By Hal Shepherd
While a representative for the Alaska Division of Mining Land and Water was making a presentation during Senate Resources Committee hearings on SB 26 in the State Legislature last week, the committee asked him who would be affected by the bill. Remarkably, the response was that the bill, which would limit those who are authorized to apply for an instream water right under the Alaska Water Use Code, to only state or federal government agencies, would affect only a few private individuals and several dozen non-governmental entities.
The failure of the division, however, to mention that SB 26 would also prohibit Native Alaskan Tribal Governments from applying for instream flows, is perhaps, the biggest indication that the Bill represents the latest tactic in Governor Parnell’s ongoing campaign to quickly and quietly privatize Alaska’s water resources.
The State, for example, already, routinely, processes water use applications for mining, oil and gas uses, while placing on the back burner, simultaneously or previously filed applications to keep water instream for healthy fish and wildlife habitat. Similarly, the division often allows the energy industry to take water without, even, filing an application.
That SB 26 takes the State’s legally questionable water right permitting process a giant step further, is illustrated by the fact that, in addition to the prohibition on instream flow applications, the bill contains numerous attacks on the rights of citizen’s and tribes to protect Alaska’s water rights.
These include limits on public comment or appeals when the State issues water right permits, but only for the majority of individuals and entities that would be impacted by the water taken out of stream; eliminating restrictions on transferring water rights and increasing the amount of water that can be obtained without applying for a permit.
More to the point, the fact is that, such, privatization of water, which attempts to marry the profit motive to something that people need to survive, doesn’t work. The increasing commodification of water on a global scale, for example, prompted the United Nations Committee on Economic, Social and Cultural Right’s, in 2010, to adopt a resolution stating that the “human right to drinking water is fundamental to life and health. Sufficient and safe drinking water is a precondition for the realization of human rights.”
SB 26, which was introduced by Gov. Parnell after he noticed that some of the recent instream flow applications were annoying the resource extraction industry, therefore, represents the failure of government entities in the United States to recognize the human right to water.
Efforts by citizens and tribes to prevent the reduction of stream flows needed for fish, destruction of habitat and toxic effluent from industrial development, however, are also protected by the Alaska state Constitution which, under Article VIII, expressly states that water appropriations shall not have precedence over “general [public] uses for fish and wildlife.”
Due to the political fall-out of the impact of its “No Human Right to Water” on tribal governments and communities in Alaska, therefore, its no wonder that the Governor wants to keep quiet that, particular aspect of the Bill.
In an effort to defend these rights, conservation and tribal organizations have lined up to tell Senators that it is critical for Alaskans to have a direct voice in decisions affecting our shared resources and to suggested amendments to SB 26 and its companion in the House (HB 77) that would, at least, preserve existing rights to protect water resources.
The good news is that, although the proposed amendments were rejected by both the Senate and House Resources Committees, opposition to the bills, so far, has slowed their progress and more hearings may be held on them this week. We still have a chance, therefore, to urge the legislature not to strip away the rights of citizens and tribes to keep water in our streams for healthy fish and ask it to reject any legislation that ignores Constitutional and other rights for the majority of Alaskans who depend on water resources for health and welfare.
Hal Shepherd is the director of the Center for Water Advocacy.
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