My turn: Resolve mixing zones with a new law, not regulations

Posted: Tuesday, January 31, 2006

During his Jan. 12th State of the Budget address, Gov. Frank Murkowski said that "the state will retain the current regulatory prohibition on mixing zones in salmon spawning areas," the same day the Department of Environmental Conservation (DEC) adopted new regulations to this effect, exempting situations where salmon now spawn in a permitted mixing zone that was previously a nonspawning area - a noncontroversial issue. At a Jan. 20 hearing by the House Special Committee on Fisheries, Department of Fish and Game Commissioner McKie Campbell said that DEC regulations protect fish and urged the committee to "consider declaring victory."

Is this a victory or political doublespeak?

As Paul Harvey would say, here is the rest of the story. Alaska's water quality regulations currently prohibit, without exception, mixing zones in rivers and streams where anadromous or resident fish (e.g., trout and whitefish) spawn. DEC's adopted (but not yet in effect) regulations add lakes to this list, which is good. But they also remove the mixing zone prohibition for fish other than anadromous salmon, providing certain conditions are met.

Furthermore, the regulations provide a conditional rather than absolute prohibition of mixing zones in salmon spawning areas. DEC is to defer to Fish and Game "or" the Department of Natural Resources (DNR) regarding the spatial (where) and temporal (when) determination of a spawning area. This gives DEC the option to pick between agencies and to seasonally suspend the prohibition. In fact, DEC has already talked about allowing mining operations in water bodies when spawning salmon, eggs or larvae are not present. In essence, the adopted regulations have a built-in loophole that gives DEC the flexibility to negotiate wastewater discharge permits rather than just uphold a clearly defined standard, like the current regulations.

Another uncertainty is the protection afforded salmon in steams that are not catalogued. Water bodies not in the "Catalog of Waters Important for Spawning, Rearing or Migration of Anadromous Fishes" are not protected and more than half in the state have yet to be catalogued. Can DEC allow a mixing zone in a salmon spawning area not catalogued? Would the permit be exempted from protecting spawning areas if spawning is later discovered? Expedited cataloguing could minimize this possibility, which would require extra funding, but the budget address never covered the fiscal aspects of these new regulations.

The bottom line is that the adopted regulations give less protection to fish spawning areas and introduce uncertainty regarding protection of salmon spawning areas. Hard to call that a victory.

On the other hand, all those who earlier opposed DEC's mixing zone regulations, including the Kenai Peninsula Borough Assembly and the Homer City Council, have a better alternative. HB 328, introduced by Rep. Paul Seaton, and SB 225, introduced by Sen. Gary Stevens, have none of the ambiguity and possible loopholes of DEC's adopted regulations. These bills clearly protect spawning areas for resident fish as well as anadromous fish and correct the problem that current regulations impose on the few situations where salmon have spawned in a mixing zone after it was permitted.

Because of its obvious importance, the mixing zone issue needs to be resolved via statute rather than regulation. HB 328 and SB225 offer a simple, straightforward resolution to the problem and should become law.

• George Matz is issues coordinator for the Cook Inlet Alliance, based in Homer.

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