Landowner flexibility & fisheries protection & restoration.

WORKING DRAFT
2009
STATE OF
WYOMING
09LSO-0009

HOUSE BILL
NO.
HB0070

Landowner flexibility & fisheries protection & restoration.

Sponsored by:
Representative(s) Berger, Gingery and Jorgensen and Senator(s) Burns, Case and Larson

A BILL

for

AN ACT relating to water; providing for temporary water rights as specified; providing procedures; imposing a fee; requiring a study and reports as specified; providing definitions; providing a repealer date; providing a statement of policy; and providing for an effective date.

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

Section 1.

W.S. 41
‑
3
‑
116 and 41
‑
3
‑
117 are created to read:

41
‑
3
‑
116.

Temporary water acquisition study; right to acquire temporary water rights for trout fishery purposes; application; restrictions; fee; sunset provision.

(a)

The
state engineer
'
s office, in consultation with the Wyoming game and fish department
and the applicant
, shall conduct and coordinate a study that provides the following data for each stream reach and each pilot temporary change application approved under subsection (b) of this section:

(i)

The length of the stream reach and how it was determined;

(ii)

An assessment of the expected
trout
fishery benefits during the term of the temporary change period
;

(iii)

Legal standards and technical data used to determine and substantiate the amount of water available for stream flows through temporary change of existing rights;

(iv)

Conditions
, if necessary, to ensure that the temporary change for trout fishery purposes does not injure other
appropriators; and

(v)

Methods and technical means used to monitor use of water under each
temporary change
.

(b)

The study described in subsection (a) of this section is intended to assess and

support an application by which any person shall have the right to acquire the right to the use of water which may be embraced in any adjudicated water right, or any portion thereof,
for a period not to exceed ten (10) years for trout fishery purposes.
For applications granted after July 1, 2014, the term of the temporary change for trout fishery purposes shall not exceed five (5) years or July 1, 2019, whichever comes first. The right to surplus or excess direct flow shall not be included in the amount of water temporarily changed to a trout fishery purpose.
The priority of the temporary water right for trout fishery purposes pursuant to this section is the same as the priority of the water right approved for change.
Any temporary transfer under this section shall be allowed only if no other appropriator is injured thereby.
When evaluating injury, the state engineer's office may consider mitigating potential impacts to water right holders who may have historically benefited from seasonal water use interruptions of the downstream senior appropriator filing a temporary water right change for trout fishery purposes.
The following shall apply:

(i)

Before any right to such use shall become operative, an application shall be made in writing
by the holder of the water right
on a form provided or designated by the state engineer, with a copy of any conveyance or agreement provided, and shall be filed in the office of the state engineer for his
review
and approval.
If approved
by the state engineer, an order authorizing such use and designating the method,
amount,
place and period of use may be entered.
The application shall include information on the length and location of the stream reach in which the

stream flow is to be maintained or enhanced
;

(ii)

The applicant for a
temporary
change for trout fishery purposes shall publish a notice of the application in a newspaper of general circulation in the area near the proposed stream segment within thirty (30) days of the application being filed. If a hearing is required pursuant to paragraph (iii) of this
sub
section, additional notice of the hearing shall be published once each week for at least two (2) consecutive weeks prior to the hearing which notice shall briefly describe the application;

(iii)

Prior to granting or denying the application, the state engineer may hold a public hearing. The state engineer may require the applicant to pay for the costs of the hearing;

(i
v
)

No loss, abandonment or impairment of water rights shall occur or attach as a result of the
temporary
change o
f
use of water for trout fishery purposes, except as provided by the conveyance or agreement and order of the state engineer. Upon termination of the temporary use for trout fishery purposes 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 previously held and enjoyed;

(
v
)

As used in this section,
"
trout fishery purposes
"
means the in-channel temporary use achieved by either leaving the
direct
flows of a natural watercourse undiverted or introducing previously stored water into a natural watercourse to benefit trout populations in Wyoming;

(vi)

For a temporary change application pursuant to this section that involves a water right historically used for an agricultural beneficial use, the right shall return to the same land and original
purpose when the term of the temporary change for trout fishery purposes has expired. If at any time during the period of temporary use the ownership of the encumbered water right is severed from the ownership of the land or is the subject of a change of use or place of use application or any other petition with the board of control which would preclude use of the water right for its original agricultural purpose, the temporary water right for trout fishery purposes shall immediately become null and void;

