Interview Transcript

Laurie Goodman

Q: What in your view does the instream flow "movement" in the western states mean in terms of shifting societal needs, demands, etc.?

A: There is a growing instream flow movement throughout the west. I think it is reflective of the evolving economies that are happening in the west right now and a change from sole dependence on agriculture to looking at the other values that are now coming forward.

Q: Tell us about Trout Unlimited, why it exists, who belongs, and what it is attempting to accomplish in Wyoming and other western states. How many members do you have?

A: Trout Unlimited is a wonderful nationwide program that is dedicated to protecting and enhancing the coldwater fisheries throughout America. In the west Trout Unlimited is firmly established. It also began a new program called the western Water Project. That project is solely dedicated to protecting the stream flows in these coldwater fisheries. We focus primarily at the state level, working with the laws and regulations regarding water quantity as well as water quality.

Q: Tell us about the instream flow situation in Pinedale. How would instream flow enhance Pine Creek? What would it do?

A: Pinedale's attempt to use instream flow is a really exciting example of the evolving changes and emphasis on instream flow. The small town of Pinedale has a population of a 1,000 and is traditionally an agricultural community in Sublette County. Green River and the New Fork River run through Sublette County. A couple of years ago, the mayor and the town council unanimously decided and voted to convert some of their storage water into instream flow through Pine Creek, which eventually joins the New Fork River. The local TU chapter was very key in helping, as well as the Game and Fish, in taking the right measurements. What it reflects is the desire of the municipality to look at instream flows differently than solely for agriculture or for fisheries management. It is an economic development tool for that town to enhance not only to help for the fisheries but also the tourist opportunities there.

Q: If Pinedale were successful in getting instream flow from Pine Creek, how would it look different?

A: The look of Pinedale will be very different. What's so interesting about this particular test case is that currently the town's water right is being held up in Fremont Lake behind a dam where it's being held for future water development purposes. But what the town has now said is that an instream flow, actually keeping the water in a creek, is a development beneficial use. So what the people will be able to enjoy now is a year-round flow in Pine Creek instead of a flow that diminishes to nearly dry at times of the year when there have been tremendous agricultural withdrawals upstream.

Q: What about Wyoming's instream flow statute? Tell us briefly what the statute can and cannot do.

A: In 1986, the Wyoming Legislature passed our first instream flow protection, and it is a very limited instream flow protection. It solely addresses fisheries and it requires that the beneficial use of instream flows be held by the state. It is the only beneficial use of a water right that is required to be held by the state. For all other consumptive beneficial uses, individuals can use that water right. So it is a right that at least recognizes the need for water in the creeks and their impact on fisheries, but is limited in its scope and flexibility to truly benefit the emerging changes in Wyoming.

Q: In what way, if any, do you think it needs to change?

A: The instream flow law is so restrictive that it's not meeting many of the needs of any industry or even the fish. Since 1986, only 16 segments have been protected by Game and Fish and it has been very limited. In fact there has been no use by the agricultural community or by municipalities. So it could be changed in a variety of ways. There could recognition within the law of the benefits of conservation. If ranchers didn't use all of their water rights for irrigation and instead chose to benefit from fishing access, with more water in the creek, that would be an avenue that instream flow protection could provide. That's currently not allowed in the statutes. It would also be beneficial for municipalities that want to create more economic development to be able to apply for an instream flow, not solely for fisheries management, but also for the town's economic development purposes.

Q: Could you comment on the legislation sponsored by Senator Cale Case?

A: Senator Cale Case recently introduced a piece of legislation that we were very excited about, and it began a discussion about water leasing. Currently, in the State of Wyoming, leasing water rights is prohibited for instream flow. But it doesn't necessarily have to be that way. In the state of Montana, just last year, the Montana stalk growers joined with Trout Unlimited's Western Water Project to pass a 25-year leasing law for instream flows. That not only creates protection for more water in the creek but also provides a potential avenue of revenue for the rancher who chooses voluntarily to participate in that arrangement. Cale Case introduced this bill, and we are hoping that he will do it again next year during a regular session when we can participate fully in that debate.

