Interview Transcript
Tom Annear
Q: Tell us a bit about Wyoming history and water development.
A: For the past hundred years, Wyoming's water development has been primarily focused on consumptive uses, settling the state, developing the lands, and developing the economy. That's been a trend that we've seen all over the West, and it's the way you settle new lands. In the last hundred years, I think we've developed about all the lands that we can easily develop now, but the interesting thing is that in spite of all that development, which often and usually takes water out of stream for development and use on land, there are still a lot of streams in Wyoming that warrant protection and there's a lot to work with still.
Q: Is building more storage a good way to enhance instream flow in the state? If not, why not?
A: Water storage is a tool for water management but it is not a good tool for providing instream flows. You need to realize that when you build a dam you flood a stream, and so if you are building a dam for instream flows, right off the bat you are destroying some of what you are trying to protect. But then it goes a little broader, a little further than that because when you build a dam, what the dam does, functionally, is it temporarily stores the water flowing into it but also traps the sediment the water is carrying and that sediment is what the stream uses to form and shape the channel and the fisheries downstream. When you temporarily store the water, the dams permanently stores the sediment. And when the water comes out of the dam it is what is called sediment-hungry. It's got a sediment load that it looks to pick up, and it goes about picking up that load right away below the dam. It gets it from the bottoms of the streams and the sides of the streams. What we see in all the big rivers in the state -- the Platt, the Big Horn, the Green -- is that within a fairly short period of time streams start deepening and narrowing, flows become faster, habitat types are simplified, our side channels and island habitats become perched and separated from the main stem of the river. We lose a lot of habitat, we actually lose more streams, miles and width of a stream, after a dam is put in than before the dams were put in.
Q: Imagine yourself standing on Warren Bridge, looking up river: what do you see?
A: Well, in terms of the river, I see a natural flowing river that flows much the same as it has for thousands and millions of years. We have an instream flow water right filed on that stretch of river, and frankly, the river would look the same whether we had that water right filed or not. One of the things the instream flow water rights do is they give you the opportunity to look through time, look into the future, and we don't know what the face of Wyoming is going to look like 100 years from now or 20 years from now, really. And what an instream flow water right does is it allows us at least the opportunity to decide how water can be used in the future for the various consumptive uses. If development comes to the Green River basin and demands are placed on the river that would take more of the water out that we see flowing today, well, at least you have that safety net called an instream flow water right that will let you keep a little bit of that water in the stream. In terms of the amount that we've protected, if you want to call it that, what we've filed for so far is a just a base flow, fish flows, that is enough to keep fish alive for parts of the year when flows get potentially depleted down to that level.
Q: What in your view does the instream flow "movement" in the western states mean?
A: It is kind of interesting because I have worked in Wyoming for 21 years with instream flows, and over that course of time, there really has been kind of a noticeable shift in the values of people and an awareness that waters of the state belongs to all the citizens and not just any one particular user group. And the instream flow movement itself, I think signifies a shift in economic paradigms as anything else, and what that means is that there is an added use and added interest to the existing economic paradigms -- irrigation, consumptive use -- that is still a legitimate part of the landscape, not only legitimate but necessary to maintain our lifestyle and the flows in lot of our streams. People think that instream flow has to be competitive with irrigation and that it's either/or. In fact irrigation is an important part of instream flow by virtue of flood irrigations, parallels over-bank flows or flooding recharges the water table and that flow returns to the stream in the late summer. And so this really is a changing economic paradigm, not just the angling public but a lot of the traditional consumptive users are seeing that there are values beyond traditional irrigation to the ranching operations and to the communities around Wyoming.
Q: What do you say to someone who says you can't eat recreation?
A: Eating is important and I wouldn't say it's not. The issue is not really how much money you can make with the water, but money is an indication of a value system. It's one value and instream flow is another value. It makes me think of the first time I took my 3-year old son fishing. We just fished a little stream with a little brook trout in it, and that first fish he caught, he just locked up and he just squealed and jumped. Immediately I thought a guy should know the value of a fishing day, about $57 a day at that time I think, and I just thought what a joke -- it's not just money, there's value in flowing water. For my son to catch that little brook trout, that river had to flow for a thousand years and I wouldn't give up that memory for a lot of food.
Q: Now let's talk about instream flow in terms of long-term water management decisions and the role of the public. Do instream flow rights tie up water in the streams and eliminate other possibilities?
A: Sometimes, the amount of water needed to maintain a fishery in Wyoming streams can call for a lot of water. When you compare the amount of water needed for instream flows to the amount needed for irrigation or some other consumptive use, it seems like a lot. But the reality is and the neat thing about instream flow water rights is that they form this sort of protection, a safety net that says we want to keep this river looking the way it is at least for now. It allows the state to, at some point in the future, if society decides that there is a higher use for that water, like with any other water right, that that water can go through a socially determined public process of allocation as opposed to what we have now, a bureaucratic permitting process where the water is just given away a little at a time till there is nothing left. By protecting waters with instream flow water rights for a period of time, it does shift it from a bureaucratic process to a social process with hearings and public meetings where people can decide what they want their world to look like. And of course, I want to point out that no water right holder ever anticipates giving up a water right, and instream flow is no different. But the reality is that all water rights are managed and conveyed at the discretion of the state.
Q: Tell us about Wyoming's instream flow statute. What can and can't the statute do?
