Town Council member drafts potential water rights ordinance
Rule would forbid sale without town’s approval
by Annie O’Brien

In the latest twist over water rights and instream flow, Pinedale Town Council member Gary Heuck introduced a potential ordinance that would prohibit the sale, transfer or release of the town’s water or water rights, without the approval of a majority of the town’s qualified electors.

Under existing town law, the sale or transfer of water and water rights are approved by the town council. Heuck prepared the resolution, which specifically targets instream flow initiatives, with the help of attorney John Mackey. It states:

The sale, gift, transfer, lease or release of water, or water rights or permits, for instream flow purposes, shall be and is hereby prohibited without approval by the qualified electors of the Town of Pinedale at an election which shall be called, conducted, canvassed and returned in such manner as directed by the governing body of the town.

Water rights and instream flow have divided the town council in the past. According to town attorney Ed Wood, the town considered selling its water rights to the state of Wyoming for an instream flow objective several years ago. Wood said the contract he reviewed between the town and the state included a formal agreement allowing the town to buy the water rights back. Public opinion of the sale was strongly negative, particularly within the agricultural community, and the town did not approve the motion, Wood recalled.

According to state statute, 41.3.1007, the state must own, not lease, the rights to water it is releasing for instream flow purposes. John Barnes, the surface water administrator with the state engineer’s office, said the state cannot administer a release program using water that is owned by another entity.

Last October, the town council was split over a pilot project that would have released water from Fremont Lake into Pine Creek for a five-year period to benefit trout populations. Heuck voted against the proposal, citing fears that a downstream municipality or developer would claim the rights to the water. At the town council’s March 12 meeting, he said the proposed ordinance would give Pinedale citizens more control over their water rights “instead of having any entity, person, subdivision or tomato farm down in Arizona” claim water that originated in Fremont Lake.

Heuck referred to the non-binding vote taken during last April’s town elections, in which Pinedale citizens voted 229-130 in opposition to selling water rights. He said he believed the Pinedale’s water “is the personal property of every person in town,” and the public should decide whether or not to sell water rights. Heuck later said the proposed ordinance, which will be numbered 408, might be expanded to include water issues other than instream flow.

Pinedale’s drinking water comes from Fremont Lake, and the town owns the majority of the water rights within that body. However, other entities, including the Highland Irrigation District and the Wyoming Game and Fish Department own storage water rights from Fremont Lake, according to Tom Annear, the water management coordinator for the state Game and Fish. He said his organization owns 952.95 acre feet of storage water rights in Fremont Lake. Doc Johnson, who attended Monday’s town council meeting, asked if new subdivisions would relinquish their water rights to the town when they are annexed into Pinedale. Council member Dave Smith replied that subdivisions are usually willing to donate their water rights in exchange for annexation, but occasionally keep a small portion of them for open spaces within the development.

Council member Nylla Kunard asked that the council abstain from voting on a first reading of the ordinance until Wood had a chance to review it. Later, Kunard explained that she had concerns about beneficial use laws. Under prior appropriation water rights, which govern most water law in the liquidpoor western states, the first person or entity to use a water source for a “beneficial use” may continue to do so in perpetuity. In the past, Kunard said, irrigation districts had challenged the town’s water rights, claiming Pinedale did not use the water.

Kunard also said she hoped the ordinance would clarify whether or not irrigators that use water from Pinedale’s water source would also be subject to a public vote. Mackey later explained that individuals or entities who own a water right would not need public approval to use water because their right was private property. The proposal must withstand three public readings and votes by the town council before it becomes a town ordinance.