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Instream flow opposition

by Wyoming Livestock Roundup

Casper – “The value of your operation is directly tied to its water resources. I don’t care if you’re located in a desert, a high mountain pasture, or if you’re running center pivots; your agriculture unit is 100 percent dependant on your water resources, so we need to be extremely careful to protect those resources, and your ability to operate,” said Wyoming Stock Growers Association (WSGA) Water Committee chair Joe Glode during the committee meeting held Dec. 14 at the WSGA Winter Roundup.
“We need to be extremely careful to shine the bright light of the entire state of Wyoming when analyzing these proposed pieces of legislation and deciding whether to weigh in for or against them,” added Glode.
Among the legislation brought to the committee was a piece on temporary instream flow. WSGA previously held an “opposed” view on the proposed bill, and Scott Yates of Trout Unlimited provided an update on the bill and asked members to reconsider their opposition.
“We’ve worked the past four-plus years with Representative Rosie Berger to design what I would not call instream flow, but private land stream flow restoration,” explained Yates.
“This bill is functionally different than the 1986 instream flow statute we have on the books in Wyoming, where the state works with the Wyoming Game and Fish Department, Wyoming Water Development Commission and the State Engineers Offices in filing new water rights, justifying those water rights in the context of the statute and then basically creating a water right held by the state for instream flow purposes. Those are all post-1986 priority dates, and about 100 of those have been filed.
“What that statute doesn’t really provide is the ability for the private landowner to use their water right temporarily for stream flow purposes. It does a have a provision where the private landowner can permanently dedicate their water right to the state, but, as everybody knows, that’s not really a viable option for anybody, including trout fishers, in most cases, ” explained Yates.
“This bill tries to work with fisheries and provide long-term operational benefits for landowners with temporary instream flow. The bill is a lot like it was in 2009, and sets up a 10-year pilot project where we can do some of these temporary transactions. We will look at them, study them, and see how it works. The main difference between now and 2009 is this time we would only allow the temporary change between July 1 and Nov. 30.
“We made this change for a number of reasons. We got responses from many producers in the state saying they could still keep land in production and get the benefits of return flows from that water use, but later in the year when the water is lower and their operational flexibility perhaps increases, they might work on a transaction with a group like Trout Unlimited. We would actually pay them to not use their water for a certain time period after July 1, where we’ve analyzed that the fishery needs it and we’ve developed a market-based, financial transaction where they could then use that money instead of the water for that short time period every year for one, two or five years within that first 10-year pilot period,” explained Yates.
He added there would be injury analysis and a project wouldn’t be implemented if it injured another irrigator. Yates also noted the language is very similar to that involved in any other temporary use agreement.
“I feel that prior appropriations work quite well in Wyoming, and I don’t see where this will benefit agriculture at all. Once you let it go, prior appropriations can use it, and that’s the way it should be,” commented Wheatland area farmer and rancher Juan Reyes.
“He’s asking that protection of fisheries be added to the list of beneficiaries for temporary uses under state statute, and that’s something that doesn’t exist today. Yes, you can close your head gate, and he can come and give you money, and you can let your water run on down the stream. But, what he’s also asking for is to keep the water in the stream and call it through the reach of the channel, and take it down to the point of senior diversion, and at that point leave it and run it on down, thus calling out junior appropriators from above or below, depending on the reach you’re talking about,” explained Glode.
“My problem is that you are calling into question what I would call marginal lands. Those lands that have 1909 or 1910 water rights on them, and those lands are often the determining factor on whether or not you stay in business on a lot of places. If we’re going to fallow those lands, then I think we need to know what we’re doing. It is an extension of beneficial use, and another tool in the box of keeping water in the stream on the doctrine of prior appropriations,” added Glode.
“I would be opposed to this,” commented producer Rodger Schroeder of Chugwater. “We’ve got water rights on a small stream, and our earliest one is 1880. There’s one more two months ahead of us on appropriation, and that’s where they draw the line a lot of times. If he calls for that water, then lets it go instead of me, or someone above me, using it, you’re not refilling that ground aquifer that keeps that creek running. That water would already be gone, and when those higher meadows haven’t had water, your creeks are drier in the winter and you haven’t gained a thing.”
Producers also commented that out-of-state people come in and purchase large tracts of land, and they don’t have the same view of productive agricultural lands.
“They have a whole different view of how this world works, and armed with this type of information, they would wreak havoc on a number of operations,” noted Glode.
After an extensive comment and discussion period, attendees opted to maintain their position of “strongly opposed” to the proposed bill.
Heather Hamilton is editor of the Wyoming Livestock Roundup and can be reached at

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