The Middle Fork of the Popo Agie flows just a block away from the home where I have lived my whole life. As a boy the Middle Fork was for me what the Mississippi was to Tom Sawyer. A day did not pass when I wasn’t fishing, skating or swimming. My 11-year old son, George, cannot have this relationship with the river. While there are vigorous flows just three miles upstream, in town the almost-dry stream is contaminated and unsafe. George and all our young people deserve healthy and vigorous Wyoming streams.

Water Use in Wyoming
Wyoming water is governed by the prior appropriation principle. This “first in use, first in right” doctrine means that earlier water rights are superior to later ones. Early rights were largely limited to agriculture or municipal water supplies. In 1986, after a successful citizen’s initiative headed by the Wyoming Outdoor Council and other conservation groups, the Wyoming State Legislature was forced to pass an instream flow law. But the law has been a dud. Today we are still faced with streams that are too contaminated for our children to play in, too warm to support the trout we brag about, and too low to float a boat.

Why? Because the law is overcomplicated, anti-property and narrowly administered. Despite the vast importance of water resources to our economy and way of life, just 1 percent of 21,000 stream miles with fisheries have been protected since the law was enacted. Almost all of these are headwaters areas above diversions. Downstream stretches lack protection.

The law permits instream flows only for the minimum amount “to establish or maintain new or existing fisheries.” Aesthetics, health and safety, water quality, economic and recreational benefits are ignored. As implemented, flows for the benefit of fisheries are just enough to keep them alive—not enough to provide for habitat and the flushing flows that mimic natural systems.

Existing water rights, with their historic priority, can only be converted to instream flows if they are permanently surrendered to the state—something nobody has ever done. Thus, all instream flows have been new appropriations with current priority dates. This means that any person with a need and an earlier priority can use the water, and, therefore, we really are not protecting anything at all. No ability exists to address insteam flows on a temporary basis during drought years. And if an owner of senior rights decides to leave his flows in the river, they cannot be protected from upstream water rights holders or from those past the next diversion downstream.

In the West, because of the doctrine of prior appropriation and the “use it or lose it” concept, we waste our water. Water is precious. Water is life. Without water, none of us would survive. Water law has to change. Prior appropriation has outlived its usefulness. It encourages people to waste.
—Dick Baldes, Retired U.S. Fish and Wildlife Service biologist

It is a “use it or lose it” world. Only the Game and Fish Department can recommend stream segments to be protected for fisheries, but even then the process is long and complicated, and to date has protected very little.

Cities Grapple With Water Flow Issues
Our water law doesn’t permit communities to solve their instream problems locally either. For example, the State Engineer’s Office has been unsuccessful in finding a legal way to allow the City of Pinedale to release its own water from Fremont Lake to improve flows through town. There are lots of Wyoming towns like Pinedale that would appreciate more flow for aesthetic, public health and other reasons. While in my hometown of Lander, the city is applying to withdraw still more water from the Middle Fork of the Popo Agie by acquiring unutilized water rights. This will make our terrible water situation even worse. To solve these conflicting desires for Wyoming’s precious streams we need dialogue among cities, water rights holders and citizens. A cooperative means to encourage water conservation, and more efficient delivery could be just the ticket to make everyone better off.

The Solution? Instream flow opponents argue that flows should only come from new reservoir capacity and that transfers from existing users or recoveries from water conservation strategies should not be permitted. They believe that junior agricultural water-rights holders are entitled to water even if senior users would prefer to support instream flows. And the opponents of instream flow argue that irrigation return flows augment streams in late summer—a proposition that occurs only under certain circumstances.

Conservation groups and property owners have been attempting to advance a new Wyoming instream flow law for several years and we are making progress. A major obstacle continues to be the Joint Agriculture Committee. To date, no major bill has made it out of committee and a promised interim study turned out to be a farce. A minor bill to deal specifically with the Pinedale situation passed the committee, but got hung up elsewhere in the legislature.

We will keep trying, but it is becoming more apparent that the legislature will not be up to the task of a more liberal instream flow law unless extraordinary pressure for reform develops. It is time for a citizens’ initiative to make instream flows a reality. Our fish and our rivers depend on it, so do our children.

Cale Case represents Lander, Hudson and the Wind River Indian Reservation in the Wyoming State Senate where he has sponsored instream flow bills for four of his 14 years in office. The Wyoming Outdoor Council supports these efforts and will continue to work with Senator Case to revise Wyoming’s antiquated water laws.