Instream flow approved

by Cat Urbigkit

Wyoming State Engineer Pat Tyrrell said in a Monday interview that late last week he signed the records of decision for the two applications to establish an instream flow for Pine Creek.

In summary, Tyrrell said, the 952-acre-feet of storage right owned by the Wyoming Game and Fish Department was approved for instream flow use; the Town of Pinedale's 4,800-acre-feet of storage was denied for instream flow use; and some natural flows were approved for certain months of the year for instream flow use.

Tyrrell said in issuing the instream flow decisions, he "sought to allow what the law would allow."

The WG&F's existing 952-acre-feet of storage can now be used for instream flow within the 8.2 stream mile segment below Fremont Lake Dam, ending at the confluence of the West Fork of the New Fork River.

Although the Town of Pinedale had signed a water lease allowing WG&F to use 4,800 acre-feet of storage right in Fremont Lake for instream flow, this was denied, Tyrrell said, "since it is not owned by the State of Wyoming," a legal requirement.

The most contentious issue in the entire application process involved the direct flow right requested by WG&F. The state agency asked for 40 cubic feet per second of direct flows, but a hydrological study demonstrated that the requested amount of water is not actually available in the system during all months requested.

Local irrigators expressed concern that by allowing such a large appropriation for instream flow would mean that the cooperative way that water has been used would end, with regulation taking its place, an action they view as an injury.

But in his written decision, Tyrrell wrote: "There is no credible evidence that the permitting of this instream flow would injure senior appropriators ... Regulation cannot be considered injury, but instead, administration of the priority system as described under Wyoming water law."

Tyrrell said there is some unappropriated water in the Pine Creek system during certain months, and he approved some of the WG&F's request, although with restrictions, and generally far below the 40 cubic feet per second requested by the state wildlife agency.

The approved permit grants natural flows for instream flow use as follows:

January up to 20 cfs
February up to 20 cfs
March up to 20 cfs
April up to 26 cfs
May 0
June up to 40 cfs
July up to 40 cfs
August 0
September 0
October up to 40 cfs
November up to 32 cfs
December up to 20 cfs

Both of the approved permits (for storage and direct flows) include the following statement: "The implementation of this permit in conjunction with any other instream flow permit cannot exceed 40 cubic feet per second of water, the maximum beneficial use rate requested by the Wyoming Game and Fish Department for Pine Creek."

In total, the state water regulator received 41 letters in support of the instream flow applications, and 11 in opposition. The WG&F will be required to install at least one measuring device on Pine Creek near Pinedale to allow water measurement and administration of these water rights, which were granted with a 2002 priority date.