Instream flow argued again

by Cat Urbigkit

The State Engineer's rehearing on the Pine Creek instream flow applications drew a crowd of about 45 people to the Sublette County Library in Pinedale Monday morning.

State Engineer Pat Tyrrell presided over the hearing in which testimony was heard regarding the secondary application for use of stored water from Fremont Lake, as well as an application for up to 40 cubic feet per second of natural direct flows for instream flow use.

The same two instream flow applications were heard last December, but due to insufficient public notice of that hearing, a second hearing was held this week, with additional public notice.

Wyoming Game and Fish Department water management coordinator Tom Annear gave a summary of the reasoning behind the instream flow requests, noting the applications are designed to help the Town of Pinedale and the WG&F better use their storage rights and improve the Pine Creek fishery.

Annear said that having the direct flow right, to be used mostly in summer months, would allow the state wildlife agency "to call for and protect natural direct flow water in the stream."

Annear said his agency believes there are adequate flows to fulfill the request.

Annear emphasized that the Town of Pinedale, not WG&F, initiated the instream flow proposal although the agency then joined in to support what they viewed as a viable proposal.

Jim Urbigkit of Sublette County Farm Bureau disputed Annear's assertion that 40 cfs is the minimum flow needed as required by state statute, adding he was inserting into the record a memo written by Annear noting that while 40 cfs was the ultimate goal, 30 cfs would be adequate.

Annear said he did indeed write the memo at issue, noting that his agency's initial recommendation was to limit the quantity storage water to create or maintain a fishery. But after reviewing the statutes, again, Annear said for "a one-time shot, we didn't want to come back and do this again," so the agency decided to "file for a higher quantity of water" to allow the town to create a better fishery.

"We feel it is consistent with the statute," Annear said.

Wyoming Water Development Commission instream flow project manager Bruce Brinkman said his agency had completed its hydrologic feasibility study, noting that there is not enough unappropriated water to meet the request. His agency suggested that the requested amounts be reduced to more closely correlate with water availability.

John Dahlke of Pinedale, also an appropriator at end of Highland Irrigation District, said he has problems correlating the hydrologic report with what's actually happening on the ground. He said the hydrologic report was based on the maximum use of existing water rights, but "We don't see that."

Dahlke said although the town has offered to irrigators the use of up to 5,000-acre feet of water, only two ditches took advantage of the offer and that use fell far short of the 5,000-acre feet.

Dahlke said that in 20 years, the town of Pinedale has not demonstrated that is has made full beneficial use of its storage rights.

This lack of showing of beneficial use in the last 20 years, "proved its not critical to irrigators," Dahlke said. "I think there is more than enough water in the system to make this project function."

Bill Schertz testified next, pointing out, "Water is our lifeblood and whoever controls the water, controls all."

Schertz spoke in opposition to the instream flow request, noting that flood irrigation restores well water, providing water for 80 percent of the people in the area.

Pinedale irrigator Paul Hagenstein briefly reviewed return flows generated from his 6.6-acre pond just south of Pinedale. Data indicates that this pond generates as much as 5.7 cfs in return flow to the system, and as much as 4.5 cfs in this year's drought. This is a spring-fed pond, with no direct flow entering it.

Dan Budd of Big Piney testified that he stands in opposition to instream flow proposal because it does not comply with Wyoming Statutes and because there is not enough water to satisfy the request. He requested that the instream flow proposal be rejected.

Urbigkit introduced several items into the record, including the dam agreement indicating that Highland Irrigation District has the right of first refusal for sale or lease of water under the town's storage right permit.

Urbigkit said that the town does not have the legal right to offer the water for lease or sale to WG&F under the dam agreement.

Urbigkit also cautioned against what he called, "Orwellian" methods of defining words, stating "minimum means minimum" and "commission means commission, not department."

He asked the State Engineer not to reduce the amount of the instream flow, but to reject the applications outright.

"When you allow the Wyoming Game and Fish Department to improperly present an instream flow application, and you approve a portion of it, you are encouraging them to continue to submit applications that are not in compliance with law."

Dennis Schroeder, a rancher on Pine Creek who has water rights in two local ditches, spoke in favor of the applications, stating that not only is the issue about fish habitat and the recreation it provides, but about property rights. He said the citizens of Pinedale own 58 percent of the storage rights in Fremont Lake and "the citizens of Pinedale deserve to have a portion of these rights protected."

Schroeder urged that the applications be approved as submitted, with no reduction in the requested amounts.

Jack Roberts of Highland Irrigation District took issue with Dahlke's earlier claim about use of the water and its availability. Roberts testified, "We had to shut off water to stay within adjudicated amounts" in both of the last two years.

John Godfrey of Trout Unlimited said that one thing that continues to strike him is the amount of fear generated by the instream flow applications: "fear that perhaps someone is going to redirect water ... that is needed for agricultural purposes."

"Without question, irrigator's rights should be and will be protected," Godfrey said, as should the town residents' rights.

Godfrey urged that the instream flow be granted, but also suggested the establishment of a focus group to monitor the success of the project and to resolve any associated issues.

Boulder rancher Randy Bolgiano, representing the Green River Valley Cattlemen's Association, said he does not believe the applications are in compliance with state statutes, but focused much of his testimony on the issue of injury to water users. Bolgiano said water users are more than those with a water right, but includes "just about every citizen and resident of this basin.

"I suggest the injury will be, if this water right is granted, to every resident of this basin," Bolgiano said.

"This is a drought issue," Bolgiano said. "I've never heard any complaint about the Pine Creek flow prior to these years of drought."

Bolgiano predicted "when the drought disappears, this issue disappears," adding that it is his fear that we're "about to take a situation that isn't broke and fix it, to our detriment."

Bolgiano suggested a more productive solution might lay in the development of a cooperative agreement that would help to keep water in the creek, even in times of drought. He said such an agreement would not amount to a water right.

"Granting the water right would be a mistake," Bolgiano said, because "the water right is the tool that can, and would, according to Mr. Annear, call for regulation."

Regulating existing irrigators to the two cfs per 70 acres called for in statute would harm the riparian character of this valley, he said. Regulation and restricting irrigation flows will result in the basin reverting "to something a good deal less wonderful than what it is now."

Rancher and irrigator Stan Murdock spoke in favor of Godfrey's idea for a cooperative venture to address the issues. Murdock suggested the instream flow applications be tabled for about five years to give such a venture an opportunity to work.

When public testimony came to an end, State Engineer Pat Tyrrell said he would like to know to what extent there was an effort to provide for the 40 cfs on a cooperative basis and outside the water rights realm.

Annear said he was initially contacted by his agency's Pinedale office, based on contact with town and Trout Unlimited officials. Annear said that although the Fremont Lake dam operating agreement provided for an instream flow in winter months, when irrigators turned their water on, flows were reduced and "the creek in some years got really low."

Annear said the town was frustrated that although it owned the majority of the water right, when it asked for water to be released, the water never made it to town.

"The implication I got was that there was no legal mechanism for the town to get the water through town," Annear said. "It would be released, but never made it here."

Hagenstein listened to Annear, then said: "As far as I'm concerned, this is all hogwash. The creek has never been without water."

With all the testimony over and the hearing preparing for closure, Schroeder urged the State Engineer to issue a timely decision. He said the instream flow idea has been in the works for about three years.

"Either do it or don't do it, but a timely decision would be very much appreciated," Schroeder said.

Comments on the Pine Creek instream flow applications will be accepted until Aug. 27 and should be sent to Wyoming State Engineer, Herschler Building - 4E, Cheyenne, Wyo., 82002.