Instream Flows: Existing law
Pine Creek in Pinedale in October, 2006. Pinedale Online file photo.
Currently only the State of Wyoming can hold an instream flow water right
by Cat Urbigkit, Pinedale Online!
January 6, 2007
Wyoming has an existing instream flow law that is clear: only the state can hold an instream flow water right.
As Wyoming State Engineer Pat Tyrrell explained in the past, "As a bit of history, the reasons behind the original language in the statute requiring that only the state can hold an instream flow water right arise from the notion that water development needs and instream flow reservations could both lead to water scarcity. The private ownership of instream flows could invite, it was theorized in early debates, environmental interests with anti-development postures to tie up the water rights on a stream, leading to a future scarcity of water for all other uses. Because instream flow water rights are virtually unabandonable, the prospect of this happening was scary."
The instream flow statute also requires, "Waters used for the purpose of providing instream flows ... shall be the minimum flow necessary to establish or maintain fisheries."
To approve an instream-flow permit application, the state engineer must determine that no injury will occur to other water rights and that the instream flow will not impair or diminish the rights of any other appropriator in Wyoming. There is no provision in state law for abandonment of an instream flow right – it is a permanent right, unlike any other class of water rights, which can be subject to both transfer and abandonment.
Pinedale’s history on the Pine Creek instream use issue is long and somewhat complex.
In 1988, Highland Irrigation District petitioned the State Engineer’s Office for the abandonment of the 9,844-acre-feet of storage rights the Town of Pinedale held, seeking to have the right assigned to the district. Highland took this action in response to word that negotiations were occurring to sell the water out of the community.
Since the Town hadn’t made beneficial use of its water as called for by statute, its water right was vulnerable to abandonment proceedings. The district’s petition noted: “It is the intent of the petitioner to make beneficial use of the water for which abandonment is sought and, thus, to preclude the possibility of said stored water leaving the geographic area in which it is stored, thereby depriving said area of the essential use of said water in years when there is inadequate precipitation to maintain the economic stability of the local area, and further to protect said water for future municipal use with minimal future impact upon local agricultural needs.”
Highland took action quickly, knowing that such an abandonment proceeding was being considered by entities outside the community as well. Highland beat the other interests to the State Engineer’s Office.
Highland eventually voluntarily withdrew its petition for abandonment and the State Board of Control granted the Town an extension of five years within which to make beneficial use of its stored water and was required to make annual reports of its water use to the State Board of Control. Pinedale was again granted a five-year extension of time for beneficial use in 1998.
With the five-year period long past, Pinedale was due to demonstrate beneficial use of its water in 2003. Instead, it filed for and was granted another five-year extension to demonstrate beneficial use, according to Henderson.
The Town has tried numerous efforts at achieving its vision of an instream flow, but none of the proposals comply with existing law and instead, seek exception from the law.
In March 2006, it was reported that in 2005, for the first time, the Town of Pinedale released all of its Fremont Lake water storage right. According to Wyoming Water Commissioner Chris Carlson, in water year 2005, Pinedale released 9,810 acre-feet of stored water.
Water Superintendent Jade Henderson said at the time that the Town reported that it released all its stored water right, and claimed that the water was put to beneficial use. However, some of the water “stayed in the stream,” so it was an unprotected use since this use is not part of the Town’s permitted water right. Since only the State of Wyoming may hold an instream flow right, Pinedale can’t really claim that its water went for instream flow since the town doesn’t hold an instream flow right.
The Town of Pinedale’s water right at issue is actually a right “of use” that comes with specific terms – it is not an opened-ended property right. The Town’s permit has a 1931 priority date, for "fish, irrigation, industrial, manufacturing, municipal, recreational and power purposes."
The process for the Town of Pinedale to achieve another instream flow right is fairly simple: It merely needs to permanently transfer its Fremont Lake storage water right to the state. But that would mean that the Town would give up ownership of the water right.
Pine Creek’s Instream flow
Pine Creek’s legally designated instream flow uses both natural flow and storage. It was approved by the Wyoming State Engineer in December 2003 and provides for natural flows for the 8.2-mile segment of Pine Creek from the dam to the confluence of the West Fork of the New Fork River, in the following amounts: December through March, up to 20 cubic feet per second; April, up to 26 cfs; June, July and October, up to 40 cfs; and up to 32 cfs in November.
In addition, the state was granted the right to use the Wyoming Game and Fish Department’s 952.95 acre-feet storage right under permit Nos. 4453 Res. and 4465 Res. That water is to be used for fish propagation and can be released from the reservoir “to support fisheries in Pine Creek below the reservoir.”
Although the state’s instream flow application sought 40 cubic feet of water per second year-round, a Wyoming Water Development Commission report determined that there was no unappropriated flow in the top reach for any month of the year; only October had the requested 40 cfs available in the middle reach; and the lowest reach had the requested amount available only in October and November. The rest of the months were short of the requests by at least 10 cfs and up to 40 cfs.
The total amount to be released for instream flow under either of the two instream flow permits cannot exceed 40 cfs, “the maximum beneficial use rate requested by the Wyoming Game and Fish Department for Pine Creek.”