose Pass Community Center. On the table for the Anchor Point meeting was a draft amendment to the ordinance.

Out of 60 people attending the meeting,
the consensus was clear about what to do with the original ordinance.

Repeal it.

“I am totally against it. We’ve already got too many regulations,” said Troy Jones of Homer in a comment typical of the night’s testimony. “No. Enough. Stop it. No more.”

The ordinance adds protection to borough streams already in place for the Kenai River and Anchor River, including a 50-foot buffer from the stream edge where activities such as clear cutting that would harm the stream would be restricted or prohibited. The number of stream miles added would go from 600 to 2,300 miles.

Opposition to the ordinance has grown since its introduction, with groups and people from the Alaska Board of Realtors to river and lake landowners protesting it. A chief complaint was the lack of notice to property owners, with many saying they didn’t know about the ordinance until it had passed. 

One criticism was that even though the ordinance refers to streams, a catalog of river bodies attached to the ordinance also includes some lakes.

Paul Ostrander, Navarre’s chief of staff and the person facilitating Monday’s meeting, said the task force originally examined the issue of including lakes, but expanded its focus.

“The original question we were asked about lakes was too narrow, and the task force needed to go beyond that,” he said.

The draft amendment takes the 2011-12 ordinance language and deletes it, and restarts the ordinance process by adding new language.

“This new process attempted to address many of the concerns the task force heard,” Ostrander said.

The draft ordinance has these changes:

• It changes the Alaska Department of Fish and Game catalog of water bodies, making it less inclusive;

• The ordinance changes the notice requirements to require notices to property owners before it goes to the Kenai Peninsula Borough Planning Commission and the assembly;

• It makes some housekeeping changes in the ordinance, and

• It makes changes to the activities allowed in the habitat protection district, making the regulations less restrictive.

One major modification was to change throughout references to “streams” with the more accurate “waters,” so to make it clear the ordinance also refers to lakes upstream from creeks. The task force also looked at the ADF&G catalog and removed about 100 water bodies that had been poorly documented as being anadromous fish waters. The draft ordinance also includes an index of included water bodies. If the state adds more water bodies to its catalog, the draft ordinance doesn’t automatically include those water bodies, instead requiring notice requirements and assembly action for them to be added.

Testimony at the meeting was spirited, with about 25 people speaking on it. Of those, four supported the draft ordinance. A show of hands had about 55 of the 60 people there against the ordinance.

“Most of the crowd in this meeting was ’90 percent don’t take our rights away,’” said Fred Martushev.

A common criticism was that the original ordinance took away private property rights by regulating what could be done in the 50-foot setback. Vern Fowler, a 53-year Alaska resident, said he didn’t like that he would need a permit to cut trees along a stream. The draft ordinance allows pruning of trees and removing dead, downed or dangerous trees without a permit.

“It would have some cheechako who would make a judgment to cut that tree,” Fowler said of the permit requirement. “I don’t believe we need all this additional regulation.”

Some at the meeting even questioned if they could mow their lawns in the setback. They can, Ostrander said.

“It concerns me that they think they cannot be mowed, because it means they haven’t read the amendment,” he said of such questions.

The speakers found one point of agreement.

“Everyone of us in this room is interested in fish, interested in having them come back,” said Brent Johnson, an assembly member from Kasilof. “You can do things as long as they’re not going to be damaging to the essential activities.”

While saving fish found common ground, some disagreed on how to do that.

John Cox, a Republican candidate for Congress in the last election, opposed the ordinance, but said, “As landowner, I am a steward of that land. I love this state and would never, never let anything happen to it.”

Sheri Marrufo, a Stariski Creek landowner, agreed with that.

“If a neighbor isn’t doing something right, the rest of use are going to educate them, and if we don’t educate them, if they won’t listen, we have you,” she said, looking at the task force.

Ostrander elaborated on that point. He said he appreciated that people would protect their land and habitat.

“What about the person who doesn’t want to, who wants to damage it?” he asked. “There are instances there where you might not be able to control what your neighbor is doing.”

As an example of that, assembly member Bill Smith noted a recent reconstruction project on the North Fork Anchor River where a gravel pit project with overburden had harmed fish habitat.

Sue Mauger, a biologist who has been doing water temperature studies of Cook Inlet streams, used the analogy of “a death by a thousand cuts” for how fish habitat gets destroyed.

“Every private landowner is a ‘cut,’” she said. “Every decision your neighbor makes impacts the overall health of those salmon streams. That’s why we all have to do our part.”

She also talked about the need for regulating water bodies upstream from fish habitat that might not have fish. Vegetation around lakes keeps the water cooler so that downstream streams also stay cool. Plants also provide food for aquatic insects which are food for salmon fry.

After hearing testimony, the task force will make revisions and come up with another draft. That goes before the planning commission and then to the assembly — all with public notice and opportunities to speak again, Ostrander said.

“Let a new ordinance come before the assembly and the property owners,” said Chris Story, a Realtor who opposed the original ordinance. “Take action in the light of day. Vote it up or down, but do it with respect to private property.”

For more information on the draft ordinance and the task force, visit http://www.borough.kenai.ak.us/mayor/anadromous-fish-habitat-protection-task-force.

Michael Armstrong can be reached at michael.armstrong@homernews.com.

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