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Water Rights

Casper – In a case between Bates Creek groundwater users and the State Engineer’s Office (SEO), the groundwater users have recently filed a notice of appeal with the Wyoming Supreme Court.
    The court case concerns the senior surface water rights and the junior groundwater rights in the Bates Creek Basin south of Casper.
    “There’s a statute in Wyoming law that says that to regulate junior groundwater the SEO has to show that the groundwater and the surface water come from one source of supply,” says Cheyenne attorney Kara Brighton, of Hageman and Brighton, P.C., who’s representing the groundwater users. “Our contention is the State Engineer’s Office hasn’t met the burden required to regulate.”
    Although she concedes that there is some connection between the surface and groundwater, she says the question remains whether it comes from one source of supply. “In our view, the level of connection has yet to be proven by the State Engineer’s Office,” she says, adding, “And whether there’s enough proof that the statute requirements have been met to regulate the junior groundwater rights for the benefit of the senior surface water rights.”
    A landowner in the middle of the basin placed the first call for water in 2007, which regulated the upper users, including groundwater user Dennis Rivett. “We had briefed that case to the court, but it was delayed and no decision had been issued before the 2008 irrigation season began, and at that point someone lower in the basin put in a call, which regulated all the groundwater users within the basin,” says Brighton. This prompted groundwater user Dave Whisler to join the case.
    That delay in the court decision resulted in three consolidated actions in the current case: one for Rivett in 2007, one for Rivett in 2008 and one for Whisler in 2008.
    “Most water users in the Bates Creek Basin rely on their ground water wells to irrigate their hay, so this has significantly affected their ability to operate,” says Brighton.
    To date there has been no call for regulation in the 2009 water year. Because the District Court affirmed the SEO’s decision to regulate, the SEO hasn’t conducted additional work to prove the level of connectivity of the water in the basin.
    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..

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. 

TWUA

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. 

State engineer 

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.”

Conditions

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. 

Aerial photography

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. 

Exercising right

“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. 

Forego use

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 This email address is being protected from spambots. You need JavaScript enabled to view it..


SIDEBAR:
Abandonment

“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.

 

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..


In May of 2012, Secretary of the Interior Ken Salazar issued a Secretarial Order to establish a National Blueways System to further protect U.S. waterways.

“This Order establishes a program to recognize river systems conserved through diverse stakeholder partnerships that use a comprehensive watershed approach to resource stewardship,” reads the Order. “The National Blueways System will provide a new national emphasis on the unique value and significance of a ‘headwaters to mouth’ approach to river management.”

Blueways background

As part of America’s Great Outdoors Initiative, the National Blueways System aims to encourage “community-driven conservation and recreation agenda for the 21st century,” according to a press release from the U.S. Department of the Interior. 

With goals of helping to coordinate federal, state and local partners in conservation efforts, the new system causes concern in its inclusion of entire rivers, from “source to sea,” as well as the river’s watershed under protection.

The first river to receive the designation was the Connecticut River in May 2012.

Cause for concern

Along with concern from local groups, members of the U.S. House of Representatives have expressed concern about the new designation.

In a letter sent to Secretary Salazar, the House Western Caucus said, “Water is the lifeblood of our communities, and it should be managed for the benefit of the community in a transparent fashion. While water law varies by region, non-navigable water is managed by the states, not the federal government.”

“Any designation by a federal agency that directly or indirectly attempts to manage the non-navigable headwaters of many of our nation’s rivers, would be a usurpation of state authority,” added the letter.

Additionally, the House Western Caucus urged Secretary Salazar to immediately withdraw the Order, Secretarial Order 3321, adding that further proposals to create new land and water designations be brought before and considered in Congress.

“We also encourage you to bring proposals to Congress that are creating new land and water designations so that we may consider them through the normal committee process and with public transparency,” said the Caucus.

Wyoming delegation

The Wyoming Congressional delegation also expressed concern about the designation, largely because it bypassed Congress. 

“The Secretarial Order does not require that residents of impacted areas be afforded the opportunity to participate in advance of a Committee decision to recommend a designation,” wrote U.S. Senators Mike Enzi and John Barrasso and U.S. Representative Cynthia Lummis in a letter to Salazar. “This is unacceptable.”

The letter continued, “Impacted individuals and communities should be brought into the process at the beginning, not after major decisions have been reached. We ask that upon the receipt of a request for designation impacting any watershed in Wyoming, that local Wyoming stakeholders within the watersheds be immediately notified of the request.” 

The delegation also referred to the designation as a “power grab” on a similar level as the Wildlands designation.

When addressing Wyoming Farm Bureau’s legislative meeting in late February, Lummis said, “The new designation is a way they want to oversee non-navigable water.”

She continued, “They have invented this program that is completely agency driven, with no public input and no rule making.”

“It says, ‘We are not going to take over state water law, we’re going to work with local jurisdictions to make sure that we protect the values of the watershed,’” she said. “What does that mean?”

She further continued that the committee considering the designations is made of interagency bureaucrats without local input.

Wyoming rivers

Though watersheds in Wyoming have been spared from designation as a National Blueway, some groups are concerned that such a designation may soon be granted for the Yellowstone River in the northwest corner of the state.

“Anyone can submit a request for designation as a National Blueway,” commented Bobbie Frank, Wyoming Association of Conservation Districts executive director, “and the Executive Order doesn’t sound like they have to consult with local governments.”

“The current focus is the Yellowstone, the headwaters of which are in Wyoming,” added Lummis. “This is something to watch.”

