Chapter 3 - Water Rights; Administration And Control
CHAPTER 3 - WATER RIGHTS; ADMINISTRATION AND CONTROL
ARTICLE 1 - GENERALLY
41-3-101. Nature of water rights and beneficial use.
Awater right is a right to use the water of the state, when such use has beenacquired by the beneficial application of water under the laws of the staterelating thereto, and in conformity with the rules and regulations dependentthereon. Beneficial use shall be the basis, the measure and limit of the rightto use water at all times, not exceeding the statutory limit except as providedby W.S. 41-4-317. In addition to any beneficial use specified by law or ruleand regulation promulgated pursuant thereto, the use of water for the purposeof extracting heat therefrom is considered a beneficial use subject to priorrights. Water being always the property of the state, rights to its use shallattach to the land for irrigation, or to such other purposes or object forwhich acquired in accordance with the beneficial use made for which the rightreceives public recognition, under the law and the administration provided thereby.Water rights for the direct use of the natural unstored flow of any streamcannot be detached from the lands, place or purpose for which they areacquired, except as provided in W.S. 41-3-102 and 41-3-103, pertaining to achange to preferred use, and except as provided in W.S. 41-4-514.
41-3-102. Preferred uses; defined; order of preference.
(a) Water rights are hereby defined as follows according touse: preferred uses shall include rights for domestic and transportationpurposes, steam power plants, and industrial purposes; existing rights notpreferred, may be condemned to supply water for such preferred uses inaccordance with the provisions of the law relating to condemnation of propertyfor public and semi-public purposes except as hereinafter provided.
(b) Preferred water uses shall have preference rights in thefollowing 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 railwayuse, water for culinary, laundry, bathing, refrigerating (including themanufacture of ice), for steam and hot water heating plants, and steam powerplants; and
(iv) Industrial purposes.
(c) The use of water for irrigation shall be superior andpreferred to any use where water turbines or impulse water wheels are installedfor power purposes; provided, however, that the preferred use of steam powerplants and industrial purposes herein granted shall not be construed to givethe right of condemnation.
41-3-103. Preferred uses; procedure for change of use.
Whereit can be shown to the board of control under the provisions hereof, that apreferred use is to be made, the procedure for a change of such use shall embracea public notice, an inspection and hearing if necessary by and before theproper division superintendent, a report of such superintendent to the board ofcontrol, and an order by said board. If the change of use is approved, justcompensation shall be paid and under the direction of the board, properinstruments shall be drawn and recorded.
41-3-104. Procedure to change use or place of use.
(a) When an owner of a water right wishes to change a waterright from its present use to another use, or from the place of use under theexisting right to a new place of use, he shall file a petition requestingpermission to make such a change. The petition shall set forth all pertinentfacts about the existing use and the proposed change in use, or, where a changein place of use is requested, all pertinent information about the existingplace of use and the proposed place of use. The board may require that anadvertised public hearing or hearings be held at the petitioner's expense. Thepetitioner shall provide a transcript of the public hearing to the board. Thechange in use, or change in place of use, may be allowed, provided that thequantity of water transferred by the granting of the petition shall not exceedthe amount of water historically diverted under the existing use, nor exceedthe historic rate of diversion under the existing use, nor increase thehistoric amount consumptively used under the existing use, nor decrease thehistoric amount of return flow, nor in any manner injure other existing lawfulappropriators. The board of control shall consider all facts it believespertinent to the transfer which may include the following:
(i) The economic loss to the community and the state if the usefrom which the right is transferred is discontinued;
(ii) The extent to which such economic loss will be offset bythe new use;
(iii) Whether other sources of water are available for the newuse.
(b) In all cases where the matter of compensation is indispute, the question of compensation shall be submitted to the proper districtcourt for determination.
41-3-105. Repealed by Laws 1983, ch. 167, 2.
41-3-106. Procedure to exchange water; delivery of water underexchanges; approval of state engineer; enforcement of exchanges.
(a) Any appropriator owning a valid water right in and to theuse of the ground, surface or reservoir waters of the state, where the sourceof the appropriation is at times insufficient to fully satisfy suchappropriation, or better conservation and utilization of the state's water canbe accomplished, or the appropriator can develop appropriable water but cannoteconomically convey it to its point of use, may petition the state engineer foran order allowing an exchange and the use of stored, direct flow, or groundwater from another source. If such an appropriator arranges by agreement withanother appropriator for the delivery and use of either stored, direct flow, orground water from another source, the exchange agreement shall accompany thepetition.
(b) Exchanges may be allowed among any combination of directflow, storage, and groundwater rights. Petitions for exchanges shall beaccompanied by such maps, plans or other information as may be required by thestate engineer. The proper filing and recording fees shall accompany thepetition.
(c) No exchange shall be allowed until the state engineer hasentered an order granting the exchange. Documents drawn in connection withexchanges may be recorded in one (1) or more counties where any part of theland involved is situated. No exchange may be terminated without the issuanceof an order approving termination, unless the order allowing the exchangeprovides for termination on a specified date.
(d) It is the policy of the state to encourage exchanges. Thestate engineer shall not issue an exchange order if it appears that theproposed exchange would adversely affect other appropriators, or if theproposed exchange would, in the opinion of the state engineer, be too difficultto administer or would be adverse to the public interest. All exchanges aresubject to the requirements of beneficial use and equality of water exchanged,and no exchange will be allowed unless a sufficient quantity of makeup water isintroduced to replace the water diverted and withdrawn under the exchange. Inmaking the determination of equality and sufficiency of the makeup waterintroduced, the state engineer may consider relative consumptive uses andtransmission losses.