Q: Tell us how you think Wyoming's statute compares generally to [those of the] other western states?

A: All instream flow laws throughout the west tend to be very restrictive. There is a great concern that it's totally threatening to the prior appropriation doctrine, which I think is completely inaccurate and something that I hope to work with Wyoming to see the benefits instead of the potential fears. But comparatively, Wyoming is one of the most conservative. It allows for no leasing, it allows for no water banks, it allows for no private holdings for instream flow beneficial use rights. So it is pretty restrictive, and it actually doesn't benefit many of the other entities that do stand to reward from an instream flow protection.

Q: What are some important current developments in the instream flow "movement?" What direction are we going or do you think we should be going?

A: I think that the west is beginning to evolve with regards to instream flow protection, and I think that that's appropriate. The water laws were established throughout the west over a hundred years ago to reflect the appropriate need to develop this very barren part of the country. And now as we see tourism industry on the increase, and in many cases, such as Wyoming, the agriculture productivity on the decrease, there are changing values and changing ways that the economy is moving so that people can live here. And it's appropriate for Wyoming's laws, as well as their water laws, to keep up with that evolution. And I think that is at the core of the instream flow protection movement.

Q: How is the water power structure responding to this evolution?

A: The water power structure is responding in a cautious manner. In the state of Wyoming, we are blessed with a new State Engineer who took office last year, following in the footsteps of State Engineer Jeff Fassett who had been in that office for 13 years. We were very comfortable with the working relationship we had with Jeff, and now we look forward to building one with Pat Tyrrell. It is a complicated water power structure, one that involves not only the State Engineer's Office but also the Water Development Commission, the Game and Fish Department, several water commissions at the legislative level, the select water committee, and there are all sorts of fears and misunderstandings and potential threats about the changes in store. So I think that it is movement similar to what happened in 1986 that will have to start amongst the grassroots, among the communities that find the water laws aren't reflecting or allowing their needs. And through that we will then be able to work with that water structure, who is curious but cautious.

Q: Some folks say that this issue pits water for fish versus water for people. Is that a fair characterization of the debate?

A: I don't believe at all that the issue around instream flow protection is about protecting fish over protecting people. I think that that is a ruse on the actual issue. The truth is the west is evolving, and we now have a greater understanding of our fisheries, we have a greater understanding of rivers and their natural features, we have a greater understanding and ability to access electricity and new technologies like irrigation pivot systems and pumps. So there are new ways that have evolved in the last 100 years to allow for improved, efficient water management, and if that can happen to benefit a variety of uses like municipalities, like the recreation industry, as well as the recreationists on the river, as well as the agricultural community, that should be embraced as good government and not feared or pitted into a fish versus people argument. That's not the case in Wyoming, and it's certainly not how we want to approach instream flow protection.

Q: Is there sufficient public involvement in this issue? How could more be achieved?

A: Public involvement in this issue is something that the Western Water Project and Trout Unlimited are completely dedicated to. But it's difficult. It is a long, tedious, dry process. Water law is not the most creative of all laws. And we are finding out that on the grassroots level changes in water law applications and regulations take several years. But public input is going to be critically important because in fact it is the public who's asking us for the changes; it's the ranchers who are asking for more flexibility during drought years and are seeking other ways to possibly benefit from the water -- leaving the water in the creek for fishing rights, for leasing privileges, instead of only recognizing the value on the land. Municipalities such as Pinedale who could realize that economic development benefits by attracting tourists when there is more water in the creek. So through those many avenues, I believe that public participation will increase, and that's certainly an important element for the Wyoming Water Project.

Q: Please summarize the Western Water Project.

A: The Western Water Project certainly is committed and dedicated to protecting the stream flows in our coldwater fisheries, but we very much recognize that instream flows are a protection that will benefit the population throughout Wyoming on many different levels. And we look forward to working for that, not only to protect the fish and the fishery, but also to meet the other evolving changes of our economy and population.

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