Chapter 4 - Board Of Control; Adjudication Of Water Rights
CHAPTER 4 - BOARD OF CONTROL; ADJUDICATION OF WATER RIGHTS
ARTICLE 1 - IN GENERAL
41-4-101. Legal standard of measurement.
Acubic foot of water per second of time shall be the legal standard for the measurementof water in this state, both for the purpose of determining the flow of waterin natural streams, and for the purpose of distributing water therefrom.
41-4-102. Copies of records as evidence.
Copiesof 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 bythe state engineer or secretary of the state board of control, shall becompetent evidence in the courts and have the same force and effect as theoriginals would if produced.
41-4-103. Cooperation and agreements with Utah; appropriations toMontana.
Thestate engineer is hereby authorized and empowered to receive and grantapplications to appropriate water from streams in Wyoming where such water isto be conveyed and used for beneficial purposes within the state of Utah, andthe board of control is hereby authorized and empowered to issue certificatesof appropriation under such permits as may be granted by the state engineer ofWyoming upon certification from the state engineer of Utah that the watersappropriated have been put to beneficial uses set forth in the permits. Thestate engineer and the board of control of Wyoming are also authorized andempowered to cooperate with the state engineer of Utah in the determination,supervision, regulation and control of all water and water rights on allinterstate streams; and to these ends the state engineer and board of controlof Wyoming, by and with the consent of the governor, may enter into thenecessary agreements with the state engineer of Utah to carry out the purposesof this section; provided, that such agreements are not in conflict with theprovisions of the irrigation laws now in force in this state; provided,further, that such authority shall not be exercised by the state engineer orboard of control until after the state of Utah has passed a law granting itsstate engineer like authority to that granted to the state engineer and boardof control of Wyoming by this section. The state engineer is further authorizedand empowered to receive and grant applications to appropriate water from theLittle Missouri River in Wyoming where such water is to be conveyed and usedfor beneficial purposes within the state of Montana, and the board of controlis hereby authorized and empowered to issue certificates of appropriation undersuch 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 havebeen put to beneficial uses set forth in the permit. Provided that the grantingof any such permit for application to beneficial uses in the state of Montanashall in no manner impair or injure any existing water rights in the state ofWyoming.
41-4-104. Adjudication of rights to water for use in adjoining state.
Afterissuance of the permit under legislative authority and completion of the workaccording to the terms of the permit, the board of control may adjudicate saidwater 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.
Whereditches or reservoirs have been built under permits issued by the state ofWyoming prior to February 25, 1939, and where water has been diverted by, orstored in such works and applied to beneficial use thereunder in an adjoiningstate, and where such state as a matter of policy grants reciprocal rights todivert and store water in such state for use in Wyoming, the state board ofcontrol shall by this act, be authorized to proceed with the adjudication ofsaid water rights for use of the water in the state in which the same has beenapplied to a beneficial use and issue certificates of appropriation therefor,as provided by the statutes of Wyoming.
ARTICLE 2 - STATE BOARD OF CONTROL
41-4-201. Created; members; location of office; meetings generally;state engineer ex officio president; quorum.
Thereis hereby constituted a state board of control composed of the state engineerand the superintendents of the four (4) water divisions. The board shall havean office with the state engineer at Cheyenne. The board shall hold regularquarterly meetings each year, the dates to be set by the board. Other meetingsshall be held at the call of the president for the transaction of business asmay come before it. Special meetings of the board may be called by thepresident after a request for a special meeting is made by a party seekingboard action which cannot be accommodated at a regular meeting. The party orparties making a request shall make payment to the board of control to coverall 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 allquestions coming before it. A majority of all the members of the boardconstitutes a quorum to transact business.
41-4-202. Ex officio secretary of the board; duties generally.
Theex officio secretary of the state board of control shall be appointed by theboard and be an employee of the state engineer. The duties of the secretaryshall, under direction of the president of the board, consist of keeping afull, true and complete record of the transactions of the state board ofcontrol, and to certify, under seal, all certificates of appropriation madeaccording to law, and to perform other duties as may be required by the board.
41-4-203. Collection of fees generally.
(a) The secretary of the state board of control shall collectin advance reasonable fees not to exceed the following:
(i) Fifty dollars ($50.00) with each proof of appropriation ofwater or proof of construction of a reservoir;
(ii) For recording with county clerks any water right instrumentor certificate not otherwise specifically provided for, the fees required inaccordance with W.S. 18-3-402;
(iii) For making copies of any document recorded or filed in theoffice of the state board of control, a reasonable fee shall be assessed not toexceed ten dollars ($10.00) per page.
41-4-204. Collection of fees; disposition generally.
Saidsecretary shall, out of the fees so collected, remit with each certificate ororder of the state board of control, sent to a county clerk for recording, thestatutory fee for recording such instrument; all other fees so collected to bepaid 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 tothe state treasurer:
(i) For making copies of the records of the board of control orof papers or documents filed with the board, ten dollars ($10.00) for eachpage;
(ii) For attaching certificate and seal of the board to eachdocument or documents requested, ten dollars ($10.00).
41-4-206. Duty at first meeting.
Itshall be the duty of said board at its first meeting to make properarrangements for beginning the determination of priorities of right to the useof the public waters of the state, which determination shall begin on thestreams most used for irrigation, and be continued as rapidly as practicable,until all the claims for appropriation now on record shall have beenadjudicated.
