Instream flow reform.

WORKING DRAFT
2005
STATE OF WYOMING
05LSO-0518

SENATE FILE
NO.
SF0107

Instream flow reform.

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

A BILL

for

AN ACT relating to water; specifying considerations for evaluating return flows; authorizing instream flows for establishment, maintenance and improvement of fisheries and habitat; authorizing other beneficial uses; defining certain terms; making conforming amendments; authorizing specified state agencies to apply for instream flow water rights; providing procedures for public notice and hearing; providing procedures for reviewing instream flow water rights; repealing an inconsistent provision; and providing for an effective date.

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

Section 1.
W.S. 35
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11
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109(a) by creating a new paragraph (xvi), 35
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11
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110(a) by creating a new paragraph (x), by renumbering (x) as (xi) and (c) through (e), 35
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11
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112(a) by creating a new paragraph (vii), 35
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11
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114 by creating a new subsection (f), 41
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3
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1001, 41
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3
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1002(a) through (c), 41
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3
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1003, 41
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3
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1004(a) and (b), 41
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3
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1006(c) through (e) and by creating a new subsection (j), 41
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1007, 41
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3
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1008(a)(intro) and (i), 41
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3
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1009 and 41
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1011 are amended to read:

35
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11
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109.

Powers and duties of director.

(a)

In addition to any other powers and duties imposed by law, the director of the department shall:

(xvi)

Advise the council on matters relating to the filing of applications for instream flow water rights.

35
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11
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110.

Powers of administrators of the divisions.

(a)

The administrators of the air quality, land quality and water quality divisions, under the control and supervision of the director, shall enforce and administer this act and the rules, regulations and standards promulgated hereunder. Each administrator shall have the following powers:

(x)

To recommend to the director, after consultation with the appropriate advisory board, the filing of applications for instream flow water rights;

(x)
(xi)

To possess such further powers as shall be reasonably necessary and incidental to the proper performance of the duties imposed upon the divisions under this act.

(c)

The administrator of the solid and hazardous waste management division shall have the powers set forth in paragraphs (a)(ii) through
(x)
(xi)
of this section.

(d)

The administrator of the abandoned mine land division shall enforce and administer the provisions of W.S. 35
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11
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1201 through
35
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11
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1208
35
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11
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1209
and 35
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11
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1301 through 35
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1304. He shall have the powers set forth in paragraph
(a)(x)
(a)(xi)
of this section.

(e)

The administrator of the industrial siting division shall enforce and administer the provisions of W.S. 35
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12
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101 through 35
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12
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119. He shall have the powers set forth in paragraph
(a)(x)
(a)(xi)
of this section.

35
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11
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112.

Powers and duties of the environmental quality council.

(a)

The council shall act as the hearing examiner for the department and shall hear and determine all cases or issues arising under the laws, rules, regulations, standards or orders issued or administered by the department or its air quality, land quality, solid and hazardous waste management or water quality divisions. Notwithstanding any other provision of this act, including this section, the council shall have no authority to promulgate rules or to hear or determine any case or issue arising under the laws, rules, regulations, standards or orders issued or administered by the industrial siting or abandoned mine land divisions of the department. The council shall:

(vii)

File applications for permits to appropriate water for instream flows, after recommendation from the director of the department, the administrators of the various divisions and their respective advisory boards.

35
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11
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114.

Powers and duties of the advisory boards.

(f)

The advisory board shall recommend to the council through the administrator and director the filing of applications for instream flow water rights.

41
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3
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1001.

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

(a)

The storage of water in any drainage in Wyoming for the purpose of providing a recreational pool or the release of water for instream flows to establish
,

or
maintain
new or existing
or improve
fisheries
and habitat
is a beneficial use of water subject to normal stream loss.

(b)

Unappropriated water flowing in any stream or drainage in Wyoming may be appropriated for instream flows to
establish,
maintain or improve
existing
fisheries
and habitat
and declared a beneficial use of water on a case by case basis by the state engineer if such use does not impair or diminish the rights of any other appropriator in Wyoming.

