Conservation or control: State instream flow proposal may face county resistance

Wyoming Game and Fish has proposed three instream flow water rights sections to protect Yellowstone cutthroat trout habitat in Bighorn National Forest. Big Horn County, however, is expected to oppose the plan. 

The proposal is part of a larger project aiming to garner instream flow water rights on six of Wyoming’s creeks. Locally, this would include 4.3 miles of Cedar Creek, 3.9 miles of Buckskin Ed Creek and 5.4 miles of Soldier Creek. The Cedar Creek segment would extend to its confluence with Shell Creek, the latter two to their confluence with South Paintrock Creek. 

A segment is also proposed for Trout Creek near the Wyoming-Montana border in northeast Big Horn County. The other two segments are on the West Fork Little Bighorn River and Lodge Grass Creek in northwest Sheridan County. All six segments are located entirely on Forest Service land. 

“Native cutthroat trout has been restricted to pretty much the headwater streams and the instream flow segments have helped keep our four native cutthroat trout species off the endangered species list,” Del Lobb, Instream Flow Biologist for Game and Fish, explained in a public hearing Tuesday, April 29. 

Game and Fish estimates that habitat changes and nonnative species have restricted Yellowstone cutthroat to about 25% of its native range in Wyoming. It has been designated a Wyoming Species of Greatest Conservation Need.

Finding the flow

According to the state engineer’s office, instream flow use is “the storage of water or unappropriated stream flow appropriated for the purpose of providing the minimum flow necessary to establish, maintain or improve new or existing fisheries.” It is junior to preexisting water rights. Wyoming currently has 123 instream flow water rights that protect habitat in 512 miles of streams.

“That pales in comparison to 25,000 miles or more of streams in the state,” Lobb said. 

He also pointed out that there has been no call for water regulation of an ISF, no one has lost a water right to the government, no dams have been built to provide an ISF and no compacts or decrees have been affected by any of the existing ISF segments. 

Recommendations for flows were as follows:

Buckskin Ed Creek: Winter (Oct 1 – April 30) 1.4 cfs; Spring (May 1 – July 15) 6 cfs; Summer (July 16 – Sept. 30) 2.8 cfs

Cedar Creek: Winter 7.1 cfs, Spring 13 cfs, Summer 11 cfs

Soldier Creek: Winter 1.6 cfs, Spring 11 cfs, Summer 3.3 cfs

Lobb explained that these recommendations have been determined to be the necessary flow to support trout seasonally through their life stages. 

“There will be times when natural flows aren’t available, and we’re not saying that we’re trying to get that,” Lobb said. “There isn’t a way for us to get that without building a reservoir and transferring water, and that’s not reasonable.”

No preexisting water rights were reported in the segments for the filing dates. If the proposal were to go through, new water rights could still be applied to the streams, as long as ISF requirements are met. 

Applications for the ISF rights were filed originally in 2014, with Wyoming Water Development Office completing their studies on stream flow in 2015 and 2016. 

Buckskin Ed and Cedar Creeks were found to have water available to meet the ISF proposal needs. Soldier Creek met requirements as well, with the exception of July 1-15, where a 0.2 cfs shortage was recorded. Exceedance of requested flow was found to be greater than 20% - with numbers up to 100% -- except for Buckskin Ed in February and March. Due to permitting, environmental issues and cost of construction of a reservoir on Forest Service land, WWDO deemed water storage unfeasible. 

No final word

Commissioner Dave Neves represented Big Horn County during public comment. He read from the Big Horn County Natural Resource Management Plan:

 “’We as a county support the prohibition of water right exaction for right-of-way and ditch permits. It is the position of the county that the instream flow requirements are exactions.’”

“It’s going to probably be that the Big Horn County Commission is generally opposed to an instream proposal,” Neves said. 

The commission was set to formulate an official comment on the ISF project at their Tuesday, May 6 meeting after press time. 

The State Engineers Office will ultimately issue a permit decision. The office will accept public comment until May 29, 2025. Written comments can be sent directly to Jed Rockweiler at jed.rockweiler@wyo.gov or mailed to:  Wyoming State Engineer’s Office, Attention: Jed Rockweiler, Herschler Building 2-W, Cheyenne, WY  82002. 

Should a permit be issued, the Board of Control will conduct a field inspection and adjudication to finalize the water right. 

For more information, contact Lobb at del.lobb@wyo.gov, 307-777-4673. Wgfd.wyo.gov/instream-flow. Or, to view ISF filings, visit https://wwdc.state.wy.us/instream_flows/instream_flows.html.