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Background Just what is the Wyoming Instream Flow Process and where did it come from?
As early as 1899 laws have been enacted to protect flows in natural channels. The Rivers and Harbors act of 1899 was enacted to protect the navigable capacity of the nations waterways. This flow protection by the U.S. Army Corps of Engineers was expanded in the 1960s to include protection of water resources. The Corps regulatory authority was again expanded in 1972 with Section 404 of the Clean Water Act.
An early attempt at an instream flow water right in Wyoming was in 1969. An application was filed by the Wyoming Outdoor Coordinating Council for an in place flow right on the Green River Habitat. Due to several problems with a minimum instream flow right, including the lack of consumptive use of the water, the permit was rejected.
In 1972 the focus on preserving our nation and Wyoming's waters moved from the federal level to the state level in Wyoming. In April of 1972, the League of Woman Voters under the coordination of the Wyoming Recreation Commission held a Wild, Scenic and Recreational Rivers Seminar in Casper. They resolved that it was time that the legislature pass some sort of protection for free flowing rivers and streams in Wyoming.
The next year the House introduced a Stream Preservation Feasibility Study with a funding package of $25,000. This passed the House 39 to 20. The Senate reduced the amount to $7,500 and passed it 21 to 9. The House then passed the amended bill by 53 to 8. From this legislation, the Stream Preservation Feasibility Study Committee was formed. The Stream Preservation Feasibility Study Committee presented a final report to the Legislature in 1974 proposing two bills, a Protection of Stream Channels bill and a River Protection System bill. The Protection of Stream Channels bill basically required a review and permitting process before any stream channel alterations would be allowed in Wyoming. The Wyoming River Protection System bill provided for the management of primitive, scenic and recreational rivers by creating a Wyoming River Protection Council and four (water division) River Protection Advisory Committees.
These two bills were introduced in both the Senate anH Hniiiic in 107S The Senate hills were both sent to Senate Committee No. 5. The Committee recommended "do not pass" and the bills both died on general file. The House bills were sent to House Committee No. 5 and died in committee.
In 1976 similar forms of both bills were introduced in the House. The Protection of Stream Channels bill came out of Committee No. 5 with a "do not pass" recommendation and died on general file. The Wyoming River Protection System bill died in Committee No. 5.
The Protection of Stream Channels bill was introduced in the Senate in 1979. After getting an "amend and do pass" recommendation out of Committee No. 6, the Senate approved it 17 to 13 House Committee No. 5 then recommended do not pass. The bill then died on general file. 1979 was also the year that the legislature formed the Water Development Commission.
The Protection of Stream Channels bill was a state bill that provided similar regulations as the federal 404 permitting process that was already in exisistence This may have had some effect on the disappearance of the bill in 1980. The Wyoming River Protection System bill, however, did not have similar federal regulatory provisions and reappeared in a revised form in 1981.
In 1981, similar forms of an Instream Flow bill were introduced in both the Senate and the House. The Senate adopted its bill 24 to 6 and sent it to the House. House Committee No. 5 then recommended "do not pass." The bill died on general file. The House bill was sent to House Committee No. 5 and died in committee.
For the next four years, Instream Flow bills were presented and amended in several forms in both the Senate and House. In 1982, one Senate bill and two House bills died in committee. In 1983, a Senate bill died on general file and three House bills died in committee. In 1984, one Senate bill and two House bills all fail to be introduced. Around this same time, 1983 to 1984, a petition sponsored by several conservation groups was circulated with the intent to place an instream flow bill on the 1986 general election ballot. In 1985, a Senate bill died in committee and a House bill failed in conference committee.
Finally in 1986, House bill No. 209, after seven amendments, made it all the way through both the Senate and the House and became Chapter 76 of the 1986 Session Laws of Wyoming. The House passed the first version of the bill by 48 to 16 on first reading and after several amendments and two more readings, it passed by a vote of 58 to 6. After additional amendments, committee reviews and three readings in the Senate it passed by 19 to 11. The final vote taken in the House passed the final form of the bill by a vote of 40 to 24. Chapter 76 of the 1986 Session Laws of Wyoming created Wyoming Statutes 41-3-1001 through 41-3-1014.
These statutes are the same as the ones used today with two changes. In 1987, Chapter 50 of the statutes transferred the authority given to the division of water development within the Economic Development and Stabilization Board to the Water Development Commission. It also placed the responsibility for fees and costs of the permitting and adjudication process of the instream flow water rights with the Game and Fish Commission.
One additional statute. Chapter 177, that was created in 1975, also pertains to instream flows. This statute states that "In the administration of water rights on any stream and in the consideration of any applications for permits, the State Engineer may require that water be provided to meet reasonable demands for instream stock use."
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