Alaska Department of Natural Resources Seeks Comment on Precedent-Setting Instream Flow Water Right


Instream flow rights can be controversial among consumptive water users because they decrease the legally available supply of water for other uses that may arise in the future. Conversely, instream flow rights are often championed by non-governmental and other entities seeking to protect environmental values supported by maintaining specific water levels in a given waterbody. The holding of instream flow rights by the Federal government, whether based in state or Federal law, is particularly controversial in light of the tension between state and Federal water law systems and use. The Alaska Department of Natural Resources’ (DNR) consideration of the United States Fish and Wildlife Service’s (FWS) application for an instream flow water right could be precedent-setting in Alaska and beyond.

DNR opened the comment period on the FWS’ application for an instream water right on the Uganik River in Kodiak Alaska on August 1, 2014. A link to the notice is here. The water right is intended to protect fish and wildlife habitat, among other things. Comments are due to DNR by August 15, 2014. DNR is requesting comments from any interested parties on the application on whether it would adversely or positively affect them.  DNR is also requesting comments on whether granting the application would be in the public interest generally.

Alaska’s instream flow water right (or reservation as it is called under Alaska law) is unique in the Western United States. The State’s Department of Fish and Game often uses instream flow rights to reserve water in support of fish habitat. State and federal agencies and private individuals and organizations may also apply for instream flow rights under the program. Thus far, the State has granted several instream flow rights to other State agencies and one instream flow right to the Bureau of Land Management (for Beaver Creek). Few states recognize instream flow rights in their water law systems and even fewer allow non-state entities to hold such rights.

DNR’s progress on FWS’ application follows an Alaska State Court order requiring DNR to take concrete steps to process an instream water rights application filed by a non-governmental organization (court decision here) and coincides with efforts before the state legislature to enact changes to the instream flow water rights program. (See HB 77 from last session). What comments DNR receives on FWS’ application, and what action it takes, will be interesting to observe for those interested in the legal allocation of water between consumptive and non-consumptive uses in Alaska and other Western states.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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