41-3-1007. Acquisition of existing rights for instream flow purposes.
(a) The state of Wyoming may 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. 41-3-104. 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) Any such water rights acquired and changed shall be limited to a specified stream segment by the board of control with priority date intact.
(a) The game and fish commission shall report to the water development commission the need to regulate a stream to protect the priority of an instream flow right. The report shall include information establishing present or future damage to the fishery if the stream is not regulated. The commission, on the next working day, shall submit the report to the state engineer and call for stream regulation. The state engineer shall not regulate the stream to protect the instream flow right:
(i) Unless present or future injury to the fishery has been shown;
(ii) If the call for regulation is a futile call; or
(iii) If the call for regulation will impair senior water rights.
41-3-1009. Statement regarding condemnation and impairment of existing water rights.
This act does not grant, nor shall it operate or be so construed to grant the power of condemnation to the game and fish department for acquisition of existing water rights for the purpose of providing instream flows, nor shall it operate or be so construed as to impair or diminish the value of or divest existing water rights.
If any other appropriator in a drainage where waters are allowed for instream flows proves in district court that his right to use appropriated waters has been impaired or diminished by the allowance for instream flows, the costs of litigation, including reasonable attorney fees, shall be borne by the holder of the instream flow right.
No right to water for the purposes of providing instream flow may be acquired through the process of abandonment nor shall any beneficiary of instream flow rights granted under this act be qualified under W.S. 41-3-401 and 41-3-402 to file for abandonment.
Nothing in this act shall grant, nor shall it be construed to grant the right of ingress or egress through or upon private property to reach streams where instream 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.
41-3-1013. Condemnation for municipal water purposes.
Notwithstanding W.S. 1-26-505, a city or town may condemn any portion of a water right authorized and acquired under this act for municipal water purposes in the manner provided by law.
41-3-1014. Interstate compact and United States supreme court decree.
Nothing in this act shall be construed to supersede, impair or abrogate the right 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.
A cubic foot of water per second of time shall be the legal standard for the measurement of water in this state, both for the purpose of determining the flow of water in natural streams, and for the purpose of distributing water therefrom.
Copies of papers, books, records and maps, on file and deposited by virtue of any law, in the office of the state engineer or state board of control, and certified by the state engineer or secretary of the state board of control, shall be competent evidence in the courts and have the same force and effect as the originals would if produced.
41-4-103. Cooperation and agreements with Utah; appropriations to Montana.
The state engineer is hereby authorized and empowered to receive and grant applications to appropriate water from streams in Wyoming where such water is to be conveyed and used for beneficial purposes within the state of Utah, and the board of control is hereby authorized and empowered to issue certificates of appropriation under such permits as may be granted by the state engineer of Wyoming upon certification from the state engineer of Utah that the waters appropriated have been put to beneficial uses set forth in the permits. The state engineer and the board of control of Wyoming are also authorized and empowered to cooperate with the state engineer of Utah in the determination, supervision, regulation and control of all water and water rights on all interstate streams; and to these ends the state engineer and board of control of Wyoming, by and with the consent of the governor, may enter into the necessary agreements with the state engineer of Utah to carry out the purposes of this section; provided, that such agreements are not in conflict with the provisions of the irrigation laws now in force in this state; provided, further, that such authority shall not be exercised by the state engineer or board of control until after the state of Utah has passed a law granting its state engineer like authority to that granted to the state engineer and board of control of Wyoming by this section. The state engineer is further authorized and empowered to receive and grant applications to appropriate water from the Little Missouri River in Wyoming where such water is to be conveyed and used for beneficial purposes within the state of Montana, and the board of control is hereby authorized and empowered to issue certificates of appropriation under such permits as may be granted by the state engineer of the state of Wyoming, upon certification from the state of Montana that the waters appropriated have been put to beneficial uses set forth in the permit. Provided that the granting of any such permit for application to beneficial uses in the state of Montana shall in no manner impair or injure any existing water rights in the state of Wyoming.
41-4-104. Adjudication of rights to water for use in adjoining state.
After issuance of the permit under legislative authority and completion of the work according to the terms of the permit, the board of control may adjudicate said water rights upon proof of beneficial use as provided by W.S. 41-4-511.
41-4-105. Adjudication of rights to water for use in adjoining state; permits issued before February 25, 1939.
