Report on the Wyoming Conservation Congress

by Mac Blewer, Caroline Byrd and Dan Heilig (Jeff Tollefson of the Casper Star Tribune staff also contributed to this article.)

Threats to Wyoming’s waters and what can be done to save them were the dominating themes of the 1999 Wyoming Conservation Congress, "Wilderness to Water Holes: A Conference on Wyoming Waters," hosted by WOC and a number of other organizations during the weekend of July 10 in Casper. From workshops on water quality to canoe trips down the North Platte, it was a weekend to remember.

Conference goers were welcomed by upbeat speakers Kathy Buchner, Director of the Wyoming Council of Trout Unlimited, and WOC board president Chip Rawlins. Next, several citizens captivated the audience with "vignettes" of their efforts to protect Wyoming’s waters, including WOC board member LaMar Empey, who recalled his successful campaign to get the Clarks Fork designated as a wild and scenic river. As he flipped through slides of the area, LaMar spoke whimsically and at times sardonically about the "mighty" Clarks Fork Coalition’s early efforts. (The coalition was comprised of LaMar and his wife, Betty.)

Water Quality Panel Highlights
Reed Zars, an environmental lawyer from Laramie, kicked off the water quality panel with an historical overview of the Clean Water Act and events that led to the law’s passage in 1972. He outlined the initial lofty goals of the Clean Water Act, such as making all waters in the U.S. fishable and swimable by 1983 and ending all discharges of pollutants into water bodies by 1985.

Before introducing the panelists, Reed mused that while there has been some important progress under the Clean Water Act, political compromises may have forever jeopardized the zero discharge goal of the law. "How many deaths are O.K.?" Reed asked the audience, criticizing erosions in the law that now permit "acceptable" levels of risk and pollution. "How many fish should die?"

Reed concluded his remarks by reminding the audience that the Act contains many tools for citizen involvement, including the setting of pollution limits, called Total Maximum Daily Loads (TMDLs), and that increased public activism can make a big difference in determining the future of our waters.

Amoco Refinery Cleanup
Dick Innes, a Casper native and a leader in the fight to clean up Amoco’s old refinery site, spoke first. "I am here to give a ‘citizen’s perspective.’ However, I want to make clear that I am no expert on any of this. I’m just a victim."

Dick reminisced about growing up around the refinery, playing on the banks of the North Platte and seeing huge amounts of pollution streaming from refinery pipes into the river. "We knew then that something was wrong," he recalled. Dick also gave an overview of the convoluted and at times "polluted" government process in Casper which has for so long turned a blind eye to the city’s pollution problems. "The City Council’s attitude," he observed, "is, ‘Don’t ask any questions; we might have to answer them.’"

Holding up photos taken in the 1920s, Dick reminded the audience of the immensity of the problem. "People don’t understand how big and dirty it was," he said. "You’re not dealing with that modern thing they tore down. You’re dealing with a massive, dirty monster in the days when the rules were none and they did as they pleased."

In the 1970s and 80s, the pollution problem became more evident, and the authorities could no longer ignore Casper’s tainted water wells and noxious fumes. City workers putting in utilities around the refinery site started to find "strange things…millions of gallons of oily water."

Dick concluded his remarks by urging citizens to get involved in the Amoco clean-up process and to delve further into the issue of Casper pollution.

Wind River Reservation
Next, Don Aragon, Executive Director of the Wind River Reservation’s Environmental Quality Commission, explained the complex pollution issues the tribes are confronting on the Reservation. Comparing the tribes’ situation to that of Casper citizens, Don explained that in the early part of the century, oil and gas companies and many federal agencies simply "didn’t care what they did with the spoils of industry." The pollution was left in place, and millions of dollars in profits were hauled away by corporations. Income earned by the tribes from the sale of oil was turned over to the Bureau of Indian Affairs, which is involved in a class action lawsuit alleging gross mismanagement of tribal property across the United States.

Today, the tribes are still cleaning up the legacy of the oil boom times. Contaminated oil pits are being excavated and cleaned out, but pollution-generated health problems still abound.

Don outlined the extensive water quality monitoring efforts that the tribes have initiated on their lands and their attempts to clean up Reservation waters. Referring to the sometimes tenuous relationship between the State and tribes regarding environmental quality issues, he said, "We need to have cleaner watersheds, cleaner waters. But to do this, we have to forget about political boundaries."

Legal Tools
The next three speakers, all attorneys, discussed the legal and policy issues involved in protecting Wyoming’s waters.

Laramie native Doug Haines, Executive Director of the Georgia Center for Law in the Public Interest, drew comparisons between Georgia and Wyoming, citing their mutual anti-federal sentiments and strong property rights movements. "We all operate under the same legal alphabet soup," Doug said, noting that citizens and state agencies in both states are faced with the same challenges. State and federal agencies are often unable to do their jobs properly, "not due to the size of the problem, but the size of the problem-maker," he pointed out.

