State of Alaska Continues Slow Progress in Adjudicating Instream Flow Water Rights

The State of Alaska’s Department of Natural Resources (DNR) continued its slow and steady progress to issue the first instream flow water right to a non-governmental organization with a February 18, 2015 notice requesting comments on an instream flow water right application by the Chuitna Citizens Coalition Inc. (Chuitna).

Parties wishing to comment on the application must do so by March 4, 2015.

As we described in a previous blog post, instream flow water 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 water 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.

Chuitna originally filed its application in 2009 but it languished for over two years until Chuitna brought suit over DNR’s delay in 2011.  In October 2013, an Anchorage trial court ruled in Chuitna’s favor finding that DNR’s over-long delay violated Chuitna’s due process rights.  A little more than two years later on February 18, 2015, DNR published notice of the application, which is the first step in the public portion of the process for adjudicating the right.

This notice comes a little more than six months after DNR’s publication of notice for an instream flow water rights application by the United States Fish and Wildlife Service.

Though DNR appears to be picking up the pace, there are several hundred more applications waiting in the wings.  Whether DNR can keep up its progress in the light of impending cuts to the state government’s operating budget remains to be seen.