Temporary instream flow rights.

WORKING DRAFT
2005
STATE OF WYOMING
05LSO-0498

SENATE FILE
NO.
SF0106

Temporary instream flow rights.

Sponsored by:
Senator(s) Case and Decaria and Representative(s) Gay, Thompson and Zwonitzer

A BILL

for

AN ACT relating to water; authorizing the temporary acquisition or transfer of water rights for instream flow as specified; authorizing other beneficial uses; defining certain terms; making conforming amendments; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1.
41
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104(a)(intro), 41
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110(c) and by creating new subsections (e) and (f), 41
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1001 by creating a new subsection (e), 41
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1002, 41
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1003, 41
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1004(a), 41
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1005, 41
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1006, 41
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1007, 41
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1008(a)(intro), 41
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1010, 41
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1011 and 41
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1012 are amended to read:

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104.

Procedure to change use or place of use.

(a)

Unless otherwise provided by law, w
hen an owner of a water right wishes to change a 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, he shall file a petition requesting permission to make such a change. The petition shall set forth all pertinent facts about the existing use and the proposed change in use, or, where a change in place of use is requested, all pertinent information about the existing place of use and the proposed place of use. The board may require that an advertised public hearing or hearings be held at the petitioner's expense. The petitioner shall provide a transcript of the public hearing to the board. The change in use, or change in place of use, may be allowed, provided that the quantity of water transferred by the granting of the petition shall not exceed the amount of water historically diverted under the existing use, nor exceed the historic rate of diversion under the existing use, nor increase the historic amount consumptively used under the existing use, nor decrease the historic amount of return flow, nor in any manner injure other existing lawful appropriators. The board of control shall consider all facts it believes pertinent to the transfer which may include the following:

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110.

Right to acquire temporary water rights for highway or railroad roadbed construction or repair; application; restrictions; fee; other temporary uses.

(c)

Only that portion of a water right so acquired which has been consumptively used under the historical use made of the water right, may be diverted by a temporary user. In determining the consumptive use of water rights for the direct use of the natural unstored flow of any stream for irrigation purposes, the return flow from those rights shall be presumed to be fifty percent (50%). In those situations where an assumption of fifty percent (50%) return flow would be significantly in error, the state engineer shall have the prerogative of making a determination of the actual amount of return flow, and the amount of water which can be diverted for the temporary use provided herein shall be adjusted accordingly. The actual historic return flow, or the assumed return flow of fifty percent (50%) will be left in the stream for the use of downstream appropriators.
In evaluating return flow and consumptive use, the state engineer shall consider timing of return flows.
The foregoing formula and procedure for the determination of consumptive use and return flow shall be limited to this section and shall have no application to any other statute of the state of Wyoming. Nothing herein contained shall be treated or construed as changing the prior use of water held by said owner or owners and as provided by the laws of the state of Wyoming.

(e)

It is the policy of the state to encourage temporary transfers in order to maximize the beneficial use of water and to provide for more effective water management, particularly in times of drought. A person or entity may acquire or transfer by purchase, gift, lease or other form of conveyance the right to temporarily use water which may be embraced in any adjudicated or valid unadjudicated water right, or any portion thereof, for a period of not to exceed two (2) years, for irrigation, municipal, instream uses or other purposes, provided that:

(i)

The state engineer shall not issue a temporary transfer order if it appears that the proposed transfer would significantly and adversely affect other appropriators, or the stream channel, or would, in the opinion of the state engineer, be too difficult to administer or adverse to the public interest. All temporary transfers shall be presumed to be adverse to the interests of other appropriators, to the stream channel and to the public interest, and the burden shall be upon the applicant to prove the contrary by substantial evidence;

(ii)

Unless otherwise provided by law and to the extent subsection (b) of this section is applicable, any person desiring to acquire or transfer any temporary water right or portion thereof under this subsection shall comply with subsection (b) of this section;

(iii)

Should an application allowing any temporary transfer be granted, the applicant shall immediately post notice of the decision, including the date of the decision, once each week for four (4) consecutive weeks in a newspaper or newspapers of general circulation in the county or counties in which the stream segment between the new and old places of use lies, or, if place of use does not change, in which the water is used;

(iv)

Any decision by the state engineer granting or denying a temporary transfer under this subsection may be appealed to the board of control by filing notice with the board of control within thirty (30) days of the decision of the state engineer. The board of control shall conduct a hearing in accordance with its rules and the Wyoming Administrative Procedure Act;

(v)

The party prevailing, in whole or in part, in a hearing before the state board of control, or in a final decision on appeal, may be awarded the costs and fees of bringing or defending such an action;

(vi)

A person who obtains a temporary transfer granted pursuant to this subsection may apply for additional periods of temporary transfer not to exceed two (2) years each by following the procedures of this subsection. Nothing in this subsection shall be construed to limit or restrict the number of times a person may obtain a temporary transfer.

