Interview Transcript
Patrick Tyrrell
Q: What does the state engineer of Wyoming do?
A: The state Engineer is a constitutionally assigned or developed position that began with the state Constitution back in 1890. In fact we even had a territorial engineer before that whose duties are essentially to regulate, administer, and permit the various uses of the water of the state of Wyoming. We deal with the granting of permits for various types of uses and the administration of those permits, and in a larger sense the administration of water resources of the state.
Q: Please locate Wyoming geographically for us, by describing its position atop a number of watersheds.
A: In the northeastern part of the state, the rivers that we have such as the Tongue, the Powder, the Cheyenne, etc. flow northeasterly and are tributary to the Yellowstone in Montana and South Dakota and move on to the Mississippi and the Gulf of New Mexico. The Big Horn/Wind River basins are also tributary to the Upper Yellowstone, flow north out of Wyoming into Montana and on down to that basin. In the northwestern part of state in Yellowstone Park and in the southern reaches there, we have headwaters to the Yellowstone River, again which flows through Montana and on to the Missouri. We then in this area have the divide between the Yellowstone and the Snake River basins, and the Snake then flows on out through Idaho into the Colombia River basin. This portion of Wyoming drains the Upper Green River country which then carries us on down into the Colorado River Basin, the southwestern part of the United states, and on down to the Gulf of California. One thing I didn't mention earlier is this little piece right here -- some of the headwaters to the Bear River drainage which then flows into Idaho, back into Utah, and into the Great Salt Lake. The southern part of the state as we look across here, with the exception of the Great Divide basin which is internally drained and does not flow anywhere, all the southern country goes to the little Snake basin or to the Green. On the backside here, these are the Sierra Madre Mountains, this goes to the little Snake and the Green and this is essentially the Continental Divide, this side forms part of the upper Platt River drainage. The Platt starts in Colorado, comes in, we still have quite a bit of high country, and it flows on down around through Nebraska and on to the Missouri.
Q: Given this seemingly ideal water location, what does this mean for the state in terms of water storage, i.e. the state's ability to build dams?
A: Being at the top of a major watershed doesn't make it any easier to get a permit to build an impounding structure. It does provide us with snow melt run-off. For example, we rely primarily for the reservoirs that we do have on our snow melt every spring to fill those reservoirs. And so in those basins that have run-off that is unappropriated or in excess, if we are not using a compacted portion in that, for example, being near the snow melt area does provide us with that water within our apportionments that is not already appropriated. It makes that water physically available for us to store.
Q: What about prior appropriations rights?
A: Yes, within Wyoming, if there are prior rights existing on streams or permits that already exist that essentially use the full yield of the stream, whether to store it or to divert it for agriculture or municipal use. There may not be much water available above and beyond those uses to fill any further storage. So from that sense that the water is spoken for, we may not have any developable water in that basin.
Q: Do compacts with other states govern the amount you can use?
A: It can, yes. For example in the Upper Colorado River basin compact, the state of Wyoming is entitled to 14% of the water available for consumptive use among the four states that are signatory to that agreement -- Wyoming, Colorado, Utah and New Mexico. So as long as we are below that apportionment, we have developable water under that compact.
Q: Is building more storage a good way to enhance instream flow in the state?
A: It certainly can be. Instream flows, putting water in the streams, is a difficult proposition without storage because you are at the mercy of the annual run-off. And in a year like this there isn't much for any uses including an instream flow. If you were to tie flows in instream segments to storage above that segment where the water could be stored for fisheries purposes or instream flow purposes and then subsequently released, it can enhance the ability to get water into the stream if that water is dedicated to that use.
Q: Now let's talk about the instream flow statute. What do you mean by the phrase instream flow?
A: Well, an instream flow is not defined; there is no definition, per say, in the statute. It is the state's recognition that the leaving of water in the stream for environmental and fisheries purposes has been deemed a beneficial use, whether that water is natural flow into the stream or whether that water arrives in that stream segment out of storage. So what we've done essentially is recognized that there are values attached to leaving the water in the stream as well as the beneficial uses, which are our traditional beneficial uses, which require the removal of the water from the stream.
Q: Tell us why and how the bill passed and what it provides for.
A: The Wyoming instream flow statute passed in 1986, and it does define the instream flow, the leaving of water in stream as a beneficial use whether it be natural flow or from storage, and that it would be to maintain or enhance fisheries depending on whether it's storage or natural flow. The law that came about in 1986 was a result of several years of study. The issue actually arose in the 70's, but in 1985 there was an initiative process that came forward through the public that would have gone to the general election had the Legislature not enacted a statute that was substantially similar to the initiative language. So what that language did, what the law did, was define an instream flow as a beneficial use and established the fact that only the state could hold that water right. Then it established a process for how the water right would be obtained and what limitations would be put on the State Engineer's considerations of whether to grant such a permit.