41-4-207. Copies of judgments involving water rights to be sent toboard.
Itshall 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 isinvolved in any way, any question affecting the title to any water right,irrigating or water system of any kind whatever, to forthwith prepare, free ofcharge, a certified copy of such judgment and forward the same to the stateboard of control.
41-4-208. Tabulations and supplements of adjudicated water rights;publication generally; contents; appropriations.
Thepresident of the state board of control shall upon the taking effect of thisact, employ competent assistants to compile and edit revised tabulations ofadjudicated water rights in each of the four (4) water divisions of the stateat such times as the president of the state board of control deems itnecessary, and to compile and edit supplements to these tabulations every two(2) years, and shall furnish the necessary supplies for such compilation. Thesetabulations shall contain the information on adjudicated water rights accordingto precedent heretofore established, with whatever improvement of arrangementof 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.
Adequatecopies, as determined by the president of the state board of control, of thetabulation of adjudicated water rights and supplements shall be printed underthe direction of the president of the state board of control upon a printingcontract let by the department of administration and information, generalservices division, procurement.
41-4-210. Tabulations of adjudicated water rights; distribution andsale of copies; disposition of proceeds.
Thestate board of control is hereby instructed to deposit with the state libraryfive (5) copies for use therein and to distribute sufficient copies foradministrative purposes to the water division superintendents and watercommissioners and their assistants. The balance of the copies of the completetabulations of adjudicated water rights in Water Divisions Nos. 1, 2, 3 and 4shall be safely kept by the board of control for sale at a reasonable price tobe determined by the board. Funds derived from the sale of such volumes shallbe 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 oathsin all cases where it is necessary in the performance of their official duties.
(b) The board of control may adopt reasonable rules andregulations to carry out the duties imposed by law on the board of control. Therules and regulations may specify that the applicant shall pay the cost ofadvertising.
ARTICLE 3 - ADJUDICATION
41-4-301. Streams to be first adjudicated.
Themethod of determining the priority and amounts of appropriation to be asfollows: the board of control shall decide at their first meeting, the streamsto be first adjudicated, and shall fix a time for the beginning of taking oftestimony, and the making of such examination as will enable them to determinethe rights of the various claimants.
41-4-302. Notice; by publication; contents; taking of testimony;adjournment of hearings generally.
Thesaid board shall prepare a notice, setting forth the date when the engineerwill begin a measurement of the stream, and the ditches diverting the watertherefrom, and a place, and a day certain, when the superintendent of the waterdivision in which the stream to be adjudicated is situated, shall begin thetaking 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 generalcirculation in the county in which such stream is situated, the publication ofsaid notice to be at least thirty (30) days prior to the beginning of takingtestimony by said division superintendent, or for the measurement of the streamby the state engineer, or his assistant; and the superintendent taking suchtestimony shall have the power to adjourn the taking of evidence from time totime, and from place to place; provided, all places appointed and adjourned toby the superintendent shall be so situated, as related to the streams, as shallbest suit the proper convenience of the persons interested in the determinationof such priorities and appropriations.
41-4-303. Notice; by mail to claimants.
Itshall also be the duty of said division superintendent to mail to each partyhaving a recorded claim to waters of said stream, by registered mail, a similarnotice setting forth the date when the state engineer, or his assistant, willbegin the examination of the stream and ditches diverting water therefrom, andalso the date when the superintendent will begin the taking of testimony, andthe date when the taking of such testimony by said division superintendentshall close.
41-4-304. Notice; all claimants to be notified.
Inissuing notices to claimants in priority adjudications of the waters of anystream and its tributaries, as provided in W.S. 41-4-305, all parties named inclaiming the waters of said stream or tributaries in said transcript shall benotified by mail.
41-4-305. Notice; enclosure of form for statement by claimant;contents.
(a) Said division superintendent shall, in addition, enclosewith said notice a blank form on which said claimant shall present in writingall the particulars showing the amounts and dates of appropriations to the useof water of said stream to which he lays claim; the said statement to includethe following:
(i) The name and post office address of the claimant;
(ii) The nature of the use on which the claim for appropriationis based;
(iii) The time of the commencement of such use, and ifdistributing 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 andas enlarged;
(ix) The date when water was first used for irrigation or otherbeneficial purposes, and if used for irrigation, the amount of land reclaimedthe 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 cultivatedand such other facts as will show a compliance with the law in acquiring theappropriation and the rank of priority claimed.
41-4-306. Notice; statements to be under oath; administering.
Eachof 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 ishereby authorized to administer such oaths, which shall be done without chargeto the claimant, as also shall be the furnishing of blank forms for saidstatement.
41-4-307. Notice; payment of printing costs.
Allbills for the printing of notices to claimants of water in the adjudicationsprovided for in this act shall be paid for by the county in which the stream,the appropriation of whose waters shall have been so adjudicated, shall besituated, the said bills to be approved by the superintendent of the waterdivision in which the adjudication is made.
41-4-308. Taking of testimony generally; taking of proof.