(v
ii
)

For direct flow water rights 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 used by a temporary user. For temporary uses that involve transferring stored water from a consumptive to trout fishery purpose, reductions to account for conveyance losses may be required;

(v
iii
)

In determining the consumptive use of water rights for the use of the natural
direct
flow of any stream for irrigation purposes, the return flow from those rights shall be presumed to be fifty percent (50%). In situations where an assumption of fifty percent (50%) return flow would be significantly in error, the state engineer may make a determination of the actual amount of return flow and the amount of water which is available to be used shall be adjusted accordingly. The historic return flow or the assumed return flow of fifty percent (50%) shall be left in the stream for the use of other appropriators. The foregoing formula and procedure for the determination of consumptive use and return flow shall be limited to this section and W.S. 41
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3
‑
110(c) and shall have no application to any other statute of this state. Nothing in this section shall be treated or construed as changing the prior use of water held by the owner or owners and as provided by the laws of this state.

(c)

Nothing in this section shall be construed to supersede, impair or abrogate the rights of the state of Wyoming to fully utilize and appropriate to consumptive beneficial use those quantities of water allocated to the state of Wyoming by interstate compact or United States supreme court decree. The state engineer shall not grant a temporary change of use application for trout fishery purposes 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 decree. The amount of water appropriated for temporary trout fishery purposes 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
.

(d)

In accordance with th
e provisions of W.S. 41
‑
3
‑
506
, a
ny change of use authorized under this section may be suspended at any time upon a determination of the superintendent of the water division within which the
temporary
change of use occurs that the temporary change produces unanticipated injury to other water users. The suspension shall be subject to timely review by the state engineer.

(e)

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

(f)

Notice for any measuring device necessary to monitor or regulate a temporary trout fishery 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 for such purpose, as designated on the state engineer
'
s order approving the temporary use, shall be responsible for providing and installing any measuring device and securing access necessary to install and maintain the 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 trout fishery use, shall be the responsibility of the owner of the diversion.

(
g
)

Nothing in this
section
shall grant nor shall it be construed to grant the right of ingress or egress through or upon private property to reach streams where temporary trout fishery 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.

(
h
)

A
new
temporary change of use
application for fishery purposes
may be
filed
using the same procedures as obtaining an initial temporary change of use under this section.

(
j
)

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

(
k
)

The state engineer
'
s office shall submit to the
governor and the
legislature:

(i)

During the first five (5) years of the pilot temporary change and conserved water for trout fishery purposes program, an annual study progress report documenting any application approved pursuant to this section during the previous year;

(i
i
)

A
five (5) year
study progress report
not later than December 1, 2014,
including the information specified in subsection (a) of this section for each temporary change application for trout fishery purposes granted under subsection (b) of this section; and

(ii
i
)

A final study report not later than December 1, 2019 which summarizes the ten (10) year program including recommendations for future direction regarding either the extension or termination of the right to temporarily use water rights for trout fishery purposes in
Wyoming
.

(
m
)

This section is repealed effective July 1, 2019.

41
‑
3
‑
117.

Conserved water projects for landowner flexibility and trout fishery purposes; right to use conserved water temporarily
for
trout fishery purposes; sunset provision
.

(a)

On and after July 1, 2009, a
holder of a water right who conserves water may voluntarily and temporarily transfer
the conserved water
to a fishery purpose pursuant to W.S. 41
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3
‑
116. Temporary change applications approved pursuant to this section shall be allowed only if no other appropriator is injured thereby.

(b)

As used in this section,
"
conserved water
"
means water made available for trout fishery purposes from an existing valid appropriation through application of water-saving methods.

(c)

This section is repealed effective July 1, 2019.

Section 2.

It is the declared policy of this state to encourage the conservation of water
including the
filing of
temporary
change
of
water use applications
which
maintain irrigated acres while at the same time providing public benefits in terms of improved
trout
fishery health.

Section 3.

Th
is act is effective July 1, 2009
.

(END)

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HB0070