Water: 101

Basic Water Right Principles

Harriet M. HagemanKara Brighton

Introduction

Constitutional FoundationState Engineer’s OfficeBeneficial useTypes of Water RightsInstream Flows

Constitutional Foundation

Wyoming ConstitutionArticle 1, Section 31

State Controls the WaterArticle 8, Section 1

Water is Property of the StateArticle 8, Section 3

Priority Appropriation Doctrine EstablishedArticle 8, Section 2

Established Board of Control

State Engineer’s Office

Charged with the Regulation and Administration of the Water Resources in Wyoming

Issue Water Rights to Anyone who will Make Beneficial Use of Water

State Engineer’s Office

Regulatory FunctionsSurface WaterGround WaterBoard of Control

Interstate Streams Program

State Engineer’s Office

Four Water DivisionsDiv. 1: North Platte, South Platte and

Snake RiversDiv. 2: Yellowstone and Missouri Rivers

north of North Platte and east of Big HornsDiv. 3: Big Horn River, Clark’s ForkDiv. 4: Green and Bear Rivers

State Engineer’s Office

Superintendent for Each DivisionAppointed by Governor

State Engineer Examines Irrigation laws and administrationMeasurement of flowing waterEvaporation, seepage and drainageHydrographic features of their water division

State Engineer’s Office

Superintendent’s Duties and PowersExecute laws relative to distribution of waterRegulate and use storageAuthority to close headgates

Superintendent Decisions can be Appealed to the State Engineer

State Engineer’s Office

Exchange Petition – W.S. 41-3-106

Temporary Water Use Agreements – W.S. 41-3-110

Beneficial Use

W.S. 41-3-101

Beneficial Use shall be the Basis, the Measure and Limit of the Right to Use Water at All Times

Foundation of Every Water Right

Beneficial Uses

Recognized Uses Include: IrrigationMunicipal IndustrialPower GenerationRecreationalStockDomestic

Types of Water Rights

SurfaceSupplemental

GroundReservoir

SecondaryPreferred UseSurplusExcess

Surface Water Rights

Original SupplyStatutory Limit of 1 cfs per 70 acres

Supplemental – 41-3-113New source of supply for lands for which an

appropriation of water from a primary source already exists

Total amount diverted not exceed 1/70

Ground Water Rights

Original Supply

Additional Supply

Reservoir Rights

Reservoir PermitEnlargements

Secondary PermitNecessary to protect use of stored water for

irrigation on certain lands

Safety of Dams Inspections

Preferred Use

W.S. 41-3-102Preference Rights – Water for:

Drinking purposes (man & beast)Municipal purposesUse of steam engines, culinary, bathing, etc Industrial purposes

Surplus Water Right

W.S. 41-4-318 through 41-4-324

Rights Senior to March 1, 1945 can Divert an Additional 1 cfs per 70 acres before anyone Junior can divert

Excess Water Right

W.S. 41-4-329 through 41-4-331

Anyone Senior to March 1, 1985 can divert an additional one cfs per 70 acres before anyone Junior can divert

Instream Flow

W.S. 41-3-1001 through 41-3-1014Article 10, Chapter 3

Storage for recreational pool or 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

Instream Flow

Must Specifically Define Stream Segment and Amount

State of Wyoming owns the water rights – Held by WWDC

Limitation on LocationFeasibility Study – WWDC Prepares

SEO conducts Hearings

Instream Flow Statistics

Approximately 90 Applications

17 Have Proceeded to Permit Status

2 of 17 Have Been Adjudicated

No Call for Regulation Has Been Placed

Water: 101

Board of Control

Board of Control

Title 41, Chapter 4State Engineer; Four SuperintendentsRegularly Quarterly Meetings

Special Meetings AvailablePetitioner Requesting pays Costs

Majority of Members Constitutes a QuorumEx Officio Secretary Appointed by Board

Board of Control Duties

Duty to Compile all Adjudicated Water Rights in Each BasinTab Book

Maintain Water Right Records – Open to Public

Board of Control Jurisdiction

Exclusive JurisdictionAbandonmentChange in Use

Adjudicated Water RightsChange in Point of DiversionCorrection of Errors

Water: 101

Wyoming Ground Water Law

Introduction

History of Wyoming’s Ground Water Statutory Framework

Regulation of Ground WaterComparison with Other StatesConclusion

History of Ground Water Laws in Wyoming

1945 – Chapter 139Declared public interest in underground

waters and a vested right in certain uses of such waters

Directed State Engineer to investigate underground water conditions

History of Ground Water Laws in Wyoming

1947 – Chapter 107Filing of Claims to wells completed prior to

April 1, 1947Statement of Claim

Registration of wells completed after April 1, 1947

Well RegistrationException for Stock, Domestic WellsAdjudication Procedure

History of Ground Water Laws in Wyoming

1957 – Chapter 169 – “Title 41”Required Permit from State Engineer

PRIOR to commencing constructionPermits issued as a matter of course unless

“critical area”Exemption for Stock, Domestic WellsPreferred Use for Stock & Domestic WellsSubject to Abandonment