Where ditches or reservoirs have been built under permits issued by the state of Wyoming prior to February 25, 1939, and where water has been diverted by, or stored in such works and applied to beneficial use thereunder in an adjoining state, and where such state as a matter of policy grants reciprocal rights to divert and store water in such state for use in Wyoming, the state board of control shall by this act, be authorized to proceed with the adjudication of said water rights for use of the water in the state in which the same has been applied to a beneficial use and issue certificates of appropriation therefor, as provided by the statutes of Wyoming.
41-4-201. Created; members; location of office; meetings generally; state engineer ex officio president; quorum.
There is hereby constituted a state board of control composed of the state engineer and the superintendents of the four (4) water divisions. The board shall have an office with the state engineer at Cheyenne. The board shall hold regular quarterly meetings each year, the dates to be set by the board. Other meetings shall be held at the call of the president for the transaction of business as may come before it. Special meetings of the board may be called by the president after a request for a special meeting is made by a party seeking board action which cannot be accommodated at a regular meeting. The party or parties making a request shall make payment to the board of control to cover all costs of travel and per diem expenses incidental to the special meeting. The state engineer is ex officio president of the board, and may vote on all questions coming before it. A majority of all the members of the board constitutes a quorum to transact business.
41-4-202. Ex officio secretary of the board; duties generally.
The ex officio secretary of the state board of control shall be appointed by the board and be an employee of the state engineer. The duties of the secretary shall, under direction of the president of the board, consist of keeping a full, true and complete record of the transactions of the state board of control, and to certify, under seal, all certificates of appropriation made according to law, and to perform other duties as may be required by the board.
(a) The secretary of the state board of control shall collect in advance reasonable fees not to exceed the following:
(i) One hundred dollars ($100.00) with each proof of appropriation of water or proof of construction of a reservoir;
(ii) For recording with county clerks any water right instrument or certificate not otherwise specifically provided for, the fees required in accordance with W.S. 18-3-402;
(iii) For making copies of any document recorded or filed in the office of the state board of control, a reasonable fee shall be assessed not to exceed ten dollars ($10.00) per page.
41-4-204. Collection of fees; disposition generally.
Said secretary shall, out of the fees so collected, remit with each certificate or order of the state board of control, sent to a county clerk for recording, the statutory fee for recording such instrument and pay all costs of advertising each proof of appropriation of water or proof of construction of reservoir; all other fees so collected to be paid to the state treasurer as by law provided.
41-4-205. State board of control; additional fees.
(a) The secretary of the board of control shall collect fees, not to exceed the following which shall be paid in advance, and turned over to the state treasurer:
(i) For making copies of the records of the board of control or of papers or documents filed with the board, ten dollars ($10.00) for each page;
(ii) For attaching certificate and seal of the board to each document or documents requested, ten dollars ($10.00).
It shall be the duty of said board at its first meeting to make proper arrangements for beginning the determination of priorities of right to the use of the public waters of the state, which determination shall begin on the streams most used for irrigation, and be continued as rapidly as practicable, until all the claims for appropriation now on record shall have been adjudicated.
41-4-207. Copies of judgments involving water rights to be sent to board.
It shall be the duty of the clerk of each district court in the state of Wyoming, upon the rendering of judgment by such court in each and every case wherein is involved in any way, any question affecting the title to any water right, irrigating or water system of any kind whatever, to forthwith prepare, free of charge, a certified copy of such judgment and forward the same to the state board of control.
41-4-208. Tabulations and supplements of adjudicated water rights; publication generally; contents; appropriations.
The president of the state board of control shall upon the taking effect of this act, employ competent assistants to compile and edit revised tabulations of adjudicated water rights in each of the four (4) water divisions of the state at such times as the president of the state board of control deems it necessary, and to compile and edit supplements to these tabulations every two (2) years, and shall furnish the necessary supplies for such compilation. These tabulations shall contain the information on adjudicated water rights according to precedent heretofore established, with whatever improvement of arrangement of the subject matter is decided advisable by the president of the board.
41-4-209. Tabulations and supplements of adjudicated water rights; adequate copies to be printed; president to direct.
Adequate copies, as determined by the president of the state board of control, of the tabulation of adjudicated water rights and supplements shall be printed under the direction of the president of the state board of control upon a printing contract let by the department of administration and information, general services division, procurement.
