Water Rights in Wyoming

An overview of the basic principles for using and protection water rights in Wyoming.

Harriet Hageman & Kara BrightonHageman & Brighton, P.C.

Attorneys at Law222 E. 21st Street

Cheyenne, Wyoming 82001(307) 635-4888

Introduction Hageman and Brighton, P.C. Areas of Practice: Water and Natural Resources

Nebraska v. Wyoming “Roadless Litigation” USFWS Wolf Management and Recovery / Predator

Control Protection of Private Property Defense of Wyoming’s “open range” law Protection of grazing rights on BLM and private property Protection of water rights Irrigation Districts

Today’s Presentation Water Rights Framework State Engineer’s Office/Board of Control Types of Water Rights Abandonment Surface Water Issues Ground Water Issues

Interference Control Areas

Instream Flow Statute

Constitutional Foundation for Wyoming Water Rights

Wyo. Const. Article 1, § 31 Water being essential to industrial prosperity,

of limited amount, and ease of diversion from its natural channels, its control must be in the state, which, in providing for its use, shall equally guard all of the various interests involved.

Wyo. Const. Article 8, § 1 Stream, springs, lakes or other collections of

still water within the boundaries of the state are the property of the State of Wyoming

Constitutional Foundation for Wyoming Water Rights: Prior

Appropriation Wyo. Const. Article 8, § 3

Priority of appropriation for beneficial uses shall give the better right.

First in time, First in Right

Wyo. Const. Article 8, § 2 Board of Control, composed of the State

Engineer and superintendents of the four water divisions are tasked with “supervision of the waters of the state and of their appropriation, distribution and diversion…

State Engineer’s Office (SEO)

Mission: The mission of the SEO and Board of Control (BOC) is to

provide for the general supervision and protection of both inter- and intra-state waters of this state. Includes the appropriation, distribution and application and application to beneficial use of water as provided under the prior appropriation doctrine, and to maintain the flexibility within that framework to meet the changing needs of the citizens of Wyoming. The SEO collects, analyzes, maintains and provides water related information for ensuring the appropriate management and regulation of Wyoming’s water resources.

Core Business Functions: Permitting and Adjudication of Water Rights Administration and Regulation Administration of Interstate Compacts and Decrees

Website: www.seo.state.wy.us/index.aspx

State Engineer’s Office (SEO)

SEO Divisions and Contact Information Administration

Patrick T. Tyrell, State Engineer 307.777.6150

Board of Control Allan Cunningham, BOC Control Administrator

307.777.6178 Surface Water

John Barnes, Surface Water Administrator 307.777.6475

Ground Water Lisa Lindemann, Ground Water Administrator

307.777.6163 Superintendent – Division

Randy Tullis, Superintendent 307.532.2248

Board of Control (BOC) Board of Control – W.S. § 41-4-201

Jurisdictional Examples: Exclusive original jurisdiction

Abandonment Change in Use

Adjudicated water rights (permitted go to State Engineer)

Change in point of diversion Reinstatements, etc.

Board of Control (BOC) Board of Control – W.S. § 41-4-201

Ability to deliver and protect water is dependent on recorded water right

Board of Control (BOC) Board of Control – W.S. § 41-4-201

State Engineer and 4 Superintendents; Fully staffed office in Cheyenne; Quarterly Meetings Special Meeting can be called – cots to party

requesting Statues require BOC to maintain water right

records – open to public

Wyoming Statutes Beneficial Use (Wyo. Stat. § 41-3-101)

Beneficial Use is the ultimate foundation of every water right.

A water right is a right to use the water of the state, when such use has been acquired by the beneficial application of water under the laws of the state relating thereto, and in conformity with the rules and regulations dependent thereon.

Beneficial use shall be the basis, the measure and limit of the right to use water at all times, not exceeding the statutory limit except as provided by W.S. § 41-3-317 (Board of Control Statute).

Types of Water Rights Surface Water Rights

Direct Flow Reservoir Surplus and Excess

Ground Water Rights Specific - Interference

Surface Water Rights Surface Water

Original Surface Water Right Supplemental Surface Water Right (W.S. § 41-3-113)

New source of supply for lands for which an appropriation of water from a primary source already exists.

Total amount diverted under primary and supplemental right shall not be in excess of 1/70, unless surplus statutes are involved.

