Wyo. Code R. 037-0006-10
Effective Date: 03/05/1974 to Current
Rule Type: Current Rules & Regulations
Reference Number: 037.0006.10.03051974
Section 1. Authority. The 42nd Session of the Wyoming Legislature enacted Section 41-29.1 (Session Laws 1973, Chapter 203), which allows the holder or owner of a valid direct flow water right to store such direct flow provided that no other Wyoming appropriator is injured or affected thereby. The law also requires that a written request for such storage be submitted to the State Engineer and be approved by the State Board of Control.
a. The most important provision of this law is that storage of direct flow rights must be accomplished without injuring or affecting any other Wyoming appropriator. In order to determine if such storage can be accomplished without injury and to allow proper administration of the proposal, certain information must be furnished. It should be understood that (1) at certain times and under certain conditions in some areas, it may be possible to store the entire amount of the direct flow appropriation, (2) at other times only a portion of that right may be stored, and finally (3) at other times and in some areas no water may be stored. This will depend on the past historical use of the direct flow rights, what other rights divert or store water from the same source of supply and how they might be affected by the proposed storage.
b. A direct flow right proposed to be stored must be a valid right which is in use and has been in use for at least the preceding five (5) year period. The five year period is necessary in order to establish the pattern of historic use under the right.
c. In determining if storage can be allowed, and if so, the amount of storage, several factors will be considered. If, for example, the proposed storage is on a stream drainage where such storage would not interfere with any other appropriators, junior or senior in priority, storage may be allowed up to the full amount of the appropriation as long as interference does not occur with other rights. If, however, storage is proposed on a stream drainage which is heavily appropriated both for storage and for direct flow appropriations, then such storage may not be allowed or may be restricted in quantity and in time of storage. In such circumstance, the amount of storage may be limited to the amount of water determined to have been consumed in growing the plant and lost through evaporation and transpiration. The amount of this consumptive use would be determined from past records of diversion and such factors as the type of irrigation practiced, the slope of the land, the type of plant irrigated, soil type and weather pattern. Storage of the consumptive use portion of a right will be restricted to the time during which water has been historically used in the past for irrigation. Water cannot be stored under a direct flow right when such right is not in priority and, therefore, not entitled to water. It would not be permissible to divert water under a direct flow right and store water under the same right, at the same time.
Storage of the consumptive use portion of a right must be coincidental with the time period that such right has been exercised in the past.
a. Request for storage to the State Engineer.
(1) Before any storage of water under the conditions of this Chapter can be allowed, a written request must be submitted to the State Engineer. A form has been prepared which, when properly completed, will supply the State Engineer and the Board of Control with necessary information so that a decision can be made with regard to the storage of the direct flow appropriation. (Note: This request form is prepared for the purpose of storage of water under a direct flow irrigation right only. In the event storage is proposed under a direct flow right issued for some purpose other than irrigation, it is suggested that as much information as possible be furnished on this form concerning the proposal together with whatever supplemental information is deemed necessary. The State Engineer will then determine if such proposal appears feasible.)
b. Explanation of Form.
(1) Item 1 requests the name or names of the water right holders of the direct flow right proposed for storage and the address of said holder or holders.
(2) Item 2 requests information concerning the water right proposed to be stored and is generally self-explanatory. In the event that all of the information requested in Item 2 is not available to the applicant, it is suggested that the Water Commissioner, Water Division Superintendent or the State Engineer's Office be contacted for assistance in securing the needed information for completion of this portion of the request. In the event that more than one direct flow appropriation is involved, a separate request is required for each such appropriation proposed for storage.
(3) Item 3 requests a history of the use of the appropriation.
(4) Item (a) inquires as to whether the right proposed to be stored is an active right in use at the present time. Any right presently not in use cannot be utilized for storage since this would constitute a reactivation of the right not being used to the detriment of other water right holders on the same drainage who are utilizing their rights.
(5) Item (b) details the diversion of water under the appropriation during the immediate past five year period. The information requested is for the purpose of showing clearly the dates and amount of diversion in each year. Information supplied in answer to Item 3 (b) will be used as a basis for determining how much water may be stored under the proposal. The information supplied in answer to this Item will be verified by the Water Commissioner, Water Division Superinten-
dent and by the water right diversion records submitted to the State Engineer's Office. In the event that verification cannot be made as to the time and quantity of water diverted and used under the direct flow right, there would be no basis for allowing storage of such direct flow appropriation.
