Challenged by a mine company, the state Department of Natural Resources says it was wrong to call the whole Taku River important habitat.
At state fish biologists' requests, DNR's Division of Coastal and Ocean Management, or DCOM, director Randy Bates on Jan. 30 designated the Taku "important habitat" from the mouth of the river to the border - not permanently, but for the purpose of Redfern Resources Ltd.'s application to haul barges year-round on the Taku.
It was the first use of the designation since the statute went into law.
But Redfern, owned by Vancouver-based Redcorp Ventures Ltd., complained. Bates reconsidered and decided Redfern was right.
The plan is to haul ore and supplies to the Tulsequah Chief mine in Canada on an air cushion barge year-round. In the summer, that means conventional barging with a shallow-draft tug. In the winter, Redfern wants a combination of amphibious vehicles to haul the barge over ice and across open leads. Many Taku fishermen and other river users worry the vehicles may harm sensitive habitat of the fish-rich river.
"Important habitat" here is a legal term. It means that Redfern has to tell state permitters how it will avoid, minimize or mitigate harm to the "special productivity" of the designated area.
Now the Taku is officially important habitat on the 16 miles from the mouth of the Taku to the Taku Lodge, where tidal influence ceases, and not important from the lodge to the border, another 12 miles.
Either way, the designation probably won't change the outcome of the project, according to Erin Allee of DCOM.
"Nothing in this designation diminishes Fish and Game's existing authority," she said.
Redfern needs a fish habitat permit from Fish and Game, which can put conditions on the company's activities and will include the upper Taku.
While state permitters described the designation as an extra level of scrutiny, there are no precedents to show the public how that scrutiny affects projects in general. This is the first time the "important habitat" designation has been invoked since the statute went into law in 2003.
"I think we are operating in rather foreign territory for almost all of us," said Tom Crafford, a large mine permitting coordinator, on the state's reexamination.
"Important habitat" was nonetheless important enough to Redfern that the company fought the designation with a statute-mincing legal analysis in a Feb. 6 letter.
Bates agreed with the company's main point that Fish and Game hadn't shown barging on the upper Taku would harm coastal waters. The tidally influenced area reaches downstream of the Taku Lodge.
Fish and Game was invited to show that upriver activities might harm down-river waters, but Habitat Division director Kerry Howard declined. The department had already given DCOM all the scientific information it had, she said.
"That's not to say that we agree that it's not important habitat," she said.
The company has complained that the state's permitting isn't predictable. Fish and Game asked DCOM to declare the habitat designation after Redfern submitted its application, and the company was apparently surprised by the move.
"Redfern is extremely troubled by the emergence of the IH (important habitat) issue in the middle of the ACMP (Alaska Coastal Management Program) review," wrote Tim Davies, manager of environmental and regulatory affairs, in its letter to the department.
Redfern also maintains that the habitat designation process is illegal because DCOM decides without involving the public, Davies wrote.
Redfern has suspended construction at the Tulsequah Chief mine site due to financial problems. The mine is 45 miles northeast of Juneau on the Tulsequah River, just north of where it runs into the Taku.
This designation is one part of a larger permit process that is now on hold. The state is waiting for Redfern to provide more information on the project.
As to when that may happen, the company did not immediately respond to a phone call Thursday afternoon. The company told state officials Thursday it was reassessing its strategy, according to Crafford.
"The ball fundamentally is in their court right now," he said.
Contact reporter Kate Golden at 523-2276 or firstname.lastname@example.org.