Court remands appeal on water permits to DNR

At issue is public notice, proper agency procedures for water use from gravel mine reservoirs filled by spring flooding from the Kuparuk River

Kristen Nelson

PNA News Editor

In an Oct. 9 decision, Superior Court Judge Sigurd Murphy has denied portions of a Greenpeace appeal of North Slope water permits and remanded other portions to the Department of Natural Resources for hearing.

At issue are water use applications, permits, extensions of permits and appropriations, some dating back to the 1970s, by BP and predecessor Sohio Alaska Petroleum Co., for use of water diverted from the Kuparuk River in the spring to reservoirs adjacent to the river created by gravel mining.

Greenpeace appealed the water use permits administratively to DNR after the organization reviewed the permits and talked to state personnel in late 1998 and early 1999 when BP was permitting an ice road to Northstar.

Judge Murphy found that public notice was given for water use authorized in the 1970s and early 1980s.

But in 1985, “without prior public notice or a hearing,” the judge said, DNR issued a certificate of appropriation for 60 million gallons.

In 1990, after the completion of a fifth reservoir in the area, BP applied to amend the certificate of appropriation to increase the annual withdrawal from the Kuparuk River to 100 million gallons.

Judge Murphy noted that proper public notice for that application was given in December 1990.

DNR issued an amended five-year water permit to BP in early 1991.

In 1995 BP applied to convert the permit to a certificate of appropriation, as had been done in 1985. DNR suggested, instead, that the permit be extended for another 10 years or that BP use the existing certificate with a new permit or temporary permit for the additional water. BP then requested conversion of the permit to a certificate of appropriation.

“DNR’s files, however, do not indicate that a new certificate of appropriation or a formal permit extension was ever completed and there was no public notice and no public hearing,” the judge said.

Judge Murphy noted Alaska statute requires public notice and requires that the applicant provide “some specificity concerning the proposed use of the water.” If statutory requirements are met, the permit holder may receive a certificate of appropriation which is, the judge said, “a full and permanent property right in a quantity of water.”

The judge ruled that Greenpeace actions against permits issued in 1976, 1978 and 1979 pertaining to the first three Kuparuk reservoirs were not timely because there were opportunities for objections to be filed at that time and Greenpeace did not object.

The Greenpeace administrative appeal of water utilization from the fifth Kuparuk reservoir was timely, Judge Murphy ruled, because “genuine issues did exist relative to whether or not BP utilized water from the fifth Kuparuk reservoir, without legal authority, for the ice road construction in the 1998-99 season.”

“This decision should not be viewed as providing support for either the agenda of environmentalists or oil companies;” Murphy said in, “rather, the purpose of the same is to protect the legal rights of all individuals and entities within the parameters established by the law of Alaska.”