Homer Alaska - Business

Story last updated at 12:42 PM on Wednesday, May 30, 2012

Assembly, residents debate whether stream protection ordinance goes too far

By Brian Smith
Morris News Service – Alaska

Residents, property owners and members of the Kenai Peninsula Borough Assembly are calling regulations designed to protect the near shore habitat of anadromous water bodies in the borough an overstep and have asked for them to be taken off the books.

On May 18, a citizen's petition was filed with the borough clerk's office to repeal the anadromous streams ordinance, listed in code as KPB 21.18. Several assembly members even said they would consider sponsoring an ordinance to repeal those rules, but Borough Mayor Mike Navarre said he would not support such an action.

The assembly approved the anadromous streams ordinance last summer and it was implemented for the west side of the borough at the beginning of this year. Implementation for the east side of the borough is scheduled for 2013, but notice of the ordinance's rules and regulations has already been mailed out to some areas causing property owner concerns.

Currently, the Kenai River, 10 of its tributaries and 14 other streams in the area, are managed under habitat protection. The anadromous streams ordinance passed in late June 2011 added 2,317 stream miles to the 602 stream miles previously included in the district.

The ordinance protects the near-stream habitat of all anadromous streams — which host fish that migrate from the sea and breed in fresh water — in the borough 50 feet up the bank from the ordinary high water mark. The idea is by protecting the habitat, the safety and future of the fish — primarily salmon — are better secured, advocates of the measure contend.

"I would be more than willing to sponsor a repeal of this if I felt like there would be the courage of five individuals up here to say, 'No, maybe we have gone too far,'" assembly member Charlie Pierce said at the assembly's May 15 meeting.

Several residents testified to the assembly about the issue. They were concerned the rules would limit their ability to develop their property near anadromous streams.

Also, some assembly members and borough administration said they were surprised to hear the ordinance also included lakes that anadromous streams flow into, including Navarre.

John Mohorcich, director of the Donald E. Gilman River Center in Soldotna, said his staff has tried to give an extensive heads up to property owners about the new regulations and give them resources and education to pursue. So far staff has mailed out thousands of letters, he said.

Mohorcich said he knew the staff was going to have an "educational curve" with residents. However, most people asked questions and took the time to try and decipher the information. They wanted to understand what it meant to them and why the borough had enacted the protections.

The habitat district ordinance provides multiple avenues to receive approval for activities, to construct structures or to utilize the property, Mohorcich said. There are also activities that don't require permits and there are different rules for businesses and non-commercial uses.

"If it is a non-commercial use you can still utilize that property probably just exactly the way you are accessing it and utilizing it right now," Mohorcich said.

The River Center also can issue staff permits for those applying to do certain activities such as vegetation management, removal of hazardous trees, installing elevated walkways, stairs or fish cleaning tables. Staff can usually turn around a permit in 14 days, Mohorcich said.

"All of these properties are site specific ... (and) we would encourage people to contact us to see if a permit would be required if they did need to remove trees or thin some trees down in the habitat protection district," he said.

The streams ordinance also includes a prior use section. Under those rules the River Center staff could only make recommendations on what activities are best for the riparian habitat, but final action is left with the property owner.

"If there was an activity, use or structure already established at the time of the implementation of this ordinance, those ... get to continue," Mohorcich said. "I think that's not very well understood at this point.

"If people already have a lawn established or already have a beach, or whatever ... that use, activity and structure are allowed to continue. We hear a lot about 'Oh, I can't cut my grass anymore.' Well that is definitely an existing use.'"

Mohorcich said lakes were included in the protection district because the River Center uses the Alaska Department of Fish and Game's "Atlas and Catalogue of Waters Important for the Spawning, Rearing or Migration of Anadromous Fish" as outlined by the ordinance.

"Maybe it was one of those things that we are too near and dear to (the atlas) and we're working with it everyday and we knew what that meant in the total definition of all the (anadromous) water bodies in the borough," he said. "I guess it is surprising to me that there are so many people that didn't understand that lakes would be included."

Jason Tauriainen, a borough planning commission member, said last Tuesday the commission voted 6-5 on a motion to exclude lakes from the district, save for Kenai and Skilak lakes. He said the ordinance "doesn't really fit lakes" and is specifically written for rivers and streams. He wants the assembly to revisit the issue.

"I don't think anybody understood that lakes would be part of this when it went in," Tauriainen said. "I know I didn't when I voted to recommend it."

Stacy Oliva, a North Kenai resident who lives next to Daniels Lake, said exempting lakes from the protection district would be a good start, but she would like to see the additional regulations approved last summer taken off the books and the assembly start from scratch. It's simply "too big, too broad," she said.

Assembly member Charlie Pierce said the assembly might be "missing the real issue of protecting the habitat."

"I ask you (to consider) the policies and the restrictions we are placing on the land owners of mowing a lawn or cutting a bush that's within 50 feet of the (stream)," he said. "Come on. Is that reasonable?"

Brent Johnson, assembly member from Kasilof, said he supported the ordinance and said the assembly only extended rules that have been lived with for years on the Kenai River.

"There is a huge issue of taking care of streams, an issue that wasn't dealt with in the Lower 48 ... and so what do they have now? Nothing," he said. "But what we have here still is fish. There is no other agency that takes care of the property next to the river."

He said the vegetation next to the stream is important for fish and lakes also are an important component.

"I don't view it as though we made some horrible mistake somewhere along the way here," Johnson said. "... Our authority is on the land that is next to rivers — we can protect that and so I think that we should protect that."

Assembly president Gary Knopp called for the ordinance to be "repealed" and "re-thought."

Navarre said he would not support a full repeal of the ordinance, but would support revisiting it and looking at "what makes sense and scaling it or narrowing it as necessary."

There are currently no plans to add additional staff to manage the ordinance. Navarre said he expects an ordinance — one addressing the lakes issue or otherwise — to be introduced by administration or the assembly at its June 5 meeting.

"People talk about how restrictive it is and there's ways to get permitted for the activities that you want to do if it's reasonable," he said. "I think what we are going through right now is a bit of the education process. Having experienced and dealt with it on the Kenai River we have got a good indication that an ordinance that protects habitat and also that ensures property rights can work. I think that's what we're trying to do is find that balance."

Brian Smith is a reporter for the Peninsula Clarion.