(e) Any water made available to an appropriator by reason ofany exchange agreement shall be delivered for the use of the appropriator inaccordance with the order allowing the exchange, and its use is withoutprejudice to, but in enjoyment of, the rights of all appropriators under theiroriginal appropriations.
(f) Performances of each exchange shall be enforced by thewater administration officials of the state in accordance with the terms andconditions of the order allowing the exchange. The state engineer may adoptsuch rules and regulations as are necessary to enable him to efficientlyadminister this section.
(g) The state engineer shall assess a fee not to exceed fiftydollars ($50.00) for his review, and approval of exchange petitions. This fee shallaccompany an exchange petition and shall be retained and deposited whether thepetition or request is approved or denied.
41-3-107. Submerged lands; petition for change of water rights;conditions; hearing; fees.
(a) The state board of control may, upon the written petitionof the owners of an adjudicated water right, or water rights appurtenant tolands submerged by the construction of reservoirs in the state of Wyoming,issue amended certificates of appropriation of water and change the point ofdiversion and means of conveyance for such adjudicated appropriations of waterfor the irrigation of other lands in the state of Wyoming outside of thereservoir basin in lieu of the submerged lands, without loss of priority; provided:
(i) The appropriation shall be from the same source of supply;
(ii) The irrigated acreage shall include not only new landwithin the state of Wyoming having no original direct flow water right but alsolands within the same drainage area having water rights from another source andwhich have a need for supplemental water, but in no event shall such right anduse so changed exceed in amount of water that of the rights which are beingchanged;
(iii) Such change of water rights be made within five (5) yearsfrom the date that construction of the reservoir dam has been completed. Ifsuch change is not applied for by the owner or his successors in interestwithin the five (5) year period such water rights shall become automaticallyabandoned and the water shall be distributed in order of priority on thestream. Such automatic abandonment shall apply only to lands inundated at andbelow the high water line of reservoirs. The board of control shall enter anorder abandoning the water rights upon a determination that an abandonment hasoccurred;
(iv) The change can be made only on condition that it does notinjuriously affect the rights of other Wyoming appropriators.
(b) After receipt of a petition for such change the state boardof control shall cause a public hearing to be held on the petition before thesuperintendent of the water division in which such appropriation is located,with notice of the hearing to be advertised in at least one (1) issue of anewspaper having general circulation in the community where the water rightinvolved is located. The petitioner shall pay the cost of publication prior tothe time of hearing and shall provide a stenographic record of the proceedings,which shall be transmitted by the division superintendent to the state board ofcontrol with his report. A fee not to exceed fifty dollars ($50.00) forissuance and recording of each amended certificate of appropriation of watershall be collected by the state board of control at the time of filing of thepetition and the board shall also require a deposit of sufficient funds tocover the cost of preparing and recording a certified copy of the order of theboard granting the petition.
(c) The owners of lands coming under the provisions of thissection may sell or convey lands submerged or to be submerged by any suchreservoir with provisions in the deed or other conveyance that the water rightsappurtenant thereto may be detached and transferred as provided herein.
41-3-108. Lands taken out of agricultural production or lands taken byeminent domain; retention of priority.
(a) Where lands are taken out of agricultural production as thenecessary result of acquisitions for railroad roadbed construction, highwayconstruction, mining or petroleum extraction operations or industrial siteacquisitions or lands taken by proceedings in eminent domain or which havebecome impracticable to irrigate by reason of any of the foregoing conditions,the owner of an affected water right may transfer the water right to other landsheld by the owner. The petition for the change in use, or change in place ofuse shall be properly filed within five (5) years of the date the land went outof production because of any of the conditions specified herein. Failure tofile the petition within five (5) years results in forfeiture of the rightexcept as otherwise provided.
(b) The petition for a change in use, or change in place ofuse, of a water right under this section shall retain its original date ofpriority.
(c) For a period of five (5) years after the effective date ofthis act, any appropriator whose land has been out of production for more thanfive (5) years may petition the board requesting transfer of the water rightsinvolved. The granting or denial of a petition under these circumstances iswithin the discretion of the board. The decision of the board may be appealedto the district court. The board may hold public hearings in connection with apetition being considered pursuant to this section. All costs in conjunction withthe hearing shall be borne by the petitioner.
41-3-109. Construction of W.S. 41-3-107.
Theprovisions of this act shall be valid notwithstanding the provisions of W.S.41-3-101.
41-3-110. Right to acquire temporary water rights for highway orrailroad 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 anyadjudicated or valid unadjudicated water right, or any portion thereof, for aperiod of not to exceed two (2) years, for highway construction or repair,railroad roadbed construction or repair, drilling and producing operations, orother temporary purposes, on its own behalf or on behalf of its agents,employees or contractors: provided, that if the proposed use is to be forpublic highway construction or repair under a contract with the statedepartment of transportation, only the state transportation commission shallhave the authority to acquire the water; and the state transportationcommission shall have the sole and continuing responsibility for theacquisition, including the payment of all fees, royalties and otherconsideration for the use of and access to water and the right to acquire therights to use shall not be delegated to a construction contractor or otherthird party; and further provided, that any temporary transfer shall be allowedonly if no other appropriator is injured thereby.