(6) Item 4 requires the name and location of the reservoir to be utilized in the proposal and requests information concerning the storage of such water in the reservoir. If the reservoir in question is already covered by an existing water right, then the permit number of such right should be supplied. If not available to the applicant, the permit number should be secured from water administrative officials. In the event that the proposal contemplates utilization of a new reservoir which has not been constructed and which does not have a water right permit, a water right filing should be made according to procedures outlined in the Manual of the State Engineer's Office and a water right secured. The securing of a permit for the new reservoir will establish a record of the right and will also allow storage in said reservoir at such times as water is available under the priority established by the filing.
(7) Item 5 deals with the ownership of the storage reservoir to be used. If the reservoir is owned by the party owning the direct flow appropriation, this fact should be indicated and nothing further is necessary in connection with this item. However, if the reservoir is owned by another party, then a written agreement must be filed with the request stating that the applicant has the permission of the owner of the reservoir to store the applicant's direct flow appropriation in said reservoir and setting out any conditions for such storage imposed by the reservoir owner.
(8) Item 6 requests information concerning how the storage of the direct flow right is to be accomplished. Information is also requested concerning the time during which storage is proposed. For example, is storage proposed during the non-irrigation season, during fall, winter or spring, or is it intended to be stored during the irrigation season? This should be set out as specifically as possible so that the effects of the proposed storage can be assessed.
(9) Item 7 should be completed by describing the lands it is proposed to irrigate with the water stored under the proposal. The use of water stored under a direct flow right is restricted to only those lands covered under the direct flow right utilized as a source of supply for storage.
(10) Item 8 requires a sketch map detailing the proposal, including location of the stream, the location of the point of diversion and the ditch for the direct flow involved, the location of the reservoir where the water is to be stored and the location of the point of use together with any other pertinent information. Much of this information can be secured from the water right records of the State Engineer's Office, together with other maps such as the U.S.G.S. topographic maps. The map should also show how the proposed system is to be operated. If
the space provided for the sketch map is not sufficient, then a separate sketch map can be prepared and attached to the request showing the proposal.
(11) The Remarks Section following can be utilized for further explanation or clarification of any aspect of the proposal which had not been fully explained in the preceding section of the request.
(12) This is followed by agreement by the applicant(s) that such storage will be accomplished without injury to other appropriators and will be accomplished at the applicant's risk. The applicant(s) also agree(s) that the exercise of the proposal contained within the request is subject at all times to the control of the water administrative officials. Written notification to the Water Commissioner and to the appropriate Water Division Superintendent shall be a condition precedent to allowing the storage of any direct flow right, and such notification shall be made each time storage of water is proposed. Written approval of the Water Commissioner will also be required each time water is to be stored.
(13) The remainder of the form is for use by the water administrative officials and includes a statement by the Water Commissioner setting forth the conditions as he knows them to be in connection with the direct flow right involved. This statement will indicate whether or not the direct flow water right has been actively used each year, the period of time during the year that the water right has been exercised, and an indication as to the amount of water diverted as well as the number of acres irrigated. This statement is intended to provide a history of the past use of the right and to indicate how fully the right has been used and during what period of the year the right has been used. This information will be helpful to the State Engineer and Board of Control in determining whether or not storage should be allowed under the proposal.
(14) The remainder of the form is self-explanatory.
Since approval of the Board of Control is required, it should be noted that the Board only meets in two regularly scheduled meetings each year. The first meeting begins on the second Wednesday in May and the second meeting begins on the third Wednesday in November. Consequently, in order to be given consideration at a particular Board meeting, the request should be submitted to the State Engineer at least forty-five (45) days prior to such Board meeting. The request can then be considered by the Board and final action will then be taken as soon as practicable thereafter.
The key to the length of time which might be necessary before final action can be taken will be how much verified history of diversion and use of the water right is available. Since a proper investigation and determination concerning the proposal can take considerable time, it is recommended that the request be submitted as far in advance of a Board meeting as possible. It may be necessary to hold a public hearing in some instances in connection with a request if it appears to the Board to be in the public interest to do so. A thorough investigation of each
proposal will be necessary before the Board of Control takes any action.
Section 4. Recording Fees. An Order of the Board of Control will be entered and will be recorded in the county records. Fees must be submitted to the Board with the request in the amount of Ten Dollars ($10). If less than this amount is needed, the balance will be refunded.
A sample of the request form follows.
As a holder or owner of a valid right to the direct use of the natural, unstored flow of a surface stream in the State of Wyoming, and in accordance with Section 41-29.1, Wyoming Statutes, 1957, pps 1973, and the Rules and Regulations of the State Engineer and Board of Control, the applicant hereby requests permission to store such direct flow at such times as it can be accomplished without injuring or affecting any other Wyoming appropriator.
