For the first time ever, a Wyoming rancher has given his irrigation water right to the state to become an in-stream flow right to support fish.
To the rancher, the successful donation means keeping a water right in his community that would otherwise be lost. And to both state water officials and the Wyoming Game and Fish Department, that is a sign of Wyoming people coming around to accepting the once fiercely-fought concept of protecting water to stay flowing in-stream for fish.
“What it shows me is this great social and cultural change that has occurred,” said a Game and Fish official who has championed in-stream flows in Wyoming for decades.
The ruling last week, by the state Board of Control, allowing the change from irrigation to in-stream flow also set precedent for exactly how such a change can take place, should other Wyoming water rights holders decide to turn over a water right to the state to become protected in-stream flow.
Wyoming water law was changed 25 years ago, after many debates, to say that water left flowing in a stream to support fish is worthy of being protected with a water right. Since then, new in-stream flow rights have been created in many locations, mostly on high Wyoming mountain streams.
Until now, however, no one has done what the 1986 law also allowed – taking an old private irrigation water right among settled ranch and farm lands and allowing it to change into a state-owned in-stream flow right to keep that water in a stream for fish.
Wyoming’s first conversion of a private irrigation water right to a state-owned in-stream water right could keep more water flowing through a section of Pine Creek through Pinedale.
Paul Hagenstein, a life-long irrigator on Pine Creek, ten years ago vociferously opposed proposals to create protected in-stream flows in that creek.
But Hagenstein has now given to the state one of his rights to divert water from Pine Creek, in order that the water can stay in the creek, legally protected from diversion. The amount of water now protected to stay in the creek would be enough to irrigate about 45 acres.
Because of a water rights swap which gave him more senior, valuable water rights, Hagenstein now can’t use the water right in question, and his neighbors don’t have an on-ground use for it either, he said.
So he ended up with the idea of giving the right to the state. Turning this irrigation diversion right into an in-stream flow right will keep that water in the community, he said in an interview last year with WyoFile, as his proposal got underway. “Though it’s a 1949 right, it’s good… Unless there’s a complete drought, it always has been filled.” And so his gift now means that in many years that water can be flowing in-stream in the Pinedale area for fish.
“We had a hearing, and there were no protestors,” Jade Henderson, the state’s superintendent of water rights in Wyoming’s southwest quarter, last week told the state Board of Control, which oversees water rights. “The public seems to have come around, over the years, to the value of an in-stream flow in Pine Creek, and they have stopped protesting.”
Tom Annear of the Wyoming Game and Fish Department said, “What it shows me is this great social and cultural change that has occurred.” Annear has for decades led the work of the Game and Fish Department to see more stretches of Wyoming streams with water flows that are legally protected from diversion.
“I went from people calling me all kinds of names… to now they say, ‘Hi Tom’… From getting death threats to, now, I can’t get any attention,” Annear said with a smile. “It’s like with every new idea – first nobody takes it seriously, they laugh at you; then they vilify you and want to kill you; and then, it’s common sense.”
Turning an irrigation right into an in-stream flow right means other water users can’t take it out of the stream in a defined, protected stretch – and the state of Wyoming could if necessary restrict some others’ uses to keep that water in the stream.
In-stream flows have been “cussed and discussed” in Wyoming since at least the 1960s, when a group of citizens requested creation of a right to protect flows to be kept in the Green River, and State Engineer Floyd Bishop ruled that creation of such a valuable new kind of right was a matter for the Wyoming Legislature to decide. Years of reports and debate followed, ending in a heated drive for citizen signatures on a petition to get in-stream flow legislation on the ballot for statewide voter decision. That effort finally pushed a reluctant Wyoming Legislature to enact an in-stream flow law in 1986, in order to forestall the citizen-drafted measure from reaching the ballot box.
The law the legislature put on the books includes elaborate restrictions to ensure that the keeping of water in-stream, now recognized officially as a “beneficial use” of Wyoming water – the fundamental characteristic required for a water right – would be to protect only the minimum amount of water fish required, would be provided only from reservoirs whenever feasible, and would not increase the amounts of water flowing to downstream states. Public hearings are also required to vet proposals for in-stream flow rights.
In initial years after the law was enacted, the Wyoming Game and Fish Department chose to seek modern-day rights on high mountain streams. Permits for over 80 such rights have been granted.
Those rights with a modern date were “junior,” or inferior, to historic rights further downstream, rights which might date to 1890, or earlier. But the modern-date in-stream flow rights the department sought do protect the mountain streams from any new proposal to divert water high upstream. Seeking rights there avoided conflict and protests from the users of the irrigation, municipal or industrial rights downstream.
In recent years the Game and Fish Department has transferred some unneeded fish hatchery water rights to in-stream flows. The state has also acquired some rights to reservoir water once dedicated to agriculture but now to be sent downstream to keep water flowing for fish.
On Pine Creek itself, the state holds both a 2002 right to protect some natural flows, and a right to stored water that can be released to support Pine Creek flows for fish. Following the 1986 law, however, the State Engineer has allowed only a certain total amount of water to be protected in the creek to meet minimum fish needs.
