Riparian rift resolution? Assembly to vote on controversial anadromous waters protection ordinance

Redoubt Reporter file photo. The Killey River is seen where it flows into the Kenai River. Large water bodies, like the Kenai, its smaller tributaries, like the Killey, and nearly all other anadromous waters in the Kenai Peninsula Borough were covered under a controversial ordinance in 2011 that extends anadromous habitat protection zones. On June 18, the assembly is scheduled to vote on the issue, possibly replacing the 2011 ordinance with another crafted by a task force that worked on the issue all winter, or else scrapping it altogether.

Redoubt Reporter file photo. The Killey River is seen where it flows into the Kenai River. Large water bodies, like the Kenai, its smaller tributaries, like the Killey, and nearly all other anadromous waters in the Kenai Peninsula Borough were covered under a controversial ordinance in 2011 that extends anadromous habitat protection zones. On June 18, the assembly is scheduled to vote on the issue, possibly replacing the 2011 ordinance with another crafted by a task force that worked on the issue all winter, or else scrapping it altogether.

By Jenny Neyman

Redoubt Reporter

In a sense, Jim and Ginny Harpring are ideal residents of the Kenai Peninsula Borough’s anadromous streams habitat protection zone.

They’ve lived along the Kenai River, on Watergate Way in Funny River, for 30 years, and have developed their property as the protection zone has developed over the years — when it was first enacted in 1996 as a 50-foot setback along the Kenai River, when it was expanded in 2000 to the Kenai River watershed and 14 other streams in the borough, and when it was expanded again in 2011, both in the nuts and bolts of what is and isn’t allowed and in scope to nearly all anadromous (supporting fish that migrate to the ocean and back to spawn) freshwaters in the borough — rivers to little streams as well as lakes.

The Harprings are “i” dotting, “t” crossing sorts of people who are proactive in learning about and complying with the regulations, meant to protect the sensitive banks and nearshore riparian area of anadromous waters. Their walkways in the 50-foot zone are appropriately elevated and light penetrating, so as to reduce impact to the natural vegetation — not lawn — growing below. Their fishing platform/boat dock is affixed in the recommended fashion, sparing erosion of the soils and protecting the bank’s structural integrity. They wouldn’t dream of being clumsy with contaminants on their property, which might leak into the blue-green water swirling by outside their many river-facing windows.

Their compliance with the regulations is of the best motivation — not because they fear a fine from a violation, but because they genuinely care about maintaining their property in a way that’s as ecologically undamaging as possible. That’s evident visually — a gravel driveway and parking area, rather than paved so as not to block water absorption into the soil  — and audibly, with the twinkling of more than 200 wind chimes hung around the property, rather than putting up fencing.

“The wind chimes deter the moose and the bears, especially in the trees. They don’t like that unnatural noise above them,” Jim Harpring said.

They take care of their riverfront parcel seriously, as does everyone they know who lives in the anadromous protection zone, Harpring said. But he also cares about his rights as a property owner and his ability to maintain his land in a reasonable fashion, and can cite chapter and verse — that “i” dotting, “t” crossing meticulousness, again — in which in borough’s anadromous streams protection ordinances have fallen short of that expectation.

“You have to have some oversight, because of this valuable commodity throughout the whole community, which is the watershed. But the way you invoke it has to be fair and equitable across the entire population impacted. It isn’t,” Harpring said.

He’s become one of several regular, outspoken commentators at assembly meetings and in public venues railing against, in particular, Ordinance 2011-12 that passed in 2011. The uproar was so great that Mayor Mike Navarre convened a task force to research, draft and bring forward recommendations to the assembly of ways it could be improved, or whether it should be scrapped altogether. Those recommendations are due for a vote of the assembly at its next meeting, June 18, as well as another proposal to simply repeal the measure.

Harping will be one of undoubtedly many following closely to see if their concerns are addressed.

  • One of the biggest complaints has been how the borough has handled notice of the ordinances, past and present. Anyone covered under the previous two ordinances wasn’t directly notified about the changes in Ordinance 2011-12, Harpring said. As required, the borough ran ads in local papers in the borough announcing the ordinance and public meetings regarding it, but Harpring said that’s not good enough — particularly for snowbirds who spend winters Outside and aren’t around to see such postings.

“All the water bodies (covered under the previous ordinances) were never mentioned in the new notice. It only identified new lakes and streams, but they rolled over everybody that was in the previous two and changed the ordinance,” Harpring said. “If you receive the notice and you don’t take the time to become informed and you let it go through without your involvement, shame on you. But if you don’t even know about it, if you’re not noticed until the hammer’s coming down on you — that’s not fair.”

Noticing was handled in accordance with borough code, but that’s not good enough, Harpring said. As the habitat zone rules changed under Ordinance 2011-12, the borough should have sent letters to each and every property owner affected by it, whether already in a habitat protection zone or newly added.