(b) Before any right to such use shall become operative, anapplication must be made in writing on a form provided or designated by thestate engineer, with a copy of any conveyance or agreement provided, and itshall be filed in the office of the state engineer for his ratification andapproval. Upon approval by the state engineer, an order authorizing such useand 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 aresult of such change or use, except as provided by said conveyance oragreement and order of the state engineer, and upon termination of thetemporary diversion and use, as stated in the order, any affected right to theuse of water shall automatically be reinvested with all the rights, privilegesand uses, and purposes theretofore held and enjoyed.
(c) Only that portion of a water right so acquired which hasbeen consumptively used under the historical use made of the water right, maybe diverted by a temporary user. In determining the consumptive use of waterrights for the direct use of the natural unstored flow of any stream forirrigation purposes, the return flow from those rights shall be presumed to befifty percent (50%). In those situations where an assumption of fifty percent(50%) return flow would be significantly in error, the state engineer shallhave the prerogative of making a determination of the actual amount of returnflow, and the amount of water which can be diverted for the temporary useprovided herein shall be adjusted accordingly. The actual historic return flow,or the assumed return flow of fifty percent (50%) will be left in the streamfor the use of downstream appropriators. The foregoing formula and procedurefor the determination of consumptive use and return flow shall be limited tothis section and shall have no application to any other statute of the state ofWyoming. Nothing herein contained shall be treated or construed as changing theprior use of water held by said owner or owners and as provided by the laws ofthe state of Wyoming.
(d) The state engineer shall assess a fee not to exceed onehundred dollars ($100.00) for his review and approval of temporary wateragreements. This fee shall accompany the agreement application and shall beretained and credited to the general fund whether the agreement or request isapproved or denied.
41-3-111. Right to acquire temporary water rights for highway orrailroad roadbed construction or repair; right of owner who cannot satisfy infull his right during time of diversion.
Theowner of any permanent water right, whether prior or subsequent in priority tothat temporary right acquired by any person under this act who cannot satisfyin full his right during the time said temporary user is diverting water underits temporary water right shall have the absolute right upon demand being madeupon the appropriate state water commissioner to cause such diversion to beshut off until such time as said owner's water right is satisfied, or until itis proven that the shutting down of the diversion has no effect upon owner'sright.
41-3-112. Right to acquire temporary water rights for highway orrailroad roadbed construction or repair; wrongfully causing diversion to beshut down.
Itshall be unlawful for any person to wrongfully cause a diversion made under atemporary water right required under and by virtue of this act to be shutdown. Any violation of this section shall be punishable pursuant to W.S.41-3-616.
41-3-113. Supplemental supply water rights.
Asupplemental supply water right is defined as a permit or certificate ofappropriation for the diversion, from a stream, of water from a new source ofsupply for application to lands for which an appropriation of water from aprimary source already exists. Such supplemental supply permits or certificatesof appropriation may be allowed by the state engineer or the state board ofcontrol under such regulations or conditions as he or it may prescribe. The useand administration of presently existing rights for supplemental supplyappropriations or rights for supplemental supply appropriations hereafteracquired shall hereafter be made upon the express condition that the totalamount of water to be diverted at any one (1) time both under a primaryappropriation of water and a supplemental supply appropriation shall not be inexcess of one (1) cubic foot of water per second of time for each seventy (70)acre tract so irrigated, except that when the right to divert water under theprovisions of W.S. 41-4-317 through 41-4-324, is permitted the total amount ofsurplus water to be diverted at any one (1) time both under a primaryappropriation of water and a supplemental supply appropriation shall not be inexcess of one (1) cubic foot of water per second for each seventy (70) acretract so irrigated. Nothing herein shall be construed to apply to water storedunder a reservoir permit.
41-3-114. Petition to change point of diversion or means ofconveyance.
(a) Any person entitled to the beneficial use of water, whether under a permit issued by the state engineer or a certificate ofappropriation issued by the board of control pursuant to W.S. 41-4-511, whodesires to change the point of diversion or means of conveyance, or both,shall file a petition with:
(i) The board of control if the use of the water has beenadjudicated under a certificate of appropriation;
(ii) The state engineer in all other cases. The state engineermay consider a petition even if water has not been applied to beneficial usehowever, any change in point of diversion granted by the state engineer shallbe in the vicinity of the original diversion, and provided:
(A) The change shall not alter the original project concept;and
(B) The water shall be diverted from the same source of supplydescribed in the original permit.
(b) Petitions for change in point of diversion shall be inaffidavit form and shall set forth the name and address of the petitioner, thename of the ditch, pipeline, or other facility, the stream from which water isappropriated, the date of priority and the amount of the appropriation to bechanged, permit number, ownership of appropriation, and the location of thepresent and the proposed new point of diversion by course and distance from acorner of the public land survey. If for irrigation, petitions shall describethe acreage irrigated in each legal subdivision, the reason for the proposedchange, and state whether any other appropriator from the same source will beinjured in any way, and whether the consent of all owners of interveningdiversions has been obtained. The petition shall be accompanied by satisfactoryevidence of ownership of the appropriation to be changed.
(c) If the petition is for a change in point of diversion andmeans of conveyance for all or a part of an appropriation, it shall include, inaddition to the foregoing, the name, permit number and date of priority of theditch or facility to which it is to be changed, and whether the petitioner isthe sole owner of both facilities involved or has the consent of the otherowners of both ditches or facilities.