(f)

The provisions of subsection (b) of this section relating to loss, abandonment, impairment and reinvestment of rights shall apply to subsection (e) of this section.

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1001.

Waters stored for permanent instream flows a beneficial use of water; natural stream flows allowed for permanent instream flows; definitions.

(e)

Unless otherwise indicated, as used in W.S. 41
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1001 through 41
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1014,

"permanent" means for any time period greater than two (2) years;

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1002.

Permanent instream flows to be by stream segment; waters for permanent instream flows may be sold, transferred or otherwise conveyed under certain restrictions; ownership restricted; temporary uses.

(a)

All waters used for the purpose of providing
permanent

instream flows shall be applied only to that segment of the stream for which they are granted. The stream segment and the determination of a minimum amount of water required for
permanent

instream flow purposes shall be defined specifically.

(b)

After waters allowed for
permanent

instream flows have passed through the specific stream segment, all rights to those instream flow waters are relinquished, and the water shall be available for reappropriation, diversion and
other

beneficial use.
Any person making use of instream flow waters after the waters have left the specific stream segment shall not claim any harm or loss if and when the water right is returned to its original use or changed to a different use.

(c)

Storage water appropriated for the purpose of providing
permanent

instream flows in specified stream segments or existing water rights which are converted to instream flow under provisions of W.S. 41
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1007 of this act may later be sold, transferred or otherwise conveyed to any other purpose pursuant to the requirements of W.S. 41
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104, except that the board of control shall require that an advertised public hearing be held
prior to changing the use from instream flow
.
The purpose of the public hearing shall be to determine the potential harm or benefit associated with the proposed change.

(d)

Any person may divert and appropriate, as provided by law,
permanent

instream flow waters for any beneficial use other than for instream flows at the following places:

(e)

No person other than the state of Wyoming shall own any
permanent
instream flow water right.

(f)

Instream flows for temporary beneficial uses may be obtained, held or otherwise controlled by persons or entities pursuant to W.S. 41
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110(e).

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1003.

Game and fish commission; construction of measuring devices; recommendations; permits; fees and costs.

(a)

The game and fish commission shall construct any measuring device the state engineer considers necessary for the administration of
an
permanent
instream flow right.

(b)

The state game and fish commission may report to the water development commission annually those specific segments of stream which the game and fish commission considers to have the most critical need for
permanent

instream flows. The game and fish commission shall identify the points on the stream at which the need for
permanent

instream flows begins and ends, the time of year when the flows are most critical and a detailed description of the minimum amount of water necessary to provide adequate instream flows.

(c)

The water development commission shall file applications in the name of the state of Wyoming for permits to appropriate water for
permanent

instream flows in those segments of stream recommended by the game and fish commission. The state engineer shall not grant any permits to appropriate or store water for
permanent

instream flows prior to the completion of the study provided by W.S. 41
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1004 or prior to the hearing required by W.S. 41
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1006. Fees and costs of the commission associated with permit applications and adjudication of water rights shall be borne by the game and fish commission.

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1004.

Water development commission to determine storage feasibility; report to the game and fish commission and the legislature.

(a)

Immediately after permits have been applied for under W.S. 41
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1003(c), the water development commission shall determine the feasibility of providing
permanent

instream flows for the recommended segments of streams from unappropriated direct flows or from existing storage facilities or from new facilities. The feasibility study shall include a determination of water necessary to maintain or improve existing fisheries for water rights under W.S. 41
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1001(b) or of water necessary to provide fisheries for water rights under W.S. 41
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1001(a). The feasibility study shall also include the availability of storage sites, the estimated cost of providing any required storage and such other findings and conclusions as the water development commission deems appropriate.

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1005.

Approval of storage project.

If the water development commission determines that storage of water to provide
permanent

instream flows is feasible and in the interest of the state of Wyoming, it shall request authority from the legislature to proceed with the design and construction of storage facilities and the storage of sufficient water for such purposes. The costs of the project may be shared with other water users benefiting therefrom, or paid solely from funds appropriated from the water development account, or otherwise as the legislature directs.