“The process in the borough is flagrantly flawed by not noticing,” he said. “Be upfront about it. There’s the intent of the law and spirit of the law, and then there’s the law. The spirit of the law is to get involvement. They didn’t do that.”

The borough has committed to better noticing on this issue. Everyone affected was personally noticed through the mail of the upcoming assembly meeting in which repeal and/or modification of the ordinance will be addressed. If the habitat zone expansion does stay on the books and is modified as the task force suggests, better noticing will continue. For instance, if water bodies in the future are proposed to be added or removed from the list of those covered by the ordinance, affected property owners will be noticed.

That’s great, but doesn’t make up for the lost opportunity for involvement suffered by property owners, Harpring said. They’re the ones living with the regulations. The borough should have directly invited their participation in the crafting of the ordinance and the task force’s review of it. And not just so they have a chance to oppose it — but to offer suggestions to make the ordinance better.

“Get a group together that actually owns the properties and you would be amazed by how smart these people are and what solutions they might have,” Harpring said. “And there are some good things (in the ordinance). But you can’t come speak to the good things as well as oppose the bad things if you’re not noticed.”

  • Photo courtesy of Jim Harpring. Tom Mushovic stands on the roof of the guest cabin belonging to his neighbors, Jim and Ginny Harpring, along the bank of the Kenai River in Funny River, assessing damage from a tree that blew down during a storm in the winter of 2011.

    Photo courtesy of Jim Harpring. Tom Mushovic stands on the roof of the guest cabin belonging to his neighbors, Jim and Ginny Harpring, along the bank of the Kenai River in Funny River, assessing damage from a tree that blew down during a storm in the winter of 2011.

    Accommodations for property owners. Harpring and others would like to see more leeway for property owners in regulation of the anadromous habitat protection zones.

“(Ordinance 2011-12) denies a voluntary engagement option. It puts the landowner in a position where it is assumed that people are not good stewards of their land and that the government will do a better job if it is in control,” said Stacy Oliva, of Nikiski, at the June 3 assembly meeting. Oliva was one of three members of the task force who voted against the recommendations now brought forth to the assembly (the vote passed 5 to 3.)

Harpring has some notable examples of hardship suffered from a lack of flexibility in the ordinance. For instance, trees can’t be removed from the 50-foot zone without a permit from the Kenai River Center. During a nasty windstorm in the winter of 2011, a giant spruce within 50 feet of the riverbank blew down, smashing his deck and puncturing the

Photo by Jenny Neyman, Redoubt Reporter. Harpring, on stairs, and Mushovic look over repairs made since the tree smashed the deck and punctured the roof in 2011. Repairs had to wait over a weekend, though, because the tree blew down on a Friday after business hours and the Kenai River Center wasn’t open to issue the necessary permit to remove the tree —since it fell within the anadromous habitat protection zone — until the following Monday.

Photo by Jenny Neyman, Redoubt Reporter. Harpring, on stairs, and Mushovic look over repairs made since the tree smashed the deck and punctured the roof in 2011. Repairs had to wait over a weekend, though, because the tree blew down on a Friday after business hours and the Kenai River Center wasn’t open to issue the necessary permit to remove the tree —since it fell within the anadromous habitat protection zone — until the following Monday.

roof of his guest cabin. The Harprings were in Texas at the time, but a neighbor, Tom Mushovic, noticed the damage. But it was after hours on a Friday, and the Kenai River Center wouldn’t be open to issue a permit until Monday.

“It actually went through the roof — there were branches that came down and punctured the roof. I figured we had to do something. There was water running in the house. And you’re telling me we’ve got to get a permit for that that?” Mushovic said.

Harpring’s insurance company told him they’d reimburse him for the damages and cost of removing the tree, but his attorney advised him that, legally, he was bound to wait for a permit — roof leaks or no — or he’d be liable for a violation.

“That’s how ludicrously challenged the previous ordinance (2011-12) was, there was no accommodation for that. It was written from people who didn’t have property that is impacted,” Harpring said.

The ordinance also restricts clearing of natural vegetation within the 50-foot zone. A limited amount of pruning is OK, but clearing swaths of natural brush is not. Trouble is, Harpring’s property is a busy bear corridor. They come up from the vacant state lot downriver from his and tromp right through his property.

“The bear safety issues we have here are significant. Last year we had nine bears come by in one night. They sleep in the woods downstream and about 7:30 to 8 a.m. they’re right in front of the house,” Harpring said.

They keep the property clean of bear attractants — no bird feeders or trash left out. Still, he’s been charged twice. Once he barely made it into house and latched the door behind him just before an adult brown bear slammed into it.

“There’s nothing in the ordinance that addresses those types of issues, when you can document you have animal-human encounters but you can’t cut the vegetation back to the point where you can see a bear on your property before it sees you,” he said.