Uponthe date named in the notice provided for in the preceding sections, thedivision superintendent shall begin the taking of testimony and shall continueuntil the testimony shall be completed; provided, that in case the divisionsuperintendent of any water division is directly or indirectly interested inthe water of any stream of his division, or is prevented by illness or otherdisability from the taking of the proofs, the taking of evidence so far asrelates to the stream shall be under the direction of the divisionsuperintendent of the next nearest water division or under the direct personalsupervision of the state engineer, as may be deemed by the engineer the mostexpedient. Provided, that in the taking of proofs of appropriation of watermade under a permit issued by the state engineer, the permits having beenissued subsequent to the adjudication of the waters of the stream from whichthe appropriation is made, the superintendent may, in his discretion, authorizethe water commissioner of the district in which the appropriation is made totake the proofs. Upon the taking of the proofs so ordered the watercommissioner shall at once forward them to the division superintendent. Thewater commissioner shall take no proofs except those specifically ordered bythe division superintendent. Provided that in the taking of proofs ofappropriation of water made under a permit issued by the state engineersubsequent to the adjudication of the water of the stream from which theappropriation is made, the superintendent may, in his discretion authorize thewater commissioner of the district in which the appropriation is made to takethe proofs. Upon the taking of the proofs so ordered the water commissionershall at once forward them to the division superintendent. The watercommissioner shall take no proofs except those specifically ordered by thedivision superintendent.
41-4-309. Notice on completion of testimony; inspection of evidence.
Uponthe completion of the taking of evidence by the division superintendent, itshall be his duty to at once give notice, in one (1) issue of some newspaper ofgeneral circulation in the county where such determination is, and byregistered mail to the various claimants, that upon a certain day, and a placenamed in the notice, all of said evidence shall be open to the inspection ofthe various claimants, and said superintendent shall keep said evidence open toinspection 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 limitsfor appearance; rights of claimant not notified of adjudication.
Wheneverthe state board of control shall, as provided by law, proceed to adjudicate anddetermine the rights of the various claimants to the use of water upon anystream or other body of water, it shall be the duty of all claimants interestedin such stream or other body of water to appear and submit proof of theirrespective appropriations, at the time and in the manner required by law; andany such claimant who shall fail to appear in such proceedings and submit proofof his appropriations shall be barred and estopped from subsequently assertingany rights theretofore acquired upon the stream or other body of water embracedin such proceedings, and shall be held to have forfeited all rights to the useof said stream theretofore claimed by him. Provided, that any person claimingthe right to the use of water of any stream heretofore adjudicated by the boardof control who, having been or claiming to have been at the time anappropriator therefrom, shall have failed to appear and submit proof of hisclaim shall be permitted within one (1) year after the passage of this act, butnot thereafter, to apply for a hearing and an adjudication of his rights in themanner hereinafter provided; and provided, further, that any claimant upon whomno other service shall be made than by publication in the newspaper, of thenotice of such proceedings and taking of testimony, may, within one (1) yearafter the entry of the order or decree of the board, determining the rights ofthe various claimants upon any particular stream or other body of water, havethe same opened and be let in to give proof of his appropriation; but beforethe decree of the board can be opened in such case, the applicant shall givenotice to all other persons interested in the water of the stream or other bodyof water in question, and shall with his petition file the same kind of proofas required of claimants in original hearings and make it appear to thesatisfaction of the board that during the pendency of the proceedings he had noactual notice thereof in time to appear and make proof of his claim; and allparties interested may present affidavits as to the matter of actual notice ofthe applicant.
41-4-311. Others contesting rights of original claimants; whenpermitted; procedures generally.
Wheneverthe rights to the use of the waters of any stream and all its tributarieswithin the state have been adjudicated as provided by law, and it shall appearby the records of such adjudication that it had not been had at one (1) and thesame proceeding, then in such case the state board of control shall be and ishereby authorized to give notice of the opening to public inspection of allproofs or evidences of appropriation of water, and the findings of the board inrelation thereto from the stream and its tributaries in the manner andaccording to the provisions of W.S. 41-4-309; and any persons, corporations orassociations who may desire to contest the claims or rights of other persons,corporations or associations, as set up in the proofs or established by theboard, shall proceed in the manner provided for in W.S. 41-4-312, 41-4-313 and41-4-314; provided, that contests may not be entered into and shall not bemaintained except between appropriators who were not parties to the sameadjudication proceedings in the original hearings.
41-4-312. Others contesting rights of original claimants; notice tosuperintendent; time limits; affidavit; notice of hearing generally.
Shouldany 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 orassociations who have submitted their evidence to the superintendent asaforesaid; 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 locatedsaid irrigation works or stream or streams, stating with reasonable certaintythe grounds of their proposed contest, which statement shall be verified by theaffidavit of the contestant, his agent or attorney, and the said divisionsuperintendent shall notify the said contestant and the person, corporation orassociation whose rights are contested, to appear before him at such convenientplace as the superintendent shall designate in said notice.
41-4-313. Others contesting rights of original claimants; when hearingto be held; notice; powers of superintendents; proceedings generally.
