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By Brian C. Shuck, Attorney at Law Office of Brian Shuck

Under Wyoming law, water right holders can only change the place of use of a direct flow or groundwater irrigation water right by filing a change petition with the Wyoming Board of Control (BOC). The petition can only be granted for that portion they can show has been historically beneficially used. Further, the BOC may only approve the petition if the change does not injure other water right holders. Therefore, filing a successful change petition can be a challenge. 

In consultations over the years with various staff in the State Engineer’s Office (SEO), BOC and Attorney General’s Office, I have developed a list of helpful hints to avoid many mistakes the BOC repeatedly encounters in petitions for changes of place of use. 

Some of these hints are outlined below.

From the beginning

Start by working with your water commissioner or superintendent.

First, work with the Water Commissioner or Superintendent to determine the probability of success, whether neighboring water users will be injured and what issues may arise.

The Water Commissioner may be able to tell you if the water has been historically used, how much historically has been used, the type of use and what changes are feasible on the ground.

Do your homework

Do your homework and the water rights search first.

Have a thorough water rights search performed. What family members told you about the water rights may not be consistent with what is in the SEO paper records. Actual irrigation practices can evolve over time and may deviate from the mapping. You may find the facts are not as you believed or different petitions need to be filed.

Although you can do some searches online, those of us who perform water rights searches for a living are not ready to rely heavily on it. In the future, the SEO website may become a more reliable tool. For now, it is wiser to have a search performed using the SEO’s paper records in Cheyenne.

Copy and analyze all Order Records and Certificate Records noted on permits and other documents.

Research the land to be dried up for supplemental supplies, secondary permits and water users using the same means of conveyance.

Identify the water rights for intervening water users, as well as the current owners of intervening water uses.

Research the lands to be affected by the changeto determine if the land already has water rights, the change cannot be administered or the proposed change cannot be operated on the ground.

Injury and historic use

Determine whether an injury wouldoccur.

After you have identified intervenors and other water users who may be injured, attempt to mitigate all potential legitimate injuries.

If you cannot avoid the injury, stop there and save your time and money.

Be proactive and provide proof of historic use.

The BOC will want evidence the water historically has been beneficially used at the permitted location for the permitted use, and they may ask for proof of such use for the last five years water was available. 

To prove this, look to Water Commissioner’s records, Water Commissioner’s field inspections, irrigation district delivery cards or records, canal or ditch company records, aerial photography, the electric company’s records for any groundwater well pumps involved or the affidavit of a disinterested neighbor.

Authority and consent

Provide proof of petitioner’s authority to sign.

If the landowner is a corporation or LLC, produce the attestation by the corporation’s secretary on a resolution or minutes authorizing the president to file the petition.

If the petitioner is a partnership, have all partners sign.

If the petition involves marital property, it is best to have both spouses sign.

Get consents from intervening water users, all other water users in the same ditch or canal and anyone else who may claim an injury.

Submit proof the person signing the consent owns the land, such as a certified copy of the deed. You must attempt to get consents and fail before the BOC will refer the case for a hearing.

Land surveys 

Finally, ensure the mapping is correct.

Do not assume a surveyor/engineer knows exactly what is required to prepare the type of map required to accompany a change petition. The BOC Regulations are detailed and require numerous items on petition maps. I always carefully review the BOC Regulations with the mapmaker outlining what is required on the map and then review the drafts of the map carefully to make sure it includes everything.

If a client proposes to change from flood irrigation to a pivot irrigation system, the water use mapping will change from rectangles to circles and semi-circles. Make sure the map shows where the new circle will be and the same number of acres is being irrigated.

If you have two or more priority dates under the same center pivot, show which lands each water right will be attached to as concentric circles or in pie pieces so the pivot can be regulated when a call is placed on the river and part of the pivot needs to be regulated off.

Make sure the acreage math adds up.

Show flumes where the diversion works must cross a river, drainage or other diversion system.

Be careful not to map lands where it is physically impossible to use the water.

Be specific as to the locations where water will be used. Remember, water rights records are as detailed as other real property records.

Show the diversion works, the river’s course and land on which the water is currently used the way it exists on the ground, not the way it once appeared on original permit maps or subsequent maps.

Before you file the petition, review preliminary maps with BOC staff to ensure the map is right.

Brian Shuck is a Cheyenne attorney with offices located three blocks from the State Engineer’s Office. He has represented numerous ag producers in Wyoming and Montana and successfully petitioned to move the place of use for a client’s water rights approximately 30 miles. Early in his practice, Shuck represented the state of Wyoming in the Big Horn River Adjudication and represented the State Engineer’s Office related to interstate compacts, endangered species, federal agency overreaching and other water and natural resource issues involving numerous western states and federal agencies.

