Critics: Water bill opens floodgate to political meddling

By Angus M. Thuermer,

Lawmakers have advanced a bill that would require Senate approval of the appointment of key state water officials, a measure the governor said is unnecessary and other critics say would inject politics into water administration.

The bill would require Senate advice and consent of the governor’s appointment of water division superintendents, the four officials who settle water disputes across the state. Senate File 42 Water division superintendents, also would limit appointees to six-year terms at which time they would have to be re-appointed or replaced — again with Senate approval.

Sponsored by the Select Water Committee, the bill would give legislators the ability to respond to constituents’ complaints, Sen. Larry Hicks (R-Baggs) told colleagues Friday.

“As the process now sits those are lifetime appointments,” until a superintendent resigns, dies or is fired by the governor, Hicks told the Senate. “The water users felt there ought to be more oversight over these superintendents.”

Under current law, such oversight, including the authority to dismiss superintendents, resides in the executive branch.

The Senate Agriculture Committee passed the bill 5-0 last week and it cleared the Senate on its second reading Monday. But Governor Mark Gordon questioned its need at a press conference last week.

“I’m not sure that bill is necessary,” Gordon told reporters.

Other influential voices, including that of the Wyoming Stockgrowers Association, also criticized the bill. Wyoming State Engineer Pat Tyrrell, who oversees the superintendents, told the Senate Agriculture Committee how imposing Senate confirmation could influence decisions that are supposed to be made on technical and legal grounds.

There are four water division superintendents who are state employees appointed by the governor and serve at his or her will. Superintendents have vast legal powers and sit, along with the state engineer, on the state Board of Control. The board is a quasi-judicial body that has jurisdiction over administration, amendment, and adjudication of water rights.

Tyrrell told the committee he didn’t want superintendents who are making a technical or legal decision about water rights and water use to worry about a looming senate confirmation.

“What I am reluctant to see is a technical decision run afoul of somebody in or close to this body,” he said.

“I don’t want any pressure on [superintendents] to treat a [water] diverter who might be a legislator differently than a diverter who might not be,” he said. “If they’ve got to worry about [an] appointment coming up in two or three years, I don’t even want to put that question in their head.”

Hicks, who has carried the bill through committees, has said it would provide a way for elected officials to respond to constituents’ complaints.

“It is more about checks and balances … than it is about trying to interject politics in the administration of water,” he said at a committee meeting in 2018. There is a fear, Hicks asserted, that if water users complain about a decision “there is potential for retaliation against those water-rights holders. They’re really afraid to take that [decision] up to the governor’s office.”

Superintendents and the water commissioners they oversee, by the nature of their work, can upset irrigators, Tyrrell told the Senate committee Friday. “Their job is not to make every water user particularly happy,” he said. “Their job is to make the best decision under water law which will at times make people unhappy.

“They will get crossways with somebody over a technical issue,” he said, giving examples of disagreements that could result from water rulings. An irrigator might be upset from having water flows restricted, Tyrrell said. Or one might become upset because he or she thought others’ diversions should be restricted.

Or perhaps a supervisor tells an irrigator “You don’t have a measuring device … maybe you should before we’ll honor a call for regulation from you,” Tyrrell said. A call for regulation is an irrigator’s request to the division superintendent to settle a dispute regarding diversion and use of water from a stream, river, ditch or reservoir.

All such problems have remedies, Tyrrell said. “Their decision in the field can be appealed to me,” he said. Ultimately a district court can resolve a conflict, he said.

While Tyrrell did not mention specific cases, WyoFile learned through a records request of an ongoing conflict in the Senate district Hicks represents. There an irrigator had a problem similar to one Tyrrell described.

On Aug. 24, 2016 Carbon County rancher and former state Rep. Pat O’Toole signed a request for regulation, seeking state involvement in a water dispute.