Doug went on to explain how citizens can use TMDLs as tools to enforce the Clean Water Act and how the federal government is often a necessary and useful ally when dealing with powerful corporations.

"We need strong federal enforcement and oversight of state/tribal programs," Doug said. "On the other side, we have and need the citizen component—being involved in that which is closest to your heart and to your feet."

Doug triggered the TMDL process nationally through a 1996 federal court victory with five co-plaintiffs in Sierra Club v. Hankinson. The lawsuit has been called by many the most important of over a dozen citizen suits to activate the Act’s long-dormant TMDL clause. In many cases, however, the culprit is not easily identifiable. Non-point source pollution — sediment and chemical run-off from streets, agricultural fields, developments, etc. — is sometimes difficult to track back to its source. Doug noted that non-point source pollution contributes heavily to Wyoming’s water quality problem.

Professor Deb Donahue of the University of Wyoming College of Law explained the causes of non-point source pollution and what can be done to prevent or lessen them. Deb stressed the importance and necessity of Best Management Practices (BMPs) to alleviate this substantial pollution challenge. BMPs include everything from conserving water and retiring erodible fields to crop rotation and manure containment. With BMPs and decreased non-point source pollution, Deb noted, come a better quality of life for communities, increased residential property values and an enhanced environment and economy.

WOC executive director Dan Heilig spoke last on the water quality panel, stressing the importance of citizen involvement in setting water quality standards for states.

"Can you imagine the Clarks Fork without the Clarks Fork Coalition?" he asked the audience. "Or the Little Horn Energy Project without the efforts of Ronn Smith, the Powder River Basin Resource Council and others fighting that boondoggle? What would Casper be without Dick Innes, Pollution Posse and others? Would there even be an official recognition that we have a problem? I think not. All of us have an obligation and responsibility to participate in activities that center on water quality protection."

Dan reminded the audience that Wyoming’s current water quality standards fail to comply with the Clean Water Act. "In fact, we have never complied with the Act," he noted. "It’s been the law of the land for 27 years, and Wyoming still has not passed standards that meet the basic mandates of the this law." For example, he said, the State of Wyoming has not conducted a "triennial review" of its water quality standards since 1990, even though the Clean Water Act requires states to review, and revise when necessary, their water quality standards at least once every three years.

He cited a number of provisions in the Clean Water Act that allow and encourage citizens to participate in the implementation of the Clean Water Act. "It is vitally important for all of us who drink water, fish or float or who may just have an aesthetic appreciation for water to get actively involved," he said. "Because if we don’t, we’re going to lose. We come to work every day and fight the battle to hold on to the water quality protections that we currently have. We’re trying to improve them. There is nothing more important than to participate in this process."

Instream Flow Panel
"First in time, first in right," stated Denver Lawyer David Gillilan, recounting a brief history of western water law. Water rights in Wyoming are based on the "prior appropriation doctrine," which allocates the rights to the first person who diverts water from the water body.

Historically, these rights could not be maintained unless the water was diverted and put to "beneficial use," usually for irrigation or industrial purposes. However, in 1986 Wyoming passed a law that recognized instream flow for fisheries as a beneficial use. The instream flow law allows the Wyoming Game and Fish Department to obtain water rights to maintain flows in streams and rivers. Unfortunately, only the state can hold instream flow rights and only if the flows are necessary to sustain fisheries. Protecting aesthetic, personal or cultural resources are not considered legitimate reasons to apply for instream flow rights.

State Engineer Jeff Fassett outlined the positive aspects of Wyoming’s instream flow law, explaining that it "allows for the direct appropriation of water…and allows it to be a protectable property right." But he invited a dialogue concerning areas where the law could be improved. "Should we allow private individuals who hold rights on their land to make a judgment to change the use of their right?" he asked. "It seems to me to be an interesting principle which needs some attention."

Although Wyoming lags behind other western states when it comes to the flexibility of its instream flow law, it’s an uphill battle even in states with fairly progressive water laws.

Oregon conservationist Reed Benson, Executive Director of the advocacy group, WaterWatch, vacillated between humor and exasperation as he explained the situation in his state. WaterWatch largely focuses on ensuring that Oregon officials monitor water use, enforce existing laws and consider alternate conservation strategies. "This is not radical stuff," Reed said with a laugh. "And we’re being branded as radicals for doing it."

Clay Landry, a Research Associate with the Political Economy Research Center in Bozeman, explained how water markets are being used all over the western U.S. in an attempt to meet the growing diversity of water demands for agriculture, fisheries and aesthetic purposes.

In the Rocky Mountain region, Clay observed, "the concept of water markets and water transfer is growing." In 1990, he said, 50,000 acre feet of water were traded between different entities and a million dollars spent to acquire instream flow rights throughout the western U.S.  By 1997, more than 500,000 acre feet were traded and over $10 million spent to get water back in the region’s rivers. Although there have been no water transfers in Wyoming and few in Utah, Clay noted, the concept is growing in Montana and has burgeoned in parts of the northwest.

