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Last Updated on Friday, 10 June 2011 10:14

Written by Christy Martinez

Proposed rules and regulations by the Wyoming State Board of Control would govern how subdivision developers move water rights from subdivided lands, but some area water users disagree with the finality of the provisions.
The new rules are being developed by the Board of Control to meet their statutory obligation and duties required under the new subdivision statute, 18-5-306, Minimum requirements for subdivision permits, which directs the State Engineer’s Office (SEO) to collect an application to relinquish the water rights, collect the documentation necessary to change use, place of use or point of diversion and to approve a plan for distribution of water within a subdivision.
A recent series of public hearings brought to light concerns from other water users over the term “abandonment” versus “relinquishment,” to whom the water rights are transferred and whether or not action to move the water rights should be reversible. Some water users are also concerned the new rules would allow subdividers to bypass requirements to notify local irrigation districts, or any other water user on the same ditch.
At public hearing on May 11 at the Wyoming State Library in Cheyenne, broadcast via teleconference around the state, hearing officer Nancy McCan, water manager for the State Board of Control Division of the SEO, explained substantive changes are proposed to Chapter 5 of the subdivision statute to better explain the procedures and requirements by which a water right owner may detach water rights from the land upon which it may no longer intend to apply water for beneficial use, often as a result of a subdivision or urban development.
“Separate from approval of an Authorization to Detach Water Rights, or ADWR, a petition to move these rights may be filed within five years so the water right may continue to be utilized,” she explained. “The proposed changes to the regulations and instructions provide a more efficient way of completing the ADWR, while keeping accurate and current records of the water rights involved and allowing full public disclosure of what actions have taken place.”
In the public comment period, Roger Huckfeldt of the North Platte Water Users Association said he thinks the proposed rules fail to include or consider notice requirements and the economic loss requirements found in Wyoming statute, that the rules abandon water without notice, and without the consideration of other appropriators on the system, and that the authority given to the Board of Control limits its rules and regulations to those imposed by law.
Regarding the rules’ lack of an ability to rescind an ADWR, Huckfeldt continued, “A reasonable person would not find in the statute any duty or directive to the Board of Control or State Engineer to prohibit a subdivider from later wanting to reattach a water right. I feel these proposed rules are unreasonable and go beyond the duties described.”
“According to the rules and regulations, if you subdivide you can never irrigate that land again, and I don’t think that’s the legislative intent,” he added.
Further, Huckfeldt said he sees no place in subdivision law that requires developers to abandon any water right.
“It does say that they shall submit the documents necessary to relinquish the water right – which is to renounce, surrender, put aside or let go. To abandon is to completely leave, give up or discontinue. The word ‘relinquish’ is less final and is used to temporarily set aside,” he explained.
Doug Chamberlain, also of the North Platte Water Users Association, questioned what would happen to water considered voluntarily abandoned if it hasn’t been moved within five years after subdivision.
“Who will receive this water? What if it’s federal project water? The provisions provide an ADWR cannot be rescinded. It would appear there are legitimate reasons for an ADWR to be rescinded when circumstances created are not the direct fault of the petitioner,” said Chamberlain.
“The concept that an irrigation district cannot be allowed to transfer water rights to other lands within the boundaries of an irrigation district is flawed, in my opinion,” continued Chamberlain. “As long as criteria is in place that has a reasonable expectation of being met, as much latitude as possible should be given to those who are most closely involved with the administration and application of the water.”
“It’s my understanding the legislature used the term ‘relinquish’ intentionally,” said Huckfeldt. “A common man would look at the language in the paragraphs and see that the legislature wanted to protect the water and expected it to be relinquished for the districts and other irrigators to put to beneficial use so none of them, nor their systems, would be harmed. It is harsh and unreasonable that the proposed rules would allow the Board of Control to automatically abandon a water right. No place in the statute allows the Board of Control, without any notice, to negatively impact other water users on a ditch, in a district or on any other system.”
Huckfeldt further expressed concern that, if water is taken away from the source, or abandoned, there could be water users at the lower end of the ditch who may not get any water if too much is taken away from irrigation companies. He is also concerned about revenue generated from water contracts, upon which districts depend to operate.
“The unreasonable harshness in the proposed rules and regulations could reduce, disrupt and interfere with these historic water rights and contacts,” he said. “Placing a provision in an agency rule that potentially takes away the water and revenues could harm more than just the districts and water users. We all know that the value of land with water rights is higher than those without.”
In summary, Huckfeldt told the Board of Control, “The rules leave out review and recommendation requirements, leave out the burden for risk of liability to the irrigation district or other irrigators sharing a common ditch, the rules abandon instead of relinquish water rights to the districts, they inhibit the ability to rescind the request, and they go beyond the imposed duties given to the SEO and Board of Control in statute.”
“I hope that notification to the irrigation district is reinserted into the rules and regulations, as required by statute,” said Huckfeldt of the Board of Control’s response to public comment, adding that he hopes the word “abandon” is changed to “relinquish.”
Huckfeldt agrees that there do need to be some documents and forms developed to be compliant with state statute, but he says he doesn’t think they need to go as far as what the SEO proposes.
“Water is one of the most precious commodities we have, and to not use it for ag purposes – to abandon it when the need for water in the High Plains desert region of Wyoming is great – we should never abandon water when it can be used for agriculture in another area of an ag community,” said Huckfeldt.
Now that the comment period is closed, the Board of Control will take all comments under advisement to review and consider the input received before determining whether or not to adopt the rules as proposed, change the proposal in response to the comments are abandon any particular rule proposal.
Christy Martinez is managing editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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Last Updated on Friday, 15 January 2010 05:15

