(a) Pursuant to W.S. 41-3-115, the United States Bureau of Reclamation and the Wyoming water development office are hereby authorized to transfer a maximum of thirty-three thousand four hundred ninety-three (33,493) acre feet of storage water per year from the environmental account in the Pathfinder Modification Project within Pathfinder reservoir to the Wyoming-Nebraska state line for the purpose of providing regulatory certainty under the Endangered Species Act for the use of Wyoming water in the Platte River basin. (b) Pursuant to W.S. 41-3-115, and the Wyoming water development office is hereby authorized to transfer a maximum of nine thousand six hundred (9,600) acre feet of storage water per year from the Wyoming account in the Pathfinder Modification Project within Pathfinder reservoir to the Wyoming-Nebraska state line through annual temporary water use agreements with the Platte River Recovery Implementation Program in any year the storage water in the Wyoming account is not needed by the state of Wyoming as a municipal water supply or a replacement water supply to meet the state of Wyoming's obligations in the Nebraska v. Wyoming settlement agreement and the Platte River Recovery Implementation Program. (c) The authorizations granted under subsections (a) and (b) of this section shall terminate if the state of Wyoming withdraws from the Platte River Recovery Implementation Program or any successor programs approved by the governor. (d) If the director of the Wyoming water development office determines that Wyoming water users are not receiving the regulatory certainty under the endangered species act as provided for in the Platte River recovery implementation program, he shall submit a report to the select water committee outlining the inadequacy of the regulatory certainty. (e) If the state engineer determines that the transfers authorized under subsections (a) and (b) of this section cause injury to Wyoming water users beyond those identified in the final opinion and recommendations provided to the legislature pursuant to W.S. 41-3-115(q), then the state engineer shall report the injury to the select water committee. (f) Any revenue generated through the annual temporary water use agreements for storage water from the Wyoming account shall be deposited in the account created by W.S. 41-2-1001(a)(iv).

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41-3-101. 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. 41-4-317. 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. 41-3-102 and 41-3-103, pertaining to a change to preferred use, and except as provided in W.S. 41-4-514.

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41-3-102. Preferred uses; defined; order of preference.

(a) Water rights are hereby defined as follows according to use: preferred uses shall include rights for domestic and transportation purposes, steam power plants, and industrial purposes; existing rights not preferred, may be condemned to supply water for such preferred uses in accordance with the provisions of the law relating to condemnation of property for public and semi-public purposes except as hereinafter provided. (b) Preferred water uses shall have preference rights in the following order: (i) Water for drinking purposes for both man and beast; (ii) Water for municipal purposes; (iii) Water for the use of steam engines and for general railway use, water for culinary, laundry, bathing, refrigerating (including the manufacture of ice), for steam and hot water heating plants, and steam power plants; and (iv) Industrial purposes. (c) The use of water for irrigation shall be superior and preferred to any use where water turbines or impulse water wheels are installed for power purposes; provided, however, that the preferred use of steam power plants and industrial purposes herein granted shall not be construed to give the right of condemnation.

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41-3-103. Preferred uses; procedure for change of use.

Where it can be shown to the board of control under the provisions hereof, that a preferred use is to be made, the procedure for a change of such use shall embrace a public notice, an inspection and hearing if necessary by and before the proper division superintendent, a report of such superintendent to the board of control, and an order by said board. If the change of use is approved, just compensation shall be paid and under the direction of the board, proper instruments shall be drawn and recorded.

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41-3-104. Procedure to change use or place of use.