Q: Please mention any specific limitations the statute may have.
A: Some of the limitations that the statute put on the granting of an instream flow water right in Wyoming include that no other senior appropriator could be injured by the issuance of such a permit. Also, no compact water, none of our allocations or apportionments under any interstate compact or court decree, could be diminished by the presence of an instream flow. So for example if a water right was dedicated to an instream flow, it couldn't result in less water being used under the consumptive portion of such an agreement or more water leaving the state than would otherwise be allowed under that agreement. Likewise, instream flows are not to be granted within a mile of either the state line, where a stream or river crosses the state line, or within a mile of where it may enter an impoundment that may straddle the state line. What that allows, simply, is Wyoming to have a last shot at a consumptive use of that water before we lose control of it entirely and it gets to a downstream state.
Q: What in your view is the instream flow movement in the western states?
A: If there is an instream flow movement, particularly in the western United States, it's more than likely in our increased environmental awareness that we've seen since the 1970's and maybe earlier, I am not exactly sure where they define the genesis of that movement. But this would be the same type of environmental awareness that has resulted in other federal actions, federal laws, things such as the Endangered Species Act. There is that awareness, and I think that that is what has resulted in a number of western states, if not all of them, most of them certainly identifying instream flow as a beneficial use of water.
Q: Do you think it derives from any shifting societal demands?
A: I believe that it derives from the same societal evolution that created those other statutes and acts I just mentioned. To the extent that there is more awareness of the values of water in the streams or other environmental values these days than there were 30 or 40 years ago, I would say, yes, it is a child of that.
Q: Does it relate to the economy?
A: It can. I imagine that where an instream flow maintains or enhances a fishery, for example, if there are economic benefits associated with that fishery, then that could be the case. It might be difficult to determine how much of that is due to the instream flow law and how much of that is due to the fact that that was an excellent fishery to begin with.
Q: For the past 16 years, can you quantify how many stream segments are in which stages of adjudication?
A: In the last 16 years or since the law was passed, we've received 83 applications for permits for instream flow. Of those, my predecessor issued 13 permits and I've issued 4 in this first year. 2 of the 17 have been adjudicated. The others are in permit status and the remainder are still in the application phase. That seems like a lot of applications and only a few permits, but these are the permits that have come in. They involve the co-operative work of three different agencies, and they involve a public hearing which is something that the water rights do not demand, at least at the application process. And so there is a time-consuming process to go through to get the permit in, get it reviewed, get the hearing, and then fitting that work in with all our other permitting responsibilities and water rights and administration responsibilities. This means that they don't always get out as quickly as they come in.
Q: Is this a satisfactory pace?
A: Well, I don't think that's for me to say. Whether it's a satisfactory pace or not depends on whether you want more of them issued or less of them issued. We deal with the law and process the permits at the rate which they come in without any thought or opinion as to whether it is a satisfactory pace or not.
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 you talk about that movement and say whether or not Wyoming's law can incorporate emerging demands?
A: The emerging instream flow science that discusses the health of a fishery as related to channel maintaining flows, flushing flows, etc. is probably far ahead of what our laws strictly allow, in my opinion. I will explain that. When you go back to the enactment of the law, you realize that this was a compromise effort. The [citizens] initiative was there, but the compromise in the law took place between different parties with different views of what Wyoming's instream flow law ought to be. At that time, if you were to look, say, at some of the Game and Fish documents that said, Here's what we want in instream flow, there is no mention of flushing flows, there is no mention of channel maintenance, or permitting of a flood flow to keep vegetation back away from the edge of a stream. It was primarily for food production, spawning, watering the stream, and it was based on essentially a fraction of the average daily flow. Well, my understanding is the science is now saying that for fisheries and overall fisheries health, an ideal flow regime would include a flood, for example, every year for sediment removal. Well, that was not put forth in the compromise process years ago when this law was enacted, so I think what we are looking at is keeping water in streams for the reasons that were put forth when the law was enacted. Those reasons, as I mentioned, are some fraction of modest flow and not the flood-producing flow. I want to elaborate on that a little bit. It was never stated that all [possible] flows in the streams were desired. The permitting for instream flow would not take all the flows from the stream. Well, if you look at flushing flows, if you look at channel maintenance flows, in fact that is the case or could be construed to be the case if you take an annual flood. And so I think what we have to do is be careful here in that we are not putting into an instream flow a different set or a different flow regime than what was put forward in the compromise process back in 1985 and 1986. That was not what was being looked at when the law was passed.
