Wyo. Code R. 037-0007-1
Effective Date: 06/05/1986 to 01/13/2005
Rule Type: Superceded Rules & Regulations
Reference Number: 037.0007.1.06051986
Program WATERADM Water Administration
Chapter Name Wyoming Water Administration
Chapter No.1
Date Filed 06/05/86
Expr Date
Supr Date
Repeal Date
Document Type RULES
Section 1. Constitutional Framework.
a. The water within the boundaries of Wyoming is "declared to be the property of the state" by Section I, Article 8 of the Wyoming State Constitution. Section 2 establishes the State Board of Control as the governmental body "which shall, under such regulations as may be prescribed by law, have the supervision of the waters of the state and of their appropriation, distribution and diversion, and of the various officers connected therewith." The State Board of Control is to be composed of the State Engineer and the superintendents of the state's four water divisions. The superintendents are appointed by the Governor based upon the results of examinations conducted by the State Engineer. b. The Constitution also provides at Section 5, Article 8, that the State Engineer is to be appointed by the Governor and is to serve as President of the State Board of Control. In his capacity as State Engineer, he "shall have general supervision of the waters of the state and of the officers connected with its distribution." By statute, the Deputy State Engineer serves as ex-officio secretary of the Board. Additional administrative officers are provided by statute, most notably, the state's water commissioners.
Section 2. Water Divisions and Districts. Boundaries of the four water divisions are defined by W.S. 41-3-501; each division is further subdivided into water districts by the Board, pursuant to W.S. 41-3-601. Any one stream system of "practicable administrative scope" is to be included within a single district. Each district is to be supervised by a water commissioner appointed by the Governor from among persons recommended by the superintendent of the water division in which the district is located. The board of county commissioners for each county involved provides advice and approval. "Water commissioners", as such, are paid by the county or counties within which their districts are situated. They usually work on a seasonal basis. However, where the legislature has provided state funds, the Governor may appoint "hydrographer water commissioners" for one or more districts upon recommendation of the State Engineer and the water division superintendent.
Section 3. Lines of Authority. W. S. 41-3-603 provides that each water commissioner shall "divide, regulate and control the use of water of all streams within his district" according to the priority of lawfully established water rights. Actions of the various water commissioners may be appealed by injured persons to the division superintendents, whose decisions may be appealed to the State Engineer. The decision of the State Engineer concerning an action or failure to act on the part of a water commissioner is a final administrative decision which may be appealed to the district court. In carrying out their duties, water commissioners and their assistants have the power to arrest offending persons.
a. A Wyoming water right is a right to use the water of the state when it has been applied to a beneficial use as defined by law and its appropriation has been made in conformance with the applicable rules and regulations. W.S. 41-3-101 states: 'beneficial use shall be the basis, the measure and limit of the right to use water at all times . . . @ It The right attaches to the land for which appropriated and is limited to the purpose for which appropriated. Because water is so important to the economy of this state, its use is always limited by a concept of public trust; the only uses for which water rights may be established are those which receive 'public recognition' under the law of the state.
b. A small number of water rights in Wyoming were confirmed by court decrees prior to creation of the State Board of Control and the office of the State Engineer. Generally speaking, all other water rights acquired prior to statehood were adjudicated by the State Board of Control on the basis of 'Claims to Water Filed under Territorial Law' and are known as 'territorial appropriations.' The first state legislature enacted a comprehensive water code which established a filing procedure for securing water rights by permit from the State Engineer with final adjudication by the State Board of Control. The majority of Wyoming water rights have been obtained through this permit and adjudication system.
c. Permits to appropriate water are issued for the direct diversion of the natural flow of a stream, for the storage of water in a reservoir, or for the withdrawal of water from an underground source. A direct flow right is measured in cubic feet per second (c.f.s.), and in the case of irrigation, is limited to one c.f.s. for each 70 acres of lands irrigated (except when surplus flows are available). A storage right is measured in acre feet (a.f.) and may be filled only in order of priority. A ground water right is measured in gallons per minute (g.p.m.) pumping rate. All three types of water rights are limited to the beneficial uses being made. The State Engineer may deny or modify an application for permit if he determines that the granting of an application would be injurious in some respect.