“Use some common sense in the ordinance. Let the property owners take care of their property,” he said. “If you have a legitimate reason to take a tree down or cut brush, document it and notify the River Center. If they have a problem with it, they can investigate and fine you if they decide you did something wrong, but don’t limit people’s ability to take care of their property when there’s good cause to do so.”

Another vegetation-related issue Harpring has experienced is his attempt to get certification as following Division of Forestry guidelines to protect his property from wildfire. He’s spent a significant amount of money preparing as best he can — like using metal roofing, installing a water pump and preparing hoses and everything else required to fight a fire, and widening his driveway and providing a turnaround for fire trucks.

“They come out to do the final inspection and they fail me because the trees are too close to the house. But I can’t cut them because I’m in that 50-foot zone. So now I will not be protected by Forestry to come save this property if there’s a wildfire,” he said.

“(The borough) needs to sit down across the coffee table with other divisions, like Forestry and Parks, and resolve those issues where requirements conflict. They can’t be telling us one thing and another agency is expecting another,” he said.

  • One of the hottest-button issues with Ordinance 2011-12 was automatically including all waters listed in the Alaska Department of Fish and Game’s catalog of anadromous streams in the ordinance. That’s since been changed. The Kenai River Center has reviewed all the borough water bodies listed in the catalog to verify that their listing as anadromous is correct. One hundred sixty-eight were found to lack sufficient documentation as anadromous and were removed, and another 37 were recommended for removal, as well, while six of the 168 were later found to be justified inclusions. The task force recommends that, in the future, the catalog be reviewed every three years, and that any water bodies proposed to be added or deleted from coverage by a habitat protection zone go through a public process through the Planning and Zoning Commission and assembly, with public notice given of the proposed changes.

But one other area in regard to water bodies covered rankles opponents of the ordinance — the exclusion of streams in the Seward/Bear Creek Flood Service Area. Harpring cites documentation of streams in the area being anadromous, and yet that entire area is exempted from the rules that apply elsewhere.

“I could go down there and build my shanty, my shack, my deck over the stream, under the stream, or whatever I wanted to do. But through the stroke of a pen this doesn’t apply,” Harpring said. “Why?”

It’s not for any political reason, said Robert Ruffner, executive director of the Kenai Watershed Forum, but an ecological one. The Seward area has a different water system than anywhere else in the borough, with braided channels, meandering stream channels and regular flooding.

“Seward is trumped by their flooding concerns over there,” Ruffner said. “Everything in Seward gets rearranged on a very regular basis. Seward should think about what they’re doing for habitat protection — and they do. Their flood service area coordinates with habitat protection in the context of the other issues that they’re dealing with. But by and large Seward is different. There’s the amount of gravel that’s being brought into the stream — basically, Seward is being buried in gravel. And the streambeds are constantly moving. They’re having to buy people out of their property and move houses. That is fundamentally different than anything else on this side of the peninsula or the west side of the inlet.”

  • Property use. Realtors have spoken out about Ordinance 2011-12. A mailer paid for by the National Association of Realtors, based in Chicago, recently was sent to residents advocating repeal of the ordinance. The color cards note that the number of river miles subject to the habitat protection zones “increased almost four times, from 602 to 2,317 as a result of the 2011 amendment” and that the ordinance “can prevent you from using your land as you want.”

When property owners got wind of Ordinance 2011-12, the way it was originally written caused a panic over how restrictive it sounded, leaving some to wonder if they could so much as mow their lawns without being in violation, much less build a sauna or replace a building that was destroyed. The task force proposes several revisions as a result of those concerns. For instance, the task force’s proposed substitute ordinance clarifies that traditional existing activities — such as yard maintenance — may continue. Existing structures may be replaced to the same footprint, and additional leeway was given to lakefront property owners to allow things like floatplane haul-outs, docks, boat landings and boat launches.

“The prior existing use provisions were modified so that landowners could more easily maintain and manage their structures. It was quite restrictive in the past if you had prior existing uses within the district, and this gives you a much better ability to manage those — it gives you more time to build them and allows you to maintain them within the district,” said Paul Ostrander, Mayor Navarre’s chief of staff and facilitator of the task force meetings, during a presentation on the task force’s recommendations at the June 3 assembly meeting. “Several provisions were added for lakefront owners in recognition of the uniqueness of that water.”

Ostrander also quibbles with the characterization of the expansion of the habitat protection zone as fourfold.

“The number of parcels that will be managed increases from just over 3,000 to 4,229. I think the more relevant measure of the impact of this isn’t how many stream miles you’re adding, but the number of parcels you’re going to actually manage and the number of parcels that are impacted by this ordinance. We’ve got 39 percent increase. It’s not a two- or three- or four-fold increase, it’s a 39 percent increase. It’s not as significant as maybe what you’ve heard in the past,” he said.