By Harry LaBonde, Director, Wyoming Water Development Office

     The Wyoming Water Development Commission (WWDC) and Select Water Committee (SWC) have completed their work on three bills that will be considered by the 2015 Legislature. This year’s slate of bills includes the Omnibus Water Bill; Planning, Omnibus Water Bill; Construction and Water Development; Amendments Bill. 

The recommended appropriation contained in these three bills totals $65,952,963. This is significantly higher than recent years and reflects an increased number of projects, as well as several large rehabilitation projects in Water Development Account II (WDA II). Additionally, three dams and reservoir projects are being advanced to the design and permitting phase which results in larger expenditures. 

Here is a rundown of the three bills.

The Omnibus Water Bill – Planning, Senate File (SF) 55, contains 29 projects with a total value of $19,346,302. The distribution among the three water development accounts is as follows:

Water Development Account I (WDA I) New Development – $5,899,302

Water Development Account II (WDA II) Rehabilitation – $597,000

Water Development Account III (WDA III) Dams and Reservoirs – $12,850,000

In WDA I the Planning Bill includes four new watershed studies for the Bear River, Middle North Platte River, Upper Laramie River and Upper Snake River drainages. These watershed studies are important because they address water related problems on a watershed basis and seek to identify solutions. The solutions can come in the form of potential water storage projects to resolve supply shortages or entry into the WWDC’s small water project program, which funds small scale projects to assist in best management practices in the watershed. 

The Planning Bill for WDA III contains funding for three new water storage projects, Greybull Valley Irrigation District Storage Enlargement, Meeks Cabin Dam Enlargement and New Fork Lake Dam Enlargement. All three of these projects are proposed to begin feasibility studies, and the Meeks Cabin project is the result of the Blacks Fork Watershed Study that was funded in 2013. 

Also contained in the Planning Bill (WDA III) are three dam and reservoir projects that are moving to the design and permitting phase. This is the critical and most difficult phase of a reservoir project in which we seek the required federal permits and complete the requisite National Environmental Policy Act (NEPA) process. It means that the WWDC believes that these projects have a documented purpose and need and are feasible to construct. The projects are Big Sandy Enlargement, Nowood River Storage – Alkali Creek and Shell Valley Storage – Leavitt Reservoir. 

In the Omnibus Water Bill – Construction, House Bill (HB) 70, there are 29 new projects and 14 project amendments totaling $46,106,661. The funding distribution between the three water development accounts is as follows:

Water Development Account I (WDA I) New Development – $26,403,870

Water Development Account II (WDA II) Rehabilitation – $14,074,791

Water Development Account III (WDA III) Dams and Reservoirs – $5,628,000

The Construction Bill includes two weather modification projects. The first is the operational program in the Wind River Mountains for the 2015-16 winter season with an appropriation of $170,000. Before this project can begin, the Water Development Office is required to secure $480,000 in outside funding from in-basin water users. This is an identical provision to last year’s program in which entities from Arizona, California, Nevada and Utah funded 75 percent of weather augmentation costs anticipating that excess flows will end up in the lower basin of the Colorado River.

The second weather modification project was added to the bill in the Select Water Committee meeting on Dec. 12, 2014. It outlines a program to begin setting up an operational weather modification program in the Big Horn, Laramie Range, Medicine Bow and Sierra Madre Mountains. Initial aspects to this project will be to conduct feasibility studies in the Big Horn and Laramie Range Mountains. Public outreach and exploring the potential for cost sharing with in-basin water users will be part of these studies. In the Medicine Bow and Sierra Madre Mountains, the project will move directly into design and permitting. This is because of the extensive work that has been completed as part of Wyoming’s Scientific Pilot Study that is nearing completion. Preliminary results from the Pilot Study indicate that a five to 15 percent increase in precipitation can be expected in seedable storms. 

Rehabilitation projects from WDA II in the Construction Bill included several large projects that exceeded available funding in WDA II. As such, the Water Development Office submitted an $18.6 million supplemental budget request to assist in funding seven specific projects. Those projects include Dull Knife Reservoir, Guernsey Spillway Rehabilitation, Bull Lake Dam Spillway, Sheridan Tank Rehabilitation, Wind River Irrigation Rehabilitation, Eden Valley – Farson Lateral and Douglas Transmission Line, which is a 2016 project.

The Construction Bill had one dam and reservoir project, which is the Sheridan Supplemental Storage Project for $5,628,000. After completing numerous water supply studies which analyzed the various alternatives available to Sheridan, the most cost effective option for the short term was the purchase of existing reservoir shares in Park Reservoir. Through this project, the WWDC will provide a 67 percent grant to the sponsor to purchase up to 2,500 acre-feet of shares in the reservoir.