d. After an applicant obtains a permit from the State Engineer, and then proceeds to establish his water right by applying the water to beneficial use in accordance with the terms of the permit, a proof of appropriation is submitted to the State Board of Control. The Board will then initiate adjudication procedures in accordance with these regulations. Amendments or corrections of unadjudicated permits are generally accomplished by petition to the State Engineer. But if a water right has been adjudicated, it can only be changed or modified by the State Board of Control. A permit to appropriate water authorizes the holder to make use of the water as stated in the permit. However, a water right as such is established only when the water is actually applied to beneficial use; it is publicly recognized and specifically defined when it is adjudicated by the State Board of Control.
a. W.S. 41-3-901 through 41-3-938 constitute a comprehensive ground water code. Although the use of ground water is not administered in exactly the same manner as is the use of surface water, a permit system is in effect in Wyoming. A permit to drill a water well must be obtained from the State Engineer. Upon the completion of a well, beneficial use of the water, and preparation of a proper form, proofs are presented to the State Board of Control for adjudication. The statutes give authority to the State Engineer to resolve disputes involving interference between ground water appropriations or between surface water and ground water appropriations. For a detailed explanation of the procedures to be followed, see the rules and regulations of the State Engineer.
b. The statutes also provide procedures whereby a 'ground water control area' may be designated by the State Board of Control upon the recommendation of the State Engineer after the Board holds a public hearing as required by the statutes. After the boundaries of a newly designated control area are determined, all previously unadjudicated wells within the control area are adjudicated. The State Engineer works with an advisory board which is elected from within the control area. W.S. @ 41-3-915 provides that the appropriators in a control area 'may agree to any method or scheme of control of withdrawals, well spacing, apportionment, rotation or proration of the common supply of underground water'.
Section 6. Administrative Regulation. Any person with a water right in a stream system may request the water commissioner to regulate the stream for his benefit. The request should be made in writing on a form provided by the State Board of Control. (See Chapter V, Section 22, of these regulations for a sample.) Upon receiving a proper request for regulation, the water commissioner will act to limit each water right in accordance with the priority and amounts recorded in the official records of the state. Both direct flow and storage rights are regulated in the same manner. During periods of decreased natural supply, the priority of appropriations will be observed and the headgates for the junior-most appropriations may be closed in order to satisfy senior appropriations. The exercise of controls is in exact inverse order of appropriation priority. The regulation of ground water appropriations is accomplished by means of ground water control area management.
a. A reservoir is entitled to be filled in order of priority once each year if water is available. If water remains unused in the reservoir at the end of the normal use period, this water is termed 'carry-over storage' and is counted toward providing the water to meet the following year's supply for the appropriation. For example, if a reservoir which has a right to store one thousand acre-feet has two hundred acre-feet remaining in storage which is carried over into the following year, then this appropriation is entitled to again divert that quantity of water necessary to refill the reservoir to its one thousand acrefeet storage authorization as the storage right comes into priority on the stream which is the source of the water.
b. In order to conserve the waters of the state, it is a necessary requirement that all reservoirs be filled at times that will not interfere with or that will provide the least interference with the use of water by direct flow appropriators and thereby prevent a waste of water. W.S. 41-3-603 provides authority to the Water Commissioner to control reservoir filling and reads in part as follows:
Such water commissioner shall have authority to require the filling of any reservoir whenever practical and water is available for storage from the stream or streams for which the appropriations for such reservoir are established.
All water which is allowed to flow past the reservoir diversion point after receipt of a notice or order to store from the Water Commissioner will be chargeable to the storage in the reservoir and the right to store may be reduced by that amount.
