Here are some of the problems we
need to fix.
Existing law permits only minimum
amounts of instream flow "to establish
and maintain fisheries." Aesthetics,
public health and safety, water quality and
economic and recreational benefits are
ignored. Further, as implemented, f lows for
the benefit of fisheries are just enough to
keep them alive - not enough to provide
for quality habitat and the flushing flows
that mimic natural systems.
Under the law, existing water storage
and surface rights can be converted to
instream f lows only if landowners permanently
surrender their existing rights to the
state. Because no one wants to permanently
give up their earlier priority rights, the
only other way for an instream flow right
to come about is if the State of Wyoming
files a new application, which has no
priority over an earlier right.
As a consequence, when water is short,
anyone with an earlier water appropriation
must be accommodated first, which, in
most areas of the state, leaves little or no
water for instream flows. If the law were
modified to permit water users to temporarily
designate their original priority
rights to instream flows, not only would
there be more interest in preserving stream
flows, but those flows could be protected
from other users. Such temporary
instream f low designations could be
especially useful in drought years,
perhaps on a voluntary rotating basis
among interested water users.
Currently, only the Wyoming Game
and Fish Department can recommend
protections for stream segment flows.
Then the Wyoming Water Development
Commission takes over and becomes the
applicant before the State Engineer and the
Board of Control. Two feasibility studies are
required for each application.
Communities are not allowed to solve
their instream problems locally. As a case
in point, the State Engineer's Office has
been unsuccessful in finding a legal way to
allow the City of Pinedale to release its
own water in Fremont Lake to improve
f lows through the town. There are lots of
Wyoming towns like Pinedale that would
like more flows for esthetic, public health
or other reasons.
Opponents typically offer three arguments.
First, they believe that instream
flows should come only from new reservoir
capacity; transfers from existing users
or recoveries from water conservation
strategies should not be permitted. Second,
they claim that junior agricultural waterrights
holders are entitled to any water that
senior users would rather devote to supporting
instream flows - certainly
an anti-property rights notion. Third,
opponents argue that irrigation increases
stream flows in late summer - a supposition
that depends on soil and use characteristics
in riparian areas as well as whether
utilization occurs on the same stream
branch to be protected.
Progress is being made. In the 2002
budget session, a proposal that would
have permitted water-rights owners to
temporarily designate water for instream
flows barely missed the two-thirds vote
needed for introduction. Two unsuccessful
instream bills were introduced this year,
although the Joint Agricultural Committee
did agree to an interim study on temporary
instream flows.
Changing times and our evolving state
economy means that Wyoming citizens are
prepared to again recognize the importance
of natural, non-consumptive and healthproviding
instream flows to our economy,
our well being and our future. The legislature
will either recognize these factors, or
a new citizens' initiative will be required
to make instream flows a reality.
Cale Case Ph.D. (R-Lander) is an economic consultant
who has served in the Wyoming
Legislature for 11 years, the last five as a state
senator. He is a member of the legislature's
Labor and Corporations committees. |
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