Alaska Fish Habitat Permit (12-AK-c)
- Be conducted below the ordinary high water mark of an anadromous stream; or
- Take any of the following actions:
- Construct a hydraulic project;
- Use, divert, obstruct, pollute, or change the natural flow or bed of a specified river, lake or stream; or
- Use wheeled, tracked or excavating equipment or log-dragging equipment in the bed of a specified river, lake or stream.
Fish Habitat Permit Process
12-AK-c.1 – Fish Habitat Permit Application
The developer must submit a Fish Habitat Permit Application to ADF&G - Habitat prior to beginning any construction of a project that is conducted below the ordinary high water mark of an anadromous stream or has the potential to impede fish passage. The developer must include the project’s timeframe and information about the type and purpose of the project, including plans showing site access, features and dimension, crossing sites, and any material removal plans. The application must also contain information about stream diversion, vehicles to be used, and precautions and rehabilitation efforts taken to protect fish and other wildlife. AS 16.05.871. The developer may also include information about any alternatives considered, but this is not required.
12-AK-c.2 – Review Application
Upon receipt, ADF&G - Habitat will review the developer’s application for a Fish Habitat Permit.
12-AK-c.3 – Does ADF&G – Habitat Approve the Fish Habitat Permit?
ADF&G - Habitat will issue a Fish Habitat Permit, unless it finds the project plans and specifications are insufficient for the proper protection of fish and game. If ADF&G - Habitat finds that the application is insufficient, ADF&G - Habitat will notify the developer and work with them to develop mitigation measures or project alternatives that will provide for the proper protection of fish and game. AS 16.05.871(d).
12-AK-c.4 to 12-AK-c.5 – Does the Developer Accept ADF&G’s – Habitat’s Decision?
The Anadromous Fish Act, which covers activities conducted below the ordinary high water mark of an anadromous stream, includes an appeals process allowing the developer to appeal ADF&G - Habitat’s decision. However, the Fish Passage Act, which covers activities within or across a steam used by fish, does not include such an appeals process.
If the developer disagrees with ADF&G’s denial of the Fish Habitat Permit that, if approved, would be issued under the Anadromous Fish Act, the developer may appeal the decision within 90 days of receiving ADF&G - Habitat’s decision or ask for a reconsideration of the permit application upon submittal of new or additional information. AS 16.05.871(d), 5 AAC 95.710.
12-AK-c.6 – Submit New or Additional Information
If the developer asks for a reconsideration of the permit application, the developer may submit new or additional information as an amendment to the original application or submit a new application. 5 AAC 95.710.
12-AK-c.7 – Fish Habitat Permit
If ADF&G - Habitat approves the permit application, ADF&G - Habitat will issue a Fish Habitat Permit to the developer. However, the developer’s activities may be subject to stipulations included in the permit by ADF&G - Habitat to protect fish populations and associated habitat.
If the hydropower project will be subject to a FERC license or exemption, ADF&G - Habitat personnel will work closely with their counterparts in the ADF&G’s Statewide Aquatic Resources Coordination Unit (ADF&G - SARCU) to ensure that any terms and conditions proposed for the FERC license by the ADF&G will not contradict stipulations or requirements included in the Fish Habitat Permit. Since ADF&G - Habitat’s statutory authority is limited to work conducted below the mean high water mark, ADF&G - SARCU may provide conditions and recommendations that are above and beyond the scope of ADF&G - Habitat’s statutory authority.
For more information on ADF&G’s process for issuing conditions or recommendations for a FERC license or exemption—in order to protect, mitigate damage to, or enhance fish and wildlife resources—see:
12-AK-c.8 – Appeal Decision (If Applicable)
As mentioned above, the Anadromous Fish Act, which covers activities conducted below the ordinary high water mark of an anadromous stream, includes an appeals process allowing parties to appeal ADF&G - Habitat’s decision. However, the Fish Passage Act, which covers activities within or across a steam used by fish, does not include such an appeals process.
Any person, including the developer or another interested person, may initiate an appeal of ADG&F - Habitat’s decision to approve a Fish Habitat Permit under the Anadromous Fish Act by requesting a hearing within 90 days of receiving ADF&G - Habitat’s decision. AS 16.05.871(d), 5 AAC 95.920.
The hearing request must identify the matter and state the factual and legal grounds for the developer’s request. Hearing proceedings are conducted by a qualified, unbiased, and impartial hearing officer. AS 44.62.350.
After the hearing, the hearing officer will issue a final decision, copies of which will be sent to all parties. AS 44.62.510.
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