Written by Heather Hamilton

Casper – The Clean Water Restoration Act, sage grouse concerns and EPA regulations were all targeted at the water committee meeting held during the Wyoming Stock Growers and Wyoming Wool Growers Joint Winter Convention.
Maggie Beal with Senator Barrasso’s office explained that the Democratic Party is attempting to redefine federal jurisdiction under the Clean Water Act. Beal stated that while Wyoming opposes the bill and it’s not expected to get a majority vote, it is “gaining some traction on the Senate side.”
She went on to say that Senators Barrasso and Enzi, in conjunction with several other western senators, sent a letter to Harry Reed and Nancy Pelosi stating, “we won’t support anything if the Clean Water Restoration Act is attached to it.” Hope is the united voice of these western senators will further reduce the chance of the bill passing.
Beal went on to explain a letter was also sent to the Department of the Interior asking for reason in managing of the Big Horn River and, more specifically, the Yellow-Tail Dam after it experienced an operational malfunction this year. The malfunction resulted in increased tension between Wyoming and Montana. To date there has been no response to the letter, which Beal felt was positive.
Another big issue facing agriculture’s water usage is the sage grouse. There is a court remanded petition before U.S. Fish and Wildlife Services to list the sage grouse by February 2010. Should the bird be listed it will have far-reaching consequences that will affect a number of industries, and agriculture is no exception.
Harry LaBonde of the State Engineer’s Office said, “The goal is to keep the bird from being listed.” Future proposed water improvements won’t be developed, he said, “if it will result in a decline in sage grouse populations in a core area.” Core population areas cover approximately 23 percent of Wyoming’s landmass.
Starting Jan. 10, 2010 a new set of requirements will be enforced when applying for a water development facility.  According to LaBonde, “With every new application for water development we require you now show a map with point of diversion and the effect on the land. Upon a permit being accepted your location of water development will be compared to a map of bird core populations.”
If your proposed water development overlaps with a core population area, you will receive a letter explaining the situation and be asked to choose between five options. They are:
1. Relocate the facility outside of the Core Population Area.
2. Provide a biological assessment for your proposed project demonstrating     that full development of the project will not cause a decline in the sage grouse populations.
3. Agree to a special set of permit conditions and limitations designed to mitigate impacts to sage grouse.
a. No facilities or construction activities allowed within 0.6 miles of an occupied lek.
b. No construction activity in Core Population Areas during the March 15 to June 13 time frame.
4. Provide evidence that the project area is situated within an area that has been previously disturbed and is no longer critical habitat for sage grouse.
5. For small facilities that generate limited operation and maintenance activities and are intended to support existing land uses (stock reservoir or well), the permit may be issued with conditions.
LaBonde added, “We aren’t opposed to working with landowners if one of these five options won’t work for you.”
A positive note to submitting what could be a more in depth permit is that the State Engineers Office E-Permit system should be up and running by the end of January. This system would allow a permit to be submitted via email.  If a permit were accepted it would be filed in a database and payment would be made with a credit card.
EPA Regulatory Requirements are also expected to become more in depth in the upcoming months. As Brian Lovett, inspection/compliance program supervisor with the Wyoming Department of Environmental Quality, explained, “Very few feedlots are in compliance with their EPA permits. You need to be up to date on your run-off management and nutrient management plans.” Inspections are getting more detailed with increased consequences if a feedlot isn’t in compliance.
It has been proposed to regulate all feedlots, even those under the 1,000-head capacity. If this goes into effect it will encompass almost all confined feeding operations in the state and require them to be in compliance with EPA requirements to the same extent as larger feedlots.
The NRCS is expected to take more of a regulatory role in some instances as it coordinates with the EPA in designing the new nutrient management plan. NRCS Watershed Coordinator Nephi Cole explained that agriculture is currently blamed for 60 percent of non-point source pollution.
Cole went on, saying, “Current law doesn’t say you can’t pollute, just that you implement best management practices in good faith.  That’s what you need to do to protect yourself today.”
But this may change with programs like the Chesapeake Bay Initiative. This initiative would focus on cleaning up United State’s water. With agriculture being blamed for over half the problem, it is likely ag will also be targeted in a potential solution.
Heather Hamilton is assistant editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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Last Updated on Monday, 06 April 2009 09:33