Saidsuperintendent shall also fix the time, both as to the day and hour, for thehearing of said contest, which date shall not be less than thirty (30) nor morethan sixty (60) days from the date the notice is served on the party,association or corporation, which notice and the return thereof shall be madein the same manner as summons are served in civil actions in the districtcourts of this state. Superintendents of water divisions shall have power toadjourn hearings from time to time upon reasonable notice to all the partiesinterested, and to issue subpoenas and compel the attendance of witnesses totestify upon such hearings, which shall be served in the same manner assubpoenas issued out of the district courts of the state; and shall have thepower to compel such witnesses so subpoenaed to testify and give evidence insaid matter; said witnesses shall receive fees as in civil cases, to be paid bythe party or parties against whom the contest shall be finally determined. Theevidence on such proceedings shall be confined to the subjects enumerated inthe notice of contest.
41-4-314. Others contesting rights of original claimants; dailydeposit required during hearings; cost of preparation of transcript;disposition of moneys deposited upon close of hearing.
Thesuperintendent shall require a deposit of eight dollars ($8.00) from each ofthe contestants and contestees for each day he shall be so engaged in takingevidence on said contest. The contestant shall pay the cost of preparation ofthe transcript of said evidence before the contest is transmitted by thesuperintendent to the board of control for final determination or adjudication.Upon the final determination or the adjudication of the matters by the board ofcontrol, an order shall be entered directing that the money so deposited shallbe refunded to the persons, associations or corporations in whose favor suchcontest shall be determined, and that all moneys deposited by other partiestherein shall be turned over by the superintendent to the state treasury to thecredit of the general fund.
41-4-315. Others contesting rights of original claimants; duty ofsuperintendent to transmit evidence and testimony to board of control; issuanceand costs of new certificate.
(a) Upon the completion of the testimony and evidence taken incontests initiated under the provisions of this act, it shall be the duty ofthe superintendent to transmit all evidence and testimony in said contests tothe office of the board of control in person or by registered mail, and theaction of said board in relation thereto shall be governed by the provisions oflaw applicable to contest cases in original adjudication proceedings; provided,that, if as a result of any such contest it shall be necessary to cancel anyfinal certificate theretofore issued by said board and issue a new certificatein accordance with the findings of the board, such certificate shall be issuedwithout cost to the person entitled to it, other than is incident to a properrecording of such certificate in the office of the county clerk.
(b) Upon the completion of the evidence in the original hearingbefore the superintendent, and the evidence taken in all contests, it shall behis duty to transmit all the evidence and testimony in said adjudication to theoffice of the board of control in person, or by registered mail.
41-4-316. Examination and measurement of capacity of streams and worksdiverting water; maps or plats.
Itshall be the duty of the state engineer or some qualified assistant, to proceedat the time specified in the notice to the parties on said stream, to beadjudicated, to make an examination of said stream, and the works divertingwater therefrom, said examination to include the measurement of the dischargeof said stream, and of the carrying capacity of the various ditches and canalsdiverting water therefrom; an examination of the irrigated lands and anapproximate measurement of the lands irrigated, or susceptible of irrigationfrom the various ditches and canals, which said observation and measurementsshall be reduced to writing, and made a matter of record in his office; and itshall be the duty of the state engineer to make, or cause to be made, a map orplat on a scale of not less than one (1) inch to the mile, showing, with substantialaccuracy, the course of said stream, the location of each ditch or canaldiverting water therefrom, and the legal subdivisions of lands which have beenirrigated, or which are susceptible of irrigation from the ditches and canalsalready constructed.
41-4-317. Determination of priorities to streams; limitations onamount of water to be allotted; disposition of excess water generally.
Atthe first regular meeting of the board of control after the completion of suchmeasurement by the state engineer, and the return of said evidence by saiddivision superintendent, it shall be the duty of the board of control to makeand cause to be entered of record in its office, an order determining andestablishing the several priorities of right to the use of waters of saidstream, and the amounts of appropriations of the several persons claiming waterfrom such stream, and the character and kind of use for which saidappropriation shall be found to have been made. Each appropriation shall bedetermined in its priority and amount, by the time by which it shall have beenmade, and the amount of water which shall have been supplied for beneficialpurposes; provided, that such appropriator shall at no time be entitled to theuse of more water than he can make a beneficial application of on lands, forthe benefit of which the appropriation may have been secured, and the amount ofany appropriation made by reason of an enlargement of distributing works, shallbe determined in like manner; provided, that no allotment for the direct use ofthe natural unstored flow of any stream shall exceed one (1) cubic foot persecond for each seventy (70) acres of land for which said appropriation shallbe made, and provided, further, where there may be in any stream water inexcess of the total amount of all appropriations from said stream, such excessshall be divided among the appropriators therefrom in proportion to the acreagecovered by their respective permits, and provided, also, that such additionalwater shall be beneficially used, except as hereinafter provided.
41-4-318. Surplus water; defined.
Forthe purpose of this act, surplus water is hereby defined to be that quantity ofwater belonging to the state of Wyoming flowing in the natural channel of anymain stream or a tributary of a main stream within the boundaries of Wyoming,at any time in excess of the total amount required to furnish to all existingappropriations from said stream system the maximum amount of water for whichall said appropriations have been granted, whether by permit or by adjudicateddecree as of March 1, 1945.
41-4-319. Surplus water; regulation and control.
Itshall be the duty of the state engineer, water superintendents and watercommissioners and their assistants to divide, regulate and control thediversion and taking of surplus water from any stream in a manner that allapplicants will be able to obtain a proportionate share, as hereinafterdefined, of the surplus water.