(Note: This request form is prepared for the purpose of storage of water under a direct flow irrigation right only. In the event storage is proposed under a direct flow right issued for some purpose other than irrigation, it is suggested that as much information as possible be furnished on this form concerning the proposal together with whatever supplemental information is deemed necessary. The State Engineer will then determine if such proposal appears feasible.)
The details pertaining to this proposal are outlined as follows:
1. Name(s) of Water Right Holder
Address
2. Identification of Right to be Stored
Permit Number____; Name of Ditch______;
Name of Original Appropriator________;
Priority____; Use______;
Amount of Appropriation____ c.f.s. for ______ Acres;
Source________;
Location of Point of Diversion: Subdivision ¼ Section ________,
Township____, Range______; Portion of Right Held by
Applicant____; Water Division No.__; Water District No.
____; Lands owned by applicant irrigated with said direct flow right
3. History of Use of Appropriation
a. Is right proposed to be stored an active right in use at the present time? Yes_ No_.
b. During the immediate, past five-year period, when has the right been used for irrigation purposes? (In reply to this question, please indicate the days of the month that water was used each year and the amount of water diverted each of these days.)
19____.
19____.
19__.
19__.
19__.
4. Name and Location of Reservoir
It is proposed to store water under this request in the __ Reservoir, located in Section __, Township __, Range __. This is an existing/a new reservoir (strike out words not applicable) covered under Permit No. ___ Res.
5. Owner of Storage Reservoir
The above named reservoir is owned by ___
(name)
(address)
(Note: If reservoir is owned by someone other than the owner of the direct flow appropriation involved herein, a written agreement with the reservoir owner must be filed with this request, and said agreement should specify the conditions under which the reservoir owner agrees to the storage of the direct flow right in said reservoir.)
6. Generally describe how storage of direct flow right will be accomplished and when it is proposed to make such storage.
7. Describe lands where stored water will be used:
(Note: The use of water stored is restricted to the same lands covered under the direct flow right.)
8. In the space below, draw a sketch map showing the location of the stream, the direct flow right involved, the location of the reservoir where water is to be stored, the location of the lands on which stored water is to be used and any other information which would help in understanding the proposal.
Scale: 2" = 1 Mile
Remarks:
(I) (We) hereby assert that no one will be injured by such storage of direct flow water and such storage will be at (my) (our) own risk. It is further agreed that the exercise of this right to store is subject at all times to the control of the water administrative officials, and the appropriate Water Commissioner and Water Division Superintendent will be notified in writing each time it is proposed to store water under this request. It is further understood that written approval of the Water Commissioner will be required each time water is to be stored.
A fee of Ten Dollars ($10) is enclosed with this request.
(Note: If less than this amount is needed, the balance will be refunded).
The information contained in this request is true to the best of (my) (our) knowledge and belief.
(Signature of Applicant)
(Signature of Applicant)
(Signature of Applicant)
(Signature of Applicant)
This instrument is acknowledged before me this __ day of ______, 19__.
Witness my hand and official seal.
(Notary Public)
My Commission expires:________
FOR WATER ADMINISTRATIVE USE ONLY
I, ____, Water Commissioner of District No., Water Division No._, have been furnished a copy of the request of ___ dated ____, 19, proposing the storage of the direct flow right under Permit No.____, the ___ appropriation, diverting through the ____ Ditch from ___, tributary of ____, with a priority of ___, for ____ c.f.s. for ____ acres.
I hereby certify that I am familiar with said right and diversions thereunder and furnish the following information concerning this right from my own personal knowledge:
Has the right involved been actively used each year for at least the immediate past five year period? ____. If so, during what days of each year and how much water was diverted each day? ____
Approximately how many acres are irrigated under this right? ____ What crops are irrigated? ____
Remarks: _______
Signed: ____ Water Commissioner District No._, Division____
BY BOARD OF CONTROL
The Board of Control has reviewed the request of ____
for storage of water under the direct flow appropriation as identified and described in said request, and approved/denied said request on ____, 19_, as evidenced by the Order of the Board, of Record in Order Record ___, Pages __.
1. Approval of said request is subject to the following limitations and conditions:
2. Denial of said request is for the following reasons:
Dated this __ day of __, 19____.
President,
State Board of Control
Attest:
Secretary,
State Board of Control
Date Request Received in State Engineer's Office:________,
19____.
Date copy referred to Water Commissioner:____, 19__.
Date copy referred to Water Division Superintendent:________,
19____.
Date referred to Board of Control:____, 19__.
Final action taken by Board of Control:____, 19__.