41-4-210. Tabulations of adjudicated water rights; distribution and sale of copies; disposition of proceeds.
The state board of control is hereby instructed to deposit with the state library five (5) copies for use therein and to distribute sufficient copies for administrative purposes to the water division superintendents and water commissioners and their assistants. The balance of the copies of the complete tabulations of adjudicated water rights in Water Divisions Nos. 1, 2, 3 and 4 shall be safely kept by the board of control for sale at a reasonable price to be determined by the board. Funds derived from the sale of such volumes shall be paid into the general fund of the state of Wyoming.
41-4-211. Authority to administer oaths; rulemaking authorized.
(a) The members of the board of control shall administer oaths in all cases where it is necessary in the performance of their official duties.
(b) The board of control may adopt reasonable rules and regulations to carry out the duties imposed by law on the board of control. The rules and regulations may specify that the applicant shall pay the cost of advertising.
The method of determining the priority and amounts of appropriation to be as follows: the board of control shall decide at their first meeting, the streams to be first adjudicated, and shall fix a time for the beginning of taking of testimony, and the making of such examination as will enable them to determine the rights of the various claimants.
41-4-302. Notice; by publication; contents; taking of testimony; adjournment of hearings generally.
The said board shall prepare a notice, setting forth the date when the engineer will begin a measurement of the stream, and the ditches diverting the water therefrom, and a place, and a day certain, when the superintendent of the water division in which the stream to be adjudicated is situated, shall begin the taking of testimony as to the rights of the parties claiming water therefrom. Said notice shall be published in two (2) issues of a newspaper having general circulation in the county in which such stream is situated, the publication of said notice to be at least thirty (30) days prior to the beginning of taking testimony by said division superintendent, or for the measurement of the stream by the state engineer, or his assistant; and the superintendent taking such testimony shall have the power to adjourn the taking of evidence from time to time, and from place to place; provided, all places appointed and adjourned to by the superintendent shall be so situated, as related to the streams, as shall best suit the proper convenience of the persons interested in the determination of such priorities and appropriations.
It shall also be the duty of said division superintendent to mail to each party having a recorded claim to waters of said stream, by registered mail, a similar notice setting forth the date when the state engineer, or his assistant, will begin the examination of the stream and ditches diverting water therefrom, and also the date when the superintendent will begin the taking of testimony, and the date when the taking of such testimony by said division superintendent shall close.
In issuing notices to claimants in priority adjudications of the waters of any stream and its tributaries, as provided in W.S. 41-4-305, all parties named in claiming the waters of said stream or tributaries in said transcript shall be notified by mail.
41-4-305. Notice; enclosure of form for statement by claimant; contents.
(a) Said division superintendent shall, in addition, enclose with said notice a blank form on which said claimant shall present in writing all the particulars showing the amounts and dates of appropriations to the use of water of said stream to which he lays claim; the said statement to include the following:
(i) The name and post office address of the claimant;
(ii) The nature of the use on which the claim for appropriation is based;
(iii) The time of the commencement of such use, and if distributing works are required;
(iv) The date of beginning of the survey;
(v) The date of beginning of construction;
(vi) The date when completed;
(vii) The date of beginning and completion of enlargements;
(viii) The dimensions of the ditch as originally constructed and as enlarged;
(ix) The date when water was first used for irrigation or other beneficial purposes, and if used for irrigation, the amount of land reclaimed the first year; the amount in subsequent years, with the dates of reclamation, and the amount of land such ditch is capable of irrigating;
(x) The character of the soil and the kind of crops cultivated and such other facts as will show a compliance with the law in acquiring the appropriation and the rank of priority claimed.
41-4-306. Notice; statements to be under oath; administering.
Each of said claimants shall be required to certify to his statements under oath, and the superintendent of the water division in which the testimony is taken is hereby authorized to administer such oaths, which shall be done without charge to the claimant, as also shall be the furnishing of blank forms for said statement.
All bills for the printing of notices to claimants of water in the adjudications provided for in this act shall be paid for by the secretary of the state board of control.
41-4-308. Taking of testimony generally; taking of proof.