41-4-320. Surplus water; rights of use generally.
(a) A right to the use of surplus water as herein defined inthe amount of one (1) cubic foot of water per second for each seventy (70)acres of land having an adjudicated water right or a water right under permitis hereby adjudicated to attach to all original direct flow water rights, andonly on lands described in adjudicated appropriations as of record in theoffice of the state board of control or under valid permits or filings as ofrecord in the office of the state engineer. The rights so adjudicated shallbear date of priority as of March 1, 1945. Rights unadjudicated shall acquirethe surplus right as the original is perfected.
(b) Any permits issued or water rights granted in the state ofWyoming after March 1, 1945, shall be subject to the adjudication of surpluswater as provided herein.
41-4-321. Surplus water; who may divert.
Surpluswater, as herein defined, may be diverted by anyone having either anadjudicated appropriation or a permit granting a right to divert and take fromsaid stream and/or its tributaries a quantity of water for beneficial use.
41-4-322. Surplus water; limitations on use.
Eachapplicant shall be entitled to divert for beneficial use such quantity ofsurplus water as he can so use, not in excess of one (1) cubic foot of waterper second of time for each seventy (70) acres of land irrigated therewith, andnot in excess of an amount which equals his proportionate share of the totalquantity of previously appropriated water from said stream.
41-4-323. Surplus water; senior priority.
Whenanyone has applied surplus water to beneficial use, as herein provided, heshall be entitled thereafter to divert and beneficially use his proportionateshare thereof, and such diversion and beneficial use, when accomplished, ishereby declared to be an appropriation of such water, entitled to a prioritysenior to any water right acquired after March 1, 1945.
41-4-324. Surplus water; construction of W.S. 41-4-317 through41-4-324.
Nothingin this act shall be so construed as to permit, authorize or make lawful thediversion or taking of any water other than surplus water as herein defined.
41-4-325. Contents of certificate of priority; recording; fees;transmittal of appropriation; fees for proofs submitted at hearings;disposition.
Assoon as practicable after the determination of the priorities of appropriationof the use of waters of any stream, it shall be the duty of the secretary toissue to each person, association or corporation represented in thedetermination a certificate to be signed by the president of the board ofcontrol, and attested under seal, setting forth the names and post officeaddress of the appropriator; the priority date and number of the appropriation;the amount of water appropriated; and if the appropriation is for irrigation, adescription of the legal subdivisions of land to which the water is to beapplied. Certificates shall be transmitted to the county clerk of the county inwhich the appropriation shall have been made, and it shall be the duty of thecounty clerk upon receipt of the recording fee required by W.S. 18-3-402 torecord the same in a book especially prepared and kept for that purpose, andthereupon immediately transmit the same to the respective appropriators. At thetime of the submission of testimony to the division superintendent he shallcollect for each proof taken a fee not to exceed fifty dollars ($50.00) whichfee shall be transmitted to the secretary of the board of control together withthe testimony and proofs of appropriation. The county recording fee shall beused as above provided and the remainder shall be credited to the general fund.
41-4-326. Conclusiveness of final decrees of board.
Thefinal orders or decrees of the state board of control, in the proceedingsprovided by law for the adjudication and determination of rights to the use ofthe public waters of the state, shall be conclusive as to all priorappropriations, and the rights of all existing claimants upon the stream orother body of water lawfully embraced in the adjudication, subject, however, tothe provisions of law for rehearings in such proceedings and for the reopeningof the orders or decrees therein and for appeals from such orders or decrees.
41-4-327. Rehearing after final order of board.
Afterany final order of the board of control adjudicating the priorities upon anystream, any party interested therein may within one (1) year thereafter applyfor a rehearing for reasons to be stated in the application; and upon thefiling of such application, the secretary of the board shall mail writtennotice thereof to every other party interested, and therein fixing and statinga time when said application will be heard.
41-4-328. Authority to modify order and correct testimony.
Uponsuch hearing the board shall have authority to modify or alter the originalorder in such respect as shall appear just and proper. But it shall not benecessary for an application for rehearing to be filed to entitle any party toan appeal. Upon such hearing the board shall also have authority to permit,upon good cause shown, the correction of the testimony of any party or witness,if it shall appear that a mistake has occurred therein, but no other newevidence shall be received at such hearing unless it shall be shown to thesatisfaction of the board that the same is material, and has been discoveredsince the taking of the original testimony and could not with reasonablediligence have been discovered before that time.
41-4-329. Excess water; defined.
Forthe purpose of this act, excess water is hereby defined to be that quantity ofwater belonging to the state of Wyoming flowing in the natural channel of anymain stream or a tributary of a main stream within the boundaries of Wyoming,at any time in excess of the total amount required to furnish to all existingappropriations from the stream system the maximum amount of water to which allappropriations are entitled, whether by permit or by adjudicated decree as of March1, 1985.
41-4-330. Excess water; rights of use generally.
(a) A right to the use of excess water as defined by W.S.41-4-329 in the amount of one (1) cubic foot per second for each seventy (70)acres of land having an adjudicated water right or a water right under permit,except those having a priority date prior to March 2, 1945, is herebyadjudicated to attach to all original direct flow water rights, and only onlands described in adjudicated appropriations of record in the office of thestate board of control or under valid permits or filings of record in theoffice of the state engineer. The rights so adjudicated shall bear date ofpriority as of March 1, 1985. Rights unadjudicated shall acquire the excessright as the original is perfected.