A: In terms of what the statute can and can't do, that's really a matter of perspective. Certainly there are some people who look at the instream flow statute and think it's fairly limiting. When I look at the instream flow statute and fisheries managers look at the statute, I think it is a very enabling statute that has enough words and flexibility in it to allow the state do just about anything. One thing it doesn't do is offer much for a private individual. I know if a rancher wants to, for example, convert or change an irrigation use to instream flow, he can certainly do that, but to get the end result that he wants, he's got to go through a process of identifying just how much water he can legally convert. It's usually less than what he thinks he has, and then he has to give up ownership to the state of Wyoming. In the 16 years that we've had the law, I've had a lot of calls on this, and the phone has always gone dead as soon as I explained that to the guy on the other end of the line. The fact of the matter is, not even the Game and Fish Department really is interested in going through that process and having our existing water rights reduced and given to another branch of the state and removed technically from our control. The other thing that the instream flow law doesn't provide is an easy mechanism for communities like the town of Pinedale to take a quantity of storage water and use it for instream purposes. I think you probably talked to Rose Skinner about this, the mayor of Pinedale, and I've worked with Mrs. Skinner quite a little bit in the last six months or so. It's a real interesting fact that if the city wants to use some of their storage water for irrigation purposes or any out-of-channel purpose, they can do that with a piece of paper and sign with a pen and a couple of days mail time. But if they want to take that same quantity of water and leave it in the stream for their community and their kids and other values in the city, we've had to go through a process where I've had to do a detailed study on the stream. We've had to prepare an expensive map to go with an application that goes to the Water Development Commission, who does an expensive feasibility study. We then have to hold a hearing in the community. Then the state Engineer determines ultimately what the outcome will be. In this case that whole process is going to cost about $30,000 and take about a year compared to a stroke of pen and a couple of days mail time. So there's a difference there, and I think the public deserves a little more than that.
Q: In the past 16 years, how many stream segments are in which stages of adjudication? Is this a satisfactory pace?
A: In the past 16 years, the Game and Fish Department has submitted 82 instream flow water right applications. 16 of those have been approved, and there is a chance that few more will be approved in the future. 2 of those have been adjudicated. Of course, adjudicated means given a permit status, proof that the water has actually gone down the stream. In terms of whether that is a satisfactory process or not, it's certainly slower than any other water right process. I understand that water administrators in the state have wanted to go slow with instream flow water right application so they understand all the different applications and interpretations of the law. Still it seems to be a different pace than when you look at other water rights issued during that same time period. There have been over 75,000 water rights for all other purposes applied for in the past 16 years. During that same time, there have been 68,000 or so groundwater applications applied for, and that is part of that 75,000. We all know the controversy and concerns with groundwater -- coal-bed methane is a majority of those groundwater permits. But the process for those is a lot faster than instream flow water rights. When you think about it, they don't change anything. Their purposes is to keep things just the way they are -- they don't harm anybody; they don't dry up anybody's well or any springs. The only harm that instream flow water rights may cause someday is that they may either deny somebody the right to take water out of a creek 20 or 30 years in the future, an unidentified person, or it may make them think about where they take water out of the creek. An instream water right doesn't necessarily preclude taking water out of the stream, it just protects a segment.
Q: Some folks say that this issue pits water for fish vs. water for people. Is that a fair characterization of the debate?
A: The question of whether water is better used for fish or for people is pretty commonly heard around the west today. It's an argument that makes a good emotional appeal, but in fact it doesn't have a lot of practical appeal because the issue is one of values. Waters of all states in the United States belong to the people, and every instream flow that is approved in Wyoming is owned by the people of Wyoming. So when the state decides to use water for instream flow, that's a water right for people. It's not a water right for fish any more than a irrigation water right is a right for grass. This is a question of who owns the water right. If the rancher owns the water right, he can use it anyway he wishes, but if the state owns water for instream flow, it's a water right for the public. It just happens to grow some fish.
Q: It appears that there is an emerging instream flow discipline, with definitions that more and more want to include stream function, the health of the fishery, etc. Can Wyoming's law can incorporate emerging demands?
A: The science of instream flow is a relatively young one compared to other disciplines like chemistry and math that have been around for thousands of years. Instream flow really has just been around for 25, 30 years really and it's rapidly evolving. There are a lot of good scientists working on various aspects of instream flow, and it will continue to evolve in the future. People get confused [when] they think that good science will necessarily provide an instream flow. While good science can be the basis for an instream flow, you can only have what the law and institutional sideboards allow and what the public asks for. So science is just one part of this proverbial stool we call instream flow.
Q: Is there sufficient public involvement in this issue?
A: One of the things we are seeing is the public is becoming more and more interested in water management. There has always been a lot of public involvement when it comes to water issues in the west, but I think the level of that involvement has not always been real broad. It's usually been one-sided or limited in terms of the interest of the people who are involved. What we see now is the interest in water management becoming much more broad-based. I think that is why you are seeing all these new competitions for water in the west.
Q: Most states have instream flow laws now, but is there anything more that those laws need to address?
A: I went to a conference last summer that dealt with instream flows. One of the people at the round table discussion I was sitting at made the comment that most of the western states today have instream flow laws, so we don't need to worry about that anymore because that aspect of the law is taken care of. Well, the fact of the matter is that, that is a grand illusion because if you look at instream flow laws of all the states, they do exist but many of them are not very enabling. It's still difficult to get the kind of full level of instream protection that the public is demanding of a lot of our rivers in the west. There is still a lot of work to be done with instream flow laws, not only in Wyoming, but in all the western states.
Q: What do you think about the legislation that Senator Cale Case proposed this last session?
A: I think that Senator Case's proposed legislation last year was interesting. What it did I think is it reflected this growing interest in the public, in particular, municipalities in Wyoming, to try and get more flexibility for administering Wyoming's water resources so that more people can get more benefits from Wyoming's streams and the water in our streams more easily.
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