Water hearing draws praise, criticism

by Cat Urbigkit

Wednesday morning's State Board of Control hearing regarding amending the Wyoming Game and Fish Department's (WG&F) stored water right in Fremont Lake drew a crowd of about 35 Sublette County residents to the Pinedale Library meeting room.

WG&F owns 952 acre-feet of stored water in Fremont Lake with the stated purpose of "fish propagation." In March, WG&F filed an application with the State Board of Control to make changes to this water right: deleting the restrictive language regarding regulation and protection of the water right; and allowing the water to be released at any time during the year as needed rather than during the period of Oct. 1 through May 30.

According to the WG&F application: "The effect of this amendment is to permit water to be used when needed for the beneficial use of fishery protection."

If the change is approved as requested, the agency will be able to call for water releases throughout the year and will be able to request that Pine Creek fall under state regulation during shortages. Presently, the use of WG&F storage is restricted to the Fremont Lake fishery during the summertime, and only during the wintertime for the Pine Creek fishery. The priority date for this 1931 water right would remain intact.

This application is only one piece of a larger attempt to get an instream flow along an eight-mile stretch of Pine Creek. WG&F has also filed two applications with the State Engineer's Office. One application is for its stored water to be used as an instream flow. This application, called a "secondary application," seeks to use the 952 acre-feet of WG&F stored water for an instream flow, as well as use the 4,800 acre-feet the town has agreed to lease to the agency.

WG&F's Tom Annear explained that the hearing only applied to the changes it was requesting on its existing water right. He said the agency wanted to eliminate restrictions which "encumbers this water right" to release water in the quantities and times the agency feels is "necessary and appropriate." WG&F requests that its water releases then be protected and regulated.

Hearing officer Jade Henderson questioned Annear about the WG&F's request for regulation and protection and whether WG&F anticipates that regulation would be automatic by state water officials. Annear said while this was treading new ground, he expected that initially WG&F may need to call for regulation, but as everyone adjusts to the changes, and allows water to pass down the river, such formal calls may not be needed. Annear said he couldn't anticipate how often WG&F would request water be regulated to fill the agency's water needs.

Jim Urbigkit, representing Sublette County Farm Bureau, requested that his organization be classified as a formal contesting party to the application and the board granted this status.

Urbigkit testified that WG&F's findings of fact in its proposed amendment claims that no other appropriator would be injured by the proposal, and this claim "is not true."

He said that water flows in the area have traditionally been managed under cooperative efforts.

"If regulation occurs, harm will occur," Urbigkit said. "The whole notion of regulating a creek suggests conflicting use," Urbigkit said, yet the irrigators in the area are great stewards of the water, providing substantial return flows.

"For these reasons, the Farm Bureau requests that the amendment be denied," Urbigkit said.

Dennis Schroeder, Pine Creek irrigator and president of the local chapter of Trout Unlimited, said the change proposed by WG&G is an essential part of improving Pine Creek and would benefit the entire community.

Pine Creek Ditch Association irrigator Paul Hagenstein said, "In my lifetime, I've never seen Pine Creek not have water in it."

Tracy Walker, representing the Pinedale Area Chamber of Commerce, testified in full support of the WG&F petition. She also read aloud a letter from the Sublette County Joint Tourism Promotion Board stating the benefits of the WG&F wording change proposal are "far in excess of any costs."

Randy Bolgiano, a Boulder-area irrigator without a directly affected water right, testified that in his view, the application was "an end-run around the statute in order to create an instream flow right."

When Urbigkit questioned if Bolgiano could foresee harm to local irrigators if the proposal were approved, Bolgiano responded, "Unequivocally, it would cause reduction in the production ability of irrigators."

John Godfrey, secretary/treasurer of the Upper Green River Chapter of Trout Unlimited, spoke in favor of the proposal, and urged the board to take note of the 140 letters or signatures on petitions in support of the original Pine Creek instream flow proposal. Godfrey also read into the record a letter of support from the 1,200-member Wyoming Council of Trout Unlimited.

Godfrey said the debate over the WG&F application was Sublette County's "family squabble." Godfrey said all parties appeared to recognize that irrigators take more water than is legally their right as a necessity for viable agricultural operations.

"Isn't the WG&F entitled to call upon their storage rights" in the same manner as irrigators holding water rights appropriate." Godfrey questioned.

Godfrey called the agricultural interest's fear of future water regulation, "more fear than reality."

As this issue went to press, several other representatives of Trout Unlimited were scheduled to conclude testimony in favor of the WG&F application.

Three of the five-member Board of Control attended the Pinedale hearing, but the board is not expected to issue its decision on the proposed amendment until its mid-November meeting in Cheyenne. The State Engineer's Office will hold a public hearing, perhaps this winter, on WG&F's instream flow permit applications.