The prospect of in-stream flow rights in Pine Creek originally caused divisive arguments in Pinedale, and Hagenstein was among the irrigators who opposed the idea. Since in-stream flow rights were approved on Pine Creek some ten years ago, however, a group representing all water users in Pine Creek – irrigators, the town of Pinedale, and the state’s in-stream flow – have met each year to decide how to best manage their varying water supply. The resulting success in distributing whatever water there was to serve all users fairly seems to have calmed earlier fears that an in-stream flow right could restrict irrigators’ water supply, state officials say.
Until now, no one has wanted to transfer their rights to the state, and have those rights changed into in-stream flow rights, even though the 1986 law allows it. Most water rights holders want to keep water rights because of their value. The town of Pinedale, for instance, at one point wanted some of its stored water to be used in Pine Creek for in-stream flow – but was not willing to transfer permanently to the state the rights to that water. So that in-stream flow move never happened.
A well-known water lawyer in southeast Wyoming, Harriet Hageman, told a Casper audience last spring that even the Game and Fish Department itself has not transferred irrigation water rights the department owns to become in-stream flow rights. The reason, she says, is one most water rights holders share: “They didn’t want to give up their water rights.”
Hagenstein’s decision to give his water right for in-stream flow is precedent-setting in several ways, but it doesn’t mean that arguments over in-stream flow are over.
Attorney Hageman, in her talk in Casper, restated a long-held concern about in-stream flows, according to a Wyoming Livestock Roundup report on her talk. Keeping water in-stream means it by-passes a very efficient irrigation system in which water is used and re-used as irrigators put it on land, and water returns back to the streams for another irrigator to use, she said.
“People have to understand the consequences. It’s not as simple as saying we’re going to go out and protect fisheries – it actually affects the entire irrigation system,” Hageman said.
Hagenstein is known locally as a very careful and successful irrigator, who has also worked to create wetland habitat on his land in a former gravel pit. His gift to the state of an irrigation water right does not mean he is giving up production on his irrigated lands.
Rather, his donation to the state is part of an elaborate package of water right changes that allows Hagenstein to end up with a more valuable, earlier priority-date water right officially attached to his lands than he had before. On his key lands he now has 1901 water rights – especially valuable because they pre-date the Colorado River Compact, and thus are protected from potential demands from downstream states.
The lands the 1901 right once irrigated were recently turned into a subdivision by one of Hagenstein’s neighbors. The water right, however, was kept valid for a limited time to allow possible transfer to other lands – like Hagenstein’s fields. The state Board of Control, which governs changes in Wyoming water rights, some years ago designed that process in order to preserve, if possible, the water rights that are no longer going to be used because of subdivision construction on formerly irrigated lands.
Once the 1901 right was transferred to Hagenstein’s lands, he didn’t need a 1949 right he had.
That 1949-date water right is post-Colorado River Compact, and so less valuable. Still, it is able to cover water on Pine Creek in all but the worst drought years, Hagenstein said. He prefers the 1901 rights he now has, of course, but he didn’t want the 1949 rights to disappear, no longer used for anything.
Discussing his plan a year ago, Hagenstein said that among his neighbors, “no one else could use it… I’ve been trying to find a way so it’s not abandoned.”
With other options a dead end, he decided to give the 1949 right to the state. The state’s in-stream flow law requires all in-stream flow rights to be held by the Wyoming Water Development Commission in the name of the state.
“I wouldn’t give it to Game and Fish,” Hagenstein said last fall. “It has to belong to the state of Wyoming.
Henderson, superintendent of Wyoming Water Division IV which includes Pinedale and the Green River Basin, is one of five members of the Board of Control, which consists of the superintendents of the state’s four major river basins plus the State Engineer. Henderson urged the board to approve the new in-stream flow right.
“If we go back to Hagenstein’s original ambition in this, it was not only to protect the pre-compact (1901) right of irrigation, but also the post-compact 1949 right – ‘Let’s protect it, keep it in the community, keep it on the books rather than let it go unused, surrendered to a subdivision,’” Henderson said. “Which I think is a decent argument, within an area where there are no protests.”
The process gone through by the Board of Control laid down the process for any future changes of irrigation rights to in-stream flow rights.
Henderson held a public hearing in Pinedale on the proposal. The board examined in recent meetings whether the 1949-date water had actually been used in the past for its original purpose of irrigation – a standard requirement for water rights being changed to new uses.
The board decided that all the water that had been diverted for irrigation could be converted to in-stream flow, without a deduction for water that probably returned to the stream after a crop consumed only part of the water. Irrigation rights converted to other on-land uses (for industry or municipalities, for instance) typically are subject to such a deduction to make up for the fact that the new use may consume much more of the water diverted. In a conversion to in-stream flows, however, that is not necessary since the new use consumes none of the water, the Board of Control decided.
The right to protect the water in-stream is limited to the irrigation season in Pinedale, when the water was once diverted, the board ruled. It can only be used to support – not add to – the total water amount the Game and Fish has shown, for its other rights on Pine Creek, is needed for minimal support for the fish, the board ruled.
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