Pinedale council considers its water – again

by Rhonda Swain and Cat Urbigkit

Although most Pinedale residents thought Fremont Lake water was a dead issue, a hastily called special Pinedale Town Council meeting Friday, Oct. 20, breathed new life into the issue. Mayor Steve Smith explained to a standing-room-only crowd that he had heard rumors of the Joint Agriculture, Public Lands and Water Resources Interim Committee’s proposed legislation called Instream flow – Fremont Lake pilot project. He said he didn’t receive the working draft of the bill until after the regular Oct. 9 council meeting.

“The reason for the short notice for this meeting is that the joint committee meets in Sundance, Wyoming, next week and if the town council approves this resolution, I would like to deliver it to the committee members in person,” Mayor Smith said.

Council Member Gary Heuck asked Mayor Smith how long he had known about the meeting, suggesting that it was a couple of months.

The council members were clearly divided over the proposal, with Heuck and Council Member David Smith vocalizing their displeasure, and Mayor Smith and Council Member Chris House in favor of it. Heuck and David Smith feel that once the water is released, the town will never get its water right back. Mayor Smith and House reiterated several times that this proposal is not the same as when the town chose not sell 4,800 acre feet of water to the state for $10 a year, to be used for instream flow.

David Smith said that when he first saw the resolution, he was in support of it.

However, after reading it and the bill, he said, “I think it stinks, it stinks like rotten fish.” In May 2006, the residents of the town voted a resounding “no” to a ballot issue asking if the town should enter into an agreement with the Wyoming Water Development Commission to sell its Fremont Lake storage rights for use for instream flow for Pine Creek for the price of $10. Ballots showed 229 votes against the sale, with 130 in favor.

“This same thing came before the town,” David Smith said. “It was worded different, it was structured somewhat different, but the end result is the same.

“We’re taking water for our municipality and we’re sending it down the river for instream flow at our discretion,” he said. He suggested that if the town does that, sometime in the future someone down the creek could claim that Pinedale doesn’t need its water and the town could never get the water back.

David Smith read a portion of the bill that states that the town would be responsible for removal of physical obstructions at the outlet of Fremont Lake that inhibit the ability to release water into Pine Creek. He pointed out the expense the town could incur if that ever happened.

According to Wyoming State Engineer’s Office, since construction of the new dam at Fremont Lake, “a layer of deposition 14 inches in height has occurred below the old dam, apparently preventing the complete evacuation of this 9,844.12 acre-feet.”

More than once during the town’s special meeting, David Smith asked if anyone in the room could show legal documents where a water right that had been relinquished by its owner for five years and returned to its owner.

Heuck said that if the town releases any of its water, some tomato grower, golf course, or somebody in California or Arizona could claim that water, and go to some podunk judge to file a federal injunction against the town. He cited, as an example, the State of Wyoming’s efforts to get back from Nebraska water in several reservoirs on the eastern side of the state.

“They’re never going to get them back,” he said. “And the same thing’s going to happen here if you let some of these do-gooders around here run 40 cubic feet per second of water down Pine Creek. You’re going to lose it the minute you open that gate.”

David Smith suggested that if Trout Unlimited wants instream flow, it should look elsewhere.

“The citizens of Pinedale have made it very clear, by an overwhelming majority, that they’re not interested in waiving their water right,” David Smith said, which brought a round of applause from the audience.

Charlie Golden agreed with David Smith.

“I can’t understand why we’re even having to go through this when all the citizens have already voted that they do not want this. Why are you guys, Mayor or whoever, opening this back up when it should already be cut and dried and done with. The town doesn’t want this,” Golden said.

Mayor Smith and House both said that this proposal is different from the sale to the state. Mayor Smith noted that this was a preliminary meeting, that the bill is still in committee and the state legislature won’t meet until January to discuss the bill. He said there will be plenty of time for public comment.

“If the bill does pass the legislature. ... The Town of Pinedale does not have to enter into the agreement,” said Mayor Smith.

Pinedale resident and attorney John Mackey asked why Mayor Smith isn’t looking after our interests.

“I think I am looking after your interests, by providing water in the creek,” Mayor Smith said.

John Godfrey of TU spoke about the $10 sale of Pinedale water storage rights, saying that that agreement would have allowed the state to release water into Pine Creek, which would be covered by the instream flow provisions now in effect. He said at any time the agreement could have been reversed. The Wyoming State Engineer’s Office rejected that proposal because it is not in compliance with state law.

Regarding the new pilot bill, Godfrey said it is for a five-year period, during which the town, not a water commission or other group, could decide to release water into Pine Creek for aesthetic purposes, habitat, instream flow, with instream flow protection provided. He asked if the town could release water into Pine Creek if it so chose.

Heuck said he wouldn’t, because it could allow someone downstream to claim that water.

TU’s Chauncey Goodrich asked why they can’t claim that water now. Heuck answered that the water going down the creek now is not the town’s.

Heated discussion followed regarding water rights priority dates and whether or not the town’s water rights are in jeopardy. David Smith said that as long as the water is in the lake, it’s safe.

Godfrey said that when the prior ballot was taken, the question was whether the town wanted to sell its water.

“This is a different animal,” Godfrey said. “This is ‘Should the Town of Pinedale use its storage right for increased flow?’” He said there should be another ballot so residents could have their say. He feels a lot of the concerns can be addressed, and that the legislation reads that the water would only be used if available.

“It’s not going to be automatic,” he said. “Nobody’s going to come to the Town of Pinedale and tell you to release that water into Pine Creek. You’re going to make that choice, right?”

The answer was, “That’s exactly right.”

Mayor Smith pointed to a portion of the draft bill that says “No permanent instream flow water right shall be conferred upon the releases made and protected as instream flow under this project.”

“Keep in mind that this is not my bill, this is not the Town of Pinedale’s bill,” Mayor Smith said. “This is a bill proposed by officials at the state level.”

David Smith suggested that it’s TU’s bill.

Some people wondered why a meeting regarding Pinedale’s water was being held in Sundance. It was suggested that because of conflict of interest, Mayor Smith, who is a TU member and fishing guide, not vote on the issue.

“I’ve discussed that with attorneys and they said that is not necessary for me to do that,” Mayor Smith said. “This is a bill that will affect all of Pinedale, myself and everyone on this council.”

Mackey said: “The people of this town did say a year or so ago that they don’t want to do anything. They don’t want people messing with their water. Now that’s the bottom line, just leave it alone. You work for us, you shouldn’t be doing this.”

Paul Hagenstein commented that this has been one of the toughest years we’ve had since 1988. He said that flow in Fremont Lake in September was the lowest on record.

“This is something you better look at very hard, because the state engineer has put every drop of water down there that he said he would need for instream flow,” Hagenstein said.

Mackey noted that the town’s use is not in the stream, but in the lake itself, as storage right.

“If our water goes down the stream, it’s somebody else’s,” he said. “Our use is in the reservoir.

“I think we ought to stand firm. I don’t think you ought to do this,” Mackey said. “These are our water rights, don’t mess with them.”

In the end, House moved to approve the resolution, with Council Member Nylla Kunard seconding the motion. Kunard and House voted aye, with David Smith and Heuck voting against it. Mayor Smith broke the tie with his aye vote.

“You guys witnessed this,” David Smith said to the audience.

The resolution endorsed by the council declares that it is “in the best interest of the Town and its citizens to support the adoption” of the proposed legislation.

Following the vote, Heuck tore his copy of the resolution and draft bill in half and threw them in the air as he left the room prior to adjournment of the meeting, saying, “This is what I think.”