Instream flow garners support, opposition

by Cat Urbigkit

Thursday's public hearing on the Wyoming Game and Fish Department's (WG&F) instream flow for Pine Creek drew a crowd of interested people to testify and listen.

The hearing, conducted by Wyoming State Engineer Pat Tyrell, involved two applications submitted to the State Engineer's office: a direct flow right for 40 cubic feet per second (cfs) throughout the entire year and a secondary application to use stored water to help maintain the 40 cfs flow rate throughout the entire year. The stored water would come from 952.95-acre-feet owned by WG&F in Fremont Lake, and 4,800-acre-feet of the Town of Pinedale's storage in Fremont Lake.

WG&F's Tom Annear kicked off the hearing by giving a presentation about the instream flow application, telling the audience that WG&F requested the instream flow in order to help the Town of Pinedale.

"This is a water management solution," Annear said, describing the combination of direct flow and storage rights (owned by both the state and the town) that would be used to achieve the 40 cfs.

"It's a cooperative, community-based effort," Annear said, adding, "It means you're going to have to know what's in the creek - it's going to mean monitoring." Annear said his agency is willing to assist in the monitoring, including installing stream gauges to measure water.

Annear said it's his hope that if the instream flow is granted, cooperative efforts between all water users would continue so there wouldn't be a call for regulation of water use.

Annear's talk about the community cooperative efforts led local rancher Stan Murdock to question, "You're leading me to believe that there is no problem, so my question is why are we here?"

Annear said, "There isn't a problem," but the instream flow would allow water operations to change, "to operate a little differently to let more water out" to flow down Pine Creek through Pinedale.

"All we're doing at this point is trying to help the town," Annear said.

"We don't need that 40 cfs all the time," Annear said. Of the instream flow, with its combination of stored and direct flow rights, Annear said, "We're just talking about a shell that will administer this water up to that amount."

Pinedale's Mark Eatinger questioned under what conditions WG&F would request the creek be put under regulation.

"Probably comments from the public and the town," Annear responded. "I would hope that there wouldn't be a call for regulation."

Annear predicted if cooperative efforts were successful, regulation wouldn't occur. But, he added, the situation is similar to when local irrigators call for regulation.

Annear predicted state officials "wouldn't have any more calls for regulation than you have for regulation for anything else right now.

With the application, Annear said, his agency is responding to the town's request for water in Pine Creek.

"We were responding to the city's request ... to improve their storage water," Annear said, "to improve the fisheries, or create a better fishery."

"All that we're intending to do with this application is to provide both the city and the game and fish flexibility" in water management, Annear said.

He said, "It is not a goal to see 40 cfs everywhere all the time."

"It's really not just a game and fish action, it's a city action as much or more," Annear said.

Wyoming State Engineer Pat Tyrrell asked Annear if this application were to be approved with the Town of Pinedale's short-term agreement to allow WG&F to use the town's storage right, and that agreement expired, "will the game and fish not posture to maintain that instream flow amount?"

Annear answered, "Absolutely not."

Jackson's Laurie Goodman, representing Trout Unlimited and the Wyoming Water Project, opened the testimonial part of the hearing, telling Annear, "just know that we stand behind your efforts."

Goodman also cautioned the group to remember that once granted, WG&F has every right to request regulation to have its water right enforced. She said Trout Unlimited "is proud to stand behind the project."

Big Piney rancher Dan S. Budd testified on the instream flow application, stating, "Injury to the existing users appears to be a certainty ... There will be some economic losses to irrigators."

Jim Urbigkit, representing Sublette County Farm Bureau, challenged the request for 40 cfs as a reasonable flow amount to be requested under the statute.

The state instream flow law states: "Waters used for the purpose of providing instream flows ... shall be the minimum flow necessary to establish or maintain fisheries."

Urbigkit testified that the 40 cfs was actually an optimal flow rather the minimum flow required by law.

Urbigkit urged the state engineer to reject the instream flow application, stating that to grant the request would give WG&F a "unlimited authority to request regulation" and "usurp the entire cooperative management of that creek."

Steve Jones of the Wyoming Outdoor Council questioned why irrigators feel threatened by the request for an instream flow, which would have a 2002 priority date if granted, meaning the senior water rights are held by the existing irrigators. Jones spoke of WOC's support for the instream flow.

Bruce Brinkman of WWDC testified that a feasibility report of the request revealed that there is not enough unappropriated water in the Pine Creek system to fulfill the WG&F request for 40 cfs year-round. Brinkman reported his agency's recommendation that consideration be given to reducing the amount of water requested.

John Dahlke, a Highland Canal irrigator and former water commissioner, challenged the feasibility report, which was authored by Rio Verde Engineering. While stating that it was not his objective to discredit the report, Dahlke said there is more than enough water in the system to satisfy the instream flow request.

Schroeder, representing the local Trout Unlimited chapter, testified of his organization's support for the application. He challenged the notion that there currently aren't any problems with the traditional cooperative water management efforts.

Schroeder said it's his understanding that last year irrigators took from two to eight times their appropriation. He requested the WG&F applications be granted as written.

Cathy Purves, representing the Wyoming Wildlife Federation, spoke of her organization's support for the instream flow, calling it a "unique community effort" and "futuristic planning for water use."

Pinedale Mayor Rose Skinner testified to the history leading to the instream flow applications. She said although the town owns more stored water in Fremont Lake than all other water right holders combined, the town is not getting enough water in Pine Creek through town. Since cooperating with WG&F in an agreement for an instream flow would give the town's stored water a destination point, the town supports it, Skinner said.

"We don't want to commit the water permanently," Skinner said.

Skinner said the town is simply trying to make use of its water right in the area it wants its water.

"I don't want any of you to think we're trying to harm the ranchers ... that's not the town's intention," Skinner said.

The topics of testimony at the three-hour hearing ranged from the hydropower plant on Pine Creek to the operating agreement of Fremont Lake and how the "bird's nest" of water rights would be administered if there were a call for regulation on the creek. Transcripts of the hearing will be prepared for State Engineer Pat Tyrrell's consideration, and there is currently a 60-day period in which interested parties may submit written comments on the WG&F applications. A March decision is anticipated.

Written comments may be submitted prior to Feb. 18 by mailing to: Wyoming State Engineer's Office, Herschler Building, Fourth Floor East, Cheyenne, Wyo., 82002.