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Instream Flow: Wyoming
In the West, water is power, and power is never relinquished without a struggle. For more than one hundred years water power has been wielded by irrigators, diverting and using water under state law. In 1986, the Wyoming State Legislature passed a law recognizing that leaving water in the stream for fisheries is a beneficial use. The struggle for water power has intensified ever since.
The settlement of Wyoming depended on consumptive use of water -- that means taking water out of the stream and putting it to work for irrigation, industrial or municipal use. In the past three decades a competing concept -- instream flow -- is shaping the debate over how water is used and who makes the decisions.
Laurie Goodman: "There is a growing instream flow movement throughout the West. And I think it's reflective of the evolving economies that are happening in the West right now and a change from sole dependence on agriculture and looking at other values that are now coming forward."
Patrick Tyrell: "The Wyoming instream flow statute passed in 1986 and it does define the instream flow and leaving the water instream as a beneficial use -- that it would be to maintain or enhance fisheries."
Dan Budd: "I was involved in the Legislature when the instream flow laws were proposed and of course resisted them with all of my ability. You can't eat recreation, and you can't eat scenery."
Tom Annear: "If development comes to the Green River basin . . . we would at least have that safety net, called instream flow water right that would let you keep a little of that water in the stream."
Dan Budd: "My objection to the instream flow is that under Wyoming water law, it ensures there will be instream flow because of prior appropriation doctrine, what the return flow returns back into the river to keep the river alive. Before irrigation some of these streams dried up because they didn't have the bank storage to keep the stream alive during the long period when you'd have short water years."
Under Wyoming law only the state Game and Fish Department can apply for an instream flow permit. In the 16 years since the law passed, the agency has made 83 instream flow applications, of which only 17 have been approved.
Tom Annear: "It seems to be a different pace than when you look at other water rights during that same time period. I think there have been over 75,000 water rights for all other purposes applied for in the past 16 years."
Cale Case: ". . . we've only managed to protect 50 miles of river in that whole time. The last application was approved in 1996. They've averaged about one a year, or maybe less than one a year. So it's kind of been a rough go."
Anglers are not the only advocates of greater flexibility in the instream flow law. Municipal and economic development officials, and ordinary citizens, want reliable water flows through their towns.
Pinedale asked the state for a temporary water use agreement. The plan was to take their own stored water from Fremont Lake and use it to increase the flow in Pine Creek in late summer. They found the water could far more easily be diverted for a stock tank, a pipeline or highway construction project but leaving it in the stream is not so easy.
Patrick Tyrell: "Temporary water use is not the proper vehicle for protecting water as an instream flow. You need to follow the process the Legislature has outlined to obtain an instream flow."
Rose Skinner: "I've been pretty much assured by those people that there's a way to do this. But it's never been done before, the way we're doing it, so we're kind of plowing new ground."
A pollution buildup in the Middle Popo Agie River alarmed Lander citizens last summer.
Cale Case: "The river was actually posted for restrictions on swimming, being in the river. The river I grew up on and played in all my life. That's very disturbing. The reason it's impaired is because of ... warm temperatures, low flow, very stagnant water. I proposed a bill to allow agriculture users of water to temporarily give or sell their water for the purpose of being used for instream flows."
Senator Case's bill fell one vote short of introduction during this year's legislative budget session. That close vote signals that the issue won't go away.
Tom Annear: "It reflected this growing interest in the public, and particularly municipalities in Wyoming, to get more flexibility in administering Wyoming's water resources, so that more people can get more benefit from Wyoming's streams, the water in our streams, more easily."
Laurie Goodman: "There's all sorts of fears and misunderstandings and potential threats about the changes in store. So I think that it's a movement similar to what happened in 1986 that will have to start at the grassroots, among the communities that find the water laws aren't reflecting or allowing their needs."