BOARD02563

• Board Meeting Date: 9/13/2004
• Description: Western States Instream Flow Programs Comparison Study
• Board Meetings - Doc Type: Memo

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DRAFT State by State Descriptions ofInstream Flow Protection DRAFT
State: Alaska

General Water Rights System

. When Alaska was admitted to the Union in 1959, the framers of the constitution recognized the importance of
Alaska's water resources in Article VIII of the constitution.
. Alaska's Constitution provides that the state's wa1er resources are to be allocated to beneficial uses under
the doctrine of prior appropriation. [Alaska Constitution, Article VIII, Section 13]
. Appropriation by prior right is subject to public water supply, the only expressly recognized preferred use.
Appropriation by prior right may also be subject to other preferences established by law and to the general
reservation offish and wildlife. [Id.]
. The Alaska constitution has been interpreted to confer state waters to the public trUSt. "Wherever occurring
in their natural state, fish, wildlife, and waters are reserved to the people for common use." [Alaska
Constitution, Article VIII. Section 13]
. After statehood, Alaska's early legislation further recognized the importance of state water resources. Alaska's
1966 Wa1er Use Act established what most consider to be a pure prior appropriation water rights system. [AK
ST 46-15] The Alaska Department of Natural Resources (ONR) is assigned the authority to adminis1er the Act.
DNR evaluates all applications for new, leased, or transferred water rights. The Act generally provides:
. Procedures to maintain existing rights and obtain new rights to divert, impound, or withdraw surfuce and
ground waters in the state;
. Procedures for informal public notice and review, prior to Ibe issuance of a permit [AK 46-15-133]; and
. Abandonment procedures [AK 46-15-140].
. Note: Water ri ts in Alaska are ro' ated throu use of a water ri ts

. Instream Flow Legal Recognition

. Reservations for instream uses, pursuant to Alaska Constitution. Article VIII, Section 13, was further defined in
Alaska's 1980 Instream Flow Law. The 1980 amendments define instream reservations as "an appropriation of
water." AK ST 46-15-145
. Although defined as an "appropriation", insll'eam reservations are held to a greater scrutiny Iban consumptively
used appropriations. Instream reservations are subject to review every ten years to verify that:
. Ibe pwpose for reservation continues to be valid
. the need for the reservation continues to exist
. there remains unappropriated water sufficient to fulfill the reservation
. the rights of prior appropriators continue to be unaffected [AK ST 46.15.145(1)]
. Instream flow review is also subject to public and agency notice requirements.
. Although in many cases Ibe adjudication of a reservation of water creates a priority date for a time prior to
judgment (e.g., as seen with many of Ibe National Forest water reservations), Alaska's instream reservations
a to confer no such s ial distinction.

Options Av~ilable for Instream Flow Protection

. State's resources managed as a public uust
. Public Interest laws are included in Ibe 1966 Water Use Act, requiring Ibe DNR commissioner to evaluate
public interest criteria when adjudicating water rights. This was Ibe primary tool before ISF legislation wsaa
added in 1980. Wilb it, Ibe DNR can condition permits to protect fish and wildlife. It doesn't; however, protect
unallocated water from future appropriations. Several aspects of Ibe original act relate specifically to instream
protection including AK ST 46.15.080:
(a) The commissioner shall issue a pennit if he/she finds that (4) the proposed appropriation is in Ibe
public interest.
(b) In determining the public interest, Ibe commissioner shall consider:
(2) Ibe effect oflbe economic activity resulting from the proposed appropriation;
(3) the effect on fish and game resources and on public recreational opportunities;
(4) Ibe effect on public heallb;
(5) the effect ofloss of alternate uses of water Ibat might be made within a reasonable time
if not recluded or hindered b the ro sed a ro riation.

A]aska

DRAFT

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