(a) When an owner of a water right wishes to change a water right from its present use to another use, or from the place of use under the existing right to a new place of use, he shall file a petition requesting permission to make such a change. The petition shall set forth all pertinent facts about the existing use and the proposed change in use, or, where a change in place of use is requested, all pertinent information about the existing place of use and the proposed place of use. The board may require that an advertised public hearing or hearings be held at the petitioner's expense. The petitioner shall provide a transcript of the public hearing to the board. The change in use, or change in place of use, may be allowed, provided that the quantity of water transferred by the granting of the petition shall not exceed the amount of water historically diverted under the existing use, nor exceed the historic rate of diversion under the existing use, nor increase the historic amount consumptively used under the existing use, nor decrease the historic amount of return flow, nor in any manner injure other existing lawful appropriators. The board of control shall consider all facts it believes pertinent to the transfer which may include the following: (i) The economic loss to the community and the state if the use from which the right is transferred is discontinued; (ii) The extent to which such economic loss will be offset by the new use; (iii) Whether other sources of water are available for the new use. (b) In all cases where the matter of compensation is in dispute, the question of compensation shall be submitted to the proper district court for determination.

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41-3-105. Repealed by Laws 1983, ch. 167, § 2.

Repealed by Laws 1983, ch. 167, § 2.

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41-3-106. Procedure to exchange water; delivery of water

under exchanges; approval of state engineer; enforcement of exchanges. (a) Any appropriator owning a valid water right in and to the use of the ground, surface or reservoir waters of the state, where the source of the appropriation is at times insufficient to fully satisfy such appropriation, or better conservation and utilization of the state's water can be accomplished, or the appropriator can develop appropriable water but cannot economically convey it to its point of use, may petition the state engineer for an order allowing an exchange and the use of stored, direct flow, or ground water from another source or from another appropriation from the same source. If such an appropriator arranges by agreement with another appropriator for the delivery and use of either stored, direct flow, or ground water, the exchange agreement shall accompany the petition. (b) Exchanges may be allowed among any combination of direct flow, storage, and groundwater rights. Petitions for exchanges shall be accompanied by such maps, plans or other information as may be required by the state engineer. The proper filing and recording fees shall accompany the petition. (c) No exchange shall be allowed until the state engineer has entered an order granting the exchange. Documents drawn in connection with exchanges may be recorded in one (1) or more counties where any part of the land involved is situated. No exchange may be terminated without the issuance of an order approving termination, unless the order allowing the exchange provides for termination on a specified date. (d) It is the policy of the state to encourage exchanges. The state engineer shall not issue an exchange order if the rights of other appropriators will be injuriously affected thereby, or if the proposed exchange would, in the opinion of the state engineer, be too difficult to administer or would be adverse to the public interest. The state engineer shall cause to be published, at the petitioner's expense, once a week for at least two (2) consecutive weeks in a newspaper of general circulation in each county where the water rights subject to the exchange petition are located, a notice of the filing of the exchange petition which identifies the place where the exchange petition is available for public inspection. The last date of publication shall occur not less than thirty (30) days before the state engineer enters the order to grant the exchange. All exchanges are subject to the requirements of beneficial use and equality of water exchanged, and no exchange will be allowed unless a sufficient quantity of makeup water is introduced to replace the water diverted and withdrawn under the exchange. In making the determination of equality and sufficiency of the makeup water introduced, the state engineer may consider relative consumptive uses and transmission losses. (e) Any water made available to an appropriator by reason of any exchange agreement shall be delivered for the use of the appropriator in accordance with the order allowing the exchange, and its use is without prejudice to, but in enjoyment of, the rights of all appropriators under their original appropriations. No loss, abandonment or impairment of any water rights involved in the exchange shall occur or attach as a result of the exchange, except as may be provided in the order allowing the exchange. Upon termination of the exchange, the rights of all appropriators under their original appropriations shall automatically be reinvested with all the rights, privileges and uses, and purposes theretofore held and enjoyed. (f) Performances of each exchange shall be enforced by the water administration officials of the state in accordance with the terms and conditions of the order allowing the exchange. The state engineer may adopt such rules and regulations as are necessary to enable him to efficiently administer this section. (g) The state engineer shall assess a fee not to exceed fifty dollars ($50.00) for his review, and approval of exchange petitions. This fee shall accompany an exchange petition and shall be retained and deposited whether the petition or request is approved or denied.

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