Section 8. Storage of Direct Flow Rights. W.S. 41-3-305 provides that the holder or owner of an adjudicated water right to use the direct flow of a surface stream may store the water 'so long as no other Wyoming appropriator or user is injured or affected thereby.' A request to store a direct flow right must be made in writing to the State Engineer. Approval must be given by the State Board of Control before the direct flow may be diverted into storage under authority of this statute. Consideration of a request to store direct flow is generally a complex matter which requires the availability of detailed information. Because no injury to other appropriators can occur, the storage is limited to the historic consumptive use, and is restricted to the same place of use. The details concerning the storage of direct flow rights are set out in the regulations of the State Engineer.
a. W.S. 41-3-612 allows that water uses may be rotated with the approval of the Water Commissioner. The purpose of this statute is to bring about a more economic and efficient use of water. Rotation is accomplished in accordance with the specific rules set out in the body of these regulations. The usual practice is to divert the collective supply available to the appropriations to be rotated for irrigating the lands under each appropriation more quickly and efficiently. After the first irrigation, the diversion is closed down and the collective supply is used for the irrigation of the lands under another appropriation, etc. The rotation must be accomplished in such a way that there is no injury to other appropriators from the same source of supply. This is done by establishing a definite rotation period for irrigation of the land under each appropriation based on the number of acres irrigated by each appropriation plus an adjustment in time of irrigation to account for differences in return flow patterns from the irrigation for each appropriation.
b. For example, assume that land under two appropriations to be rotated have the same general cropping pattern, soil characteristics, slope of land, etc., and therefore have similar return flow patterns, and that each appropriation is for one cubic foot per second for irrigation of 70 acres. Further assume that the one 70 acre tract can be irrigated in five days with the collective supply from both appropriations. The total supply of two cubic feet per second would be applied to the one 70 acre tract for a five day period and would then be shut off from these lands and be diverted at the same rate to the other 70 acre tract for another five day period.
c. If we assume the same general conditions are present except that the two appropriations are for 70 acres and for 140 acres, then water would be allowed for diversion on the larger tract for twice as long as for the smaller tract.
d. The above examples are over-simplified for most situations, but are intended to give a general idea of how rotation of water use operates.
Section 10. Supplemental Supply Rights. The appropriation of water as supplemental supply is defined in detail by W.S. 41-3113. In general, it involves the appropriation of direct flow water from another source to augment or supplement the available water for an existing appropriation for which the original source of supply does not provide a full supply. The amount of supplemental water which may be diverted is the amount available, in priority, to bring the total water diverted from all sources up the appropriated amount. When the original source will furnish the entire amount of the appropriation, then no water may be diverted from the supplemental source. The water available from the original source must first be diverted in priority before any water from the supplemental source may be diverted.
Section II. Surplus Water. Whenever the supply of water in a stream exceeds the total amount required to satisfy all existing appropriations established prior to March 1, 1945, the stream is said to be in a surplus flow condition. When surplus flows are available during the water year, they are divided proportionally among the irrigation water rights holders with priorities before March 1, 1945, up to an additional one c.f.s. for each 70 acres irrigated. Rights with priorities later than March 1, 1945, may be regulated to meet the demands for surplus water made by the owners of water rights with priorities earlier than March 1, 1945. (See W.S. 41-4-317 through W.S. 41-4-324.)
Section III. Excess Water. Whenever the supply of water in a stream exceeds the amount required to satisfy all existing appropriations established prior to March 1, 1985, the stream is said to be in an excess flow condition. When excess flows are available during the water year, they may be beneficially used by irrigation water rights holders with priorities dating between March 2, 1945 and March 1, 1985, up to an additional one c.f.s. for each 70 acres irrigated. (See W.S. 41-4-229 through W.S. 41-4331.)