Written by Christy Hemken

Worland - According to Wyoming Water Rights Consulting, Inc. of Worland, water users only utilize 60 to 80 percent of their water rights. The consulting firm’s goal is change that so clients can enhance both their property rights and their bottom line.
    Established in 1992, business has recently expanded into a new office, which has enabled it to add an entirely new department – the Land Survey Division, headed by Ken Shumway.
    “The big reason we expanded the business was that we were getting requests from existing clientele and others to provide surveying services,” says owner and president Todd Rhodes. “Until this time we have not offered land survey services – we were strictly a water rights firm.”
    Based on those numerous requests, however, and the shortage of surveyors in the state when compared to demand, Rhodes decided to expand the firm and add Shumway as a registered land surveyor. Services now include all forms of land surveying, including boundaries, elevation and construction.
    After working for the U.S. Geological Survey and the Wyoming State Engineer’s Office, Rhodes saw a definite need for his type of services around the state. “I gave notice to the state and created my own consulting firm,” he says of his firm’s origin.
    “Water rights are very important and a valuable asset to any property; they figure into the value of the property,” says Rhodes in relation to the original services of his business. “We research water rights and go out to meet with clients to look at how they’re using their water. Then we compare that with the actual water right to identify issues or conflicts before working to resolve those in the client’s best interest.”
    “Most water rights in Wyoming are very old. The description of water rights in territorial claims left a lot to be desired in that they often don’t have a lot of detail about the places used and points of diversion,” says Rhodes. “After fast-forwarding over 100 years there have been land use changes, roadways and changes in the meanders of streams and rivers. The water right records can’t reflect all those changes unless those water rights have been updated.”
    According to their service statement, the business has designed services to detect and correct any discrepancies between their clients’ water rights of record and their actual use of water before the situations become serious problems.
    Wyoming Water Rights Consulting, Inc. works with all sectors of industry to satisfy their needs for water. “In Wyoming you can’t use water without having a water right first, and we help folks perfect their water rights and use them accordingly,” says Rhodes.
    Rhodes expects the water rights division will continue to grow. “We’ve added staff with the growing needs for water rights assessments and to take on the additional surveying needs our clients have,” he says, adding there are currently five working from the office.
    In addition to Shumway, who’s been a Professional Land Surveyor in Wyoming since 1982, Steve Hall now works for the firm as a survey technician with a background in computer aided drafting (CAD). Utilizing the latest in survey and mapping technologies, the firm can now offer a full line of professional services in answer to the growing needs of the agricultural, residential and industrial communities of the state.
    The firm serves customers bordering every one of Wyoming’s neighboring states, and Rhodes says his employees appreciate the hard work and dedication of Wyoming’s farmers and ranchers. As such, the firm devotes most of its energies to serving the water rights and land survey needs of members of Wyoming’s agriculture industry.
    “We focus on bringing water rights up to date in the client’s best interest,” says Rhodes. “We work hard with a client to protect their interests within the limits of the law.”
    In addition to consulting, the firm is also the secretary/treasurer of the 24,000-acre Big Horn Canal Irrigation District. It’s working to update and computerize the District’s records from written and typed documents and hand drawn maps, while simultaneously comparing the water righted, irrigated and assessed acres to the ownership parcels using GIS technology to improve the operation and management of the District.
    For more information on Wyoming Water Rights Consulting, Inc., call 307-347-8329, email This email address is being protected from spambots. You need JavaScript enabled to view it. or visit www.wyoagcenter.com/wywater. Christy Hemken is assistant editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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Last Updated on Thursday, 07 August 2008 09:31

