Fishery flexibilityWritten by Jennifer Womack
Cheyenne – Taking a fresh approach to instream flow legislation, advocates of the measure saw their efforts make headway Feb. 3 when the House Agriculture, State and Public Lands and Water Resources Committee, sent the legislation to the House for its full consideration.
HB 70, “Landowner flexibility and fisheries protection and restoration,” cleared the Committee in a six to three vote. The legislation is sponsored by Representative Rosie Berger (R-Big Horn), who has before brought instream flow legislation before the Wyoming Legislature. Co-sponsors include Representatives Gingery (R-Jackson), Jorgensen (D-Jackson) and Senators Burns (R-Sheridan) and Larson (R-Jackson), along with Senator Cale Case (R-Lander), also a long-time advocate of instream flow legislation. Representative Berger could not be reached for comment.
HB70 would allow water rights holders to transfer their rights from agricultural to fisheries purposes. Any such transfer would include an injury analysis. A second aspect of the legislation would have allowed landowners to re-direct conserved water resulting from improvements in irrigation equipment and application, for fisheries purposes. Given questions about its application, Scott Yates of Trout Unlimited says that aspect of the bill was struck before HB70 left the Ag Committee. Yates has been in Cheyenne this legislative session lobbying in support of HB70.
Unlike previous legislation, HB70 carries out the changes within a pilot project including reports and studies by the Wyoming State Engineer’s Office. If not extended, the legislation would sunset on Dec. 1, 2019. A five-year report detailing the project would be due from the State Engineer’s Office in 2014.
“I think it’s the first time a private lands stream flow bill has made it out of House Ag,” says Yates. “We feel this bill will provide a lot of landowner benefits and private water rights benefits. Our goal is to set up a system that works not only for trout fisheries, but for landowners as well.”
Craig Cooper of Riverton, author of a book on the history of Wyoming’s water management and retired from the Wyoming State Engineer’s Office (SEO), doesn’t support the legislation. “Wyoming has long opposed privatization of instream flows,” says Cooper. “It’s a very poor concept that’s been opposed in Wyoming a number of times and it should continue to be.”
Cooper also questions the concept of temporary instream flow rights. He says it creates a situation where money is invested in creating fisheries that may not be permanent.
Yates says if the bill passes, those who take advantage of water use flexibility will have the option of conserving a portion of their water. For example, water that would normally be available after first cutting on a hayfield could instead be directed to remain in the stream for fisheries purposes. “It also means that landowners could partner with someone like Trout Unlimited and Trout Unlimited could provide incentives in terms of on-ranch improvements, direct money or cash. There would be some flexibility to do those sorts of things,” says Yates. “Those who want to voluntarily do it can benefit and those that don’t aren’t injured. That’s really the crux of the whole bill.”
Despite revisions, the Wyoming Farm Bureau Federation remains opposed to the legislation. According to State Engineer’s Office information, WyFB Executive Vice President Ken Hamilton says 15 percent of the water that originates in the state is available for use within the state. “My concern is that we’re continually chipping away at that 15 percent that’s still available for us folks in the state to use,” says Hamilton. “Food production is an important use of the resources. This bill starts down the path of entering us into a competition with fisheries.”
Cooper says measures allowed by the legislation can already be accomplished under existing Wyoming statutes. Directing late season water toward stream flows instead of additional cuttings of hay, he says, can now be achieved without facing abandonment.
Representative Amy Edmonds (R-Cheyenne) says she has before opposed legislation relating to instream flow, but this year voted in favor of the bill in committee. “I’d like to hear more conversation on it,” says Edmonds. She’s making no promises of support if the legislation comes before the full body of legislators for discussion, but applauded the partnerships supporters of the legislation have been able to form and likes some of the changes that have been made to the legislation.
Monday, Feb. 9 is the last day for legislation to clear first reading in the House of Origin.