Section 12. Temporary Use of Water. Permission for temporary use of water for such purposes as road construction, well drilling, and similar purposes may be obtained from the State Engineer through the procedures set out in the State Engineer's regulations. also outlined in the State Engineer's regulations is the procedure to be followed for changing a water use to a different type of use on a temporary basis. However, when an existing right is temporarily changed, the new use can have a marked affect on the return flow to the stream as compared to the return flow resulting from the Il is toric use. for this reason, the Water Commissioner must assess the change in return flow, as well as other effects on the stream resulting from the temporary use. He must then make adjustments in the amount of water remaining for diversion to insure that there is no adverse affect another appropriators from the same source of supply.
Section 13. Water Year. For the purposes of water accounting, the water year is defined as extending from October 1 through September 30 of the following year.
a. Pursuant to W.S. 41-3-114, the State Board of Control may consider and grant a petition to change a point of diversion or a petition to change a point of diversion and means of conveyance for an adjudicated water right provided that the petitioner can demonstrate that no other appropriator will be injured by the change. When a change in point of diversion is approved, the water right at the new location cannot exceed the amount of water available at the original point of diversion and may be restricted to a lesser amount if return flow factors, etc. so indicate.
b. Under special circumstances, the division superintendent may give permission for a temporary change in point of diversion or change in point of diversion and means of conveyance until a proper petition can be prepared. The request shall be in writing on a form provided by the Board or in a letter which states all the same information as required by the printed form. (See Chapter V, Section 20, for a sample.) A temporary change will be limited to one irrigation season.
c. If a permit is involved rather than an adjudicated water right, the petition for change in point of diversion or change in point of diversion and means of conveyance is directed to the State Engineer.
Section 15. Water Rights Transfers. Changes of use and changes in place of use are authorized by W.S. 41-3-104. A transfer may be allowed "provided that the quantity of water transferred by the granting of the petition shall not exceed the amount of water historically diverted under the existing use, nor exceed the historic rate of diversion under the existing use, nor increase the historic amount consumptively used under the existing use, nor decrease the historic amount of return flow, nor in any manner injure other existing lawful appropriators". In considering a proposed transfer of water rights, the Board must quantify the rights proposed for transfer based upon actual diversion or pumping records or otherwise reliable information. The board also examines the economic losses and benefits of the proposed transfer and inquiries into "whether other sources of water are available for the new use".
a. Certain uses of water including municipal, stock and domestic uses are defined by law as preferred uses. Water rights for these uses may be obtained through the regular permit and adjudication procedures, or by acquisition of the right to use water already appropriated for some other purpose, such as irrigation. In effect, the law allows a preferred use to condemn a lower ranking use. However, compensation is required and a petition for change of use must be submitted to the State Board of Control. W.S. 41-3-102 sets out the preferred uses and establishes their order of preference. Water for industry is a preferred use over water for irrigation except that the use of water for steam power plants and industrial purposes does not give the right of condemnation.
b. Regardless of how a preferred use appropriation is acquired, the right to divert water is subject to regulation in accordance with the priority date of the acquired water right. The condemnation procedure does not expand the nature of the right condemned by a preferred use; it only ensures that the change of use can occur. W.S. 41-3-907 provides an exception for appropriations of underground water for stock or domestic purposes (with certain quantity limitations) which may be used at any time regardless of priority dates.
Section 17. Rights-of-Way. The issuance of a permit by the State Engineer, or the granting of a petition or the adjudication of a water right by the State Board of Control does not give a right-of-way to the water appropriator over the lands of any other person. The state action deals only with the water right; the individual appropriator is responsible for obtaining proper and necessary rights-of-way or easements by negotiation and agreement or otherwise by compliance with the law of the state.
Section 18. Interstate Compacts and Court Decrees. In addition to complying with state water law, Wyoming appropriators must observe certain restrictions on water use stemming from various interstate water compacts and decrees of the United States Supreme Court. Generally speaking, the local water administrators will be familiar with the compact or decree restrictions applicable to their districts and may be contacted for further information.