The third and final WWDC bill is the Water Development – Amendments Bill, designated as SF 51. This bill seeks to accomplish three things:

First, it strives to modify the Sponsor’s Inflation Fund statutes, W.S. 99-3-1106 and W.S. 99-3-1304, to allow for greater flexibility in financially assisting project budgets with oversight from the Select Water Committee. An additional appropriation of $500,000 is also requested for this fund.

Next, it would authorize the WWDC to review and recommend funding for project applications seeking Colorado River Memorandum of Agreement (MOA) funding in Wyoming. This is a relatively new funding program that makes approximately $1.6 million per year available to Wyoming for water related projects in the Colorado River drainage.

It also authorizes the WWDC to review, recommend and administer construction grants for salinity control projects in the Colorado River drainage in Wyoming. Potential funding for this new Basin States Program (BSP) is $2.8 million over the next five years. 

By Lucy Pauley, Wyoming Department of Agriculture Mediation Coordinator

Hopefully you’ve heard about the Mediation Program at the Wyoming Department of Agriculture by now. Perhaps you’ve seen our booth at an annual convention or saw an ad in the Roundup. Maybe you have a neighbor who has used mediation to appeal a disaster determination with the USDA Farm Services Agency. Possibly you have a family member who’s requested mediation with the U.S. Forest Service (USFS) regarding a decrease in AUMs for the upcoming grazing season. You may have a friend who has mediated with their lender to work through farm credit issues like an operating loan or you attended a workshop that we co-hosted on conflict resolution skills or drought contingency plans. 

Mediation may be one of those terms you’ve heard about, but you don’t think it could apply to your situation. Whatever you’re knowledge of mediation or the Mediation Program may be, it’s important to know that it can be a powerful tool if you find yourself in a conflict. 

The Mediation Program at the Wyoming Department of Agriculture was started in 1987 as a result of the farm credit crisis. We first worked in agricultural credit issues with private lenders and the USDA Farm Services Agency, then Farmers’ Home Administration, until the late 1990s. In 1998, the Wyoming Legislature expanded our duties to include a wide variety of natural resource issues. 

Today, we assist Wyoming producers and landowners who are involved in disputes with additional USDA agencies like Rural Development, the Natural Resources Conservation Service (NRCS), Risk Management Agency (RMA), energy development on private land, neighbor versus neighbor conflicts, irrigation disputes, estate planning conversations, workplace disputes and much more. 

Mitigation. Medication. Meditation. What is mediation anyway? 

Some producers are hesitant to request mediation because they are unsure of what the process entails. Despite the confusion, mediation is actually a fairly straight-forward process. A trained, neutral third-party, the mediator, sits down with parties in a dispute to discuss the situation and help them reach a mutually-agreeable solution. 

Mediators do not act as judges or arbitrators in determining who is at fault or who is right or wrong. Mediators do not solve the problem for the parties or decide on solutions. Rather, a mediator helps the parties talk about the events that have led to the conflict, brainstorm possible solutions and then hopefully help them develop an agreement that is acceptable to both sides. The goal of mediation is to help the parties develop a solution that is better than the status quo. 

Mediation is a useful tool for resolving conflicts in Wyoming. We have mediators available across the state who have been trained and have experience working with agricultural producers. Many of our mediators work full-time in the agricultural industry through UW Extension or other natural resource-related state and federal agencies. We do have a few producers on our roster, as well. 

Mediation can be considered as a low-cost, time-saving approach to resolving disputes. Mediation is quicker than the traditional legal system. From the time we receive the request, most parties are at the mediation table within four weeks. Depending on the type of mediation, the mediation sessions can range from no-cost to the participants to reimbursing the mediator for their time and travel. 

In Wyoming, mediation is voluntary and confidential. Parties cannot be forced to come to mediation. Once in mediation, you can’t be compelled to come to an agreement either. Any final agreement that is reached is done so with the participation of both parties. Regarding confidentiality, mediators do not share the contents of a mediation session with anyone outside of the discussion. State law protects mediator confidentiality, and we cannot be compelled to testify in court. 

Finally, mediation is most successful when the parties decide to come to the table after they’ve tried to negotiate but they’ve reached an impasse. If both sides want to resolve the issue but tensions are high and emotions or communication styles have prevented the parties from reaching an agreement, mediation can be helpful. While there will be some disputes and cases that are better suited for the traditional court system, giving mediation a try usually does not preclude either party from seeking other ways to resolve the conflict if mediation is unsuccessful. 

In agriculture, the role of mediation is growing. In the past year, we’ve assisted producers and the USFS staff with grazing permit disputes, provided mediation for easement issues with NRCS, mediated with a landowner and a seismic exploration company regarding a surface use agreement, provided mediators for agricultural families needing to have a conversation about the future of the ag operation and more. When both parties are committed to resolving the dispute, the possibilities in mediation are endless. 