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1006.

Appropriation of unappropriated waters for direct instream flows.

(a)

Any application for a permit to appropriate direct flow waters for the purpose of providing
permanent

instream flows shall be by stream segment, as defined in W.S. 41
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1002.

(b)

If the water development commission, under W.S. 41
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1004, determines that storage of water for the purpose of providing
permanent

instream flows is not feasible but that appropriation of direct flow water appears feasible, the state engineer shall act on applications for permits to appropriate water filed under W.S. 41
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1003(c) in the name of the state of Wyoming.

(c)

Subsequent to submission of an application for
an
a permanent
instream flow appropriation, the game and fish commission shall conduct relevant studies on the proposal.

(d)

The applicant for
an
a permanent
instream flow water right shall publish a notice of the application and hearing in a newspaper of general circulation in the area near the proposed reservoir site or stream segment, once each week for at least two (2) consecutive weeks prior to the hearing provided by subsection (e) of this section which notice shall briefly describe the application.

(e)

Prior to granting or denying the application
for a permanent instream flow right
, the state engineer shall conduct any studies as are deemed necessary to evaluate the proposed instream flow and the necessary amount of water to maintain existing fisheries and shall hold a public hearing. At the public hearing, the game and fish commission shall present its studies and any other interested parties shall present views on the proposed
permanent

instream flow appropriation. The state engineer may place a condition on the permit, if one is granted, requiring a review of the continuation of the permit as
an
a permanent
instream flow appropriation.

(f)

If an application for
an
a permanent
instream flow appropriation is approved by the state engineer, it shall be deemed that work has been commenced and completed and beneficial use made thirty (30) days after the date of approval for purposes of W.S. 41
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506 and proof of appropriation shall not be submitted until three (3) years thereafter.

(g)

The state engineer shall not issue
an
a permanent
instream flow permit where the instream flow right would be included as a portion of the consumptive share of water allocated to the state of Wyoming under any interstate compact or United States supreme court decree.

(h)

The amount of water appropriated for
a permanent

instream flow in each river basin in Wyoming shall not result in more water leaving the state than the amount of water that is allocated by interstate compact or United States supreme court decree for downstream uses outside of Wyoming.

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1007.

Acquisition of existing rights for instream flow purposes.

(a)

The state of Wyoming may acquire any existing water rights in streams of Wyoming by transfer
,

or
gift
, lease or purchase from willing sellers
for the purpose of providing instream flows, provided that a change in use of the right acquired shall be in accordance with W.S. 41
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104. Any right acquired and changed
pursuant to this section

shall be in the name of the state of Wyoming and shall be administered by the state engineer and the board of control, who shall insure that the use of water for instream flows shall not interfere with existing water rights or impair the value of such rights or related property. The
game and fish commission
shall act as a petitioner in a petition for change in use under this section.

(b)

Any
such
water rights acquired
and
or

changed
pursuant to W.S. 41
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1002(f) or 41
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1007(a)
shall be limited to a specified stream segment by the board of control with priority date intact.

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1008.

Regulation of streams.

(a)

The game and fish commission shall report to the water development commission the need to regulate a stream to protect the priority of
an
a permanent
instream flow right. The report shall include information establishing present or future damage to the fishery if the stream is not regulated. The commission, on the next working day, shall submit the report to the state engineer and call for stream regulation. The state engineer shall not regulate the stream to protect the instream flow right:

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1010.

Litigation costs.

If any other appropriator in a drainage where waters are allowed for
permanent

instream flows proves in district court that his right to use appropriated waters has been impaired or diminished by the allowance for
permanent

instream flows, the costs of litigation, including reasonable attorney fees, shall be borne by the holder of the instream flow right.

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1011.

Abandonment.

No right to water for the purposes of providing
a permanent

instream flow may be acquired through the process of abandonment nor shall any beneficiary of instream flow rights granted under this act be qualified under W.S. 41
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401 and 41
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402 to file for abandonment.

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1012.

Ingress and egress.

Nothing in this act shall grant, nor shall it be construed to grant the right of ingress or egress through or upon private property to reach streams where
permanent

instream flows are maintained, nor shall it operate or be so construed as to grant any right of eminent domain to acquire the right of ingress or egress through private property to any waters so maintained.

Section 2.
This act is effective July 1, 2005.

(END)

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SF0106