Temporary water rights-replacement water.

WORKING DRAFT
2011
STATE OF
WYOMING
11LSO-0517

SENATE FILE
NO.
SF0149

Temporary water rights
-
replacement water.

Sponsored by:
Senator(s) Meier and Representative(s) Davison

A BILL

for

AN ACT relating to
water; providing temporary water rights for replacement water as specified; providing procedures;
providing a definition;
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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101 and 41
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3
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110 are amended to read:

41
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3
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101.

Nature of water rights and beneficial use.

A water right is a right to use the water of the state, when such use has been acquired by the beneficial application of water under the laws of the state relating thereto, and in conformity with the rules and regulations dependent thereon. Beneficial use shall be the basis, the measure and limit of the right to use water at all times, not exceeding the statutory limit except as provided by W.S. 41
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4
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317. In addition to any beneficial use specified by law or rule and regulation promulgated pursuant thereto, the use of water for the purpose of extracting heat therefrom is considered a beneficial use subject to prior rights. Water being always the property of the state, rights to its use shall attach to the land for irrigation, or to such other purposes or object for which acquired in accordance with the beneficial use made for which the right receives public recognition, under the law and the administration provided thereby. Water rights for the direct use of the natural unstored flow of any stream cannot be detached from the lands, place or purpose for which they are acquired, except as provided in W.S. 41
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3
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102 and 41
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3
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103, pertaining to a change to preferred use, and except as provided in W.S. 41
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514.

The
temporary use of replacement water under W.S. 41
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3
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110
shall be considered a beneficial use
.

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; 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,
replacement water,

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.

(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)

As used in this title, "replacement water" means water
from a surface or well source that is used to restore amounts to a senior appropriator as mitigation for water lost due to the use by, or other act of, a junior appropriator
by making available water to the aquifer or stream for use by appropriators in order of priority
.
If the proposed replacement water is from a well, the state engineer shall not approve a temporary use under subsection (a) of this section if the well draws more than fifty percent (50%) of its water from a source that interferes with the senior right claiming interference.

The state engineer may utilize funds from the water development commission to mitigate interference and provide replacement water to the benefit of all water right holders. He may purchase replacement water, increase efficiency of water usage and utilize other means to the bene
fit of all water right holders.
The utilization and expenditure of funds shall only be done upon approval and recommendation of the water development commission and approval by the legislature in the same manner as water projects approved under W.S. 41
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114.

Section 2.
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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SF0149