1. Water Law Wyoming Land Law for Civil Engineers and Land Surveyors Kara Brighton Hageman & Brighton, P.C. Attorneys at Law 222 E. 21 st Street Cheyenne, Wyoming 82001 (307) 635-4888

2. Introduction Kara Brighton  Hageman and Brighton, P.C.  Areas of Practice: Water and Natural Resources Nebraska v. Wyoming (North Platte and Laramie Rivers, Cooperative Agreement and Recovery Program) “Roadless Litigation” USFWS Wolf Management and Recovery / Predator Control Irrigation Districts Protection of water rights Protection of Private Property Defense of Wyoming’s “open range” law

3. Water Rights in Wyoming An overview of the basic principles of Wyoming Water Law

4. 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

5. 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).

6. Wyoming Statutes Beneficial Use - Wyo. Stat. § 41-3-101  Recognized beneficial uses include: Irrigation Municipal Industrial Power Generation Recreational Stock Domestic Pollution Control Instream Flows

7. 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…”

8. Regulating Agencies The State Engineer’s Office and the Board of Control regulate Wyoming water law. State Engineer’s Office (SEO)  Permitting, adjudication, management  Water exchanges Board of Control (BOC)  Maintain water rights records  Changes in use or type of water right  Abandonment proceedings

9. State Engineer’s Office (SEO) Purpose  The mission of the SEO and Board of Control (BOC): To provide for the general supervision and protection of both inter- and intra-state waters of this state.  The appropriation, distribution and application to beneficial use of water under the prior appropriation doctrine  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 of Water Rights Administration of Interstate Compacts and Decrees

10. State Engineer (SEO) Water Exchanges Wyo. Stat. § 41-3-106  An individual who owns an adjudicated water right where the appropriation is at time insufficient or better conservation and utilization of the state’s water can be accomplished, or the appropriator can develop appropriable water but cannot economically convey it to its point of use, may petition the SEO for an order allowing an exchange and the use of stored, direct flow, or ground water from another source.

11. Board of Control (BOC) Purpose - W.S. § 41-4-201  Responsible for the adjudication process for each water permit, including field inspections.  Responsible for changes to an adjudicated water right, such as changes in point of diversion, change in use, change in the area of use, or abandonment of a water right.  Core Business Functions: The BOC is comprised of State Engineer and four (4) Superintendents; Fully staffed office in Cheyenne; Wyoming statues require BOC to maintain water right records, which are open to public Quarterly Meetings Special Meeting can be called, with the cost to the party requesting the meeting.

12. Board of Control (BOC) Board of Control – W.S. § 41-4-201 A water user’s ability to deliver and protect water is dependent on a recorded water right. Jurisdictional Examples: Exclusive original jurisdiction  Change in Use  Abandonment Adjudicated water rights (permitted go to State Engineer)  Change in point of diversion  Reinstatements, etc.

13. Board of Control (BOC) Change in Use and Place of Use Wyo. Stat. § 41-3-104  An individual who owns an adjudicated water right may request to change the water right from its present use to another use, or from the place of use under the existing right to a new place of use Must file a petition with the BOC  Petition is fact specific Advertised public hearing at the petitioner’s expense. Factors considered:  Economic loss to the community or the State  Economic benefits – offset by new use  Other sources of water available for new use

14. Change in Use/Place of Use W.S. 41-3-104 Cont. If the petition is granted, the quantity of water transferred cannot exceed the amount of water historically diverted, the historic rate of diversion, increase the historic amount of water consumptively used, nor decrease the historic amount of return flow. No injury rule 50% Rule Cannon Ranch Transfer

15. Board of Control (BOC) Change in Point of Diversion Wyo. Stat. § 41-3-114 An individual who owns an adjudicated water right may petition the BOC to change the point of diversion or means of conveyance. Must obtain consent from owners of appropriations which divert from the old and new points of diversion.

16. State Engineer’s Office (SEO) and Board of Control (BOC) SEO Divisions and Contact Information  Administration Patrick T. Tyrell, State Engineer (777-6150)  Board of Control Allan Cunningham, BOC Control Administrator (777-6178)  Surface Water John Barnes, Surface Water Administrator (777-6475)  Ground Water Lisa Lindemann, Ground Water Administrator (777-6163)  Superintendent – Division Randy Tullis, Superintendent (532-2248) Website:www.seo.state.wy.us/index.aspx

17. Types of Water Rights Surface Water Rights (rivers, streams and reservoirs) Direct Flow Reservoir Surplus and Excess Ground Water Rights (wells) Original Ground Water Right Additional Ground Water Right Instream Flows All water rights must be put to beneficial use

18. Surface Water Rights Permitting and Adjudication  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

19. 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, Chapter. 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. A reservoir is entitled to be filled in priority once each year if water is available (one-fill rule).

20. Surplus and Excess Water  Surplus Water W.S. § 41-4-318 (March 1, 1945)  Excess Water W.S. § 41-4-329 (March 1, 1985)

21. Ground Water Rights Permitting and Adjudication  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

22. Instream Flows Instream Flow – Article 10, Chapter 3 Wyoming Statutes (1986) provide:  Storage for a recreational pool or to establish or maintain fisheries is a 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  Other information:  The State of Wyoming owns the instream flow right  Limitation on places for instream flows  Approximately 90 applications for instream rights;  17 of those applications have been adjudicated  Game and Fish have never placed a call for regulation.

23. Disputes Between Water Users  Interference - W.S. § 41-3-911  Control Areas - W.S. § 41-3-912  Same Source of Supply - W.S. § 41-3-916

24. Interference Surface and Ground Water Rights 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.

25. Control Areas  Control Areas - W.S. § 41-3-912 BOC can declare a control area if conditions arise that require regulation.  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 interest

26. Same Source of Supply  Same Source of Supply - W.S. § 41-3-916 “Where underground waters in difference aquifers are so interconnected as to constitute in fact one source of supply, or where underground waters and the waters of surface streams are so interconnected as to constitute in fact one source of supply, priorities of rights to the use of all such interconnected waters shall be correlated and such single schedule of priorities shall relate to the whole common water supply. The state engineer may by order adopt any of the corrective controls specified in W.S. 41-3-915.”

27. Protecting Surface and Ground Water Rights  Abandonment  Forfeiture

28. Abandonment of Water Rights Abandonment of Water Rights – W.S. § 41-3-401 If a water user fails to intentionally or unintentionally to beneficially use water right, whether adjudicated or unadjudicated for five (5) successive years those rights are subject to abandonment. Excuse exists in some cases if:  Facilities to divert exist in usable form; and  Not a sufficient supply of water available BOC has exclusive original jurisdiction over abandonments

29. 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. An individual petitioning for abandonment must have “standing” to petition the BOC.

30. Forfeiture 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 cannot 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

31. Questions ??  Kara Brighton Hageman & Brighton, P.C. 222 E. 21 st Street Cheyenne, WY 82001 307-635-4888 kbrighton@hblawoffice.com VISIT OUR WEBSITE at www.hblawoffice.com