(d) Such petitions shall be accompanied by maps in duplicate,one (1) of which shall be on tracing linen of a size required by the stateengineer and state board of control, prepared under certificate of a registeredland surveyor, and showing accurately the location of the stream, the locationof the ditch or ditches involved, location of any intervening diversions, andif for irrigation, the location of the lands changed or affected by suchchange.
(e) In event that written consents of owners of appropriationswhich divert between the old and new points of diversion or the owners ofditches or facilities involved in the proposed change are not secured andattached to the petition, the petition shall be referred to:
(i) The superintendent of the water division in which thechange is proposed, if the right is adjudicated; or
(ii) To the state engineer if the right is unadjudicated.
(f) The state engineer or the superintendent shall set ahearing on the petition and give thirty (30) days notice by registered mail ofthe time and place of the hearing to the petitioner and any owners ofappropriations which divert between the old and new points of diversion and anyowners or users of ditches or facilities to be affected by the proposed change.The petitioner shall provide the superintendent with a record of theproceedings which shall be transmitted to the state board of control with the superintendent'sreport. The state board of control or the state engineer may make such otherregulations as may be found necessary. No petition shall be granted if theright of other appropriators will be injuriously affected. The attorneygeneral shall represent the state board of control or the state engineer in anyappeal.
(g) A decision by the state engineer granting or denying apetition under paragraph (a)(ii) of this section may be appealed to the boardof control. An appeal may be taken to the district court pursuant to W.S.16-3-101 through 16-3-115 from an order of the board of control:
(i) Affirming, modifying or reversing a decision of the stateengineer appealed to the board under this subsection; or
(ii) Granting, modifying or denying a petition under paragraph(a)(i) of this section.
41-3-115. Applications for use of water outside the state.
(a) The legislature finds, recognizes and declares that thetransfer of water outside the boundaries of the state may have a significantimpact on the water and other resources of the state. Further, this impact maydiffer substantially from that caused by uses of the water within the state.Therefore, all water being the property of the state and part of the naturalresources of the state, it shall be controlled and managed by the state for thepurposes of protecting, conserving and preserving to the state the maximumpermanent beneficial use of the state's waters.
(b) None of the water of the state either surface orunderground may be appropriated, stored or diverted for use outside of thestate or for use as a medium of transportation of mineral, chemical or otherproducts to another state without the specific prior approval of thelegislature. Provided, however, neither approval by the legislature norcompliance with the application procedures under subsections (m) through (r) ofthis section shall be required for appropriations that will transfer or useoutside the state less than one thousand (1,000) acre-feet of water per year.
(c) No holder of either a permit to appropriate water or acertificate to appropriate water, nor any applicant for a right to appropriatethe unappropriated water of this state, may transfer or use the water soappropriated, certificated or applied for outside the state of Wyoming withoutprior approval of the legislature of Wyoming.
(d) Repealed by Laws 1985, ch. 4. 1.
(e) Repealed by Laws 1985, ch. 4. 1.
(f) Repealed by Laws 1985, ch. 4. 1.
(g) Repealed by Laws 1985, ch. 4. 1.
(h) Repealed by Laws 1985, ch. 4. 1.
(j) Repealed by Laws 1985, ch. 4. 1.
(k) Repealed by Laws 1985, ch. 4. 1.
(m) Applications for the appropriation of water for use out ofstate shall be submitted to the state engineer. The application shall containsufficient information to enable the state engineer to fully analyze theproposed appropriation. Within sixty (60) days of receipt of the application,the state engineer shall determine if the application is complete andacceptable. If the application is unacceptable, the state engineer shall notifythe applicant as to what is needed so an acceptable application may be submitted.
(n) Upon determination that the application is acceptable, thestate engineer shall cause to be made, at the applicant's expense, acomprehensive review of the application. The state engineer shall have no morethan one hundred twenty (120) days to complete this review.
(o) Upon completion of the state engineer's review, the stateengineer shall issue a preliminary analysis of the application. The analysisshall address the factors set forth in subsection (r) of this section, containa summary of the application and any other information the state engineer deemsrelevant. The preliminary opinion, or a reasonable summary, shall be published,at the applicant's expense, for three (3) consecutive weeks in a newspaper ofgeneral circulation in the county where the proposed appropriation of water islocated. At the conclusion of the publication period, the state engineer shallhold a public hearing, at the applicant's expense, in the county where theproposed appropriation is located.
(p) In rendering a final opinion, the state engineer shallconsider all comments received at the public hearing and those received inwriting within twenty (20) days of the public hearing.
(q) The state engineer shall render a final opinion and submitit to the legislature within one hundred twenty (120) days of the publichearing. The final opinion shall address all factors set forth in subsection(r) of this section and shall contain a recommendation that the legislaturegrant or deny the proposed out-of-state use.
