water transfers in times of drought: perspectives from the ground water user and the power company...
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Water Transfers in Times of Water Transfers in Times of Drought: Drought:
Perspectives from the Ground Water User and Perspectives from the Ground Water User and the Power Companythe Power Company
Presented by:
Kara Brighton, Esq.
Hageman & Brighton, P.C.
Jenifer Scoggin, Esq.Holland & Hart,
Wyoming’s Temporary Use Wyoming’s Temporary Use StatuteStatute
W.S. 41-3-110– Right to acquire temporary water rights
for highway or railroad roadbed construction or repair
W.S. 41-3-110 con’tW.S. 41-3-110 con’t
Any person shall have the right to acquire by purchase, gift or lease the right for a period not to exceed two (2) years for temporary purposes.
A transfer will be allowed only if no other appropriator is injured thereby.
W.S. 41-3-110 Filing W.S. 41-3-110 Filing RequirementsRequirements
Application must be filed with the State Engineer’s Office.
State Engineer can authorize such use, and designating the method, place and period of use. – No loss, abandonment or impairment of water
rights shall occur or attach as a result of the order.
W.S. 41-3-110 RequirementsW.S. 41-3-110 Requirements
What Water can be Transferred? – Only Consumptively Used under Historical Use
of the water right may be diverted by a temporary user.
– Return Flow shall be presumed to be fifty percent (50%) or adjusted accordingly.
– Actual Historic Return Flow or 50% will be left in the stream for down stream appropriators.
– State Engineer Filing Fee (not more than $100)
Power Company Power Company PerspectivesPerspectives
Water AvailabilityWater Availability
How Much Water is Available for Transfer?– Historical Consumptive Use– Records are important for determination.
SEO has ultimate authority to determine amount of water for transfer.
Communication with SEO is key.
DiligenceDiligence
Check the status of the water right– Is it in good standing with the SEO?– Make sure landowner is the holder of the right.– Make sure landowner has fee title for
easements sought.– Are the water rights encumbered?– Check Equipment Status.
Landowner AgreementsLandowner Agreements
Negotiations – Payment Structure Considerations– Agreement Terms– Use of Owner Equipment and Facilities– Rights of Way and Easements– What happens at the end of the term?
Drafting Owner AgreementsDrafting Owner Agreements
Exhibits
Representations and Agreements
Express Conditions to the Agreement
Other ConsiderationsOther Considerations
Are there court decrees or other agreements limiting the water right?
Are there other sources available?Creative IdeasCommunity Support
Landowner Landowner PerspectivesPerspectives
Easement and AccessEasement and Access
An interest in land which entitles the holder to limited enjoyment over another’s property
Creates two estatesDominant EstateServient Estate
W.S. 34-1-141W.S. 34-1-141
Describes rights and requirements for an easement– Must specifically describe the location of the
easement – Non-Specific Descriptions or Rights to locate
easement are effective for one (1) year. Specific Description must be recorded within one
(1) year.
– Description is not limited to a survey
Easement RequirementsEasement RequirementsSpecific Description
– Not limited to survey, but must be able to locate – Easement or agreement without specific description
is valid for one (1) year Must be specifically described and recorded in one (1)
year.
Exceptions– Emmett Ranch v. Goldmard Engineering Inc.
Failure to Record is not fatal where proponent of the failure to record has full notice of the conveyance and suffers no prejudice.
Case LawCase Law
Lozier v. Blattland Investments, LLCWilson v. Lucerne Canal and Power Co.Markstein v. Countryside L.L.C.White v. AllenConner v. Board of County Commissioners
Natrona County
Lozier v. BlattlandLozier v. Blattland
100 P.3d 380 (Wyo. 2004)Can easement be transferred to subsequent
landowners?Wyoming Supreme Court:
– Easement document did not limit transferability– Easement is perpetual
Wilson v. Lucerne Canal and Wilson v. Lucerne Canal and Power CompanyPower Company
77 P.3d 412 (Wyo. 2003)How can easement holder enforce
easement?Remedies:
– Permanent Injunction– Damages
Markstein v. CountrysideMarkstein v. Countryside
77 P.3d 389 (Wyo. 2003)77 P.3d 389 (Wyo. 2003) Issues:Issues:
– BankruptcyBankruptcy– License v. EasementLicense v. Easement
Wyoming Supreme Court:Wyoming Supreme Court:– Property owners had permanent easement Property owners had permanent easement
for fishing rights on ranchfor fishing rights on ranch
White v. AllenWhite v. Allen
65 P.3d 395 (Wyo. 2003)65 P.3d 395 (Wyo. 2003)What constitutes undue “burden” on What constitutes undue “burden” on
servient ownerservient ownerWyoming Supreme Court:Wyoming Supreme Court:
– Balance reasonableness of burden placed Balance reasonableness of burden placed on servient owner with substantiality of on servient owner with substantiality of inconvenience imposed on dominant inconvenience imposed on dominant ownerowner
Connor v. Natrona County Connor v. Natrona County CommissionersCommissioners
54 P.3d 1274 (Wyo. 2002)54 P.3d 1274 (Wyo. 2002) Issues: Issues:
– Whether eminent domain can be used to Whether eminent domain can be used to extend an easement; andextend an easement; and
– DamagesDamagesWyoming Supreme CourtWyoming Supreme Court
– Condemnation appropriateCondemnation appropriate– Damages were properly determinedDamages were properly determined
Water Transfers in Times of Water Transfers in Times of Drought: Drought:
Perspectives from the Ground Water User and Perspectives from the Ground Water User and the Power Companythe Power Company
Presented by:
Kara Brighton, Esq.
Hageman & Brighton, P.C.
Jenifer Scoggin, Esq.Holland & Hart,