History of Ground Water Laws in Wyoming

1969 AmendmentsAny Well, including Stock, Domestic, drilled

after May 24, 1969 required PermitDecember 31, 1972 registration for Stock

and Domestic WellsPriority not based on Application Date

State Engineer MAY deny a permit if demanded by public interest

Wyoming’s Ground Water Statutory Framework

DefinitionsPrioritiesPolicyInterferenceControl Areas

Definitions

Underground Water – 41-3-901(a)(ii)

Aquifer – 41-3-901(a)(iii)

Well – 41-3-901(a)(iv)

Priorities

Statement of Claims - Ends with CPriority before April 1, 1947

Well Registrations - Permit Ends with GPriority Between April 1, 1947 and 1957

PermitsPermits Ends with WPermits Ends with P

Stock or Domestic Well Drilled prior to May 24, 1969 and Registered before December 31, 1972

Policy – W.S. 41-3-931

If located in an area not designated as a critical area, it SHALL be granted as a matter of course

Proposed Use is BeneficialProposed Means of Diversion and

Construction are AdequateDeny for Public Interest

Reviewed by Board of Control

Interference – Statutory Req.

W.S. 41-3-911Complainant Must Have a Valid Water RightComplaining Well Must be “Adequate”Substantial Evidence of Actual Interference $100 Filing FeeState Engineer Undertakes InvestigationState Engineer ReportsAppeal to Board of Control

Adequate Well

Well Depth Completed in a manner that allows

maximum beneficial use of ground waterWell Construction

Allow water to efficiently enter and flow outWell Condition

Useful life of pump and other equipmentResponsibility of Well Owner to Maintain

Interference – Case Law

“Adequate” WellBishop v. City of Casper

420 P.2d 446 (Wyo. 1966)

Application of StatuteWilladsen v. Christopulos

731 P.2d 1181 (Wyo. 1987) Denial of Due Process - Remanded

792 P.2d 1376 (Wyo. 1990) Board of Control’s Determination Upheld

Control Area BOC Designation W.S. 41-3-912

Use of ground water approaching a use equal to the current recharge rate

Ground water levels are declining or have declined excessively

Conflicts between users are occurring or are foreseeable

The waste of water is occurring or may occur

Other conditions exist that require regulation for protection of public interest

Control Area Advisory BoardW.S. 41-3-913

Shall Consist of 5 Adults who Own Land in the Control Area

Election – 1 vote per acreFollowing formation, Terms are 4 YearsReimbursed for Board Activities

Other Control Area Statutes

Adjudication W.S. 41-3-914

Corrective ControlsW.S. 41-3-915

Moratorium on PermitsLimit Permissible Total Withdrawal Order Junior Appropriators Off

Regulation of Ground Water

Prior Appropriation DoctrinePhysical ComplicationsGeohydrologic Data

Initiation of New RightsExercise of Existing Rights

Practical Examples

Prior Appropriation Doctrine

Groundwater Regulated for the Benefit of Surface Water When: Interference EstablishedDetermination of Same Source of Supply

W.S. 41-3-916Can Adopt Corrective Measures

Provided in W.S. 41-3-915

Physical Complications in Integrating Priorities

Delayed Impact of Junior DiversionsSelection of Junior Appropriators for

ClosureCan be determined to be arbitrary and

violation of equal protection rightsOverlong Delay

Geohydrologic Data

Integrated Management Requires Detailed Water Supply Data

Data Often Lacking Initiation of New Rights

Burden of Proof – Not on ApplicantExercise of Existing Rights

Burden of Proof – Senior Water Right

Comparison to Other States

TexasRule of Capture

NebraskaCorrelative Rights Doctrine

ColoradoWater Courts

Conclusion

Drought has Exposed Surface and Ground Water Conflict

Little or No Recognition in New Permitting

Surface Water or Senior Ground Water have Burden of Proof to Regulate Junior Ground Water Rights

Questions?

Harriet M. Hageman

Kara Brighton

Hageman & Brighton, P.C.

222 E. 21st Street

Cheyenne, Wyoming

307-635-4888

www.hblawoffice.com