From the pages of
Sublette Examiner
Volume 4, Number 32 - November 4, 2004
brought to you online by Pinedale Online

Water conservation: Is it really a good thing?

by Cat Urbigkit

Water conservation. It sounds like something that should generate across-the-board support, right? But it’s not and it shouldn’t.

Wyoming State Engineer Pat Tyrrell spoke to the Wyoming Water Association educational seminar last week in Casper, reminding the group that a water rights holder only develops a transferable interest in that portion of a water right that is actually put to beneficial use. Since diversion rates are regulated, if necessary, at the point of diversion, “a water right does not include losses experienced on the way to the field.”

Tyrrell pondered the definition of water conservation. He said conservation could include diverting less water, consuming less, storing more and reducing user conflicts in times of shortage.

Since Wyoming’s primary water supply comes in the form of snowpack, and runoff lasts a relatively short time, Tyrrell said, “Conservation means entirely different things in June than January.”

“An argument can be made that conservation for any use must include storage of excess run-off,” he said.

Tyrrell talked about the ironies of current practices. He said without flood irrigation, many of the rivers and streams in Wyoming would revert to their historic fall dry conditions.

“By diverting less and avoiding deep percolation, pivots have the exact same physical effect on stream systems as instream flows do,” Tyrrell said. “Think about this: both rob the system of delayed return flows.”

Tyrrell pointed out that there is such a thing as legal over-diversions of water.

“We allow over-diversion,” he said, so long as the water system is not functioning under regulation and the water is put to beneficial use.

“Diverters with leaky canals may rely upon legal overdiversion to get water to and across their lands, but such a reliance is not a guarantee that the ability to overdivert will always be there,” Tyrrell said. “Any return flow benefits so obtained are not a protectable part of a water right.”

“A flow in a stream, which is conservation to some, may only be guaranteed consistently by flood irrigation, which is conservation to others,” Tyrrell said.

“Until common goals for conservation can be established, no water law changes will see success,” Tyrrell predicted.

Former state engineer Jeff Fassett, now a private consultant with a variety of clients (from municipalities to the State of Nebraska and Trout Unlimited), said that state water law needs to be changed to allow greater flexibility in water users and “to protect instream flows.”

Fassett broached the subject of the Town of Pinedale’s continued effort to get an instream flow for Pine Creek, calling it the “poster child” for municipalities wanting to protect flows through their towns. He described how the town tried to use the temporary water use law and failed, how the town tried to lease the water to the state and failed and recently proposed to sell its water right to the state for an instream flow, but ended up not having full council support for that idea either, so that failed as well.

Fassett said the Town of Pinedale would like to see changes in the state’s temporary use law to allow the town to leave the water in the creek as a protected right. This “in-channel use” needs to be added to the statute, Fassett said, and must be specifically written in such as way that it would not be an “instream flow” since instream flow rights may only be held by the state.

The law also needs to be changed to allow more changes to be made in temporary water uses, Fassett said. Although water rights holders may apply for changes to be made on a permanent basis and may be granted those changes, the same changes won’t even be considered under the state’s temporary water use law, Fassett said.

Wyoming water law should also be altered to recognize salvage water rights, Fassett said. In Montana, conservation groups like Trout Unlimited will pay for on-farm irrigation improvements that result in water conservation. The group is then allowed to lease or purchase the amount of water conserved, called salvage water. It can then be used for instream flow.

Fassett also said that if an irrigator wanted to leave his water in the creek during a drought, that water isn’t protected in the stream unless it is sold to the state for a permanent instream flow. Fassett advocated a change to water law to resolve this issue, noting that people don’t seem to want to sell their water rights to the state on a permanent basis.

Cheyenne attorney Harriet Hageman addressed the negative effects of water conservation. She said conservation has the potential to create injury to other water rights by reducing return flows.

“If you change the way you irrigate, you’re going to change the way the entire system works,” Hagemen said.

Conservation can result in a decrease in the groundwater table and a decrease in wetlands, which can have an impact on wildlife and wildlife-oriented activities such as waterfowl hunting, she said.

Hagemen said that whenever water conservation is being considered, increased efficiencies should be examined along with additional water storage.

David Little of Denver Water described his agency as a currently serving 1.1 million customers in the Denver area, with a build-out projection of 1.9 million people by 2050.

“The United States is heading toward the density of China,” Little said.

When it comes to water conservation for Denver Water, it could serve more customers with the existing amount of water, but that would result in a reduction of flows entering the South Platte River system. Downstream communities rely on this return flow and advocate that residents of Denver should “flush twice” instead of conserve water.

“Is conservation good?” was the question Little repeatedly asked as he gave his presentation.

Denver Water began a water reuse project, but the project was found to deplete flows entering the South Platte, resulting in jeopardy to several threatened and endangered species, Little said. This jeopardy came into effect even though the water being reused was actually a transbasin diversion of water into the system that didn’t originate there.

“The Endangered Species Act, as far as I can tell, trumps everything - even a reuse project to serve municipal needs,” Little said.

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