Ordinance intention is habitat damage prevention

Photo courtesy of Dr. David Wartinbee. Lakes in the Kenai Peninsula Borough, like this one in Nikiski, that host anadromous fish are now covered under the borough’s anadromous habitat protection ordinance. The fate of that ordinance is scheduled to be determined at the assembly’s June 18 meeting.

Photo courtesy of Dr. David Wartinbee. Lakes in the Kenai Peninsula Borough, like this one in Nikiski, that host anadromous fish are now covered under the borough’s anadromous habitat protection ordinance. The fate of that ordinance is scheduled to be determined at the assembly’s June 18 meeting.

By Jenny Neyman

Redoubt Reporter

Across Europe, the East Coast and much of the West Coast, wild salmon runs are gone altogether, or else struggling in the few places where wild fish do return to their natal streams to spawn. Alaska — particularly, the Kenai Peninsula — stands out as one of the few remaining places that boasts sustaining, wild salmon populations. It’s also home to the concept of being an ownership state, with residents protective of their rights and leery of governmental intrusion.

Given its salmon success-story status, compared to much of the rest of the world, it would seem the Kenai is doing something right in protecting its fish. So why, then, should the Kenai Peninsula Borough do something that feels wrong to residents also protective of their property rights — namely, to expand regulations over lands bordering anadromous fish-bearing waters in the borough?

The assembly is set to vote on the issue of anadromous waters habitat protection at its next meeting, June 18. Specifically, whether to repeal or amend ordinance 2011-12, passed in 2011, that expanded a 50-foot nearshore habitat protection zone previously in place along the Kenai River, 10 of its tributaries and 14 other area streams, to nearly all anadromous waters — including rivers, streams and lakes — in the borough. With that zone comes restrictions on what property owners may and may not do on and to those lands.

There hasn’t been an opponent to the ordinance who has argued that salmon don’t warrant protection. Rather, it’s been a question of, do they need this protection?

“This is saving the fish when they don’t need to be saved,” said Michele Hartline, of Nikiski, at a recent assembly meeting.

“When the first (anadromous habitat protection ordinance) started in ’96, there was a need. The Kenai River needed to be addressed. There were real, serious violations on those riverbanks. The second one (in 2000, when the original ordinance was expanded to include Kenai River tributaries and additional streams) there was a need on those particular rivers. They needed to be addressed. (But the recent expansion, ordinance 2011-12, that passed in 2011), let’s just get everything and throw it in the pot. There wasn’t a need. There wasn’t a need for the lakes. There wasn’t a need for a lot of these tributaries,” she said.

Opponents want to know, where’s the problem this expansion of habitat protection zones will address?

“There’s been no pollution there,” Vern Knoll, who has lived on Daniels Lake in Nikiski for decades, told the assembly. “I think 50-feet buffer for lake property is too much. I believe probably a 10- or 20-foot buffer should be plenty. I believe the ordinance is too restrictive. We do not need a 50-foot buffer alongside the lakeside.”

The protection zone carries with it a host of prohibitions, permit requirements and, potentially, fines for violations. What damage needs to be reversed or violations stopped that warrant the borough infringing on the rights of affected property owners? Is this really necessary for the fish, or is the borough just fishing for an excuse to infringe upon private landowners’ rights?

“The proposed ordinance 2013 gives the appearance of being designed to protect fish, when actually it’s a vast expansion of borough zoning authority,” said Stacy Oliva, of Nikiski, at a June 4 assembly meeting.

The idea behind the habitat protection zone is to safeguard lands within 50 feet of anadromous waters, to prevent riverbank erosion, removing natural trees and vegetation, filling wetlands, pollution discharge, building structures that prevent light or rainwater from reaching the ground, and other activities that would harm water quality.

Both supporters and opponents of the habitat protection zones expansion agree that, while there have been instances of these activities, there is not an epidemic occurrence of such issues across the borough today.

But that’s where they diverge. To some opponents, expansion of the habitat protection zones is punishment borne by waterfront landowners for crimes not being committed. Supporters, however, see it as prevention to keep those problems from happening.

Robert Ruffner, executive director of the Kenai Watershed Forum, said the expansion of the habitat protection zone isn’t meant to address a specific, current violation or redress an ongoing wrong; it’s to keep the borough’s anadromous habitats going right.

Photo courtesy of Dr. David Wartinbee. The Swanson River, stretching from Sterling to Nikiski, is one of many water bodies hosting anadromous fish species in the Kenai Peninsula Borough.

Photo courtesy of Dr. David Wartinbee. The Swanson River, stretching from Sterling to Nikiski, is one of many water bodies hosting anadromous fish species in the Kenai Peninsula Borough.

