Notification of public land tenants-water rights changes.

WORKING DRAFT
2012
STATE OF
WYOMING
12LSO-0059.E1

HOUSE BILL
NO.
HB0018

Notification of public land tenants-water rights changes.

Sponsored by:
Joint Agriculture, State and Public Lands and Water Resources Interim Committee

A BILL

for

AN ACT relating to
water; modifying
requirements
to notify
tenants occupying or utilizing state or public lands when a change in use related to water rights occurs;
requiring consent of tenant
to change in use; providing for hearings
;
and providing for an effective date.

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

Section 1.
W.S. 41
‑
3
‑
104
by creating new subsection
s
(c
)
and (d)
,

41
‑
3
‑
114(c)
,
(e)
(intro)
and (f)
, 41
‑
3
‑
401(b
)
(intro)
and by creating a new subsection (g
)
and
41
‑
4
‑
506
are amended to read:

41
‑
3
‑
104
.

Procedure to change use or place of use.

(c
)

In addition to the requirements of subsection (a) of this section, if
the
change in use or change in
place of use of the water right proposed to be cha
nged is on state or public land and the petitioner is a state or public land management agency,
the petitioner shall seek consent for the proposed change from an
y affected tenant of the land.

If consent is obtained from the tenant, proof shall be secured and attached to the petition
.
The petitioner shall provide to the state engineer in writing a list of all affected tenants from whom the petitioner has failed to secure consent. The state engineer shall notify all such tenants of their right to request a hearing as provided for in subsection (d) of this section.

In allowing
a change in use or change in place of use
of a water right where the place of use is on state or public land, the board of control, or
in the case of a change of
place of use under
adjudicated
surface water or groundwater permits
only as limited by W.S. 41
‑
4
‑
514(a)
, the
state
engin
eer, shall consider all facts the board or the state engineer as applicable
believes pertinent to the transfer which
shall
include
but not be limited to
the following:

(i)

The
economic loss to the tenant
caused by the change
, if a tenancy currently exists;

(ii)

Whether other sources of water are available for use by the tenant, if a tenancy currently exists;

(iii)

Whether other sources of water are available
to the petitioner
for the new use or place of use.

(d)

In the event consent is not obtained, the tenant may request a hearing in accordance with subsection (a) of this section.

41
‑
3
‑
114.

Petition to change point of diversion or means of conveyance.

(c)

If the petition is for a change in point of diversion and means of conveyance for all or a part of an appropriation, it shall include, in addition to the foregoing, the name, permit number and date of priority of the ditch or facility to which it is to be changed, and whether the petitioner is the sole owner of both facilities involved or has the consent of the other owners of both ditches or facilities.

For any petition where the appropriation is on state or public land
and the petitioner is a state or public land management agency
, the petitioner shall seek consent for the proposed change from any affected tenant of the land.
If consent is obtained from the tenant, proof shall be secured and attached to the petition.
The petitioner shall provide to the state engineer in writing a list of all affected tenants from whom the petitioner has failed to secure consent
.

(e)

In event that written consents of
tenants as described in subsection (c) of this section or

owners of appropriations which divert between the old and new points of diversion or the owners of ditches or facilities involved in the proposed change are not secured and attached to the petition, the petition shall be referred to:

(f)

The state engineer or the superintendent shall set a hearing on the petition and give thirty (30) days notice by registered mail of the time and place of the hearing to the petitioner and any owners of appropriations which divert between the old and new points of diversion and any owners or users of ditches or facilities to be affected by the proposed change

and to any non
consenting tenants under subsection (c) of this section
. The petitioner shall provide the superintendent with a record of the proceedings which shall be transmitted to the state board of control with the superintendent's report. The state board of control or the state engineer may make such other regulations as may be found necessary. No petition shall be granted if the right of other appropriators will be injuriously affected. The attorney general shall represent the state board of control or the state engineer in any appeal.

41
‑
3
‑
401.

Failure to use water; extension of time; initiation by benefitted or injured user; hearing; appeal.

(b)

When any water user who might be benefitted by a declaration of abandonment of existing water rights or who might be injured by the reactivation of the water right,

or who seeks to voluntarily relinquish their water rights,

desires to bring about a legal declaration of abandonment, he shall present his case in writing to the state board of control. The board has exclusive original jurisdiction in water right abandonment proceedings. The board shall, if the facts so justify, refer the matter to the superintendent of the water division where the abandonment is claimed to have occurred for public hearing. The total absence of water to divert during an irrigation season precludes the inclusion of any such period of nonuse resulting therefrom in the computation of the successive five (5) year period under this section. The following persons have standing to petition the state board of control to declare the abandonment of existing water rights under this section:

(g
)

In the case where voluntary relinquishment is sought where the place of use is on state or

public land, the holder of the certificate of appropriation
, if a state or public land management agency,
shall seek consent for the abandonment from any affected tenant of the land.
If consent is obtained from the tenant, proof shall be secured and attached to the petition.
The holder shall provide to the state engineer in writing a list of all affected tenants from whom the holder has failed to secure consent. The state engineer shall notify all such tenants of their right to request a hearing as provided in subsection (b) of this section.

41
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4
‑
506.

Time limits for completing construction work; extensions; forfeiture of rights; cancellation of permit; notice of date of expiration to appropriator.

(a)

Whenever the state engineer places his endorsement of approval on any application for a water permit, he shall require that actual construction work be completed within the time set by him in the permit. The time set for completion shall not exceed a period of five (5) years after the date of approval of application. In the case of an application for a ditch permit, he shall further require that the application of the water to beneficial use must be completed before the date which he shall specify, and which shall not be earlier than the date specified for the completion of construction; and that final proof of appropriation must be submitted within five (5) years after the date specified for the completion of the application of the water to beneficial use. He may limit the application to a less period of time for the completion of construction and application of water to beneficial use than is asked for in the application. For good cause shown, the state engineer may at any time, or from time to time, before the date of expiration, extend any or all of these periods. An extension of time for compliance with any of the specified requirements shall be construed to automatically extend for a like period the time for compliance with any of the specific requirements in relation to which the time expires thereafter. Default by the holder of the permit in any of the specified requirements shall work a forfeiture of the water right involved. The state engineer may upon such default cancel the permit. The state engineer shall, by registered mail, with a return receipt requested at least three (3) months before default in any of these requirements shall be operative, notify the permit holder, at the post-office address given by him when the time allowed will expire. If the permit holder cannot be reached by registered mail, or if the address of the permit holder is unknown, the state engineer shall publish notice of the default for three (3) weeks in a newspaper of general circulation published in the county, or in case there is no newspaper of general circulation published in the county, then in a newspaper published in the state of Wyoming and in general circulation in the county, the last publication to be at least two (2) months before cancellation of the permit.

(b)

Where a
state or
public land management agency seeks to cancel a permit or eliminate a use or place of use from a permit held in their name, and the affected place

of use described on said permit include
s
state or

public land, the agency shall notify any affected tenant of the land of the intent to cancel

by certified mail addressed to the
tenan
t at his address with return receipt requested
. In the case wh
ere a permit sought to be cancelled is in the name of
a
person or entity other than the land management agency, and where the place of use to be cancelled includes state or public land, the permit holder shall notify the land management agency of the intent to cancel.

Section 2.
This act is effective July 1, 2012.

(END)

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HB0018