(c)

Waters used for the purpose of providing instream flows under subsection (a) of this section shall be the
minimum flow
amount
necessary to establish or maintain fisheries
and habitat
.

(d)

Waters used for the purpose of providing instream flows under subsection (b) of this section shall be the
minimum flow
amount
necessary to
establish,
maintain or improve
existing
fisheries
and habitat
.

(e)

In addition to the beneficial uses listed in subsection (a) of this section, water quality, aquatic and riparian habitat improvement and groundwater recharge are declared to be beneficial uses. The game and fish commission or the environmental quality council may identify streams and may file applications for permits to appropriate water for permanent instream flows for these beneficial uses. Waters used for the purpose of providing instream flows pursuant to this subsection shall be the amount necessary to achieve water quality, aquatic or riparian habitat improvement or groundwater discharge as determinable by scientific study or other related evidence.

(f)

Unless otherwise indicated, as used in W.S. 41
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3
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1001 through 41
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3
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1014:

(i)

"Amount necessary" means the amount based upon current and historic flows, or in the case of the establishment of a fishery or habitat or other beneficial use as defined by subsection (e) of this section, the amount required to create a fishery or habitat or achieve other beneficial purposes, based upon scientific study or other related evidence;

(ii)

"Applicant" or "applicant for the instream flow right" means the game and fish commission or the environmental quality council filing an application for an instream flow right;

(iii)

"Maintain" means to keep or preserve at current or historic levels.

41
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1002.

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

(a)

All waters used for the purpose of providing 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
the
amount of water
required
necessary
for instream flow purposes shall be defined specifically.

(b)

After waters allowed for 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 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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3
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1007 of this act may later be sold, transferred or otherwise conveyed to any other purpose
, including the original use of that water right without diminution,
pursuant to the requirements of W.S. 41
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3
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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.

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1003.

State agencies; construction of measuring devices; recommendations; permits; fees and costs.

(a)

The game and fish commission
or the environmental quality council with the assistance of the state engineer should the agency request assistance,
shall construct any measuring device the state engineer considers necessary for the administration of an 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 instream flows.
The game and fish commission
shall
or environmental quality council may
identify
streams with the most critical need for instream flows,
the points on the stream at which the need for instream flows begins and ends, the time
or times
of year when the flows are
most critical
needed
and a detailed description of the
minimum
amount of water necessary
to provide adequate instream flows
to establish, maintain or improve fisheries and habitat or serve other beneficial purposes as specified by W.S. 41
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3
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1001 through 41
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3
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1014
.

(c)

The water development commission
After the game and fish commission or environmental quality council has determined the need for instream flows, the commission or council
shall file applications in the name of the state of Wyoming for permits to appropriate water for instream flows
.

in those segments of stream recommended by the game and fish commission
The application shall detail the information required to be identified pursuant to subsection (b) of this section
.
Any right approved 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 ensure that the use of water for instream flows shall not interfere with existing water rights or impair the value of any existing water rights or related property.
The state engineer shall not grant any permits to appropriate or store water for instream flows prior to
the completion of the study provided by W.S. 41
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3
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1004 or prior to
the hearing
required
allowed
by W.S. 41
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3
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1006
, if the hearing is held
. Fees and costs
of the commission
associated with permit applications and adjudication of water rights shall be borne by the
game and fish commission
applicant for the instream flow right
.

41
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3
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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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3
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1003(c),
the state engineer may request that
the water development commission
shall
determine the
feasibility of providing instream flows for the recommended segments of streams from
reasonable availability of
unappropriated direct flows or
water
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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3
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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
according to present water use patterns and active water rights. Upon request of the state engineer or the applicant, the water availability
study
shall
may
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.

(b)

The water development commission shall make a report to the
game and fish commission
applicant for the instream flow right
and the
legislature
state engineer
outlining their findings
made pursuant to a request under subsection (a) of this section
.