(b) Any permits issued or water rights granted in the state ofWyoming with a priority date after March 1, 1985, shall be subject to theadjudication of excess water as provided herein.
41-4-331. Excess water; senior priority.
Whenanyone has applied excess water to beneficial use, as herein provided, he shallbe entitled thereafter to divert and beneficially use his proportionate sharethereof, and the diversion and beneficial use, when accomplished, is herebydeclared to be an appropriation of the water, entitled to a priority senior toany water right acquired after March 1, 1985. The provisions of W.S. 41-4-321through 41-4-324 shall apply to excess water in the same manner as it does tosurplus water, except that excess water shall, pursuant to W.S. 41-4-323, havea priority date of March 1, 1985. The term "surplus" in W.S. 41-4-324shall apply to excess water under this act.
ARTICLE 4 - PROCEEDINGS UPON APPEAL
41-4-401. Rights of appeal to district court.
Anyparty or number of parties acting jointly, who may feel themselves aggrieved bythe determination of the board of control, may have an appeal from the board ofcontrol to the district court of the county in which the stream or streams,involved in such determination, may be situated, provided that in case the saidstream or streams shall be situate in, and run through more than one (1)judicial district, or more than one (1) county, then, and in such case, itshall be the duty of the board of control, in making its determination, todesignate the district court of the county, to which such appeal may be taken.All persons joining in the appeal shall be joined as appellants and all personshaving interests adverse to the parties appealing, or either of them, shall bejoined as appellees.
41-4-402. Repealed by Laws 1985, ch. 191, 2.
41-4-403. Repealed by Laws 1985, ch. 191, 2.
41-4-404. Repealed by Laws 1985, ch. 191, 2.
41-4-405. Repealed by Laws 1985, ch. 191, 2.
41-4-406. Pleadings and practice.
Allproceedings on appeal shall be conducted according to the provisions of theWyoming Administrative Procedure Act and the Wyoming Rules of AppellateProcedure.
41-4-407. Procedure after judgment.
Itshall be the duty of the clerk of the district court immediately upon the entryof any judgment, order or decree by the district court, or by the judgethereof, in an appeal from the decision of the board of control, to transmit acertified copy of said judgment, order or decree to the secretary of the stateboard of control. It shall be the duty of the secretary to immediately enterthe same upon the records of such office, and the state engineer shallforthwith issue to the superintendent or superintendents of water divisions,instructions in compliance with the said judgment, order or decree, and inexecution thereof.
41-4-408. Costs; division of water pending appeal.
Allcosts made and accruing by reason of such appeal shall be adjudged to be paidby the party or parties against whom such appeal shall be finally determined.During the time an appeal from the order of the board of control is pending inthe district court, and until a certified copy of the judgment, order or decreeof the district court is transmitted to the state engineer, the division ofwater from the stream involved in such appeal shall be made in accordance withthe order of the board of control.
ARTICLE 5 - APPLICATION FOR PERMIT FOR APPROPRIATION;PROCEDURE
41-4-501. Permit required prior to construction of ditches, canals orother distributing works; contents of application; unlawful diversion or use ofwater prohibited; rulemaking authority.
(a) Any person, association or corporation hereafter intendingto acquire the right to the beneficial use of the public water of the state ofWyoming shall, before commencing the construction, enlargement or extension ofany ditch, canal or other distributing works, or performing any work inconnection with said construction, or proposed appropriation, make anapplication to the state engineer for a permit to make such appropriation. Suchapplication must set forth the name and post-office address of the applicant,the source of the water supply, the nature of the proposed use, the locationand description of the proposed ditch, canal or other work, the time withinwhich it is proposed to begin construction, the time required for completion ofconstruction and the time required for the complete application of the water tothe proposed use. Any person who shall willfully divert or use water to thedetriment of others without compliance with law shall be deemed guilty of amisdemeanor punishable pursuant to W.S. 41-3-616.
(b) The state engineer may allow the application to besubmitted electronically as provided by the Uniform Electronic TransactionsAct, W.S. 40-21-101 through 40-21-119.
(c) The state engineer may adopt reasonable rules andregulations in accordance with the Wyoming Administrative Procedure Act asnecessary to implement this section.
(d) Any rules and regulations implementing this section or anypredecessor to this section which were duly adopted according to the procedurefor adoption at the time of adoption, which were effective as of July 1, 2008and which have not been repealed or replaced as of July 1, 2008, are deemed tohave been lawfully adopted in accordance with law and within the scope of thestate engineer's rulemaking authority.
41-4-502. Application for permit to acquire right to beneficial use ofpublic water; duty of state engineer upon receipt; use for irrigation purposes;defective applications; corrections; cancellation; extensions.
