By Kelsey Dayton, WyoFile.com
Wyoming is a land of natural resources. But it isn’t the coal or natural gas that many hold most protectively. It’s water. Competition for water sometimes leads to adversarial relationships between agriculture and fishermen, yet both interests have worked for years to find areas of compromise and their efforts may soon reach a significant milestone.
Conservation advocates are pushing for approval of a bill by the legislature this January that would allow private landowner to lease their water rights temporarily to groups such as Trout Unlimited. Those groups could then keep the water in the stream to help fish populations. Small streams that get too hot for fish, or dry up completely, would have a better chance of allowing trout to flourish, said Cory Toye, Wyoming Water Project Director with Trout Unlimited.
Approximately 2,681,700 acre feet of water is diverted from streams annually for irrigation according to the 2007 Framework Water Plan put together by the Wyoming Water Development Commission. Trout Unlimited and others say that by voluntarily foregoing diversions landowners can help substantially improve fisheries throughout the state.
Keeping water in-stream in Wyoming has been a contentious topic since the 1970s. After massive public debate and the pressure of a public petition drive, an in-stream flow law was passed in 1986 which authorizes water rights for in-stream flow, which means protecting water kept in the stream instead of diverting it for other use. The law allows creation of new in-stream flow rights, or transfer of existing rights from private owners to the state. Over 100 new in-stream flow rights have been created. Only one old right has been transferred to the stateto become an in-stream flow right. The bill proposed this year, authored by Rep. Rosie Berger (R-Sheridan) and co-sponsored by Sen. Larry Hicks (R-Baggs) and Sen. Bruce Burns (R-Sheridan), would be a stand-alone statute under the state’s existing water code. It would not amend existing water laws because it has a 10-year sunset period, after which it would either have to be re-instated by the legislature or it would expire, Toye said.
Wyoming water rights holders can already temporarily change the use of their water and lease it to the Highway Department or to energy development projects. Those uses are allowed because they are consumptive in the same sense water irrigation is a consumptive use. In-stream flow, because the water is left in the creek, is considered non-consumptive, Toye said.
The currently proposed bill would add to the list of possible temporary changes, allowing leasing of water rights to organizations such as Trout Unlimited to keep the water in-stream for the benefit of fisheries and trout populations across the state, Toye said.
So what’s the incentive for landowners who hold precious water rights to support the leasing idea? Money. Toye said a typical Wyoming irrigator might, under the law, be able to lease 50 percent of the water right, the same amount presumed to be used for irrigation, Toye said. The owner would be paid for the water without giving up the claim for future use. Exactly how much water rights would lease for is currently unknown as it will depend on the area and amount of water.
Temporary changes are reviewed by the State Engineer, who determines if the proposed new use will hurt the rights of other stream users, Toye said. In-stream flow leasing would follow the same process and the engineer could block the temporary change if other water rights are harmed, Toye said.
Leasing is voluntary for landowners and gives them flexibility in how they use their water rights without giving up ownership, Toye said. Landowners might use the opportunity to allow fishing on the improved streams as an additional source of income, Toye said.
“It’s a way for ranchers that don’t have oil and gas on the property to make extra money,” he said.
Which is why Sen. Larry Hicks decided to support the legislation. For Hicks, who did not support previous proposals for in-stream flow legislation, the law is about personal property rights. Ranchers should be able to use their property — including water rights — however they think is best as long as it doesn’t hurt other users. Previous bills proposed changing Wyoming water law, Hicks said. This bill, with its sunset clause of 10 years, is a way to ease into allowing leasing for in-stream flow, and data will show how it is working in 10 years, he said.
The other key part of the proposed legislation is the fact the State Engineer must make sure that other rights holders’ claims are not hurt, he said.
Hicks said the State Engineer’s Office processed applications to temporarily change water usage from agriculture to sell for development of the Niobrara shale oil, which requires large volumes of water for the drilling and hydraulic fracturing — or “fracking” — process. Some sell more than 5,000 acre feet of water. According to Hicks, ranchers are making money by selling water without the same type of safeguard that is built into the proposed in-stream legislation, which requires the lease plan to be evaluated to make sure other claims on the stream aren’t hurt.
While Hicks’ support is focused on property rights, the proposed legislation would do more than that. It could potentially help trout populations statewide by allowing landowners to create better habitat in small tributaries on private land. Healthier fish populations in smaller streams improve migration to larger streams, including areas of public access, Toye said. Radio tagged fish have been shown to move up to 75 miles. In the hot weather, low-flowing streams often run the risk of rising temperatures that kill fish, or even drying up completely. Exactly how much additional water is needed to help fish populations is unknown, Toye said. So far, there are not specific areas of Wyoming that Trout Unlimited would like to first target, according to Toye. He noted that such leasing could occur statewide.
Under the proposed law, if a person decided to lease a portion of their water right for in-stream flow, water usage would remain normal until July 1 after spring irrigation is finished. How many months the lease would last would depend on how much water was believed to improve the fishery, but it could stay in effect into September, Toye said. This split-season component of the bill is the biggest difference in this year’s proposal from other in-stream flow bills that have been proposed, Toye explained. The split season is meant to encourage and require landowners to keep their fields productive since they couldn’t lease their water until July, he continued.
Similar bills were introduced, most recently in 2007 and 2009, each with minor tweaks, but without the split season component, Toye said.