If you have an issue and are interested in learning more about the mediation process, please call Lucy Pauley at 307-777-8788. All inquiries are confidential. You can also learn more about our program at wyagric.state.wy.us/divisions/nrp/mediation-program.

Jon Kirkbride, Wyoming Director to the U.S. Meat Export Federation

U.S. beef export value is on a record pace in 2014 with exceptional returns being generated for producers. Having recently attended U.S. Meat Export Federation (USMEF) Strategic Planning Conference in Arlington, Va. as Wyoming’s representative to the USMEF, I hope the information I share in this report will serve as a reminder of why it is so important to remain vigilant in our efforts to expand beef exports. 

This year, the average value of beef exports has reached $280 per head, which is easily a new record. Last August, we shattered the record number with a value of $326 per head. I think this is pretty impressive given that only four years ago, we were reporting values of just over $150 per head. 

 This was my third conference as Wyoming’s Director to the USMEF. I was appointed to the position by the members of the Wyoming Beef Council (WBC) in August 2013. The position is elected by the WBC members, who help ensure that a portion of checkoff dollars collected in Wyoming are committed to foreign market development. 

There are two avenues of checkoff investment in international markets. The first is through contributions earmarked for the National Cattlemen’s Beef Association’s (NCBA) Joint International Markets Committee, and the second is through contributions provided as dues to USMEF as a subcontractor to the beef checkoff. Wyoming utilizes the second option to maximize our voice. While NCBA International Marketing Committee dollars are ultimately invested in USMEF programs, direct dues contributions allow Wyoming its own representative on the USMEF Board of Directors. 

In addition, the WBC has also contracted directly with USMEF to partner on direct-to-consumer marketing programs such as the Yakiniku project conducted last fall, which reached more than 408,000 Japanese consumers. 

Checkoff dollars are a critical part of the funding mix that enables USMEF to represent U.S. red meat in the global marketplace. Funds are received from the beef checkoff and also from pork, soybean and grain checkoffs. These monies are matched dollar-for-dollar by USDA Market Access Emerging Market and Foreign Market Development programs. In fact, government programs constitute almost 40 percent of USMEF’s total funding and help to afford many international offices along with feet-on-the-street in key markets. USMEF further stretches buying power by combining financial resources with third-party contributions from industry partners around the world, including retailers, food service outlets, importers, etc., to create an integrated, cost-effective approach to supporting U.S. red meat exports.
Like the two conferences before, this meeting featured many knowledgeable speakers. One thing that stands out in my mind is that developing new markets isn’t quite as easy as it sounds. We all know that market development is the way to export growth, but the details of being positioned to displace competition in established markets while defending market shares we’ve built over time is a complex matter. 

In an international marketplace that is increasingly competitive, there is no room for guesswork. USMEF CEO Phil Seng said in his opening comments, “If you have a ‘hunch’ about what’s happening in a market, you don’t have enough information. So you go back to the customer and get the information you need. There are no hunches or guesses in marketing.” 

The reality is that what matters to the consumer in Europe is different than China, which is different from Brazil and so forth. Based on each country’s culture, standard of living, political, religious, social and economic fabric, there is no “one size fits all.” Thankfully, I am comfortable with the level of expertise that USMEF offers. On the horizon, beef exports are positioned to increase by three percent in volume and 13 percent in value this year. 

Examples of some of the challenges ahead were addressed by Sharon Bomer Lauritsen, assistant U.S. trade representative for agricultural affairs and commodity policy, who provided USMEF members with an update on Trans-Pacific Partnership (TPP) negotiations. While market access negotiations with Japan have proven difficult, the Office of the U.S. Trade Representative (USTR) remains committed to getting the best possible market access for a broad range of U.S. agricultural products, including beef muscle cuts. The U.S. has been involved in TPP for four years while Japan just joined a year ago and is working to overcome its protectionist tendencies. Progress is being made that seems slow to us but likely seems fast for Japan. Lauritsen also discussed the progress USTR has made in negotiations with TPP participants Vietnam and Malaysia.

Also of note, there are growing concerns over the European Union’s duty free high-quality beef quota, which has recently seen increased utilization by suppliers other than the United States, particularly Australia and Uruguay. This threatens the U.S. beef industry’s ability to continue expanding its exports to Europe. Lauritsen said USTR is working closely with USMEF “to ensure that it is U.S. exporters that get the benefits of this particular program.”

 All in all, I believe it is the rich diversity of USMEF that really makes it an effective organization. Through representation from multiple checkoffs and other investors, we have the opportunity to see issues from different vantage points, make decisions and move forward together toward increasing profitability for the grassroots producer.