WG&F's plans for instream flow
Part II
by Cat Urbigkit

This is the second of a three-part series on instream flow and a proposal to establish an instream flow for a 8.18-mile segment of Pine Creek, from the Fremont Lake dam to the to confluence with the New Fork River south of Pinedale.

The Wyoming Game and Fish Department is advocating the instream flow for Pine Creek, using a combination of stored water and direct flows, as well as using new water rights and rights already held by WG&F and the Town of Pinedale. The agency currently has applications before both the State Board of Control and the State Engineer's Office which, if approved, would establish the Pine Creek instream flow, as examined in greater detail in last week's Sublette Examiner.

This article will turn the focus toward what WG&F would like to see in its overall instream flow program. The department's Instream Flow Program programmatic review and five-year plan, written by the fish division's Thomas Annear and Paul Dey last December, lays out the agency's intent, including expanding the instream flow program staff and funding.

Much of the review centers on the need to change "the legal component" of Wyoming's instream flow program through the public trust doctrine.

"Neither the state constitution nor any statute formally acknowledges the state's responsibility to manage fisheries and wildlife as a public trust," the plan stated. "The Public Trust Doctrine (PTD) is in fact the legal basis for all states' stewardship role in managing water, fish and wildlife resources for the good of all the public."

The plan continued: "Although the PTD has seldom been acknowledged in Wyoming and many other states, it is the basis for the state's authority over public resources that cannot be abrogated or given away and is a potential tool for supplementing the state's natural resource management authority. While omission from state statute does not diminish the state's responsibility, its formal acknowledgement in statute or the constitution could help affirm the state's trustee role over fish and wildlife resources."

The public trust doctrine will be the subject of the last of this series of articles and is scheduled to be published in the Oct. 10 Examiner.

Another problem area in need of correction, according to the WG&F, is that only the state can hold instream flow rights. While state law demands, "No person other than the State of Wyoming may hold any instream flow right," WG&F seeks to have such rights be held by private individuals as well.

Wyoming State Engineer Pat Tyrrell commented on the idea of allowing privately held instream flow designations in the summer issue of the Wyoming Water Association newsletter. He stated, "As a bit of history, the reasons behind the original language in the statute requiring that only the State can hold an instream flow water right arise from the notion that water development needs and instream flow reservations could both lead to water scarcity. The private ownership of instream flows could invite, it was theorized in early debates, environmental interests with anti-development postures to tie up the water rights on a stream, leading to a future scarcity of water for all other uses. Because instream flow water rights are virtually unabandonable, the prospect of this happening was scary."

Tyrrell also pointed out that if a senior water right was converted to a private instream flow right, "the impacts that would likely be felt, whether real or perceived, would be by the adjacent upstream water right holders who would be unable to use the water their neighbor is leaving in the stream - a notion that is objectionable to many of our traditional users."

While Wyoming's instream flow law expressly recognizes fisheries as the only beneficial use of an instream flow, the WG&F document advocates that state officials acknowledge that a fishery includes all of its component parts (water quality, recharge, recreation and esthetics). According to the plan, "By definition a fishery also includes societal uses and preferences."

Another flaw in Wyoming's program, according to WG&F, is that state water law "does not provide any recognition or incentives for water conservation.

"Based on the number of inquiries the department has received in recent years concerning both water conservation incentive opportunities and private ownership of instream flow rights, public pressure for the state to positively address these issues is likely to persist in coming years," the plan stated.

"Wyoming presently does not directly include mandatory instream flow requirements in its water quality permitting process," although WG&F believes the Wyoming Department of Environmental Quality has a legal basis to do so, according to the WG&F document. Also, "Wyoming statute does not require that water development projects subsidized with public funds include provisions for instream flows," although WG&F said this is a needed statutory change to make such instream flows mandatory.

Management of instream flows under the public trust doctrine is the first component of an effective instream flow program, according to WG&F, and this involves two elements.

"First it asserts a responsibility to actively manage all streams with the jurisdiction of the state or province (not just those with the best fisheries). Additionally it establishes the goal for agencies to pursue water management strategies and actions that move stream form and function toward their natural condition in any increment whenever possible - realizing that some streams will never be restored to a fully natural condition."

The plan continued, "The WG&F mission statement and strategic plan broadly establish the department's responsibility to manage wildlife resources, but stop short of acknowledging their obligation to manage all streams so they can maintain or achieve their natural ecological function."

The International Instream Flow Council, of which WG&F's Annear is a member, "considers recognition of public trust principles in agency policies an important institutional need because it may help affirm the legitimacy of agencies for resource stewardship in some situations. ... Even though the department generally abides by its trust responsibilities and authority, recognition of these facts as formal policy could enhance our ability to assert and remain committed to our legitimate fishery and wildlife stewardship authority in some situations."

The WG&F document criticized Wyoming's drought plan for its failure to acknowledge the importance of instream flow and noted the Instream Flow Council had this to say about drought plans: "Drought response plans developed by states and provinces should define essential and non-essential uses with instream flow deemed to be essential because of its public ownership nature. Failure to prioritize uses - and to minimize negative effects to essential uses, including instream flow - will inevitably result in inequitable water allocation during periods of drought. Historically, instream flow and public fishery and wildlife resources dependent on those flows have borne the brunt of such inequitable allocations."

"The present situation means instream flow water rights could be unmet in some drought periods if they were located downstream from senior rights, just like any other junior water right," the WG&F document stated. "Most of the instream flow applications that have been submitted to date are located on stream segments upstream from other uses so actually benefit from the prior appropriation system since they would take priority over more junior water rights during any period of water shortage."

The WG&F plan noted: "Opportunities to enhance or secure the standing for water rights on all department properties and maximize their beneficial uses should also be a priority to ensure that the department's full range of natural resource management responsibilities are being met while providing traditional benefits. Additional monitoring will be needed to advance the adjudication of instream flow water rights on streams with instream flow water right applications."

According to the plan, "At present, the greatest limitation to the instream flow program is the department's inability to appeal decisions by the Board of Control and State Engineer. This limitation greatly limits the ability of the department to be an effective advocate for representing the public's fishery management interests and the department's legal stewardship responsibilities."