Transcript

Fassett: I'm an advocate for further change to the law

I was the guy who was the State Engineer when that law first passed in the State of Wyoming. I think my name is on 15 of the first 17, and the process is cumbersome. I think we had a long history of getting to the citizens' initiative as you indicated leading up to the law. I think it was 14 years of tremendous efforts, failed efforts, before the law first passed. The law did finally pass. You had a public and very open acknowledgement of instream flow as a beneficial use and indeed new priority permits began to come in the door. These are priority permits in the 1990's and the 2000's now, so you are still a hundred years behind everybody who had other water rights.

That process has worked I think fairly well. While the applications aren't being processed as quickly, the priority date was established the day those water rights applications were submitted, not the day that they get approved or disapproved later on. The Legislature also chose something very unique for the state of Wyoming in that it requires the Wyoming State Engineer to hold a public hearing before you issue any instream flow rights. No other water right in the state of Wyoming has to go through a hearing process; instream flows were written that way. It's also been, as Katherine Collins' piece indicated, 16 years. I am an advocate for further change to that law. We've got some experience now, we've got some history, we're learning where perhaps the law isn't everything that everybody thought it was. It's worked very well on those headwater streams where there isn't much competition for water. And where there isn't much competition on a certain stretch, that is where 2002 priority water rights can do you a lot of good. You are ahead of the 2003 potential new projects that might come in and create a problem. Where the law hasn't been used and where I think as Mr. Getches and others have indicated where we need to get water back into streams that have been de-watered because of prior appropriation, you need to change the use of those existing rights to instream flow. In our case, it is not a failing of the law. The law approved it in 1986 but our State Game and Fish Department has not come forward with a single request from a water right applicant -- either one they own or one they may have purchased or one that someone may have given to them -- and asked the state to change an old priority right to instream flow. But the law authorized it. So it is not always a problem with the law at this point but I think the process is evolving.

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