1. Fish Habitat Protection in Alaska ADF&G Division of Habitat Statutory Authority
Long-term Challenges to Alaska’s Salmon Populations Workshop
November 1-3, 2016
Anchorage, AK
Our T16 authority is the foundation for most of the work we do everyday and plays an important role in protecting fish habitat throughout the state.
*Eccles Creek culvert replacement in Cordova, 2010
Ron Benkert
Habitat Biologist
ADF&G Division of Habitat
Palmer Area Office

2. Discussion Objectives
Provide an overview of The Division of Habitats Statutory Authority for fish habitat protection
Identify strengths and
limitations of ADF&G Authority
Practical application of ADF&G
Authority – Fish Habitat Permits
In addition to an overview of our statutory authority, I will also discuss the strengths and limitations of our authorities and a provide a brief review of our fish habitat permitting process.
*twin culverts on the Copper River Highway

3. ADF&G Habitat Division
The Habitat Division has been delegated the Department’s authority for regulating activities in fish-bearing waterbodies and special areas, but we coordinate with staff from other divisions when completing our reviews. Habitat also coordinates all departmental comments on projects with the exception of large hydro projects and land use issues.

4. Division of Habitat Statutory Authority
THE FISHWAY ACT AS
ANADROMOUS FISH ACT AS
SPECIAL AREA PERMITTING
5 AAC
In 1959, the legislature enacted a Fish and Game Code that included statutory protections for fish passage and later fish habitat.
In addition to the authorities delegated to the Division of Habitat for fish passage and fish habitat protection, the Division of Sport Fish also has authority to regulate the handling and transport of fish. A Fish Resource Permit is required during construction for most fish passage projects.

5. Fishway Act
AS requires that any obstruction built across fish-bearing waters will provide for fish passage
The Fishway Act (or .841) applies to any stream with fish and requires that anyone proposing to build an obstruction must provide fish passage around or through the obstruction. The Ketchikan Creek fish ladder is an example of a structure that would meet this criteria, and the culvert shown on the right clearly does not meet the criteria of the Fishway Act.
The statute also requires that the fish passage device be maintained, kept open and unobstructed, and allow the free passage of fish.
AS :
If passage is considered impractical, the statute includes three possible options for mitigation which are rarely exercised. These include: paying into the fish and game fund, building a hatchery, or expanding an existing hatchery in the vicinity.
Examples: dams, culverts, bridges, water withdrawals

6. Fishway Act (.841) Strengths
Applies to all fish bearing streams (resident and anadromous) and all fish species.
Requires fish passage be maintained for the life of the structure.
Limitations
Applies to fish passage only
The primary strength of the Fishway Act is that it requires passage for all species of fish. If a structure such as a culvert is authorized, the structure has to maintain fish passage for the life of the structure.
The primary limitations of the statute are that it addresses fish passage only, so if a project affects habitat in any way beyond fish passage, we have no authority to address that under Most projects that require this type of permit are typically submitting stream simulation designs.

7. Anadromous Fish Act AS
ADF&G must specify those waters that are important for the spawning, rearing, or migration of anadromous fish
Any activity below the ordinary high water line of a catalogued waterbody may require a Fish Habitat Permit
The applicant must submit full plans for the proposed work
ADF&G will approve or deny the proposed work
The most well known of our statutes is referred to as the Anadromous Fish Act or “871”. The first part of the statute requires the Department to specify all the important freshwater anadromous habitat statewide. We have done that through the creation of and continued updates to the Anadromous Waters Catalog and Atlas Maps.
Permit application procedures and how applications are evaluated are described in the annual Anadromous Waters Catalogue, pages 4 and 5.
871 applies to activities that are proposed in specified anadromous waterbodies. It requires that plans for work are submitted to the department for review, and we then decide to either issue a permit for the project as proposed, issue a permit with specific conditions and stipulations, or deny the permit.

8. Anadromous Fish Act (.871) Strengths Applies to many activities
Applies to any life stage
Limitations
Jurisdiction typically limited to below OHW
Waterbody must be in AWC
Freshwater only
The primary strength of the Anadromous Fish Act is that it is broad in scope and applies to many activities below the OHW of anadromous waterbodies. For fish passage projects, this statute allows us to review designs and make decisions based on more than just fish passage. We can consider impacts to habitat or stream function and include requirements for streambank restoration and revegetation u/s and d/s of a new culvert.
Activities typically requiring an .871 permit include: docks, stream crossings, bank stabilization, bridges, utility crossings, culverts, etc.
Another limitation is that the waterbody must be included in the Anadromous Waters Catalog to be afforded protection under .871.
Finally, our authority is limited to freshwaters and some tidal areas. We have no jurisdiction in in the marine environment.

9. Fish Habitat Permits Applicant submits application
Habitat Biologist reviews and consults area staff
May be permitted as proposed or modified during review process
Emergency exemptions AS
Typical Stipulations
Timing
Reveg/Stabilization
Fish Passage
Notification
Overview of permitting process…submit plans and specs, we review and respond with any questions, consult area staff for any site specific concerns or to develop timing windows, and may request project modifications before a final permit is issued. This process can take anywhere from 2-6 weeks or longer depending on the proposed design and the available staff resources.
Increasingly, applicants are coordinating with us prior to submittal of permit applications and providing preliminary designs for review. Large Projects sometimes are negotiated years in advance of actual construction
Our permit reviews are site specific and the division does not have statewide design criteria – we do have an MOU with ADOT for design and permitting.
We do have emergency provisions in statute to issue oral authorizations for work and this can be accomplished by as well. We follow these authorizations with a formal permit after the emergency work is completed.

10. AWC Data Fish Resource Monitor GIS Data Google Earth (KMZ) Downloads
Atlas Map Downloads (PDF)
Updated annually
There are numerous ways for the public to access the data available in the AWC. Online interactive mapper on our website that also included Fish Passage Inventory data and Freshwater Fish Inventory data. GIS layers are also available for download on our website in addition to KMZ files for viewing the AWC in Google Earth. PDF copies of the USGS topo quads used for the official Atlas Maps are also available.
Remember that these data sets are updated annually, so if you are using GIS layers or KMZ files to determine anadromy, be sure you are using the most recent data set.
Additionally, Habitat has initiated a pilot program to create a GIS layer that will identify locations in SE Alaska where FH Permits have been issued. If successful, this information could be included in the AWC or another database.

11. Special Areas Anchorage Coastal Wildlife Refuge
Palmer Hay Flats State Game Refuge
Kachemak Bay Critical Habitat Area
McNeil River Sanctuary
Matanuska Valley Moose Range
Examples of types of Special Areas
Draft Special Area Management Plans are developed by the Habitat Division in consultation with the Wildlife Conservation Division and once comments have been addressed through the public review process, the plan is submitted to the legislature and adopted into regulation.

12. Public Participation in Title 16 Permits
Before the ACMP expired, DCOM coordinated public and local input and comments on all state permits for projects within the coastal zone.
Currently there is no statutory requirement for public notice or comments for Title 16 authorizations.
Discussions are occurring at ADF&G, ADNR, and the Governors office regarding this issue.
With the expiration of the coastal management program there is no coordinating agency for permits necessary to construct projects unless the project is a large project. DNR OPMP does provide coordination of some large projects. Some permits have agency or public notice requirements which help to keep all of us “in the loop”.
Other ways to participate:
Notify Habitat of observed potential violations or issues
Blocked culverts
Erosional areas
Work suspected of being conducted without permits
Issued permits are available to the public upon request – public documents – beta test in SE

13. Questions? Ron Benkert ADF&G Habitat Palmer Area Office (907) 861-3204
Questions?