  • Terminology. Some of the language used in the ordinance, including the task force’s proposed revisions, has been picked out as either too vague or too specific. Harpring raised an eyebrow at a requirement in Ordinance 2011-12 that trees removed from the 50-foot zone be replaced with a sapling that is 1 inch around at 4 feet up the trunk. Digging up a native sapling that size and replanting it properly, according to his research, would entail excavating a multiple-feet-wide-and-deep hole to unearth the root system and replant it — all done with hand tools, since motorized equipment isn’t allowed in the 50-foot zone. Or else buying a sapling from a plant nursery.

“It’s nonsensical. Why is that in there? And does it say the tree has to be alive? It doesn’t. Technically, I could cut dead trees down, band them together, plunk them in the ground and meet that requirement,” he said.

Oliva, in her comments June 3, cited “significant,” “migration corridor,” “public prosperity,” uncontrolled use” and “riparian ecosystems” as being, “Subjective, broad-based, ill-defined and vague terminology. The lack of definitions leaves this ordinance open-ended with no specified boundaries for the landowner to clearly understand what they are responsible and liable for. … These examples, among others, create confusion for the public and make equitable enforcement impossible,” she said.

Ostrander said the task force and administration have made some editing recommendations to clarify the language and the intent of the ordinance.

  • Issues of cost have been the other major concern cited by opponents. On a smaller scale is the issue of fees. For instance, Ordinance 2011-12 required $300 for a conditional-use permit. That’s since been waived, though Oliva said she’d still like to see per-day fines that can be assessed for violations be addressed.

On a larger scale is the cost of managing the expanded habitat protection zones.

“Any vast increase in regulatory authority requires prior competent analysis of the potential cost to the borough. To do otherwise erodes confidence of the public about the borough’s capability of managing taxpayer’s dollars,” Oliva said.

Yet others have requested that the borough go to additional lengths that would incur greater costs, such as conducting scientific studies on the borough’s anadromous streams to demonstrate harm is being done to justify the expanded protection zones.

“No reliable scientific studies conducted in the Kenai Peninsula Borough were produced that prove harm or potential harm to the water bodies added to (borough code section 21-18, governing the anadromous habitat protection zones) by Ordinance 2011-12,” Oliva said.

Mayor Navarre has committed to bringing a fiscal note to the assembly at the June 18 meeting with his administration’s estimate of the costs associated with the task force’s recommendations.

  • The assembly’s vote on the task force’s recommendations has been a long, contentious time coming. Ostrander lauded the task force’s efforts to address concerns with Ordinance 2011-12.

“A lot of the changes you see in this amendment are a direct result of public testimony heard over the last eight and a half months,” he said. “… Ultimately, the recommendations of the task force and, I think, the ordinance in front of us, results in a habitat protection ordinance that has struck a much better balance between property rights and the protection of anadromous fish, which are a resource that are owned by all the residents of the borough.”

Opponents, though, still want a repeal, either to start the process from scratch or to scratch the expansion altogether.

“My recommendation is they allow this thing to be totally repealed and notice everyone who is going to be impacted — basically, if you live on a navigable water body,” Harpring said. “People who are well-meaning were trying to create an ordinance when they have no life experiences of owning properties on the rivers. Get the residents involved. (What they create) could have a lot of the same points in it, but it would have things that are applicable to people who actually own properties on these rivers, lakes and streams.”

Assemblyman Bill Smith, who originally proposed Ordinance 2011-12, said he hopes people can get past the issues with that ordinance and recognize the changes that the task force made.

“Basically, 2011-12 is a dead horse. It’s gone. You can beat it up all you want, but I can’t see the assembly is going to maintain that. You will see that there are really significant improvements in favor of the property owners in (what the task force recommends),” Smith said at the June 3 assembly meeting. “If you want improvements for the property owners in (the anadromous streams code), then you should support that part of the (task force’s proposed substitute ordinance). It doesn’t make any sense to have this blanket opposition to something when I and others made really significant efforts to listen to what people said and make amendments that made sense.”

Navarre likewise gave kudos to the task force, and invited public comment at the June 18 meeting.

“It was a very open and deliberative public process,” he said. “I encourage people who are both for and against this ordinance and habitat protection to come out to the assembly meeting in June and weigh in on this issue. That is the public process. The task force effort was really an effort to try to find some common ground and see if we could put together some recommendations in place. … I think they did an excellent job.”

The assembly meets at 6 p.m. June 18 in the assembly chambers downstairs in the George A. Navarre Administration Building on Binkley Street in Soldotna. More information about the anadromous streams issue can be found on the borough’s website, www.borough.kenai.ak.us, as well as on the website of the Citizens 4 Responsible Waterfront Land Use group, at www.c4rwlu.org.

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

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