Written by Christy Hemken

Casper – According to Wyoming State Engineer Pat Tyrrell, this spring’s good snowpack followed by decent moisture from rainfall is “remarkable.”
    Although Water Division 1 in the southeast corner of the state experienced some flooding from rain that filled the North Platte below Casper, Pathfinder and Seminoe reservoirs are now getting runoff.
    “With a little luck, Pathfinder will fill within the week; Pathfinder hasn’t filled since 1999, and Seminoe has not accrued any water since 1999, so the district has been living off Seminoe and was within a year of being out of water,” Tyrrell told the Wyoming Stock Growers Association in a state water update during their summer conference held early June. “Hopefully we can get some water into Seminoe to help that system. Guernsey Reservoir is full, and we’re in pretty good shape for water supply in that part of the state.”
    In Water Division 2, the northeast portion of the state, Tyrrell said the biggest issues are coalbed methane production management and the Montana versus Wyoming lawsuit.
    “The biggest coalbed issues right now stem from task force work a year ago. One of them is the implementation of additional conditions on groundwater permits that require a threshold gas production after a certain amount of time, because the beneficial use on those permits is the production of gas,” he said.
    All briefs have been filed on Wyoming’s motion to dismiss the Montana versus Wyoming lawsuit. “We got the last reply done last week, and now we’re waiting on the court to determine if they will hear testimony on the motion or rule as it is,” said Tyrrell.  
    The primary issues in the case are Montana’s recent determination that the compact is depletion-based rather than diversion-based, which is Wyoming’s position. “Montana’s own paperwork says it’s a diversion-based compact,” noted Tyrrell.
    “Montana doesn’t like that we won’t unilaterally regulate off post-1950 rights if their pre-1950 rights are short water,” he explained. “There is no interstate priority schedule in the compact. There is an annual allotment of water and we’re under no obligation to turn off our post-50 rights.”
    Tyrrell said Montana is also seeking to pull groundwater into the Yellowstone River Compact, which he says has happened to a number of other compacts. However, he says that, hydrologically, hydrographically and geologically, the Tongue and Powder rivers do not have the same groundwater development connected to rivers like the North Platte. “Montana would like to see coalbed natural gas production tied to the river, but we’re going to fight all the claims Montana has raised.”
    Briefs on the case are available on the Wyoming Attorney General’s website.
    “It’s difficult to store water and let it go at the same time,” said Tyrrell of clashes in the Big Horn River Basin surrounding Yellowtail Dam and Big Horn Lake. “We’ve had Wyoming and Montana interests wanting water both in the reservoir and in the river below.”
    “Divisions 2 and 3 are seeing quite a bit of water,” he said. “There are 5,000 cfs going out of Yellowtail and at least 12,000 going in. It’s 12 feet above minimum operating level and we have water and snow yet to come. Buffalo Bill is rising, and it’s still filling.”
    As of June 5, Tyrrell said recent spring storms dropped another foot of snow in the Absaroka Range above Buffalo Bill. “John Lawson is anticipating a lot of water coming down that river this spring and summer. It’s a little different game to manage too much water than too little,” he said the Bureau of Reclamation’s Wyoming Area Manager.
    Tyrrell said in Water Division 4 there are Colorado River issues. “We’re trying to protect storage and power production when Lake Mead is low, but when it’s high we don’t mind sharing a little bit.”
    “Also in 4 we’re endeavoring to get a better handle on knowing our water uses and depletions in that basin,” he said. “The Green and the Little Snake are areas where we had less water measuring than other parts of the state.”
    He says monitoring use is important when the “dark side” of the compact surfaces in lean years. “The compact says if we’re unable to meet our obligations, then the upper basin states have to curtail their own use based upon the previous year’s consumption. We wouldn’t know what that is, because we don’t know our uses that well. Ag uses are the dominant use, and they’re the most difficult to accurately measure.”
    Tyrrell says the State Engineer’s Office is getting cooperation from industry and municipalities to report water use. “The best way to defend what you’re using is to measure. We’re mapping irrigated acres, and it’s just the Green River Basin’s turn. In the West you need to know what you’re using to protect your use.”
    Christy Hemken is assistant editor of the Wyoming Livestock Roundup and can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. .