Berry: TWUAs are the silver lining to Wyoming’s water law
Cheyenne – “Temporary water use agreements (TWUA) are the silver lining to Wyoming’s water law,” stated Attorney Stacia Berry, an associate with Hageman Law.
Berry further explained TWUAs are an answer to Wyoming’s water law since Wyoming does not have a water-leasing statute.
Berry spoke at the Wyoming Water and Energy Law Conference in Cheyenne on June 12-13.
TWUAs allow oil and gas companies, highway construction and other operations to temporarily trade an irrigation or water right from the original owner for a monetary sum.
“The basic things needed for a TWUA are a willing buyer and seller, as well as a legally available and consistent water right that will be accessible during the temporary time agreement,” commented Berry.
The length of a TWUA is for two years, and they can be renewed for successive terms.
“There is no guarantee the agreements will be granted, but successive TWUAs certainly are available,” stated Berry.
All TWUAs have to be approved by the Wyoming State Engineer, who looks at the past five years of water usage, historical consumptive uses of the water and the proposed application for a TWUA.
The components needed for a TWUA are a completed form from the State Engineer’s Office pertaining to the water right, a $50 application fee and a sketch map of the area. There is no charge for any amendments to a TWUA.
“The form is processed as expediently as possible, and it usually takes no longer than two weeks to find out if it has been granted,” said Berry.
She added, “First and foremost, the historical use of the water right needs to be looked up before a TWUA can be granted. The basic premise of TWUA is to stay true to Wyoming’s water law principles, which means there can’t be any injury to other appropriators.”
The conditions of a TWUA are very stringent.
All of the water being used for a TWUA has to be specifically metered, and required weekly reports have to be made to the hydrographer commissioner in the area about the water.
“The hydrographer commissioner also has to come out to the ground where a TWUA is located and prove the system does work to take measurements and track the water prior to the first use of the agreement,” explained Berry.
A TWUA can start at almost any time during the year, but everything is reset at the start of the irrigation water period on Oct. 1.
The amount of water withdrawn from a TWUA must be in a steady flow.
The State Engineer’s Office also looks at associated electricity records for pumps and flow meters that may service any of the various pivots across Wyoming’s counties.
“If there are no electricity or pumping records to go back to, the office will use aerial photography for the last five years to look back and try to determine if that area has, in fact, been irrigated,” explained Berry.
Berry mentioned that the greener a landowner’s property is on aerial photographs, the better it is for the water holder because when the State Engineer does their calculation for the TWUA, the holder will have an increased chance of being able to sell a higher portion of their water right.
The formula the State Engineer’s Office uses typically cuts the water right amount in half. The formula generally accommodates for the amount of water that is being used in conveyance in an irrigation district or to adjacent ditches.
Berry noted that if the 50 percent cut rate is grossly in error, the State Engineer’s Office is able to change the amount the water right is split.
“The nice part about TWUAs is that they carry the same priority date as their water right,” explained Berry. “If a person finds someone with a good priority water right, they will have that same priority with their TWUA.”
“But, if a water holder has not been using their really old, great territorial water right, they can’t resurrect it out of nowhere,” explained Berry. “It has to have been used in the last five years.”
Berry mentioned that if an owner wants to develop their water right as an economic benefit for a TWUA, it is imperative to make sure they continue to use and exercise their water right.
One thing to keep in mind when entering a TWUA is the owner of the water right has to forego the use of their water on their property.
“Irrigation is the easiest example, but when entering a TWUA the water right owner won’t be able to irrigate for the entire two years of the agreement,” explained Berry. “Once they forego the use on their acres for the amount of water that they are willing to sell, they can’t use that water again until the end of the agreement.”
Madeline Robinson is editor of the Wyoming Livestock Roundup and can be reached at firstname.lastname@example.org.
“There is no case law on temporary water use agreements (TWUA) in the state of Wyoming. Only the Wyoming Statute, the rules and regulations of the Board of Control and the Wyoming State Engineer’s Office govern what we look for guidance to on water,” explained Stacia Berry, an associate with Hageman Law.
Wyoming Statute states no abandonment or impairment of a water right shall occur or attach as a result of such change of use, except as provided by such conveyance.
“A question a lot of people ask is, when they are not using their water right because they sold it to somebody for a temporary purpose, does this subject them to abandonment?” asked Berry.
She added, “Very specifically the statute says no, but the question remains about successive TWUA because the abandonment period in Wyoming is five years.”
TWUAs protect a water right owner for two years at a time, but the questions start to become alarming when an owner has had three successive TWUAs in a row.
Owners began wondering if their successive TWUAs are subject to abandonment because they are no longer using their water right for the beneficial use for which it was permitted.
Berry noted no one has the answer to people’s concerns about successive TWUAs yet, not even the Board of Control.