Temporary instream flows.

WORKING DRAFT
2011
STATE OF
WYOMING
11LSO-0283

SENATE FILE
NO.
SF0078

Temporary instream flows.

Sponsored by:
Senator(s) Case

A BILL

for

AN ACT relating to
instream flows; providing for acquisition of temporary instream flows;
and providing for an effective date.

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

Section 1.

W.S. 41
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3
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110 by creating a new subsection (b), by amending and renumbering (b) as (c) and by renumbering (c) and (d) as (d) and (e), 41
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3
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1002(c) and 41
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3
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1007 are amended to read:

41
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3
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110.

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

(b)

The state 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 instream flow purposes, on its own behalf, provided:

(i)

Only the state shall have the authority to acquire the water pursua
nt to W.S. 41
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3
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1007(a)(ii); and

(ii)

Any temporary transfer shall be allowed only:

(A)

Downstream to the next nonparticipating landowner's headgate;

(
B
)

I
f no other
appropriator is injured thereby; and

(C)

The water to be transferred has been used within the past five (5) years according to the terms of the current permit.

(b)
(c)

Before any right to
such
use
pursuant to subsection (a) or (b) of this section
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 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)
(d)

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

(d)
(e)

The state engineer shall assess a fee 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.

41
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1002.

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

(c)

Storage water appropriated for the purpose of providing instream flows in specified stream segments or existing water rights which are
permanently
converted to instream flow under provisions of W.S.
41
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3
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1007

41
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1007(a)(i)
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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3
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104, except that the board of control shall require that an advertised public hearing be held.

41
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3
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1007.

Acquisition of existing rights for instream flow purposes.

(a)

The state of
Wyoming
may
:

(i)

Permanently
acquire any existing water rights in streams of
Wyoming
by transfer or gift 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
;
.

(ii)

Temporarily acquire any existing water rights in streams of
Wyoming
by purchase, gift or lease 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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110.

(b)

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 shall act as a petitioner in a petition for change in use under this section.

(b)
(c)

Any such water rights acquired and changed shall be limited to a specified stream segment by the board of control with priority date intact.

Section 2.

This act is effective July 1, 2011.

(END)

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SF0078