The water commissioner/hydrographer for the area that includes O’Toole’s Ladder Ranch in the Little Snake River drainage denied the request on Aug. 25. According to notes, the official who rejected the call found, among other things, “no lockable controllable head gate” on one ditch. Such devices are required before regulation of upstream users can be imposed, according to correspondence obtained through the records request.

Other notes show continued interest by the Ladder Ranch in 2018 for regulation of upstream diversions. The hydrographer/commissioners’ notes say a ranch operator was told that before a call for regulation could be honored, the ranch needed lockable controllable headgates and Parshall flumes [a measuring device] “where they had none.”

WyoFile did not receive a response to an emailed request to Hicks for  comment on whether the Carbon County water fracas had any bearing on his support or creation of SF42.

The bill would end the terms of superintendents from Divisions 1 and 3 on March 1, 2020 and for divisions 2 and 4 on March 1, 2022, requiring their reappointment or replacement and Senate confirmation before that date.

Brian Pugsley is superintendent of Division 1, which covers southeast Wyoming plus the Little Snake River drainage. Loren Smith leads Division 3 that covers the Wind River and Bighorn basins. David Schroeder is superintendent of the northwest’s Division 2 while Kevin Payne oversees Division 4 covering western Wyoming and the Green and Snake rivers.

The governor appoints Wyoming’s superintendents who have vast authority to settle disputes among water users. Superintendents direct the state’s more than 50 water officials, some of whom have the power to arrest and charge people, among other authorities.

Hicks presented the draft bill to the select Water Committee in November, saying that even appointed barber examiners must undergo Senate scrutiny — advice and consent — before they can serve. He said he didn’t know where the idea of political influence arose.

“There’s no duration of terms,” for superintendents, Hicks told the committee. “We don’t even do that with [Wyoming] Supreme Court justices.” They must retire at age 70.

“There’s a perception, whether it’s real or not, that some of the members of the Board of Control … become unresponsive,” Hicks told the committee. The bill would provide checks and balances, he said.

Six-year terms would ensure continuity, Hick said, the terms being longer than those of a governor. Under the bill, there would be no limit to the number of terms a superintendent could serve.

Stockgrowers also see problems with water superintendents bill

Wyoming Stockgrowers Association Executive Vice President Jim Magagna told the committee Friday that the existing system is working and shouldn’t be changed.

“Our analysis is adding that component of Senate approval doesn’t add anything to the process,” he said. “It works the way it is. We would urge the committee … at least to that part of the bill, not to move forward with it.”

A former member of the Wyoming Water Development Commission also criticized the bill at a field hearing last year. Anne MacKinnon said the measure would allow politics to seep into the fair administration of water rights. The state engineer, who compiles the list of superintendent candidates, must already undergo Senate review, she said. (MacKinnon is a former chairwoman of the WyoFile board of directors.)

“That clearly involves some politics and that’s probably enough … rather than trying to get down further and further … into the state agency,” she told the water committee in November. “Bringing more politics into the administration of Wyoming water would be something you would regret in time.”

MacKinnon said earlier testimony on irrigators’ problems centered on the time and expense it took for the state to approve various petitions, not unresponsive superintendents.

“Those were the concerns,” she said. “It wasn’t about individual superintendents.”

Hicks disagreed with her assessment. He also has argued that what he called “lifetime appointments” — even though governors can fire superintendents — can lead to civil servants becoming unresponsive.

Engineer Tyrrell also told the Agriculture Committee on Friday that he reviews superintendents’ performances regularly. Further, many gubernatorial appointees do not have to be confirmed by the Senate and most do not have term limits, he said.

Senate confirmation is required of approximately 56 percent of gubernatorial appointments, Tyrrell said. Only 39 percent of appointees have term limits, he told lawmakers.

Gov. Gordon said last week he is willing to talk to lawmakers about their worries. However, the “processes we have in place are effective,” he said.

Too many confirmation hearings “can kind of plug up the works,” he said. “I’d like to make government more efficient, leaner, able to act more quickly.”

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