From the pages of
Sublette Examiner
Volume 2, Number 39 - December 23, 2002
brought to you online by Pinedale Online

Legality of instream flow questioned

by Cat Urbigkit

The legality of the Wyoming Game and Fish Department's (WG&F) request for an instream flow for Pine Creek came into question at a hearing in Pinedale Thursday morning.

The Wyoming State Engineer's public hearing for an instream flow for Pine Creek as requested by the WG&F drew a crowd of about 70 people to the Sublette County Library.

Attending and presenting testimony was Les Henderson of Rock Springs, a former WG&F Commissioner, who broached a legal issue. He noted that state law requires instream flow recommendations be made by the WG&F Commission, not its department.

"My contention is that all instream flow recommendations not formally approved by the game and fish commission are not in compliance with state law," Henderson said, explaining that the WG&F Commission hasn't had an instream flow recommendation come before it for about 20 years, but the WG&F Department forwards its own recommendations on to the Wyoming Water Development Commission.

Henderson said: "All instream flow applications based on recommendations not formally approved by the Wyoming Game and Fish Commission are invalid and should be withdrawn. The process should be started over and done correctly. Whether an instream flow application is a good thing or a bad thing is not relevant. The application process must comply with state law."

Pinedale rancher, irrigator and Upper Green River Chapter of Trout Unlimited President Dennis Schroeder scoffed at the contention the application wasn't legal, stating that the Wyoming Attorney General's office hadn't found a problem although it had seen the application.

"Now perhaps we have some better lawyers here than the attorney general," Schroeder said, generating laughter because lawyers in the room were few.

But it appears the issue will soon be an agenda item for an upcoming WG&F Commission meeting.

The Examiner asked WG&F Commission Chairman Doyle Dorner, who was not in attendance at the Pinedale hearing, about the legal question posed by Henderson.

Dorner confirmed that the Pine Creek instream flow application hadn't been taken to the current commission for approval prior to sending it on to the WWDC.

As a result of the controversy this week, Dorner said, "I have asked the department to review instream flow issues with the commission prior to proceeding with additional applications."

When asked the commission's position on whether the department has the authority to take instream flow applications to the WWDC without going to the WG&F Commission for prior approval, Dorner responded: "The commission has not discussed this matter as we have just recently become aware of instream flow issues and associated impacts so we have not formal position on your question. The statutes indicate the commission has to make the request, so your question on department authority without commission consent would need to be answered by the attorney general."

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