Upon the date named in the notice provided for in the preceding sections, the division superintendent shall begin the taking of testimony and shall continue until the testimony shall be completed; provided, that in case the division superintendent of any water division is directly or indirectly interested in the water of any stream of his division, or is prevented by illness or other disability from the taking of the proofs, the taking of evidence so far as relates to the stream shall be under the direction of the division superintendent of the next nearest water division or under the direct personal supervision of the state engineer, as may be deemed by the engineer the most expedient. Provided, that in the taking of proofs of appropriation of water made under a permit issued by the state engineer, the permits having been issued subsequent to the adjudication of the waters of the stream from which the appropriation is made, the superintendent may, in his discretion, authorize the water commissioner of the district in which the appropriation is made to take the proofs. Upon the taking of the proofs so ordered the water commissioner shall at once forward them to the division superintendent. The water commissioner shall take no proofs except those specifically ordered by the division superintendent. Provided that in the taking of proofs of appropriation of water made under a permit issued by the state engineer subsequent to the adjudication of the water of the stream from which the appropriation is made, the superintendent may, in his discretion authorize the water commissioner of the district in which the appropriation is made to take the proofs. Upon the taking of the proofs so ordered the water commissioner shall at once forward them to the division superintendent. The water commissioner shall take no proofs except those specifically ordered by the division superintendent.
41-4-309. Notice on completion of testimony; inspection of evidence.
Upon the completion of the taking of evidence by the division superintendent, it shall be his duty to at once give notice, in one (1) issue of some newspaper of general circulation in the county where such determination is, and by registered mail to the various claimants, that upon a certain day, and a place named in the notice, all of said evidence shall be open to the inspection of the various claimants, and said superintendent shall keep said evidence open to inspection at said place, not less than one (1) day and not more than five (5) days.
41-4-310. Duty of claimants to appear; failure to comply;
time limits for appearance; rights of claimant not notified of adjudication. Whenever the state board of control shall, as provided by law, proceed to adjudicate and determine the rights of the various claimants to the use of water upon any stream or other body of water, it shall be the duty of all claimants interested in such stream or other body of water to appear and submit proof of their respective appropriations, at the time and in the manner required by law; and any such claimant who shall fail to appear in such proceedings and submit proof of his appropriations shall be barred and estopped from subsequently asserting any rights theretofore acquired upon the stream or other body of water embraced in such proceedings, and shall be held to have forfeited all rights to the use of said stream theretofore claimed by him. Provided, that any person claiming the right to the use of water of any stream heretofore adjudicated by the board of control who, having been or claiming to have been at the time an appropriator therefrom, shall have failed to appear and submit proof of his claim shall be permitted within one (1) year after the passage of this act, but not thereafter, to apply for a hearing and an adjudication of his rights in the manner hereinafter provided; and provided, further, that any claimant upon whom no other service shall be made than by publication in the newspaper, of the notice of such proceedings and taking of testimony, may, within one (1) year after the entry of the order or decree of the board, determining the rights of the various claimants upon any particular stream or other body of water, have the same opened and be let in to give proof of his appropriation; but before the decree of the board can be opened in such case, the applicant shall give notice to all other persons interested in the water of the stream or other body of water in question, and shall with his petition file the same kind of proof as required of claimants in original hearings and make it appear to the satisfaction of the board that during the pendency of the proceedings he had no actual notice thereof in time to appear and make proof of his claim; and all parties interested may present affidavits as to the matter of actual notice of the applicant.
41-4-311. Others contesting rights of original claimants; when permitted; procedures generally.
Whenever the rights to the use of the waters of any stream and all its tributaries within the state have been adjudicated as provided by law, and it shall appear by the records of such adjudication that it had not been had at one (1) and the same proceeding, then in such case the state board of control shall be and is hereby authorized to give notice of the opening to public inspection of all proofs or evidences of appropriation of water, and the findings of the board in relation thereto from the stream and its tributaries in the manner and according to the provisions of W.S. 41-4-309; and any persons, corporations or associations who may desire to contest the claims or rights of other persons, corporations or associations, as set up in the proofs or established by the board, shall proceed in the manner provided for in W.S. 41-4-312, 41-4-313 and 41-4-314; provided, that contests may not be entered into and shall not be maintained except between appropriators who were not parties to the same adjudication proceedings in the original hearings.