Reservoirs (Art. 3, Chpt. 3) Secondary permits are necessary to protect use of stored

water for irrigation on certain lands Safety of dam inspections

Failure to comply shall subject permit to cancellation at any time

Surplus and Excess Water: Specifics

Surplus Water – W.S. § 41-4-318 (March 1, 1945)

Excess Water - W.S. § 41-4-329

Ground Water Rights Ground Water

Original Ground Water Right Additional Ground Water Right Interference

Ground Water: Specifics Interference – W.S. § 41-3-911

Available to surface and ground water users; Must file written complaint alleging

interference by junior user with SEO and pay $100;

SEO will investigate and issue a report stating findings;

Administrative Procedures Act Remedies are available.

Permitting and Adjudication Surface Water

Application (Surface Water Forms) Ditches or canals Enlargements Reservoirs Stock Reservoirs

Appropriator Forms Completion of Construction Notice of Beneficial Use

Proof Field Inspection Advertising Board of Control Order

Certificate of Construction Certificate Record Books Tab Book Updated

Permitting and Adjudication Ground Water

Application (Ground Water Form UW5) Appropriator Forms

Statement of Completion – UW6 Notice of Completion of Beneficial Use – UW8, Part I

Proof Field Inspection – UW8, Part III Advertising Board of Control Order

Certificate of Appropriation Tab Book Updated

Abandonment of Water Rights

Abandonment of Water Rights – W.S. § 41-3-401 Definition: Water user fails to intentionally or

unintentionally to beneficially use water right, whether adjudicated or unadjudicated for five (5) successive years.

Excuse exists if: Facilities to divert exist in usable form; and Not a sufficient supply of water available

BOC has exclusive original jurisdiction over abandonments

Abandonment of Water Rights

BOC Abandonment Procedures: The BOC may grant an extension for non-use

(water user must show reasonable cause and due diligence);

Once the complaint is received, the issue is referred to the appropriate superintendent for hearing;

Superintendent takes information back to BOC for vote.

Abandonment of Water Rights

Standing An individual petitioning for the BOC for

abandonment of a water right must have standing.

The Petitioner must meet the following requirements:

Possess a valid water right of equal or junior status; Water right must be in the same source of supply; Petitioner must benefit from a declaration of the

abandonment or sustain injury by reactivation of contested water right.

Improvement of priority alone is not enough to show benefit.

Abandonment of Water Rights

Forfeiture of Water Rights – W.S. § 41-3-402 The State Engineer can initiate abandonment

Not the policy of the State Engineer, but has happened on at least one occasion (NP Basin)

State Engineer’s Abandonment Process: BOC Secretary refer to superintendent where forfeiture is

alleged; Superintendent sends notice of hearing, via certified mail to

all owners of lands covered by the appropriations; State Engineer can not vote at BOC hearing; The BOC votes using secret ballots (3 affirmative votes are

needed); BOC sends certified copy of declaration within 60 days;

have 30 days to appeal to District Court

Control Areas Control Areas

Definition and Formation Regulation

Control Areas Control Areas - W.S. § 41-3-912

BOC can declare a control area for the following reasons:

Use of groundwater is approaching a use equal to current recharge rates;

Groundwater levels are declining or have declined excessively;

Conflicts between users are occurring or are foreseeable;

Waste of water is occurring or may occur; Other conditions exist or may arise that require

regulation for protection of the public inters

Control Areas Control Areas - W.S. § 41-3-912

BOC defines the control area geographically and stratigraphically;

BOC may designate 5 board member districts for purposed of election of control area advisory board

Superintendent shall proceed with adjudication Failure to comply may result in tagged or locked

pump Permit process changes

Instream Flow Instream Flow Statutes

Title 41, Article 10, Chapter 3 General Information

Studies Recent Developments

Instream Flows Instream Flow Statute

Defined as beneficial use Unappropriated water may be appropriated for

instream flows Water used shall be minimum flow necessary

to establish or maintain fishery Specifically define stream segment and

amount State of Wyoming owns the instream flow right Limitation on application locations Feasibility study – WWDC to Game and Fish

Instream Flows Instream Flow – General Information

Statutes passed in 1986; Approximately 90 applications; 17 or those have been adjudicated Game and Fish has never placed a call for

regulation

Questions

Harriet M. Hageman & Kara BrightonHageman & Brighton, P.C.www.hblawoffice.com