Tangled web of water rights

by Cat Urbigkit

It appears that last year, for the first time, the Town of Pinedale released all of its Fremont Lake water storage right. According to Wyoming Water Commissioner Chris Carlson, in water year 2005, Pinedale released 9,810 acre-feet of stored water.

Water Superintendent Jade Henderson said that the town is reporting that it released all its stored water right, and is expected to claim that the water was put to beneficial use. However, some of the water “stayed in the stream,” so it was an unprotected use since this use is not part of the town’s permitted water right.

Although Pine Creek is subject to two instream flow water rights, Pinedale does not hold an instream flow right. The town can release its stored water and send it down the stream, but “we wouldn’t have protected it,”Henderson said, should a call for regulation have been made.

State Engineer Pat Tyrrell said that the town will report to the state water board next month on its water usage. The town will claim that all its water was beneficially used, and even if the state board adopts the town’s water report, it has little weight in terms of any potential challenge.

“It’s really for their protection against a future challenge,” Tyrrell explained.

Only the State of Wyoming may hold an instream flow right, so Pinedale can’t claim that its water went for instream flow since the town doesn’t hold an instream flow right. Pinedale’s history on the Pine Creek instream use issue is long and somewhat complex.

In 1988, Highland Irrigation District petitioned the State Engineer’s Office for the abandonment of the 9,844-acre-feet of storage rights the Town of Pinedale held, seeking to have the right assigned to the district. Highland took this action in response to word that the town was reportedly negotiating to sell the water out of the community.

Since the town hadn’t made beneficial use of its water as called for by statute, its water right was vulnerable to abandonment proceedings. The district’s petition noted: “It is the intent of the petitioner to make beneficial use of the water for which abandonment is sought and, thus, to preclude the possibility of said stored water leaving the geographic area in which it is stored, thereby depriving saidarea of the essential use of said water in years when there is inadequate precipitation to maintain the economic stability of the local area, and further to protect said water for future municipal use with minimal future impact upon local agricultural needs.”

Highland took action quickly, knowing that such an abandonment proceeding was being considered by entities outside the community as well. Highland beat the other interests to the State Engineer’s Office.

Highland eventually voluntarily withdrew its petition for abandonment and the State Board of Control granted the town an extension of five years within which to make beneficial use of its stored water; the town was required to make annual reports of its water use to the State Board of Control. Pinedale was again granted a five-year extension of time for beneficial use in 1998.

With the five-year period long past, Pinedale was due to demonstrate beneficial use of its water in 2003. Instead, it filed for and was granted another five-year extension to demonstrate beneficial use, according to Henderson. Although annual reporting of water use was required, the town is behind in its reporting, Henderson said in a recent interview, noting he had contacted the town to have the situation rectified last week.

Although the town was behind on its reporting, Carlson had the water accounting available on his computer.

The town has tried numerous efforts at achieving its vision of an instream flow, from temporary water use agreements to two-year lease agreements, neither of which are allowable by law. Although the town has been unable, by law, to change its water right to a town-owned instream flow right,that doesn’t mean Pine Creek is lacking a legally protected instream flow.

Pine Creek’s legally designated instream flow uses both natural flow and storage. It was approved by the Wyoming State Engineer in December 2003 and provides for natural flows for the 8.2-mile segment of Pine Creek from the dam to the confluence of the West Fork of the New Fork River, inthe following amounts:

December through March, up to 20 cubic feet per second;

April, up to 26 cfs;

June, July and October, up to 40 cfs; and

up to 32 cfs in November.

In addition, the state was granted the right to use the Wyoming Game and Fish Department’s 952.95 acre-feet storage right under permit Nos. 4453 Res. and 4465 Res. That water is to be used for fish propagation and can be released from the reservoir “to support fisheries in Pine Creek below the reservoir.”

Although the state’s instream flow application sought 40 cubic feet of water per second year-round, a Wyoming Water Development Commission report determined that there was no unappropriated flow in the top reach for any month of the year; only October had the requested 40 cfs available in the middle reach; and the lowest reach had the requested amount available only in Ocober and November. The rest of the months were short of the requests by at least 10 cfs and up to 40 cfs.

The total amount to be released for instream flow under either of the two instream flow permits cannot exceed 40 cfs, “the maximum beneficial use rate requested by the Wyoming Game and Fish Department for Pine Creek.”

In granting the instream flow request, Wyoming State Engineer Pat Tyrrell did deny the use of 4,800 acre-feet of storage from Permit 4452 Res for instream flow since this is not owned by the state but by the town. State law requires instream flow rights be held by the state in the public interest.

Because instream flow is not a consumptive use of water, the permitted amounts do not count against Wyoming’s apportionment of consumptive use in the Upper Colorado River Compact of 1948.

According to Tyrrell, “Only 5,510.41 acre-feet of Pinedale’s entire 17,428.62 acre-feet account in Fremont Lake Reservoir (all permits) are not intended to be released through the dam outlet works but instead through the municipal pipeline intake. The entire 9,844.12 acre-feet under Permit No.4452 Res. was designated to be available through the outlet works. Since the construction of the new dam, a layer of deposition 14 inches in height has occurred below the old dam apparently preventing the complete evacuation ofthis 9,844.12 acre-feet. If at some future time it is necessary to evacuate the entire 9,844.12 acre-feet, the parties of interest will need to evaluate this obstruction and its effects on delivery of storage water through the dam outlet.”