(r) The legislature shall consider the proposed appropriationfollowing receipt of the state engineer's opinion and recommendation.Notwithstanding subsections (d) through (k) of this section, legislativeconsent for the proposed appropriation of water for use out of the state shallbe based upon consideration of the factors necessary to assure meeting thestate's interests in conserving and preserving its water resources for the maximumbeneficial use. Factors to be considered by the legislature shall include thefollowing:
(i) The amount of water proposed to be appropriated and theproposed uses;
(ii) The amount of water available for appropriation from theproposed source, and the natural characteristics of the source;
(iii) The economic, social, environmental and other benefits tobe derived by the state from the proposed appropriation;
(iv) The benefits to the state by the use of the water withinthe state that will be foregone by the proposed appropriation;
(v) The benefits presently and prospectively derived from thereturn flow of water in intrastate use which will be eliminated by the proposedout-of-state use;
(vi) The injury to existing water rights of other appropriatorsthat may result from the proposed use;
(vii) Whether the use formulated and carried out promotes orenhances the purposes and policies of the state's water development plans andwater resources policy, and that the use will not unreasonably interfere withother planned uses or developments for which a permit has been or may beissued;
(viii) Whether the proposed use will significantly impair thestate's interest and ability to preserve and conserve sufficient quantities ofwater for reasonably foreseeable consumptive uses and other beneficial usesrecognized by law to include but not limited to domestic, livestock,agricultural, municipal and industrial purposes;
(ix) Whether the proposed use will adversely affect the quantityor quality of water available for domestic or municipal use;
(x) Whether, to the greatest extent possible, the correlationbetween surface water and groundwater has been determined, to avoid possibleharmful effects of the proposed use on the supply of either.
(s) Nothing in this section shall be construed to interferewith compacts, court decrees and treaty obligations.
ARTICLE 2 - RIGHTS TO FOREIGN WATERS
41-3-201. Definition.
Allthat part and amount of the waters of an interstate stream which, unlessprevented by artificial barrier, will enter the state of Wyoming from anotherstate while flowing in a natural stream channel, and which have been, or mayhereafter be, determined by final decree of the supreme court of the UnitedStates not to be available for diversion and application to beneficial usewithin the state of Wyoming, or other waters originating outside of the stateof Wyoming, and which neither the state of Wyoming nor any Wyoming appropriatorcould divert and use as against another state or appropriators therein, therights to which through purchase, exchange or negotiation are acquired byanyone for beneficial use in the state of Wyoming, and which are conveyed,imported or permitted to flow into the state of Wyoming through the channel ofany natural stream, or otherwise, are, for the purposes of this act, herebydefined as "foreign water".
41-3-202. Right to acquire.
Anyonemay lawfully acquire by purchase or through other negotiations entered into with the owner of a water right in another state or with such other state orwith both such owner and state, the right to bring into Wyoming for beneficialuse all or any portion of the stream flow of foreign water, as herein defined,arising without the boundaries of the state of Wyoming and flowing into thisstate.
41-3-203. Transportation in interstate channels.
Theowner of the right of beneficial use of any foreign water acquired forbeneficial use within the state of Wyoming may transport the same in thenatural channel of any interstate stream from the state boundary line to thepoint in the state of Wyoming where the owner of such water desires to divertand take same from said natural stream channel, and shall have the right todivert and take from said natural stream channel, the full quantity of theforeign water which the owner thereof shall have caused to be delivered intothe channel of such natural stream at the state boundary line, less thatquantity of foreign water only representing loss in the transportation thereoffrom the state boundary line to the point of diversion in the state of Wyoming.
41-3-204. Duty to supervise delivery; expense.
Itis hereby made the duty of the Wyoming state engineer, water division superintendents,water commissioners and deputy water commissioners, to supervise the deliveryof such foreign water from the state boundary line where it enters the state ofWyoming in a natural stream channel, to the point of diversion in Wyoming; anyadditional expense of this supervision shall be borne by the owners of suchforeign water as decided by the water officials of the state of Wyoming.
41-3-205. Rights of owner; priority of claims; subject toappropriation and diversion.
Theowner of foreign water is hereby declared to have the exclusive right ofbeneficial use of such foreign water either for immediate application tobeneficial use or by impounding the same in a reservoir for future applicationto beneficial use, as against any claim or right to appropriate any waterbelonging to the state of Wyoming, and against the right of any Wyomingappropriator to divert water from said interstate stream for beneficial use inWyoming. All foreign water conveyed or allowed to flow into the state of Wyomingis hereby declared not to be subject to appropriation in Wyoming and not to besubject to diversion under any Wyoming appropriation notwithstanding the sameshall flow in the channel of any natural stream within this state andnotwithstanding the same may be commingled with the waters in such streamchannel owned by the state of Wyoming or by appropriators under the laws ofWyoming.
41-3-206. Rights of owner; recording of claim.
Theowner of any foreign water conveyed or allowed to flow into the state ofWyoming from without the boundaries of this state shall file in the office ofthe secretary of the Wyoming state board of control, within the period of one(1) month before the first conveyance or flowage of such foreign water into thestate of Wyoming, a certificate in writing, signed by the owner of such foreignwater, specifying the former owner or owners of such foreign water, the amountthereof so acquired, the natural stream channel to be used in the state ofWyoming as a conduit for the delivery of such foreign water to the point ofdiversion in the state of Wyoming and also designating the point of diversionof such foreign water in the state of Wyoming.
41-3-207. Rights of owner; right to divert and use.
Theowners of foreign water may divert and use in priority order, all availablewater in said stream channel to which such owner may be lawfully entitled underany Wyoming appropriation to the same extent and under the same conditions asif such owner had not acquired any such foreign water.
41-3-208. Diverting from owner prohibited.
Itshall be unlawful for anyone not the owner thereof to divert and take from thenatural channel of any interstate stream designated by the certificate requiredin W.S. 41-3-206 flowing within the state of Wyoming, any foreign water or inany manner interfere with the ability of the owner of foreign water totransport the same in the natural stream channel in Wyoming to the point ofdiversion and to divert the same thereat. Any violation of this section shallbe punishable pursuant to W.S. 41-3-616.
