From the pages of
Sublette Examiner
Volume 3, Number 33 - November 13, 2003
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Instream flow proposals to be secret

by Cat Urbigkit

The Wyoming Game and Fish Commission met in Rock Springs late last week and agreed to a procedure for instream flow filings that hides the applications from public view until they have been officially filed with another state agency.

Once the instream flow applications have been filed, there is no procedure for withdrawing them, the commission was also told.

The agency's instream flow applications have generated increased controversy, with the recent revelation that the department submits the applications, not the commission. The Wyoming Attorney General's office issued an opinion that this procedure is allowable by law.

WG&F's Mike Stone presented to the commission three procedural options, all of which have constraints and weaknesses, he said.

Stone told the commission, "Instream flow recommendations are essentially biological recommendations."

Commissioner Doyle Dorner of Evanston made a motion that the commission adopt recommendation three, which provided for the most open procedure for the public to witness.

Commissioner Bill Williams of Thermopolis disagreed, stating, "I don't see where our product has been broken," and advocating the most closed procedure, which was option one.

Williams said: "I realize that it's a toss-up for the most emotional issue, water or wolves, but in reality I think our instream flow rights, the law, is about the same as that for a burned-out headlight, for having an impact. That's how weak our water rights law is."

Williams said department personnel drawing up the instream flow applications based on biology is appropriate, adding, "I trust them to do the right thing."

Dorner said he disagreed with William's view, noting, "It's biological input for a property right." He suggested that the commission be as transparent as possible in its dealings, allowing for plenty of opportunity for public review and input. He said that with such an open procedure, the commission "will probably end up with a better product that way."

Williams said allowing for the public to know of the instream flow application before it is filed would allow members of the public to file for a water right ahead of the state wildlife agency.

When Commissioner Kerry Powers of Lusk asked what about the risk of such filings, Stone said there has been one instance in which a filing was made one day ahead of the WG&F's filing. He said that the agency has also been advised by one landowner that if the agency tried to get an instream flow right in his area, the landowner would try to get a filing in first.

Williams said the commission should try to take every advantage that it can in conserving wildlife and should consider that in making the decision.

Powers said while he agreed they should be focused on conserving wildlife, "it needs to be done in an open way for the public."

Commissioner Hale Kreycik suggested that option two provides a compromise between William's and Dorner's positions. This proposal calls for commissioners to be notified of instream flow applications, but not in a public session.

Commissioner Linda Fleming of Baggs said she would support option two, which was the option recommended by the WG&F department, but only if it were modified to address her concerns.

In the end, Dorner lost out on his proposal for conducting the process openly for public review. Only Dorner and Powers supported the proposal, with all others opposed.

Fleming made a motion for the commission to adopt the option two compromise. That included an amendment calling for the district WG&F Commissioner to be notified of upcoming instream flow applications within that commissioner's district. If that commissioner feels there is a concern with the application, the application would then be brought before the entire commission in an open public session before the application was filed. The proposal was also amended to include a provision that all commissioners be notified of applications two weeks prior to their being filed.

Fleming's proposal was adopted as official procedure, with only Dorner and Powers voting in opposition.

Dorner told the group that his opposition wasn't based on an opposition to instream flow applications, but was in opposition to not conducting the business in a transparent way. Powers echoed the same view.

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