Governor wants water rights re-interpreted

by Cat Urbigkit

Wyoming Governor Dave Freudenthal was the keynote speaker for last Saturday night's Trout Unlimited dinner and fundraiser at Snow King Resort in Jackson. When it came time for questions, issues effecting Sublette County rose to the forefront, from oil and gas leasing to instream flow, but it was instream flow that generated the most interest.

Freudenthal was asked, "What's it going to take for Wyoming to use water for wildlife?"

Wyoming's water law needs a different interpretation, according to Freudenthal, who spoke of "two polarized camps" in existence today: those who insist that instream flows be tied to storage and those who are opposed to storage in general.

"I think that everybody is going to have to give a little on this," Freudenthal said, noting it's the same people who want more water storage projects that are opposed to instream flow. Freudenthal said these people view instream flows as damaging to the overall management of water under a western water rights scheme.

"There is an interesting contradiction in that," Freudenthal said. "We contend, with some vigor, that we are a private property state. Yet if my private property happens to be in the form of a water right, you are going to deprive me of my ability to use that water right for instream flow as a matter of law."

Freudenthal asserted, "In fact, I think a more proper interpretation is that if it is my private property, and I want to commit it for instream flow, I should be able to do that."

Freudenthal said in order to advance this "interpretation" some aspects of existing law will need to be changed, including the five-year abandonment statute. Freudenthal did concede that any changes still need to be subject to the "no harm" provision in existing law.

"It's going to take us a while to get there, but if you can get some give on that side, and I don't consider it so much give as a recognition of the true nature of the private property right, Wyoming ought to be able to sell it to you, and if you buy it, you ought to be able to use it however you want," Freudenthal said.

"To get there, we are going to have to change a couple of attitudes," Freudenthal said, adding that there is a need to "reframe this debate" about instream flow and water "in less a context of one side wins and the other side loses, to the notion that if you do this properly, ultimately there is a lot of benefit for everybody."

Freudenthal suggested that there should be a legislative provision that would make instream flow a requirement for storage projects.

He continued: "The flip side of that has to be that you're going to have to be willing to allow a system that recognizes the truly private nature of a water right, subject to the no harm provisions, to allow people to say look, to me this water is just as important or valuable to me flowing down a stream as it is applied to my hay meadows. We're not quite there. But at some point we have to actually adhere to the notion of private property rights and let people do what they want with them.

"There are a couple of impediments," Freudenthal said. "The fear in much of the agricultural community is that somehow this is going to be the end of agriculture as we know it. It's fundamentally not.

"It seems to me that the evolution is occurring in some of the states around us will eventually start to take hold here. It hasn't quite yet. It is also a function of the fact that agriculture trade groups are no different than lawyer trade groups or any other trade group, and that ultimately is it's the more strident people who always end up on the boards...

"We need to end up talking not to the strident members on the board, but to the more rank-and-file people, because there is much broader agreement in the state about the importance of riparian habitat and the sort of notion that water matters for purposes other than just the application toward consumption or industrial and municipal purposes," Freudenthal said. "That's much broader among the body politic than it is among the interest groups."

Responding to Freudenthal's comments, one Trout Unlimited member said, "You get it about instream flow."

That Wyoming's water right is not "a right of use" of the state's water pursuant to Wyoming's permitting system, but instead the water is private property to be bought and sold on the open market, isn't new. It's also not the first time a member of the Freudenthal family has addressed the issue.

In the late 1980s, a business partnership called the Resource Conservation Group, headquartered in Golden, Colo., proposed a business deal in which ranchers in Wyoming, Colorado and Utah would be paid not to irrigate their fields every third year, so that downstream states could use the water.

On the payroll as consultants for the Resource Conservation Group were Former governors Ed Herschler of Wyoming, Utah's Scott Matheson of Utah, John Love of Colorado and Arizona's Bruce Babbitt of Arizona, who later became Interior Secretary in the Clinton administration. Also on the payroll were Herschler's law partner and former Wyoming Attorney General Steve Freudenthal, Dave Freudenthal's brother.

When the project, dubbed the Son of Galloway, came before the Upper Colorado River Commission, it was met with opposition. The project failed when met with concerns that downstream states would manage to convert the short-term use of water into long-term water rights, and the possibility of drying up agricultural lands upstream, as well as forced regulation of upstream water.

Wyoming's Constitution says:

"Water being essential to industrial prosperity, of limited amount, and easy of diversion from its natural channels, its control must be in the state, which, in providing for its use, shall equally guard all the various interests involved"

"The water of all natural streams, springs, lakes or other collections of still water, within the boundaries of the state, are hereby declared to be the property of the state."

"Priority of appropriation for beneficial uses shall give the better right. No appropriation shall be denied except when such denial is demanded by the public interests."