41-3-209. Change of point of diversion; power to petition generally.
Anyperson, association or corporation having heretofore acquired a right from anadjoining state to the beneficial use of the water of any stream, entering thestate of Wyoming and where the point of diversion of the appropriation islocated in the adjoining state and the ditch irrigates land within the state ofWyoming, and who desires to change the point of diversion from said stream fromwithin the adjoining state to a point within the state of Wyoming, shallpetition therefor to the state board of control.
41-3-210. Change of point of diversion; contents of petition.
Allpetitions for such change of point of diversion shall be made to the stateboard of control setting forth the acreage in each legal subdivision of landirrigated, with the total acreage, together with a map, showing the location ofthe stream, the ditch, the old and new points of diversion, the new point ofdiversion in Wyoming to be tied to the nearest corner of the public landsurvey; the nature and extent of the irrigation works, their size, capacity,and length, and a certified copy of the proceedings had before the properboard, officer, or court, which has authority in the adjoining state toadjudicate water rights; amount of water adjudicated, the land for which thesame was adjudicated; the date of priority, the date of adjudication, showingthe existence of a valid water right, and that the same is in full force andeffect.
41-3-211. Change of point of diversion; endorsement and recording ofpetition.
Uponreceipt of the petition by the board of control, it shall be the duty of thepresident of said board to make an endorsement thereon of the date of itsreceipt, and to properly record receipt of the petition.
41-3-212. Change of point of diversion; hearing.
Itshall be the duty of the board of control at its next regular meeting followingthe receipt of such petition to examine same and ascertain if it sets forth allthe facts required by W.S. 41-3-210, and the validity of the water rightgranted by the adjoining state. Upon it being made to appear to thesatisfaction of the board of control that the requirements of law and theregulations of the board have been complied with and that the petitioner isentitled to make the proposed changes, the said petition shall be referred tothe division superintendent of the proper water division for a public hearingto be held not later than one hundred and twenty (120) days, following the dateso referred. The said superintendent shall, by order, require all personsinterested to appear on said certain day to show cause why the petition shouldnot be granted. The said order shall be published for four (4) consecutiveweeks in a newspaper having general circulation in the county where theproposed change of point of diversion is located; provided, that the consent ofall owners of intervening diversions be secured, or that those not securedshall be notified by registered mail at least thirty (30) days prior to thehearing date. Any party who may claim injury on account of said proposed changeof point of diversion shall have the right to appear before the superintendentat the public hearing as ordered, and present evidence in support of saidclaim. The evidence of such hearing shall be confined to the subjectsenumerated in the notice for hearing. Upon completion of the taking oftestimony in such hearing, it shall be the duty of the division superintendentto transmit same to the office of the board of control together with a writtenreport setting forth the procedure followed and the results accomplished. Atthe next regular meeting, the board shall consider the evidence transmitted andenter a proper order either granting or denying the petition.
41-3-213. Change of point of diversion; rights of applicant uponapproval; certificate of appropriation.
Theapproval of the petition shall grant to the applicant the same right in allrespects as existed under the laws of the adjoining state as to land to beirrigated, amount of water, and date of priority, as fully as though the waterright had originally been acquired from the state of Wyoming. No direct flowappropriation shall be recognized under this act for an amount of water inexcess of the statutory limit of one (1) cubic foot per second for each seventy(70) acres of land irrigated. The board of control shall issue a certificate ofappropriation to applicants under this act, and the fee for issuing it shallnot exceed fifty dollars ($50.00).
41-3-214. Change of point of diversion; fees and costs.
Theapplicant shall pay the statutory fee for a stenographer to take the testimonyat each hearing, and provide for a stenographic record of the proceedings, andin addition the administrative costs of the hearing official and the necessaryrecording fee to record the order issued by the board, as hereinabove provided,in the office of the county clerk of the county in which the change of point ofdiversion is situated.
41-3-215. Change of point of diversion; appeal from adverse decision.
Anyapplicant or person interested, feeling himself aggrieved by the decision ofthe board of control may appeal from said decision to the district court in thecounty in which said point of diversion is proposed to be located in the samemanner and by the same procedure as set forth in W.S. 41-4-517, or amendmentsthereto.
ARTICLE 3 - RESERVOIRS
41-3-301. Application for reservoir construction permit; contents;procedure.
(a) Any person, corporation, association, or organization, ofany nature whatsoever, hereafter intending to store or impound, for beneficialuses, any of the unappropriated waters of the state of Wyoming, shall, beforecommencing construction of any works for such purpose, or performing any workin connection with said proposed construction, make an application to the stateengineer, for a permit to construct a reservoir. The application must set forththe name and post office address of the applicant; the source of the watersupply; the nature of the proposed use; the location and description of theproposed work; the time within which it is proposed to begin construction, andthe time required for the completion of construction. Maps and plans shallconform with the provisions of W.S. 41-4-510. In case of reservoirs where thestorage is for stock purposes only and the capacity does not exceed twenty (20)acre-feet and the height of dam does not exceed twenty (20) feet, the stateengineer may issue a permit without the filing of a map; however the stateengineer may require certain information be submitted on special forms to befurnished or designated by him. Any violation of subsection (a) of thissection shall be punishable pursuant to W.S. 41-3-616 with the exception thatthe owner of any unpermitted reservoir with a capacity of twenty (20) acre-feetor less and a dam height of twenty (20) feet or less shall have forty-five (45)days after receipt of the written notice of violation pursuant to W.S. 41-3-616(a),to submit an application for a permit. The application shall meet therequirements of the state engineer's office. Each day of the forty-five (45)days shall not be counted as a separate violation if the application for areservoir permit is received during this forty-five (45) day period.
