No regulation of private instream flows

by Cat Urbigkit

One Wyoming legislator recently requested and received a legal interpretation regarding state regulation of private agreements for water use. The question addresses the possibility of a de facto instream flow creation by supporters.

Attempts to enact legislation to allow the Town of Pinedale to use water temporarily for instream flow in Pine Creek - illegal under current law - failed during the Wyoming Legislature this winter. But after the session ended, Representative Monte Olsen of Daniel asked Wyoming Attorney General Pat Crank to provide further guidance on a related issue.

In a letter to Crank, Olsen pointed out that the Town of Pinedale wants to use part of its storage right in Fremont Lake for instream flow use downstream in Pine Creek.

A water right issued by the Wyoming State Engineer's office is actually a right of use, under the terms and conditions and specific uses, as defined on the permit itself. The town would like to use the water for instream flow, which was not a permitted use on the water right permit authorization. In addition, under Wyoming law, instream flow rights are not temporary, but are permanent designations and, as such, such permits may only be held by the state.

Olsen asked Crank, under current law, "can the State Engineer, upon request of water rights holders who are party to a private agreement regarding stream regulation, provide such regulation according to the terms of the agreement so long as no harm accrues to other holders of valid water rights who are not parties to the agreement?"

"Regulation" is the term used to describe what happens when a senior appropriator calls for junior appropriators to be shut down, Crank noted in his confidential response, which Olsen released to the Examiner at the newspaper's request.

"When there is a call for regulation, junior appropriators are shut down (regulated off) in reverse order of priority until the senior right is receiving its full appropriation," Crank wrote, adding, "Using the term as it is used in the law, there is no private stream regulation."

In only two situations do private agreements touch the state's administration of water rights: exchanges and rotations.

Exchanges between appropriators are allowed by agreement in which one water right holder allows another water right holder to use the water temporarily, but only when the state engineer's office has examined the proposal and allowed such an exchange. A source of supply may be regulated in conjunction with an exchange order, but regulation occurs under the prior appropriation doctrine as it applies to the exchange right.

Rotation among water users must be approved by the water commissioner. Crank stated, "When irrigators see an advantage in combining water rights in priority to improve the economics of using the available supply, they may arrange to share the supply."

Such a rotation must be approved by state officials upon determination that no injury to other appropriators would occur. Performance of the rotation are enforced by the water commissioner under the terms and conditions of the written approval.

Olsen said he asked this question after a casual discussion with several legislators and at least one lobbyist in which they pondered if the temporary instream flow bill failed, "Could water right holders contract with each other for instream flow, and then have the state regulate it?" The answer, according to Crank's memo, is no.

Olsen said, "We wanted to know the answer to this question so we could be prepared if it happened." Olsen said he wanted to know if people could circumvent existing statute to have their desired instream flow.

"The intent was not to find a way to circumvent state law," he said, but instead was simply a matter of getting more information.

Olsen said he did not support the legislation that would allow for temporary instream flows.

"Right now, we have a policy and statute that is the envy of the West and quite frankly, let's not mess with it," Olsen said.