Those bills were all opposed by the Wyoming Stock Growers Association (WSGA), said Jim Magagna, vice president of the group.
The WSGA’s opposition stems, in part, from philosophical reasons, Magagna said. Water rights were created to take water out of the stream and use it. Leaving water in the stream is a “fundamental philosophical change in water law,” he stated.
Proponents emphasize that the rights aren’t sold, just leased. But Magagna asserts the landscape changes if it isn’t watered or a crop isn’t planted for several years. By the time the lease expires, the agriculture operation and the land have changed, he said.
Under existing law, people can leave water in a creek for up to five years before the water right is considered abandoned; if someone wants to voluntarily leave the water in the stream they can, and it won’t hurt other water users, Magagna said.
Wyoming’s water law is based on “first in time, first in right,” Magagna said. That means the person with the earliest-date water right gets the water, no matter where they are on the stream. In a drought year when water is scarce, other users have to cut back to make sure the person with the senior claim gets all his or her share of water.
In low-flow years, it’s possible that only the first few senior water right owners get their full allotment of water. If senior water right owners were to lease all or large portions of their water right during drought years, many junior water right holders may watch precious volumes of water rush by their irrigation pumps without any right to use it.
A law similar to the one proposed this year in Wyoming was adopted more than 20 years ago in Montana. In 1989 the Montana Legislature approved a pilot program that allowed the Montana Department of Fish, Wildlife and Parks to lease some water rights for in-stream flow during a 10-year trial period, said Stan Bradshaw with Trout Unlimited’s Montana water project.
The law was controversial. Some opposing it worried the bill would decimate the agriculture industry in Montana, Bradshaw said. Rather than growing crops or raising livestock, people would simply lease out their water rights for a living.
Others opposed the law on theoretical grounds; leaving water in a stream and not diverting it was a foreign idea in Montana. There also was concern about those who rely on return flow, or water that goes back to streams after irrigation, and is used by downstream irrigators.
Safeguards were built into the law to address the concerns. Water rights could only be leased for in-stream flow, so the use is temporary and not something people could depend on for revenue indefinitely. That’s meant to deter people giving up on the agriculture business in favor of making money via leasing their water for in-stream flow. The drafters of the Wyoming bill say they have tried to guard against that by providing that leases could only be for two-year periods. Leasing is a tedious process that can take up to four years to finalize in Montana, Bradshaw said. Those wanting to lease water rights must prove it will lead to a benefit and not harm other water rights on a stream. Just as in the proposed Wyoming law, no one’s water rights can be adversely affected by a lease under the Montana law, which is why it can take so long for lease approval, he said.
In 1995, entities other than the Montana Department of Fish, Wildlife and Parks, such as Trout Unlimited, were allowed to lease rights for in-stream flow for another 10-year pilot program, Bradshaw said.
In 2005, the pilot program became permanent. Since 2001, Trout Unlimited has leased about 14 water rights in Montana. Those leases range from five to 30 years. Montana Department of Fish, Wildlife and Parks also leases some rights, as does the Clark Fork Coalition, Bradshaw said. Since the pilot program was complete, and in-stream flow leasing became law, it hasn’t been controversial. And since the program began, no one that Trout Unlimited works with has left the agriculture industry, Bradshaw said.
“We’re not out there shutting down ranches — that just isn’t happening,” Bradshaw said.
The cost of leasing a water right is specific to the site.
“Context and place is really important to price,” Bradshaw said.
Water markets in Montana are poorly developed without many transactions to use as a guide. Price, typically expressed as dollars per acre foot of water, varies widely, Bradshaw said. In Montana prices have ranged from $4.55 per acre foot up to $81 per acre foot. Prices tend to run in the $35 to $81 an acre foot range. Those prices usually are for split-season leases where the irrigator uses water for part of the year and leaves the water in the stream for part of the season, such as proposed in Wyoming.
Studies show that Montana streams where leasing for in-stream flow occurred improved recruitment of fish in mainstream rivers, Bradshaw said.
Zero fish were found in the reach downstream of a headgate on Wasson Creek in Montana in 2003. In 2008, after five years of leasing for in-stream flow below that headgate there were five fish per 100 feet in the stream. In Murphy Spring Creek in Montana, populations were measured at three fish per 100 feet of stream below the diversion. In 2010, populations increased to 14 fish per 100 feet, Bradshaw said. Fish response varies from stream to stream and it usually takes more than a decade to fully understand population responses to stream restoration, he said.
Populations also can fluctuate naturally due to drought or flood. Leasing for in-stream flow works best on small bodies of water that are tributaries to larger rivers and where trout spawn, Bradshaw said. A single water right lease can have a large effect on these small streams, while it might not be as effective on a larger river. These smaller streams are also the areas where, during the summer months, the shallow water might heat to temperatures too hot for fish, or the stream might even dry up completely, he said. The leasing allows streams to reconnect and migratory fish to move in and out of them freely.
The Wyoming bill is expected to be introduced and sent to committee in January — which committee will be up to the legislative leadership. The 2009 bill, the most recent one proposed, began in the agriculture committee, but was killed on the house floor, Toye said. If passed the law could go into effect July 1, 2013, with a sunset date of July 1, 2023.
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Kelsey Dayton is a freelance writer based in Lander. She has been a journalist in Wyoming for seven years, reporting for the Jackson Hole News & Guide, Casper Star-Tribune and the Gillette News-Record. Contact Kelsey at firstname.lastname@example.org.