Opinion by Cory Toye
Legislation for Instream Flow Water Rights
By Cory Toye, Director of Wyoming Water Project, Trout Unlimited
My dad was working on the Webster Ranch outside of Meeteetse when I was born. I grew up hearing stories about how he and the late, great Dan Webster would sometimes take a break from ranch chores to fish on the Greybull River or the Upper Sunshine Reservoir. As I got older, I idolized Uncle Dan and his buddies for the lifestyle they lead and the landscape they created and sustained. I also began to appreciate that meaningful and effective conservation work requires an active and healthy partnership with private landowners.
Across Wyoming, trout fisheries benefit from private land operations. Trout Unlimited (TU) has successfully worked with landowners on restoration projects that show the needs of agriculture and trout are not incompatible – and have more in common than typically perceived. TU has completed dozens of projects in Wyoming with our partners to replace or upgrade diversion structures, install fish screens to prevent fish loss in irrigation ditches, and construct irrigation systems to improve efficiency and streamflows. These projects improve conditions for ranch operations as well as the fishery.
However, in certain drainages streams suffer from dewatering or low flows. Trout struggle to survive in unnaturally low water conditions, characterized by blocked fish passage, warmer temperatures and excessive nutrients.
Since the territorial days, Wyoming’s laws provide a predictable framework to determine how much water landowners can use and how the system is regulated during times of shortage. At the same time, Wyoming’s water law adapts to changing conditions and opportunities.
In the 1950s, the Wyoming legislature enacted laws that allow water users to temporarily, or for two years, change the use of a water right if another “beneficial use” was identified – typically, construction, municipal, oil and gas development or another type of consumptive need. The temporary change mechanism allows landowners to maximize the value of a water right by responding to new demands or uses while keeping the specific water right tied to the land to which it was originally adjudicated.
But early Wyoming water laws did not contemplate streamflows for fish as a beneficial use for water. It was not until 1986, when the existing instream flow statute was passed, that water left in stream for fishery purposes was considered a beneficial use. This resulted in a fundamental change in water law – and another example of how the law adapts to the changing demands on the resource. Unfortunately, the 1986 law did not create an effective tool for private operations. Landowners interested in using a portion of their water right to improve flows can only do so if they permanently dedicate the water right to the state. Understandably, many landowners are skeptical, if not downright hostile, to the existing instream flow law.
While the existing water code provisions related to temporary change applications provide an answer for a water right holder to market water to an oil or gas producer, it does little for someone who’s marketable natural resource is trout. A tool is needed to maximize the value of a private landowner’s right to use water, keeping such rights attached to the land, while ensuring that non-participating water users and historical use patterns are not disrupted. A bill to be introduced in the next session of the Wyoming Legislature will give landowners a new tool to enhance both ranch stewardship and income opportunities. Bill proponents across the state see an opportunity for landowners to enhance the value of a water right by allowing the change of use to include stream flows to benefit fisheries.
Here’s how the bill would work. If a landowner determines that temporarily using a portion of a water right to improve a fishery benefits ranch operations he must show that the change of use can be accomplished without harming any other water user. The change of use is valid for two-year terms and only the consumed portion of a water right is available for change or use, presumably 50 percent of what was historically diverted to maintain local hydrology such as late season return flows. The change of use will only be allowed after July 1 of each year to encourage water right holders to use water in a traditional manner early in the year, and then focus the streamflow component later in the summer when the fish need the water most.
The legislation is pilot in nature – language is included to sunset the bill after ten years if not extended by the legislature and includes a cap on the amount of transactions that can occur both annually and during the pilot period. All of these provisions are designed so conservative projects are developed that avoid unintended consequences – learning as we go and ensuring that the process works for agriculture, individual ranch operations, and actually enhances a private property right.
The fisheries in Wyoming are some of the greatest the Rocky Mountain region has to offer. Working private lands keep large sections of free flowing habitat intact for our native and wild trout. Landowners who maintain important habitat for coldwater fish can benefit through effective partnerships and improve ranch operations as well as diversifying potential revenues. This bill will solicit more partnership opportunities across the state to improve flows for fisheries across the state. Because of the split season provisions in the bill, no agricultural lands will be taken out of production. The water stays attached to the land, land fallowing is limited to seasonal late-season instances and will occur only if such an approach works for a specific ranch operation.
I’m thankful everyday for the willingness of landowners across Wyoming to work with TU and our project partners to address ranch operation and fishery needs together. I look forward to the day I can take my now 16-month-old son fishing on the ranches across this state to teach him about the value of wild places and working landscapes. He never had the chance to meet Uncle Dan, but I guarantee he’ll think of him every time he catches a Yellowstone cutthroat trout somewhere near Meeteetse – just like I do.