41
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1006.

Appropriation of unappropriated waters for direct instream flows.

(c)

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

(d)

The
applicant for an instream flow water right
board of control
shall publish a notice of the application and
the opportunity for the public to request a
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.
The cost of the notice and hearing, if one is held, shall be paid by the applicant.

(e)

Prior to granting or denying the application, the state engineer
shall
may
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
and at his discretion may, or upon request from the public if at least twenty-five (25) persons request shall,
hold a public hearing. At the public hearing,
if held,
the
game and fish commission
applicant
shall present its studies and any other interested parties shall present
views on
statements of fact or data detailing any harms or benefits to those parties should
the proposed instream flow appropriation
be approved
. 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 instream flow appropriation.

(j)

No applicant shall apply for or acquire an instream flow for the purpose of transferring the use of that water to another location outside the boundaries of the state.

41
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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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3
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104. Any right acquired and changed 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
applicant for the instream flow right
shall act as a petitioner in a petition for change in use under this section.

(b)

Any such water rights acquired and changed
pursuant to subsection (a) of this section

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
or the environmental quality council may
report to the
water development commission
board of control and call for regulation of streams when they determine
the need to regulate a stream to protect
or affirm
the priority of an 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
board of control
shall not regulate the stream to protect the instream flow right:

(i)

Unless present or future injury
to the fishery
has been shown;

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1009.

Statement regarding condemnation and impairment of existing water rights.

This act does not grant, nor shall it operate or be so construed to grant the power of condemnation to the game and fish
department
commission or the environmental quality council
for acquisition of existing water rights for the purpose of providing instream flows, nor shall it operate or be so construed as to impair or diminish the value of or divest existing water rights.

41
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1011.

Abandonment.

(a)

No right to water for the purposes of providing 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.
Once approved, instream flow water rights shall not be subject to abandonment.

(b)

The state engineer shall conduct a public hearing to consider the standing, continuance and possible need to modify any instream flow on or within thirty (30) days after each five (5) year anniversary of the adjudication date of the instream flow right. The state engineer shall advertise the hearing in a newspaper of general circulation in the area near the location of the instream flow right, once each week for at least two (2) consecutive weeks prior to the hearing. Prior to the hearing, the state engineer may conduct any studies deemed necessary to evaluate the instream flow right.

(c)

The ruling of the state engineer shall be based on a finding that the water is being used for the greatest good and beneficial use of the state and its citizens. The state engineer shall consider both economic and noneconomic factors including:

(i)

Statements of fact and appropriate supporting information provided by the applicant as to the continued need of that water right for the original purpose of the filing, based on past and existing conditions as well as scientific study; and

(ii)

Statements of fact and appropriate supporting information from the public as to the direct or indirect benefits or harm they have received, are receiving or will receive from continuation or termination of the instream flow right. Any statements made pursuant to this paragraph shall be based on past and existing conditions and needs and shall not be speculative in nature.

(d)

The hearing required by subsection (b) of this section shall be in accordance with the rules of the board of control and the Wyoming Administrative Procedure Act. Any decision of the state engineer shall be appealed first to the full board of control. In addition, if any proceeding results in termination of an instream flow right, and the water formerly used to provide instream flow is not put to new beneficial use within one (1) year of the state engineer's ruling or is not maintained for that use for at least five (5) years thereafter when water is available and in priority, the water right shall revert to instream flow use with original priority date and other conditions intact.

(e)

The failure of the state engineer to hold the hearing required by subsection (b) of this section within the specified thirty (30) day period shall be treated as though the state engineer approves of the continuation of the instream flow right. No person shall have the right to review the instream flow water right should the state engineer fail to hold the required hearing until the next five (5) year anniversary date of the initial adjudication.

Section 2.
W.S. 41
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1006(b) is repealed.

Section 3.
This act is effective July 1, 2005.

(END)

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SF0107