Onreceipt of an application for a permit to acquire the right to the beneficialuse of the public water of the state of Wyoming, which application shall be ona form prescribed or designated by the state engineer, it is the stateengineer's duty to date the application and to make a record of receipt of theapplication in his office. It is the state engineer's duty to examine allapplications to ascertain that they contain all the necessary information toshow the location, nature and amount of the proposed beneficial use. If theproposed beneficial use is for irrigation purposes, the application shall givethe total acreage to be irrigated and the acreage in each legal subdivision ofland proposed to be irrigated. If, upon such examination, an applicationsubmitted in hard copy is found defective, it is the duty of the state engineerto return the application for correction, with reasons therefor, and the timeallowed within which to make such corrections, which shall not be less thanninety (90) days, shall be endorsed on the application, or by correspondenceaccompanying the return of the application, and a record made thereof. A likerecord shall be kept of the date of the return of corrected applications, andof the date of the refusal and return of applications rejected. If theapplication is submitted in hard copy, the defective application shall bereturned by certified mail, requesting return receipt. If the application issubmitted electronically, the defective application shall be returnedelectronically. If, at the expiration of the time allowed within which to makesuch corrections, the application has not been returned to the office of thestate engineer with the corrections properly made, it is the duty of the stateengineer to cancel the filing covered by the application. The state engineer,if in his opinion an extension is justified, or, upon request by the applicantfor good cause shown, shall grant extensions of time for making corrections. However, extensions will not be granted if the request for the extension isreceived after the expiration of the time period the applicant seeks to extend.
41-4-503. Recordation; approval or rejection generally.
Allapplications which shall comply with the provisions of this chapter, and withthe regulations of the engineer's office, shall be recorded in a suitable bookkept for that purpose; and it shall be the duty of the state engineer toapprove all applications made in proper form, which contemplate the applicationof the water to a beneficial use and where the proposed use does not tend toimpair the value of existing rights, or be otherwise detrimental to the publicwelfare. But where there is no unappropriated water in the proposed source ofsupply, or where the proposed use conflicts with existing rights, or threatensto prove detrimental to the public interest, it shall be the duty of the stateengineer to reject such application and refuse to issue the permit asked for.
41-4-504. Endorsement by state engineer; return to applicant; effectof approval or rejection.
Therefusal or approval of an application shall be endorsed thereon and a recordmade of such endorsement in the state engineer's office. The application soendorsed shall be returned to the applicant. If approved, the applicant shallbe authorized, on receipt thereof, to proceed with the construction of thenecessary works, and to take all steps required to apply the water to abeneficial use, and to perfect the proposed appropriation. If the applicationis refused, the applicant shall take no steps toward the prosecution of theproposed work, or the diversion and use of the public water so long as suchrefusal shall continue in force. Any violation of this section, unless exemptunder W.S. 41-3-301, shall be punishable pursuant to W.S. 41-3-616(a).
41-4-505. Additional information before approval or rejection.
(a) Before either approving or rejecting an application, thestate engineer may require such additional information as will enable him toproperly guard the public interests, and may, in the case of applicationsproposing to divert more than twenty-five (25) cubic feet of water per secondof time, or to reclaim over one thousand (1,000) acres of land, require astatement of the following facts:
(i) In case of incorporated companies, he may require thesubmission of the articles of incorporation, the names and places of residenceof its directors and officers, and the amount of its authorized and of its paidup capital;
(ii) If the applicant is not an incorporated company, he mayrequire a showing as to the name or names of the party or parties proposing toconstruct the work, and a showing of facts necessary to enable him to determinewhether or not they have the financial ability to carry out the proposed work,and whether or not the said application has been made in good faith.
41-4-506. Time limits for completing construction work; extensions;forfeiture of rights; cancellation of permit; notice of date of expiration toappropriator.
Wheneverthe state engineer places his endorsement of approval on any application for awater permit, he shall require that actual construction work be completedwithin the time set by him in the permit. The time set for completion shall notexceed a period of five (5) years after the date of approval of application. Inthe case of an application for a ditch permit, he shall further require thatthe application of the water to beneficial use must be completed before thedate which he shall specify, and which shall not be earlier than the datespecified for the completion of construction; and that final proof ofappropriation must be submitted within five (5) years after the date specifiedfor the completion of the application of the water to beneficial use. He maylimit the application to a less period of time for the completion ofconstruction and application of water to beneficial use than is asked for inthe application. For good cause shown, the state engineer may at any time, orfrom time to time, before the date of expiration, extend any or all of these periods.An extension of time for compliance with any of the specified requirementsshall be construed to automatically extend for a like period the time forcompliance with any of the specific requirements in relation to which the timeexpires thereafter. Default by the holder of the permit in any of the specifiedrequirements shall work a forfeiture of the water right involved. The stateengineer may upon such default cancel the permit. The state engineer shall, byregistered mail, with a return receipt requested at least three (3) monthsbefore default in any of these requirements shall be operative, notify thepermit holder, at the post-office address given by him when the time allowedwill expire. If the permit holder cannot be reached by registered mail, or ifthe address of the permit holder is unknown, the state engineer shall publishnotice of the default for three (3) weeks in a newspaper of general circulationpublished in the county, or in case there is no newspaper of generalcirculation published in the county, then in a newspaper published in the stateof Wyoming and in general circulation in the county, the last publication to beat least two (2) months before cancellation of the permit.
41-4-507. Maps and plats; when required with application; contents;format requirements; copies; duties of state engineer generally.