(b) For reservoir permits issued in conjunction with thenational pollutant discharge elimination system (NPDES) for mining operations,the state engineer shall promptly review the application and advise the applicantin writing if it is complete, within thirty (30) days. If the application iscomplete, or is resubmitted to the satisfaction of the state engineer, it shallbe approved or denied within forty-five (45) days of this determination:
(i) For the purpose of this subsection "complete"means that the application contains all the essential and necessary elementsand is acceptable for further review for substance and compliance with theprovisions of this chapter.
41-3-302. Application for construction permit; conditions; secondarypermit; certificate of appropriation.
Allapplications under this article shall be subject to the provisions of W.S.41-4-502 through 41-4-510, 41-4-517 and 41-3-615, which set forth the dutiesand authority of the state engineer and provide for the protection of therights of applicants; provided that an enumeration of any lands proposed to beirrigated under this article shall not be required in the primary permit,provided, further, that any party or parties desiring to appropriate suchstored water to particular lands may file with the state engineer anapplication for permit to be known herein as the secondary permit, incompliance with the provisions of W.S. 41-4-501 through 41-4-510 and 41-4-517.In the event secondary permit may be desired, said application shall refer tosuch reservoir for a supply of water and the state engineer shall not approveof said application and issue secondary permit until the applicant thereundershall show to such state engineer by documentary evidence that he has enteredinto an agreement with the owners of the reservoir for a permanent andsufficient interest in said reservoir to impound enough water for the purposesset forth in said application. When beneficial use has been completed and perfectedunder the said secondary permit the division superintendent shall take theproof of the water user under such permit and the final certificate ofappropriations shall refer to both the ditch described in the secondary permitand the reservoir described in the primary permit.
41-3-303. Use of stored water.
Theuse of water stored under the provisions of this chapter may be acquired undersuch terms as shall be agreed upon by and between the parties in interest.Lands entitled to the use of water in any reservoir may use the water storedtherein, and to which they are entitled, at such times and in such amounts asthe water users may elect, provided that a beneficial use of water is made atall times.
41-3-304. Use of bed of stream.
Wheneverthe owner, manager or lessee of a reservoir, constructed under the provisionsof this act, shall desire the use of the bed of the stream, or other watercourse, for the purpose of carrying stored or impounded water from thereservoir to the consumer, or shall desire the use of any ditch to carry,convey or transmit any of the stored or impounded water for the benefit of anyperson having the right to have the reservoir water carried, conveyed ortransmitted through the ditch under the laws of this state, he shall, inwriting notify the water commissioner of the district in which the stored orimpounded water is to be used, giving the date when it is proposed to dischargewater from the reservoir, its volume in acre feet and the names of all personsand ditches entitled to its use, and other matters as may be necessary toproperly distribute the water. It shall then be the duty of the watercommissioner to so adjust the headgates of all ditches of ditch companies orappropriators from the stream or water course, and the division boxes ofindividual consumers of water, not entitled to the use of the stored water, aswill enable those having the right to secure the volume of water to which theyare entitled. The commissioner shall not in any other manner interfere with theheadgates or division boxes, except as otherwise provided by law. The watercommissioner shall keep a true and just account of the time spent by him in thedischarge of his duties as defined in this section, and it shall be the duty ofthe water commissioner or division superintendent to present a bill of one-half(1/2) the expense so incurred to the reservoir owner, manager or lessee, and ifthe owner, manager, or lessee shall neglect for three (3) days, after thepresentation of the bills of costs, to pay the costs, the costs shall be made acharge upon the reservoir and shall be collected as delinquent taxes until thecomplete payment of the bill of costs has been made. Costs recovered under thissection shall be paid into the general fund.
41-3-305. Direct flow storage.
Theholder or owner of an adjudicated water right to the direct use of the naturalunstored flow of any surface stream of the state may store such direct flow solong as no other Wyoming appropriator or user is injured or affected thereby.Prior to the commencement of the storage of water under a direct flow waterright, the appropriator shall submit a request for such storage in writing tothe state engineer and shall obtain the approval of the state board of control.The state board of control may permit storage at any time so long as there isno interference with existing water rights or uses. The state engineer isauthorized and empowered to prescribe such rules and regulations as may benecessary or desirable to enable him to effectively administer the provisionsof this section.
41-3-306. Instream stock use.
Inthe administration of water rights on any stream and in the consideration ofany applications for permits, the state engineer may require that water beprovided to meet reasonable demands for instream stock use.
41-3-307. Alterations or repairs of dams or diversion systems;definitions.
(a) As used in this act unless the context otherwise requires:
(i) "Alterations" or "repairs" means onlysuch alterations or repairs as may directly affect the safety of the dam ordiversion system, as determined by the state engineer or his designatedrepresentative;
(ii) "Appurtenant works" include, but are not limitedto, such structures as spillways, either in the dam or separate therefrom, thereservoir and its rim, low level outlet works, and water conduits such astunnels, pipelines or penstocks, either through the dam or its abutments;
(iii) "Dam" means any artificial barrier, includingappurtenant works, used to impound or divert water and which is or will begreater than twenty (20) feet in height or with an impounding capacity of fifty(50) acre-feet or greater. "Dam" shall not include artificialbarriers including appurtenant works:
(A) Six (6) feet in height or less, regardless of storagecapacity; or
(B) Which impound less than fifteen (15) acre-feet, regardlessof height.
