From the pages of
Sublette Examiner
Volume 6, Number 36 - November 30, 3006
brought to you online by Pinedale Online

Instream flow debate to continue

by Cat Urbigkit

Instream flow advocates wanting to change Wyoming water law will soon be at it again.

According to an editorial in the Wyoming Outdoor Council’s fall newsletter authored by Lander-area Wyoming Senator Cale Case, since the Wyoming Legislature has refused to enact reforms, despite Case’s sponsorship of legislation four times in 14 years, it’s “time for a citizens’ initiative to make instream flows a reality.”

WOC noted that it supports Case’s efforts “and will continue to work with Senator Case to revise Wyoming’s antiquated water laws.”

Case bemoaned the fact that existing laws “don’t permit communities to solve their instream problems locally either.”

The article included a chilling statement for students of water law, in a quote from retired U.S. Fish and Wildlife Service biologist Dick Baldes as stating: “Water law has to change. Prior appropriation has outlived its usefulness. It encourages people to waste.”

Case calls the existing instream flow law “a dud.” The law has been in effect for more than 20 years and has resulted in the approval of 42 instream flow permits protecting flows in about 450 miles of Wyoming rivers and streams.

The Wyoming Game and Fish Department has a five-year plan in place for its fisheries program, including its priorities for instream flows.

According to the plan, activities over the last 12 years have targeted streams inhabited by native cutthroat trout subspecies. Starting with Bonneville cutthroat trout, by 1997 the agency had filed for 41 miles of water rights on 17 streams. Efforts continued with instream flow filings on Colorado River cutthroat trout waters and a total of 113 miles on 29 streams were filed by 2000.

“While most stream segments pursued were important recreational fisheries on public land, filings had the additional benefit of securing protection for species proposed for listing under the Endangered Species Act,” according to the agency.

WG&F switched its focus in 1998 to Yellowstone cutthroat trout streams. The Yellowstone cutthroat trout was petitioned for listing under the Endangered Species Act in 1998, but the U.S. Fish and Wildlife Service determined that the listing was not warranted.

“Instream flow water rights on Yellowstone cutthroat trout streams provide a legal protection mechanism that decreases the threat of habitat loss,” according to WG&F. Through February 2006, 13 instream flow water rights have been filed to protect over 45 miles of Yellowstone cutthroat trout streams.

According to WG&F’s five-year plan, for 2006 – 2010, Yellowstone cutthroat trout streams “will continue to be recognized as the highest priority important fishery resource for protection with instream flow water rights. While other important fishery resources exist, notably traditional popular non-native sport fish and native prairie stream fish communities, this 5-year plan proposes a continued focus on Yellowstone cutthroat trout streams. Many significant populations throughout the historic range occupy waters that are candidates for protection with instream flow water rights. With future status of this species under the Endangered Species Act uncertain, continued state action in the form of instream flow water right filings is critical to the long-term persistence of the species.”

The plan added: “The only issues that seem likely to divert attention from Yellowstone cutthroat trout are another potentially endangered fish or a change in water law that would allow a significant public fishery to become protected by an instream flow water right.”

WG&F also noted that with one full-time employee devoted to developing new instream flow water right applications, only two to four comprehensive instream flow studies can be conducted annually.

WG&F plans to pursue instream flow water rights under a “protect the best first” approach. Priorities will be assigned by considering a variety of issues, including the genetic purity of target species, presence of hybridizing species, presence of competing species, stream miles protected, habitat condition and sampling efficiency. Streams targeted first will be those in which the target species has relatively higher genetic purity, hybridizing species are absent, and competitors are relatively few. Streams with longer potential instream flow segments will be selected before short streams, under the state agency plan.

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