(a) Each application for a permit to appropriate waters forbeneficial uses under a project embracing the major irrigable portion of anentire drainage basin within the limits of this state which has been approvedby either state or federal agencies for development and construction insubdivisions as the result of preliminary investigations, must be accompaniedby a map or plat drawn on a scale to conform to the regulations of the stateengineer, showing the approximate location of all streams, proposed reservoirs,main canals and the other data required under the terms of W.S. 41-3-301,together with the approximate location and area of the lands to be irrigatedand approximate capacity of each of the reservoirs to be constructed. It shallbe the duty of the state engineer to approve any such application made inconformity herewith which contemplates the application of the water of adrainage basin to the beneficial use of a major irrigable portion thereof wherethe proposed use does not tend to impair the value of existing rights, or to beotherwise detrimental to the public welfare; provided, however, that any permitfor appropriation of waters for beneficial uses upon the irrigable landsdesignated in such a drainage basin project application, must be conditionedfor the submission to the state engineer of detailed maps, plans andspecifications applicable to a single subdivision of the project and theapproval thereof by the state engineer, prior to the commencement of theconstruction of any such subdivisions; provided further that such subdivisionmaps, plans and specifications shall conform to the requirements hereinafterset forth as applicable to other applications not embracing the major irrigableportion of an entire drainage basin.
(b) Every other application for permit to appropriate water forbeneficial uses must be accompanied by a map or plat, showing accurately thelocation and extent of the proposed work. The maps or plats must be drawn, ona scale to conform to the regulations of the state engineer; they must show thelocation of the headgate or point of diversion by courses and distances fromsome government corner; they must show the actual location of the ditch orcanal, or water line of the reservoir, and must show, wherever section linesare crossed, the distance to the nearest government corner. The map or platmust show the course of the river, stream or other source of supply; thelocation and area of all lands proposed to be reclaimed; the position and areaof all reservoirs or basins intended to be created for the purpose of storingwater; the location of the intersection with all other ditches, canals,laterals or reservoirs which are caused by this work, or with which connectionsare made. These maps must contain the name of the proposed work, and, wherepossible, the number of the permit. They must in addition, have the name ornames of the applicant or applicants and the certificate of the surveyor,giving the date of survey, his name and address.
41-4-508. Maps and plats; examination; approval; filing; return ofcopy.
Itshall be the duty of the state engineer to examine these maps or plats and toascertain if they agree with the description contained in the application, andwhen found to agree, or made to agree, to approve the same, file one (1) copyin his office and return the other, approved, to the party filing them. Thesemaps or plats may be received and maintained by the state engineer in anelectronic format.
41-4-509. Maps and plats; additional information; longitudinalprofiles of ditches.
Incase of ditches or canals carrying more than fifty (50) cubic feet of water persecond, the engineer may require, in addition to the maps or plats abovedescribed, the following: a longitudinal profile of the ditch showing thebottom and proposed water line; the horizontal scale of this line shall not beless than one (1) inch to one thousand (1,000) feet, and the vertical scale notless than one (1) inch to twenty (20) feet. If submitted electronically, thefile shall be capable of reproduction at these scales.
41-4-510. Maps and plats; additional information; cross section plans;plans of obstructions; reservoir specifications; field notes.
Theengineer may require, in addition to the maps and plats above described, a planshowing cross sections at a sufficient number of points to show the differentforms which the ditch, when completed, will take, and showing what proportionof the water is to be conveyed in excavation and what proportion to be conveyedin fill. These plans shall be drawn, or be capable of being drawn and printedif submitted electronically, on a horizontal and vertical scale of one (1) inchto twenty (20) feet. Plans of any dams, cribs, embankments or other proposedwork to obstruct any river, stream, lake or pond, or other source of watersupply, shall be drawn on a longitudinal scale of not less than one (1) inch totwo hundred (200) feet, and for cross sections on a scale of not less than one(1) inch to twenty (20) feet; and shall show what material is intended to beused and placed in such work. Timber, brush, stone or other material exceptearth used in such works shall be shown in detail on a plan, the scale of whichshall not be less than one (1) inch to four (4) feet. The maps of all proposedreservoirs shall show the surface of the ground under water, and a sufficientnumber of lines of level shall be shown so that the contents of the reservoiror basin may be approximately determined. If the levels shall be shown bycontour lines they shall be on a scale sufficiently large to show verticallevels not exceeding five (5) feet, and with all such reservoir plans thereshall be furnished a plan, on a scale of not less than one (1) inch to four (4)feet, showing the method of providing a wasteway for such reservoir, and methodof drawing off the water from such reservoir or basin. If the state engineerdeems it necessary he may require the submission of complete plans andspecifications for his approval. He may also require the filing of field notesof canal and reservoir surveys.
41-4-511. Final proof of appropriation; procedures generally.
Wheneveran appropriation of water has been perfected in accordance with any permitissued by the state engineer, the appropriator may submit final proof ofappropriation of water at any time within the time specified by W.S. 41-4-506,to the superintendent of the water division in which the water right involvedis situated, or, when more expedient, before the superintendent of anotherwater division or the state engineer, or before a water commissioner inaccordance with the provisions of W.S. 41-4-308. Proof shall be made byappropriators under oath upon forms furnished by the state board of control.The superintendent shall collect for each proof taken a fee not to exceed fiftydollars ($50.00), which fee shall be transmitted to the secretary of the boardof control