“This is not an immediate response nor immediate fix to any problem we see right now. This is a long-term need for the fish. The response or protection it provides is a decades- or centuries-long effect,” he said.

There unfortunately are and have recently been immediate threats to, and concerns over, the health of the Kenai’s fish runs, such as hydrocarbon pollution in the rivers, spikes in water turbidity during times of high boat traffic, ocean survivability conditions impacting king runs, and any number of fishery-management debates.

Those issues have and will continue to come and go, needing to be dealt with as they arise. But ensuring clean water and healthy fish habitat should be a never-changing constant baseline condition, Ruffner said.

“People talk about fisheries management actions or other projects. Those things can happen on a two-year or four-year political cycle. The long-term protection is out of synch with most of our human decision-making,” Ruffner said. “Based on what we’ve seen with salmon, in particular, all across the world — we can start in Europe and talk about the things that have gone wrong, why the fish aren’t there, and why they can’t bring them back. This is really more about the most basic, fundamental needs of the fish. There are a lot of things that people are concerned about that are reversible. But once you lose their habitat, it’s really impractical to consider that as being a reversible action.”

The banks and nearshore areas adjacent to anadromous waters are critically important to the health of that water, Ruffner said. Where the land meets the water is where the rubber meets the road, in terms of habitat and water protection.

“In the case of keeping water clean, which is an essential element of fish habitat, having that natural buffer between the stuff that we do — whether it’s parking lots or gravel or lawns — is really important. There really is no question about that, it’s fundamental public health 101 — you keep your water separated from sources of contamination, regardless of how small they are,” Ruffner said.

Stream banks, shorelines and nearshore areas act as filters and feeders, both helping to keep contaminants out of the water and helping regulate the distribution of good materials — like leaf matter in the fall and rainwater in the spring. A healthy covering of natural trees and vegetation provide structure and stability to nearshore areas, and can help prevent the infiltration of non-native, invasive weeds.

“With roots and vegetation holding banks intact, whether it’s riverbanks or wave-generated waves on lakes, natural vegetation helps stabilize and protect the banks. Coupled with that stabilization, it provides the structural complexities that are necessary for fish and fish food to hide and live within that space,” Ruffner said.

As many have pointed out in public testimony to the assembly and the Anadromous Fish Habitat Protection Task Force, it’s not as though waterfront residents overall don’t recognize the ecological importance of their property.

“Things have to be done to protect the river. But if you go through and look at what the majority of landowners do, they want to protect the river. We don’t walk up and down the bank. We don’t do things to destroy it. Everyone who has a lot on the river cherishes it,” said Tom Mushovic, who lives on the Kenai River in Funny River.

And it’s also not as though they could do absolutely anything they wanted on their property before the expansion of the habitat zones. If they’d dumped pollutants or sunk pilings for a fishing platform into a spawning area, the Alaska Department of Environmental Protection or Fish and Game could have come knocking.

“There’s already so many state agencies. Here you’re loving the fish to death,” said George Pierce, of Kasilof, at a recent assembly meeting.

But the habitat protection zones aren’t about addressing just substantive harms as they occur, with which other regulatory agencies deal, Ruffner said. The borough ordinance is about protecting the day-to-day, year-to-year, generation-to-generation health and integrity of anadromous waters, he said.

“The protections that do exist are largely with the water itself, they don’t deal with the adjacent land to it. When they do deal with land adjacent to the water it’s when things have already gone wrong — you’re creating enough pollution at that spot that you’re violating the standard. Then you’re back to the point where it’s really hard to fix that habitat area,” he said. “Mitigating big projects, that does happen — where designers and engineers did something different than what they would do typically to protect a habitat area.”

Those “big” things are important, Ruffner said, and that’s what already is addressed by other agencies and existing regulations. But seemingly “little” activities can, over time, harm anadromous waters and nearshore areas, too — like replacing natural vegetation with lawns or ornamental greenery, or putting down a cement walkway or parking area. As the peninsula’s population grows and more anadromous areas are developed, it’s important to have a mechanism in place to prevent lots of little cuts to the integrity of nearshore areas, lest they add up to big damage, he said.

“The very small, seemingly inconsequential things that everybody does on a daily basis, those add up to a cumulative consequence, and, again, it happens over decades or centuries. And that’s what this is trying to get at, rather than those immediate, short term-things like a big development project,” Ruffner said.

Opponents also raise an eyebrow over the scientific studies and findings cited by the task force and ordinance authors as justification for the expansion of habitat protection zones. The studies weren’t done on the Kenai, opponents point out, so perhaps they don’t accurately reflect conditions here.

