1. Water Transfers in Times of Drought: Perspectives from the Ground Water User and the Power Company Presented by: Kara Brighton, Esq. Hageman & Brighton, P.C. Jenifer Scoggin, Esq. Holland & Hart,

2. Wyomings Temporary Use Statute W.S. 41-3-110 – Right to acquire temporary water rights for highway or railroad roadbed construction or repair

3. W.S. 41-3-110 cont 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.

4. W.S. 41-3-110 Filing Requirements Application must be filed with the State Engineers 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.

5. W.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)

8. Power Company Perspectives

9. Water 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.

10. Diligence 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.

11. Landowner 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?

12. Drafting Owner Agreements Exhibits Representations and Agreements Express Conditions to the Agreement

13. Other Considerations Are there court decrees or other agreements limiting the water right? Are there other sources available? Creative Ideas Community Support

14. Landowner Perspectives

15. Easement and Access An interest in land which entitles the holder to limited enjoyment over anothers property Creates two estates Dominant Estate Servient Estate

16. W.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

17. Easement Requirements Specific 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.

18. Case Law Lozier v. Blattland Investments, LLC Wilson v. Lucerne Canal and Power Co. Markstein v. Countryside L.L.C. White v. Allen Conner v. Board of County Commissioners Natrona County

19. Lozier 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

20. Wilson v. Lucerne Canal and Power Company 77 P.3d 412 (Wyo. 2003) How can easement holder enforce easement? Remedies: – Permanent Injunction – Damages

21. Markstein v. Countryside 77 P.3d 389 (Wyo. 2003) 77 P.3d 389 (Wyo. 2003) Issues: Issues: – Bankruptcy – License v. Easement Wyoming Supreme Court: Wyoming Supreme Court: – Property owners had permanent easement for fishing rights on ranch

22. White v. Allen 65 P.3d 395 (Wyo. 2003) 65 P.3d 395 (Wyo. 2003) What constitutes undue burden on servient owner What constitutes undue burden on servient owner Wyoming Supreme Court: Wyoming Supreme Court: – Balance reasonableness of burden placed on servient owner with substantiality of inconvenience imposed on dominant owner

23. Connor v. Natrona County Commissioners 54 P.3d 1274 (Wyo. 2002) 54 P.3d 1274 (Wyo. 2002) Issues: Issues: – Whether eminent domain can be used to extend an easement; and – Damages Wyoming Supreme Court Wyoming Supreme Court – Condemnation appropriate – Damages were properly determined

24. Water Transfers in Times of Drought: Perspectives from the Ground Water User and the Power Company Presented by: Kara Brighton, Esq. Hageman & Brighton, P.C. Jenifer Scoggin, Esq. Holland & Hart,