Cooperative work in this arena is vital for future western water conservation efforts, Clay concluded, urging citizens and organizations to get involved.

Dick Baldes, who managed the U. S. Fish and Wildlife Service’s field office in Lander for more than two decades, explained the tense relationship between the State of Wyoming and the Shoshone and Arapaho tribes — particularly over water rights on the Wind River Reservation. In 1989, after a U.S. Supreme Court decision recognized tribal rights to 500,000 acre-feet of water annually, tribal leaders decided to allocate a portion of the water to instream flows. However, the State of Wyoming challenged the legality of the tribes’ actions and won a Wyoming Supreme Court decision that limits the tribes’ water rights to agricultural uses only. This ruling effectively ended the tribes’ efforts to protect instream flows on the Reservation and insured that they would not be able to use all of their allotted water.

"Without question, the biological diversity of the Wind River is slipping away with each passing year," Dick said, clicking through slides showing the river’s low to non-existent water levels during the summer and the desiccated vegetation and eroded soils on the river banks. "The amount of water allotted to the Wind River Reservation is being used illegally," he concluded. "Otherwise, it would be there."

Words of Inspiration
After lunch, Brock Evans, director of the Endangered Species Coalition, spoke about the importance of citizen activism and the hard-won victories that the conservation movement has enjoyed in Wyoming and the United States over the last few decades. He noted that Wyoming became "sacred ground" in 1872 with the designation of Yellowstone as the world’s first national park.

After recalling several "hopeless lost causes turned into stunning, overwhelming victories," Brock concluded that "the secret to success is endless pressure, endlessly applied."

Workshops
After-lunch workshop topics ranged from emotional discussions of Casper’s pollution problems to more esoteric subjects such as state water planning and endangered species protection. There seemed to be an overwhelming sentiment that Wyoming has a long way to go before it can ensure sufficient water quality and quantity for its people and wildlife. The TMDL workshop generated an amiable but heated debate
regarding interpretations of the Clean Water Act between Gary Beach, DEQ Water Quality Division Director, and Doug Haines, Executive Director of the Georgia Center for Law in the Public Interest.

A Civil Action
Our after-dinner keynote speaker was Dr. George Pinder, a Professor of Civil Engineering and Math at the University of Vermont. Dr. Pinder, one of the world’s foremost experts on hydrology and modeling groundwater flow, was the plaintiff’s expert witness in the toxic pollution lawsuit that is the subject of the award-winning book and recent movie, A Civil Action.

Recounting what has now become an internationally known case of groundwater pollution in Woburn, Massachusetts, Dr. Pinder credited the many individuals and colleagues he worked with during the case. Dr. Pinder retold the story with humor and precise academic detail.

In 1986, when he was teaching at Princeton University, a Boston lawyer contacted him regarding a lawsuit involving several families who had lost children to leukemia. The lawyer asked him to testify in a lawsuit against several local companies which had contaminated the groundwater and adjacent municipal water wells with carcinogenic toxins. Dr. Pinder spent 11 days on the witness stand and countless weeks (and sleepless nights) on the case.

At one point during the trial, the judge ruled that one of Dr. Pinder’s computer-generated models could not be introduced as evidence because the visual presentation was slightly off-scale and therefore misleading. Staying up all night with an ingenious fellow worker, Dr. Pinder helped devise a to-scale model of the data, largely comprised of sponges and pipe cleaners stretching towards the ceiling. Wheeled into the court room the following day, the "improved" model graphically showed the chemicals’ areas of concentration and flow patterns even more effectively than the first. It was accepted by the judge and jury as credible evidence, much to the chagrin of the company lawyers.

The case ended with one company found negligent and the other absolved of wrongdoing, a bittersweet ending for the families who had suffered through the ordeal. Although Dr. Pinder did not directly address the issue, the similarities between the Woburn case and current pollution problems in North Casper are only too obvious.

A Fitting Tribute
Following Dr. Pinder’s keynote speech, WOC and other Conservation Congress hosts presented Dick Baldes with a Lifetime Achievement Award for his exemplary commitment, passion, achievement and leadership in conserving Wyoming’s wildlife, water and environment. Dick, a biologist who worked for the U.S. Fish and Wildlife Service for 25 years, is a long-time board member of the National Wildlife Federation and an enrolled member of the Eastern Shoshone Tribe.   Dick’s old friend Dan Neal, co-editor of The Casper Star-Tribune,presented the award with a moving speech celebrating "the life-long efforts of a conservationist whose bright mind may be outshone only by the passionate intensity for wildlife that burns within him."
(Please see article "Dick Baldes Receives Lifetime Achievement Award" For More Details)