“I would like to have seen scientific studies that were relevant to the Kenai Peninsula indicating there is harm being done to these streams. There’s a lot of studies out there which are not necessarily relevant to the Kenai Peninsula that are pointed to,” said Wayne Ogle at a May 21 assembly meeting.

Ruffner and other supporters of the habitat protection zones expansion defend the relevancy of those studies because conditions on the Kenai are similar to those in the studies establishing the harms of bank erosion, water pollution and other ill effects of damaged habitat areas, he said.

“That part is super clear and super well-established anywhere in the world. You don’t need a site-specific study to understand that. Physics works the same here as it works anywhere in the world,” he said.

Not only would conducting new research on the Kenai to validate the prevailing scientific wisdom regarding anadromous stream health be reinventing the wheel, it would be a costly wheel to reinvent, he said.

“Site-specific studies to verify the elements of this that have been applied from other places would be very expensive to do,” he said.

Ogle, among others, has advocated for a site-specific approach to habitat protection zones, such as confirming that an area is suffering damage or is at higher risk and in need of greater protection and apply a protection zone there. Ruffner said that all anadromous areas need a baseline of healthy habitat and water, which is what the 50-foot protection zone seeks to ensure. And actually, he said, 100 feet would be better, ecologically speaking, but he also recognizes that finding a balance between habitat protection and impact to property owners is another important ideal in the regulatory equation.

“The science world would suggest that you really need more, but we have to balance practical use with doing the best that we can for protecting the streams and lakes. If really start doing scientific studies, 50 feet, I would say, is the minimum that you’d find anywhere that would provide those basic functions for clean water and habitat,” he said.

That’s really where this issue has become rocky — not in whether anadromous streams deserve protection, but in the specifics of the what and how and where of protections. Ordinance 2011-12, passed in 2011, has drawn considerable fire for being overreaching, poorly thought out and unnecessarily burdensome to property owners. The task force, which met all winter, sought to address concerns voiced regarding Ordinance 2011-12.

On June 18, the assembly will vote on whether to enact the amendments and recommendations of the task force, or whether to repeal 2011-12 altogether and shrink habitat protection zones back to the areas established in 2000. Ruffner said he thinks the task force did a good job of addressing some of the complaints about 2011-12 while still maintaining adequate ecological protections. For instance, the task force recommends allowing lakefront property owners more leeway to have docks, floatplane haul-outs and other developments within the 50-foot zone.

“There are differences between lakes and rivers and I think the task force did a very good job of working through those things. They would allow people the practical use of lake frontage … so it won’t prevent people from enjoying the waterfront, but it will prevent large-scale damage,” he said.

The majority of public testimony at task force town hall meetings and assembly meeting has been in opposition to the expansion of the habitat protection zone. Much of it had been about issues the task force sought to address, and Ruffner said he thinks the task force did a good job of correcting issues with the 2011-12 ordinance while still protecting habitat areas.

“(Development) is happening here and will continue happening here. We want it to happen in a way that won’t harm the long-term ability for us to have fish here,” Ruffner said. “Fundamentally, it seems like the opposition to this is coming from the values we have as Alaskans — we don’t want government interference. And those are juxtaposed right next to everybody appreciating everything that the fish do for us — the recreation, the economics, the cultural economics of the fish. So putting those two things side by side is a difficult task to resolve. I think the task force has done a good job of that. Without having some sacrifices to that value of not wanting any government intrusion whatsoever, we put the fish at risk.”

Oliva and others who have testified in opposition to the expansion of the habitat protection zones, aren’t convinced.

“Our recent experiences at the three borough-sponsored town hall meetings made it extremely clear that the public, by 96.2 percent (of those testifying) overwhelmingly perceived 2011-12 as being more about expansive zoning and less about preservation of fish,” she said.

2 Comments

Filed under ecology, Kenai Peninsula Borough, Kenai River, salmon

2 responses to “Ordinance intention is habitat damage prevention

  1. Terry Jones

    Repeal Ordinance 2011-12. This is a very harmful and intrusive bill. It will impact property owners all over the peninsula. I personally own a homestead on the North Fork of the Anchor River. It would make a huge portion of our family homestead unusable. This is very upsetting and could become very expensive. The Borough is not and enforcement agent and does not have the money to enforce this new regulations. So they will levy fines and penalties for infractions. This is just another case of big government trying to regulate people… it will not help the habitat nor the fish population but it will be very detrimental to the people of the peninsula. The weir that fish and game put across the lower Anchor River did more to mess up the fish run on that river than any personal use that the land owners have done in the last 100 years.

  2. Robert Ruffner

    Terry, the North Fork has had this rule in place for 13 years. As I write, I’m helping a resident relocate their house that was built near the N.F. Anchor River and is now in jeopardy of falling in.

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