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2006 Alaska Attorney General Reports and Opinions 1 (2006)

handle is hein.sag/sagak0011 and id is 1 raw text is: MEMORANDUM State of Alaska Department of Law The Honorable Mike Menge Commissioner Alaska Department of Natural Resources Date: File No.: Telephone: January 11, 2006 661-06-0264 269-5235 Subject: From: Steven G. Ross Assistant Attorney General Natural Resources Section Anchorage DNR Deputy Commissioner's Authority under AS 41.14.840 to Require the Submission and Approval of Plans and Specifications for a Fishway or Other Device for Efficient Fish Passage Prior to Construction of Any Dam or Other Obstruction Across a Fish Stream On behalf of the Alaska Department of Natural Resources (DNR) Office of Habitat Management and Permitting (OHMP),' your office has requested our opinion on whether the deputy commissioner of DNR has authority under AS 41.14.840 to require the submission and approval of plans and specifications for a fishway or other device for efficient fish passage prior to the construction of any dam or other obstruction across a stream frequented by fish.2 We have also considered the following related question: Under what circumstances is it appropriate for the deputy commissioner to exercise discretion under the statute? As discussed below, it is our opinion the DNR deputy commissioner has this authority under AS 41.14.840 and that the deputy commissioner has the ability to exercise discretion under the statute so long as that discretion is exercised consistent with the overarching statutory responsibility to ensure efficient fish passage and protect fish. I OHMP is an office within DNR that works to preserve the state's fishery resources by protecting the areas fish need to complete their life cycles. In 2003, fishway permitting and fish habitat permitting were transferred from the Alaska Department of Fish and Game (ADF&G), Habitat and Restoration Division, to OHMP. See Executive Order No. 107 (2003). 2 The statute actually uses the word built, which appears to have a broader definition than the noun construction or the verb construct. See The American Heritage Dictionary of the English Language 250, 404-05 (3d ed. 1992). To:

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