“Our members from our delegation, the Western Caucus and our Boards have all voted to not support such a thing,” said Frank.

For more information on the National Blueways System, visit doi.gov/americasgreatoutdoors/whatwedo/rivers/Rivers-National-Blueway-System.cfm.

Saige Albert 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..

Worland – The federal government’s actions have placed increased burdens on American agriculturalists in recent years, and Karen Budd-Falen, a Cheyenne attorney, noted that much of that impact stems from the overreach of the government. 

“The U.S. Constitution was set up with three branches of government,” Budd-Falen explained at WESTI Ag Days on Feb. 3 in Worland. “It says we have the Congress, who makes laws, the Executive Branch that is supposed to implement the laws and the courts, who are supposed to determine the constitutionality of laws to make sure Congress doesn’t get too far overboard.”

“Today, I think we have an Executive Branch, including EPA and the Department of the Interior, that is forgetting their goal – which is implementing what Congress passes, not expanding the law into areas where Congress never envisioned,” she continued.

Obama administration

 Budd-Falen noted that on first entering office, President Obama immediately initiated a program called America’s Great Outdoors. 

“He signed an Executive Order that said we want to get more people active. We need to get folks outdoors enjoying parks and recreational areas,” she explained. “He used that to adopt America’s Great Outdoors, and they went to various colleges conducting listening sessions.”

During those sessions, the administration asked college students what they thought needed to be done to protect America’s outdoors and compiled the information into a report. 

“There was no public input in the report, and Congress didn’t review it,” Budd-Falen said. “He put the report out, and then rules started coming out of the report, including the EPA Waters of the U.S. rule.”

Blueways

“National Blueways was also a product of America’s Great Outdoors,” Budd-Falen commented. “There was an Executive Order from the Department of the Interior that said, we are going to take water bodies and designate them as National Blueways because we want to encourage recreation by encouraging private property owners to allow trespass on their lands for people to get to big waters.”

The Executive Order cited the authority of the America’s Great Outdoors report in the creation of the National Blueways. 

However, the problem came in that National Blueways didn’t designate only the water body itself – the designation applied to the entire watershed. 

“The first river was the Connecticut River,” explained Budd-Falen. “They didn’t designate just the river, they designated the watershed – all 7.2 million acres in the Connecticut River watershed.”

She added, “There was no public input. They didn’t tell the governor of the states or their congressional representatives. They just designated the watershed.”

The next target was the White River, which included 17.8 million acres in the watershed. The Governor of Arkansas and local governments created an uproar to stave off the designation. 

“Then, the Department of the Interior said they wanted to designate the Yellowstone River,” Budd-Falen continued. “It would have had 55 million acres. There was all sorts of Congressional push against it.”

Secretary of the Interior Sally Jewell made an announcement that the program was put on “pause” shortly after. 

Water rules

Water continues to be regulated by the U.S. government, and Budd-Falen looked at the Clean Water Act as one example. 

“We’ve had parts of the Clean Water Act since the 1800s,” said Budd-Falen. “The Civil War was when they passed the initial version of the Waters and Harbors Act. It was to stop states from damming up navigable waters and stopping commerce.”

The idea was that commerce should not be interrupted. 

“We still can’t put fill material into a navigable waters or water of the U.S.,” she continued. “The federal government said a permit is required, and permitting authority was given to the EPA and the Army Corp of Engineers.”

The Clean Water Act also noted, however, that every other water was to be managed by the state. 

“Those amendments passed in 1972,” she said. “Since the 1972 definitions, the words in the Clean Water Act haven’t changed. There hasn’t been anything from Congress saying we need to expand the definition of waters of the U.S. It has happened over time.”

Changing rules

In 1975, the EPA and Corps of Engineers expanded rules to include major tributaries into navigable waters, and it 1979, they further broadened definitions to anything that is used for interstate commerce.

In 1986, EPA and Corp of Engineers attempted an additional expansion under the premise of protecting waters that provided habitat for migratory birds. 

“EPA said, if a bird lands in a tributary, flies along it and lands in another water across state lines, EPA would have jurisdiction,” Budd-Falen explained. “That definition remained in place until 2001 before the U.S. Supreme Court said that EPA couldn’t define water by looking at where birds fly.”

The latest waters of the U.S. rule, a further attempted expansion of EPA jurisdiction under the Clean Water Act, closed comments during November 2014. 

“This is the biggest expanse of EPA jurisdiction that we have seen, in my opinion,” Budd-Falen noted. “This rule is trying to redefine navigable waters, or waters of the U.S.”

“There are massive problems with this rule,” she added. 

Concerns

With concerns about the expansion of navigable waters to include a wide variety of streams, flood plains, ditches, wetlands and others, Budd-Falen also said, “The second thing that bothers me about the rule is the shift in the burden of proof.”

Initially, EPA and the Corp of Engineers were responsible for proving that any water was under their jurisdiction. 

“This rule solely shifts the burden to the landowners to prove that the water or ditch is not part of the waters of the U.S.,” she explained. “They say that they don’t have enough people to make these determinations, so they have shifted power.”

Primacy

The recent waters of the U.S. rule is problematic because it removes states’ rights. 

“According to the original Clean Water Act, states have the primary responsibility and right to manage anything that is not a navigable water,” Budd-Falen said. “By expanding the definitions, they are now taking away the states’ primary responsibilities and turning it over to the federal government.”

At this point, Budd-Falen said, “These are just proposed regulations. The EPA has yet to issue those rules in final draft. It will be interesting to see how this plays out.”

Saige Albert 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..