(iv) "Days" used in establishing deadlines meanscalendar days, including Sundays and holidays;
(v) "Diversion system" means any channel diversion,headgate or diversion structure with a carrying capacity in excess of fifty(50) cubic feet of water per second of time;
(vi) "Emergency" means any threat to life or propertycaused by the condition of any dam, reservoir or diversion system, or bypresent or imminent floods which threaten the safety or structural integrity ofany dam or diversion system;
(vii) "Emergency response agency" means any agencywhich the dam owner may be required to notify in case of an emergency, such assheriff's office, highway patrol or local emergency coordinator;
(viii) "Enlargement" means any change in or addition toan existing dam or reservoir which raises or may raise the water storageelevation of the water impounded by the dam;
(ix) "Inspection" means visual or mechanical checks,measures, borings and any other methods necessary for determination of theadequacy of construction techniques, conformity of work with approved plans andspecifications, and the safety and operating performance of a dam or diversionsystem and appurtenant works;
(x) "Owner" includes any of the following who own,control, operate, maintain, manage or propose to construct a dam or reservoir:
(A) The state and its departments, institutions, agencies andpolitical subdivisions;
(B) Every municipal or quasi-municipal corporation;
(C) Every public utility;
(D) Every district;
(E) Every person;
(F) The federal government and its departments, institutions,agencies and political subdivisions;
(G) The duly authorized agents, lessees or trustees of any ofthe foregoing; and
(H) Receivers or trustees appointed by any court for any of theforegoing.
(xi) "Person" means any person, firm, association,organization, partnership, business trust, corporation or company;
(xii) "Reservoir" means any basin which contains orwill contain impounded water;
(xiii) "This act" means W.S. 41-3-307 through 41-3-317.
41-3-308. Alterations or repairs of dams or diversion systems; plansand specifications; duties of state engineer.
(a) Plans and specifications of any proposed construction,enlargement, major repair, alteration or removal of a dam or diversion systemshall be prepared by or under the direction of a registered professionalengineer licensed to practice in the state of Wyoming and experienced in damdesign and construction, and shall be submitted to the state engineer forapproval. It is unlawful to commence construction, enlargement, major repair,alteration or removal until the plans and specifications have been approved bythe state engineer. At the request of the state engineer, the professionalengineer responsible for the plans and specifications shall carry out anyrevisions of the plans and specifications or provide such additionalinformation as is necessary to justify or clarify the design.
(b) A copy of all plans and specifications submitted under thissection shall be kept on file in the state engineer's office.
(c) In the event that a proposed dam or diversion system isrelated to a facility which requires an industrial siting permit pursuant toW.S. 35-12-106:
(i) The plans and specifications of the proposed dam ordiversion system shall be submitted to the state engineer at the same time thatthe application for an industrial siting permit is submitted to the industrialsiting administration [industrial siting council] pursuant to W.S. 35-12-108;
(ii) The state engineer shall approve or reject the plans andspecifications of the proposed dam or diversion system prior to the publichearing conducted pursuant to W.S. 35-12-110(f)(i);
(iii) The approval or rejection of the plans and specificationsof the proposed dam or diversion system shall be binding on the industrialsiting council for the purposes of issuing an industrial siting permit.
(d) The state engineer shall provide for the regulation andsupervision of all dams, diversion systems and reservoirs by the state to theextent required to protect the public safety and property. The state engineeris authorized and directed to promulgate regulations and standards for thedesign, construction, enlargement, alteration, abandonment, maintenance,monitoring, operation, repair and removal of dams, reservoirs, and diversionsystems as are necessary and proper to carry out the purposes of this act. Thestate engineer may waive any or all of the requirements of this act ininstances where the dam or diversion system is located in a remote area wherethere is no threat to the public safety or property.
41-3-309. Alterations or repairs of dams or diversion systems;inspections performed and reports submitted to state engineer by professionalengineer.
(a) A registered professional engineer licensed to practice inthe state of Wyoming shall be in charge of and responsible for theconstruction, enlargement, major repair, alteration or removal of any dam or diversion system.
(b) The engineer in charge shall provide for inspections atsuch intervals as deemed necessary to insure conformity with the approved plansand specifications, either by himself or by a person qualified to perform theinspections and for whose work the engineer stands personally responsible.
(c) All information obtained from, during or as the result ofsuch inspection shall be made part of a report, certified to by the engineer incharge, which shall be submitted to the state engineer at such time or times asmay be set by the state engineer.
(d) All reports submitted under this section shall be filed inthe state engineer's office.
41-3-310. Alterations or repairs of dams or diversion systems;inspections by state engineer or assistant engineer; cost.
(a) If the state engineer believes that inspections carried outunder W.S. 41-3-309 are inadequate or that additional inspections arenecessary, the state engineer may inspect personally or appoint an assistantengineer to inspect the construction, enlargement, repair, alteration orremoval of any dam or diversion system. If after any inspection the stateengineer or his representative finds that amendments, modifications or changesare necessary in order to insure the security and integrity of the work andstructure, the protection of property or the public safety, the state engineermay order the owner or owners of the dam or diversion system to revise theplans and specifications, or order work stopped. It is unlawful to proceed withor continue the work until any revisions have been approved by the sta