Cheyenne attorney says instream flow would disrupt highly efficient system

Casper – As a fourth-generation Wyomingite with a grandfather who homesteaded near Orin Junction in 1879, today Cheyenne agriculture attorney Harriet Hageman focuses her practice on representing ranchers, farmers and irrigation districts.
A large part of Hageman’s experience has been in trying to protect historical uses of water in Wyoming, and one threat she sees to historical use is instream flow.
“Instream flow laws were adopted in the late 1980s, and I think in every legislative session since then there has been at least one, and sometimes two, three, four or five, bills introduced to expand our instream flow laws,” said Hageman at the 10th Annual Doornbos Lecture Series at Casper College on March 1.
In addition to Wyoming water law, Hageman’s series of lectures featured private property rights, federal regulations, wolves and the U.S. Forest Service.
“I think a lot of people ask, why not have instream flows? Why do we fight it so hard? Why don’t we care about fish? Why don’t we care about protecting the environment?” said Hageman.
“Every year Trout Unlimited comes to me with a bill and asks me to support it in the state legislature, and I say I probably can’t, and here’s why: giving the North Platte River as an example, what happens between the time the water comes into our state and leaves is that we use and reuse that water seven times. If we do instream flow, we lose the ability to do that,” she explained.
“The folks at Saratoga and Encampment have very steep slopes, and they typically irrigate grass hay. It’s not a high-consumptive-use crop, and irrigation is for a limited time early in the irrigation season, and they’re typically done irrigating by mid-July. They throw lots of water on those lands, and the vast majority of that water comes back to the stream as return flow,” she further explained. “What that does is slow the water down. If it all comes through the state in spring runoff we’d fill the reservoirs very quickly, or it would be called through. The water wouldn’t be slowed down and it’d head to Nebraska much more quickly. If we slow that water down we can keep more water in our reservoirs and irrigate more lands.”
“Why don’t I care about fisheries and instream flow? It can be terribly disruptive to what has become a highly efficient system,” said Hageman. “When we use and reuse water seven times it not only benefits irrigators, but also municipalities. The city of Casper and most municipalities are later in priority because people settled ranches and farms before they settled in towns, so Casper, Douglas and others have late priority rights. If I have a farm, I can call the cities out from getting water.”
“The system works, and it’s become a very highly efficient system. When we do instream flows we bypass the system, and that water shoots straight through,” stated Hageman. “That’s why I’m always concerned about how instream flow laws work – 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.”
“But we do have an instream flow law, and the Wyoming Water Development Commission holds the water rights, and the Wyoming Game and Fish Department administers them,” said Hageman, adding that instream flow has not been exercised very heavily in the state of Wyoming.
“When you have a water right, if you want to do instream flow, you have to transfer that right to the Wyoming Water Development Commission,” she continued. “I was talking with a Game and Fish guy one day, and he was asking me to support more instream flow laws, and I asked him how many Game and Fish water rights have been transferred to instream flow, and he said none. I asked why, and he said they didn’t want to give up their water rights.”
Out of 90 applications for instream flow, 17 have proceeded to permit and two have been adjudicated, and Hageman said there has never been a call for regulation on an instream flow right.
“Instream flow rights have to be limited in geography,” she said of their scope. “We can’t have one over a long stretch of river because it would be so severely disruptive to the rest of the system. Instream flow rights are typically through a particular, identified, described section of the stream.”
Of other uses and demands on Wyoming’s water systems apart from instream flow, Hageman listed recreation, endangered and threatened species, municipalities and compact and decree compliance. However, she said she doesn’t consider recreation a consumptive use.
“The problem with recreation surfaces in places like the Flaming Gorge Reservoir, which is four million acre-feet and was built for the purpose of making sure Colorado and Wyoming can exercise their entitlements under the compact,” she stated. “We don’t have a lot of water demand in western Wyoming, but what I’ve found in addressing anything associated with that reservoir is a strong outcry from the recreationist community about any action affecting levels. The reservoir was built for irrigation and municipal purposes, all these reservoirs were. They’re awfully nice to have for recreation, but they were built for irrigation and flood control – that’s what built them and paid for them. Recreation is a nice byproduct, but people have to recognize the primary use.”
“As municipalities grow, we’ll have to transfer more ag uses to our municipalities. Fortunately in Wyoming our water rights run with the land,” said Hageman. “If you go to Colorado you can see what happens when you can sell that water. In Colorado you can buy water for $17,000 to $20,000 per acre-foot, while ag use out of Glendo is five dollars per acre-foot. There’s a dramatic difference in value for irrigation, municipal or industrial uses between the two states. The water market in Colorado is extreme, and we don’t have that in Wyoming, and that’s good. But at some point we’ll see something different, and this is where the value is for ag producers, and why they need to protect and use their water, because that’s the biggest value on their property.”
Hageman said endangered and threatened species are where she’s seeing the fight for control of water.
“In Nebraska we have the Program, which is a $225 million document outlining an agreement between three states – Nebraska, Colorado and Wyoming – for the protection of threatened and endangered species in central Nebraska, and Wyoming’s share is about 10 percent. It was negotiated over an eight-year period, and it describes the manner in which we’ll manage the Central Platte River for the benefit of the species,” she said.
“We’re limited in what our development can be in North Platte River system to what was existing July 1, 1997. Under the Program we donate both water and money for recovering the species, and it gives regulatory certainty for 13 years so we can protect our reservoirs, municipal and industrial demands and irrigators. In about five more years we’ll start the fight all over again, and next time they’ll want more water. This rolls from one document to the next, and people like me fight to make sure we can protect what we have,” she stated.
Hageman said she finds instream flow, consumptive use and all facets of Wyoming water law very interesting. “There’s a lot of history tied up in it,” she said.
Christy Martinez is managing editor of the Wyoming Livestock Roundup and can be reached at christy@wylr.net.