Instream Flow - Threat or Opportunity?

 I've sat through my share of meetings in 22 years of working on instream flows for the department, but an exchange of words from one in particular has stayed with me.  The meeting was in the fall of 1985, the key participants were former State Engineer George Christopulos and former Chief of Fisheries Joe White, and the topic was the pending instream flow legislation that would be considered (and ultimately passed) by the 1986 legislative session.  Though I was still relatively new to the business, I was fully aware that some 19 pieces of instream legislation had been defeated in the preceding 12 years and that traditional water users strongly opposed a law that would protect water in stream channels for fisheries.  So it was somewhat of a shock to hear Mr. Christopolus express his support for the pending legislation with the observation that instream flow legislation wouldn't be the great threat that instream flow opponents feared or the salvation of rivers that supporters hoped for. 

Today, almost 18 years after passage of instream flow legislation those words ring as true as they did in 1985.  However, one thing that hasn't changed is the fear and antipathy of a relatively small but vocal number of instream flow opponents or the desires of instream flow supporters that the state will do more to protect existing healthy streams while restoring degraded streams to better ecological health.  To put these sentiments in perspectives, it is helpful to look at facts and actual events.

 What's been accomplished under our current instream flow law so far?  As of January 1, 2004 the department has filed for 89 instream flow water rights.  Of these, 33 have been approved by the State Engineer and passed on to the Board of Control for final adjudication.  Of this number 4 have actually been adjudicated.  These filings have been made to protect natural base flow conditions on about 417 miles of streams, mostly on state and federal lands.  Only 3 filings have been made on streams passing through private lands - all at the request of the landowners.  The priority dates of all filings are from 1986 to 2003, which makes them junior to all previously issued water rights.  This means that all water rights that were applied for before instream flow water right applications were submitted are allowed to take their legal limit of water before water can be left in the stream for fisheries.

 Many of the streams where we have filed for instream flow water rights are among the more popular with resident and non-resident anglers.  Instream flow water rights have also been filed on many of the streams that support remaining populations of our native cutthroat trout.  This is important considering that all four of our native cutthroat trout have been petitioned by third party interests for classification as threatened or endangered by the U.S. Fish and Wildlife Service.  If any of these species were to be listed as threatened or endangered, management authority for the fishery would shift from the state to the federal government, and land management decisions on associated watersheds could be regulated much more than they are today.  Securing effective instream flow water rights is one way to help prevent such listings.

 What harm has occurred?  Wyoming's instream flow law includes extensive measures to identify and prevent any instream flow right from harming anyone or any water right.  For example, the law requires the Water Development Commission (WDC) to do hydrologic feasibility studies for each instream flow water right filing.  In addition, the law requires the State Engineer to conduct public hearings for each application before he issues the instream flow water rights.  Despite this intense scrutiny and opportunity for public input, not one legitimate instance of injury to an existing (senior) water right has been documented.  What's more, to date there have been no calls for regulation of other water rights to provide for instream flows.  The fact is, the process by which the state sets aside water for maintaining our world class fisheries with an instream flow water right is done in a very public, very conservative manner that incorporates limitations and requirements that are not imposed on any other kind of water right.  

Most of the streams where instream flow water rights have been requested are on public lands for native cutthroat trout like this segment of the upper Greys River that is home to native Snake River cutthroat trout and very popular with anglers.

 There have been a few situations where an instream flow water right has affected a junior (filed after the instream flow right) water right holder's ability to divert water.  In these instances, those junior water rights cannot divert any water unless there is more water in the stream than is needed for instream flow.  This "affect" is not an injury but is the same consequence that exists whenever one water right is filed ahead of another.  Quite frankly this is precisely how the state's system of prior appropriation is supposed to work.  The truth is if instream flow water rights didn't have any effect on junior water rights, there would be no reason to file for them.

 An occasional complaint about instream flow water rights is that they do or will affect the state's ability to use our share of water in rivers that flow from Wyoming that is allotted to us under various interstate compacts or Supreme Court decrees.  The fact is, none of the water that Wyoming is allowed to use for consumptive purposes according to these agreements and Court rulings has been, or can be diminished by an instream flow water right.  These legal instruments are quite clear that the water set aside for Wyoming's consumptive use is ours to use in perpetuity, regardless of how we use it or even if we use it today.  Even if the State Engineer were to approve an instream flow filing all the way to any of our state borders, state law is equally clear that anyone may divert instream flow water within a mile of the border for consumptive purposes. 

 Three of the 89 instream flow segments we have submitted are located on private land.  But none of the landowners who requested the state obtain instream flow water rights on their property has been harmed because the law neither allows nor requires any public access to stream segments that have instream flow water rights. 

The reality is that not one instream flow filing has harmed a single water right holder nor can they.  Neither have they in any way affected the state's ability to use any of the water it is legally entitled to.  Lastly, they have not harmed any other property right interest.

 What opportunities exist?  Wyoming's instream flow law is a valuable tool to help protect some of the most important stream fisheries in the state.  However, several opportunities exist to allow the state to do a better job of managing water and fisheries for today's residents and tourists as well as the enjoyment of future generations.

The town of Pinedale, wanted to use some of the water they own in Fremont Lake for instream flow in Pine Creek, but the process of doing that has proven much more complex and controversial than they expected.

 One of the good things about our law is that it provides the opportunity to use water stored in reservoirs for instream flow.  Unfortunately, this has proven very difficult and contentious.  As an example, the Town of Pinedale has tried to use a small portion of storage water rights they own in Fremont Lake for instream flow in Pine Creek on a temporary basis.  This proposal seemed like a perfect fit under our law, however, it has met with numerous bureaucratic delays, cost the Game and Fish (who is legally required to act on the town's behalf) and WDC over $50,000, and generated strong opposition from local irrigators who didn't even own the water the town wanted to temporarily use for improving the Pine Creek fishery.  There is room to improve this opportunity, not only for Pinedale, but many other communities in the state.

 The law also allows individual water right holders to change the use of a right from one use (irrigation) to instream flow.  However to do so, they must give up ownership of those rights in perpetuity to the state (not the Game and Fish).  In spite of sincere interest by some ranchers to restore stream flows and improve fisheries on their ranches, not one person has opted to give up their valuable water rights to the state.  To date, this has been true too for the Game and Fish Department, though situations may occur in the future where such a change in use might be desirable.  The fact is, we value our water rights like any other private landowner and want to maintain as much flexibility over their use and ownership as we can.  There is a need for better opportunities for private parties who own water rights to temporarily change the use of those rights to instream flow without giving up ownership to their water rights or the ability to some day return them to their original use when their ranch management objectives change.  Though there are complex issues associated with this, several other states have found ways to do this without harming other water users and we may find merit in adopting some of the good parts of laws in other states to offer our citizens the same benefit.

 The Bottom Line - In spite of all the accusations and controversy surrounding instream flow, there has yet to be found one legitimate case where instream flow has harmed or is a threat to any existing use of water or anyone's property rights.  On the other hand there does appear to be much opportunity to expand the ability for instream flow to better meet the needs of all Wyoming citizens.  Indeed, our constitution and statutes are very clear that the ownership of water in our streams and lakes and the ability to use water for beneficial uses, whether consumptive or non-consumptive, extends to all of our citizens.  Instream flow water rights are owned by the state – that's all of us – and are one of the most important tools available to provide healthy streams and fishing opportunities for today's citizens and those who will come long after us.