Water management flexibility-2.

WORKING DRAFT
2007
STATE OF
WYOMING
07LSO-0661

HOUSE BILL
NO.
HB0307

Water management flexibility-2.

Sponsored by:
Representative(s) Berger and Dockstader and Senator(s) Vasey

A BILL

for

AN ACT relating to water; providing for temporary water rights as specified; providing a definition; providing procedures; and providing for an effective date.

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

Section 1.

W.S. 41
‑
3
‑
110 is amended to read:

41
‑
3
‑
110.

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

(a)

Any person shall have the right to acquire by purchase, gift or lease the right to the use of 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 highway construction or repair, railroad roadbed construction or repair, drilling and producing operations,
irrigation, municipal purposes, in-channel use
or other temporary purposes, on its own behalf or on behalf of its agents, employees or contractors: provided, that if the proposed use is to be for public highway construction or repair under a contract with the state department of transportation, only the state transportation commission shall have the authority to acquire the water; and the state transportation commission shall have the sole and continuing responsibility for the acquisition, including the payment of all fees, royalties and other consideration for the use of and access to water and the right to acquire the rights to use shall not be delegated to a construction contractor or other third party; and further provided, that any temporary transfer shall be allowed only if no other appropriator is injured thereby.
As used in this section, "in-channel use" means the temporary use achieved by either leaving the natural flows of a natural watercourse undiverted or introducing previously stored water into a natural watercourse for a beneficial use pursuant to this section. Any temporary transfer under this section shall be allowed only if no other appropriator is injured thereby.

(b)

Before any right to such use shall become operative, an application must be made in writing on a form provided or designated by the state engineer, with a copy of any conveyance or agreement provided, and it shall be filed in the office of the state engineer for his ratification and approval. Upon approval by the state engineer, an order authorizing such use and designating the method, place, and period of use may be entered. No loss, abandonment or impairment of such water rights shall occur or attach as a result of such change or use, except as provided by
said
the
conveyance or agreement and order of the state engineer, and upon termination of the temporary diversion and use, as stated in the order, any affected right to the use of water shall automatically be reinvested with all the rights, privileges and uses, and purposes theretofore held and enjoyed.

(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. 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
the
owner or owners and as provided by the laws of the state of
Wyoming
.

(d)

The state engineer shall assess a fee
of
not to exceed one hundred dollars ($100.00) for his review and approval of temporary water agreements. This fee shall accompany the agreement application and shall be retained and credited to the general fund whether the agreement or request is approved or denied.

(e)

The state engineer shall not grant a temporary change of use application for in-channel use where the undiverted natural flows would be included as a portion of the consumptive share of water allocated to the state of
Wyoming
under any interstate compact or court decree. The amount of water appropriated for in-channel use 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 court decree for downstream uses outside
Wyoming
.

(f)

Any change of use authorized under this section may be suspended at any time upon a determination by the superintendent of the water division within which the change of use occurs that the temporary change produces unanticipated injury to other water users. Any such suspension shall be subject to timely review by the state engineer.

(g)

Any request for regulation to benefit a temporary in-channel use acquired under this section shall be made in writing in accordance with the provisions of W.S. 41
‑
3
‑
606.

(h)

Notice for any measuring device necessary to monitor or regulate a temporary use acquired under this section shall be required under the provisions of W.S. 41
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3
‑
613. The party acquiring a temporary use, as designated on the state engineer's order approving the temporary use, shall be responsible for providing and installing any measuring device needed for regulation or monitoring of stream flow as determined by the state engineer or superintendent of the water division within which the use is located. Any measuring device or adjustable and lockable headgate, if needed on any diversion within the affected stream reach for proper regulation of the temporary use, shall be the responsibility of the owner of the diversion.

Section 2.

W.S. 41
‑
3
‑
111 is repealed.

Section 3.

This act is effective immediately upon co
m
pletion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constit
u
tion.

(END)

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HB0307