41-4-312. Others contesting rights of original claimants;
notice to superintendent; time limits; affidavit; notice of hearing generally. Should any person, corporation or association of persons owning any irrigation works, or claiming any interest in the stream or streams involved in the adjudication, desire to contest any of the rights of the persons, corporations or associations who have submitted their evidence to the superintendent as aforesaid; such persons, corporations or associations shall, within fifteen (15) days after the testimony so taken shall have been opened to public inspection, in writing, notify the superintendent of the water division in which is located said irrigation works or stream or streams, stating with reasonable certainty the grounds of their proposed contest, which statement shall be verified by the affidavit of the contestant, his agent or attorney, and the said division superintendent shall notify the said contestant and the person, corporation or association whose rights are contested, to appear before him at such convenient place as the superintendent shall designate in said notice.
41-4-313. Others contesting rights of original claimants;
when hearing to be held; notice; powers of superintendents; proceedings generally. Said superintendent shall also fix the time, both as to the day and hour, for the hearing of said contest, which date shall not be less than thirty (30) nor more than sixty (60) days from the date the notice is served on the party, association or corporation, which notice and the return thereof shall be made in the same manner as summons are served in civil actions in the district courts of this state. Superintendents of water divisions shall have power to adjourn hearings from time to time upon reasonable notice to all the parties interested, and to issue subpoenas and compel the attendance of witnesses to testify upon such hearings, which shall be served in the same manner as subpoenas issued out of the district courts of the state; and shall have the power to compel such witnesses so subpoenaed to testify and give evidence in said matter; said witnesses shall receive fees as in civil cases, to be paid by the party or parties against whom the contest shall be finally determined. The evidence on such proceedings shall be confined to the subjects enumerated in the notice of contest.
41-4-314. Others contesting rights of original claimants;
daily deposit required during hearings; cost of preparation of transcript; disposition of moneys deposited upon close of hearing. The superintendent shall require a deposit of eight dollars ($8.00) from each of the contestants and contestees for each day he shall be so engaged in taking evidence on said contest. The contestant shall pay the cost of preparation of the transcript of said evidence before the contest is transmitted by the superintendent to the board of control for final determination or adjudication. Upon the final determination or the adjudication of the matters by the board of control, an order shall be entered directing that the money so deposited shall be refunded to the persons, associations or corporations in whose favor such contest shall be determined, and that all moneys deposited by other parties therein shall be turned over by the superintendent to the state treasury to the credit of the general fund.
41-4-315. Others contesting rights of original claimants;
duty of superintendent to transmit evidence and testimony to board of control; issuance and costs of new certificate.
(a) Upon the completion of the testimony and evidence taken in contests initiated under the provisions of this act, it shall be the duty of the superintendent to transmit all evidence and testimony in said contests to the office of the board of control in person or by registered mail, and the action of said board in relation thereto shall be governed by the provisions of law applicable to contest cases in original adjudication proceedings; provided, that, if as a result of any such contest it shall be necessary to cancel any final certificate theretofore issued by said board and issue a new certificate in accordance with the findings of the board, such certificate shall be issued without cost to the person entitled to it, other than is incident to a proper recording of such certificate in the office of the county clerk.
(b) Upon the completion of the evidence in the original hearing before the superintendent, and the evidence taken in all contests, it shall be his duty to transmit all the evidence and testimony in said adjudication to the office of the board of control in person, or by registered mail.
41-4-316. Examination and measurement of capacity of streams and works diverting water; maps or plats.
It shall be the duty of the state engineer or some qualified assistant, to proceed at the time specified in the notice to the parties on said stream, to be adjudicated, to make an examination of said stream, and the works diverting water therefrom, said examination to include the measurement of the discharge of said stream, and of the carrying capacity of the various ditches and canals diverting water therefrom; an examination of the irrigated lands and an approximate measurement of the lands irrigated, or susceptible of irrigation from the various ditches and canals, which said observation and measurements shall be reduced to writing, and made a matter of record in his office; and it shall be the duty of the state engineer to make, or cause to be made, a map or plat on a scale of not less than one (1) inch to the mile, showing, with substantial accuracy, the course of said stream, the location of each ditch or canal diverting water therefrom, and the legal subdivisions of lands which have been irrigated, or which are susceptible of irrigation from the ditches and canals already constructed.