Q: Are you under pressure from conservation and angler quarters to do more in the way of increasing instream flow adjudications?
A: No. Do I feel pressure from those groups to do more? No. I have certainly had some conversations with those groups that want to know how I, as a relatively new State Engineer, would interpret the instream flow law and how we would go about issuing permits. But I think what we are seeing is more of is where do we have the other opportunities for instream flow, let's take a look at what else the law allows, can we do this in certain instances or do something else in another circumstance? I just try and harken back to is we do what the law allows. Do I feel pressure? No, I think we are doing the right thing.
Q: Is there sufficient public involvement in this issue? Do budgetary and staff restraints prevent you from fully involving the public?
A: As to the question of whether the public is sufficiently involved, I would say that the public is more involved in the issuance of instream flow permits in Wyoming than in any other kind of permit. That is in two areas that I can think of off the top of my head. First of all, the public can go to the Game and Fish and say that we are interested in pursuing instream flow on a certain stream as opposed to a single user coming in. So that kind of public pressure can be brought to bear on the agencies that have to file and then hold the permit. Secondly, in every process, before a permit is even issued, we are required to hold a public hearing. We hold hearings on other water rights but in other phases, not necessarily at the permit issuance phase. It is required of the instream flow law, so there is definite ample opportunity for public input.
Q: Do you see the public really trying to be involved?
A: I do see the public being involved. I've read transcripts of prior hearings and there is usually quite a number of people there, a good set of comments. They are advertised significantly ahead of time, and I guess my feeling is we can advertise, we can hold the hearing, we can take the notes, and if they are interested, certainly they ought to be there.
Q: Please explain what Pinedale wanted to do with their stored water in Fremont Lake.
A: The town of Pinedale has an interest in taking some of their stored but currently unused water and using it for instream flow purposes. That's a possibility at this point because the water in storage is permitted for fisheries purposes and recreation, and those are some of the words used in the instream flow statute as a reason to have instream flow. What they wanted to do was until such time as the town of Pinedale may need that water for other reasons, they wanted the ability to pass some of that water in storage on down Pine Creek and leave it in the stream, protect it in the stream from other divdivertersnd essentially create an instream flow. That's the issue right now.
Q:Why did the Board of Control deny the town's request?
A: The first issue that came before us was to allow Pinedale to be able to do that using what we call a temporary water use agreement. That is not the proper vehicle. We have several other kinds of permits we can issue and a temporary water use agreement is not the proper vehicle for protecting water as in instream flow. As I mentioned earlier, we have an entire Article under our statute that says if you want an instream flow, here is how you go about applying for it and getting it. All I said in denying the original application was not to make any judgement on whether there ought to be an instream flow in the creek, but to simply say that you need to follow the process the legislature has outlined to obtain an instream flow and not do it this other fashion. I think that we have that process and we must use it.
Q: Do you think this situation can eventually be resolved?
A: I think that we will get ultimately an application that does fall in line, or we will insist that it falls in line, with the requirements of Article 10. At that point we will take the application to a public hearing. After the public hearing, depending on what comes up there, and I am not going to prejudge what is going to be brought up or brought out at that hearing -- it would be premature of me to do that -- I would simply say that it will be resolved after that, yes.
Q: Additional comments about instream flow rights?
A: I think that our instream flow law so far has been working, considering that it's fairly young, 15 years or so. When you compare it to our other types of water rights issues, it's fairly young. We've issued permits, we have a couple that are adjudicated. The adjudication process is an evolving art to adjudicate permitted amounts -- actually measure what's in the stream and give them a certificate for that amount of water -- but it's ongoing. Questions that we often get are, What happens to other users on a stream if an instream flow now suddenly exists on that stream? And we have to remember that under the law, we cannot injure any other senior water right, so even though an instream flow may exist and we don't injure a senior right, what it can do is have an effect on, say, they may make a call on the river and so people are cut to their direct appropriation amount. That [cut] may happen a little bit sooner in the year than if that instream flow had not existed. Secondly, when an instream flow exists on a stream, it may be a little more difficult to transfer an existing water right around it because we then cannot injure the instream flow right, if you get my drift. So there are some effects it may have on other rights. We've had no instream flow permits litigated to this point, and so I think that the process is working quite well. I think that's a function of the law being crafted carefully and my predecessors issuing those initial permits pretty carefully.
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