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WWRC 86-05k
Wyoming's Water: An Overview of Water Quantity, Water Law, and Water Administration Within The State of Wyoming

It is my pleasure to discuss with you briefly Water Quantity, Law and Administration in Wyoming. I shall present some statistics relative to water quantities in the State of Wyoming and follow with a brief outline of Wyoming water law and its administration though the Office of the State Engineer and conclude with a summary of the most recent addition to Wyoming's water law for the beneficial use of water, the newly-enacted Instream Flow legislation enacted by the 1986 Legislature.

Wyoming is the headwater of four major water drainage basins. These are the Green River and Little Snake River in southwest Wyoming which form the headwaters of the Colorado River, the Bear River along the southwestern border of Wyoming which flows into the Great Salt Lake Basin; the Snake River and the Salt River in Jackson Hole and the Star Valley which are the headwaters of the Columbia River; and the Yellowstone River, Wind and Big Horn Rivers, Shoshone River, Tongue River, Powder River, Belle Fouiche River, Cheyenne, Niobrara River and the North Platte and Laramie Rivers are all headwaters to the Missouri River. In this setting of Wyoming streams and rivers, the amount of surface water produced, (70% of which comes in the form of snow), amounts to an average of 15.8 million acre-feet of water per year. Added to this figure of 15.8 million acre-feet which flows into the state each year. Streams that bring water into the state include the Big Laramie and North Platte Rivers in southeast Wyoming; the Little Snake River in southern Wyoming; the Blacks Folk, Henrys Fork and Bear Rivers in southwest Wyoming; and the Clarks Fork River north of Cody in northern Wyoming. We have, therefore, a total available surface water supply of approximately 17.3 million acre-feet.

In addition to this surface water supply, water is also available from groundwater. Wyoming's supply of groundwater is stored in alluvium and bedrock with much of this water located very deep within the aquifer formations making it very costly to develop. Recharge to the aquifers is estimated to be approximately 5 million acre-feet per year. Of the 17.3 million acre-feet of surface water supply, approximately 2.6 million is consumptively used within the State. By consumptive use we mean water which is used up or lost to further use. A major consumptive use of water each year is that used for irrigated agriculture. This amounts to about 2.2 million acre-feet of surface water and approximately 300,000 acre-feet of groundwater. Municipal, domestic, livestock and industry consume approximately 60,000 acre-feet of surface water and 100,000 acre-feet of groundwater annually. Reservoir evaporation amounts to about 400,000 acre-feet annually. This average annual depletion of 2.6+ million acre-feet leaves an approximate average of 14.7 million acre-feet of water which flows out of Wyoming into neighboring states each year. Some of this water leaving the state is utilized for such non-consumptive uses as recreadon in lakes and streams, hydro-power generation, fisheries, etc. Included in the 14.7 million acre-foot figure is an amount of 2.8 million acre-feet which Wyoming is entitled to under the various Compact allocations as was discussed with you earlier in this Conference by Larry Wolfe.

The Wyoming Constitution declares that the waters of all natural streams, springs, lakes or other collection of still water within the boundaries of the state are the property of the state. Constitutional provisions allowed for the appropriation of water for beneficial uses and established the Office of the State Engineer and the Board of Control to supervise such appropriations. The State Engineer is charged by the Constitution with the "general supervision of the waters of the State and of the officers connected with its distribution." In carrying out this function, the State Engineer grants or denies applications for use of water, as well as being responsible for the distribution of the available water supply. Along with these duties and in concert "with the general supervision of the waters of the State," the State Engineer and his staff are also involved with water matters on an interstate and National level to protect Wyoming's interest in the utilization of her water resources.

Wyoming follows the Doctrine of Prior Appropriation. This means that a senior right receives water before a junior right. The Riparian Doctrine used in many midwestern and eastern states allows use of water only to those lands adjacent to the stream.

State statutes establish the procedure for the appropriation of water for beneficial use. First, a permit to use water must be obtained from the State Engineer. After the water has been put to use and proof of beneficial use is made to the Board of Control, the Board will adjudicate the water right. Priority of appropriation is based upon the relative date on which applications for permits are accepted in the State Engineer's Office. Again, "First in time is first in right" is the basis of Wyoming water law.

A water right cannot be acquired in Wyoming for either surface water or from groundwater without application to and the granting of a permit by the State Engineer. When a permit is granted by the State Engineer for either groundwater or surface water, conditions are imposed setting out time limits within which work must be commenced, completed, and beneficial use made under the permit and such work must be completed during those time frames. If, however, additional time is needed, an extension of time can be allowed by the State Engineer for good cause shown. Under this system of prior appropiation, all water rights are regulated in times of shortage to provide water to the earlier priorities.

After a water right permit has been completed, the final step is the adjudication or finalization of the water right. This adjudication is accomplished by the Board of Control. The Board of Control, as established by the Constitution, consists of the State Engineer and four Water Division Superintendents who are the Water Administrative Officials responsible for the administration of water in each of the four Water Divisions in the State. Water Division No. 1 consists of the North Platte, the Niobrara drainage and the Little Snake drainage in the southeastern portion of the state. Water Division No. 2 consists of all the drainage off the east slope of the Big Horn Mountains which includes the Tongue River and Powder River drainages and the Belle Fouiche River and the Cheyenne River Drainages. Water Division No. 3 consists of the northwest portion of the state and includes the Big Horn drainage and darks Fork drainage. Water Division No. 4 is the southwestern portion of the state and includes the Snake River drainage, the Bear River drainage and the Green River drainage. The Board of Control functions as a quasi-judicial body in that water rights are adjudicated or finalized by the Board and all changes to adjudicated water rights are dealt with by the Board, such as changes in point of diversion, changes in lands to be irrigated, and in use and abandonment.

Water administration in the field is accomplished by Hydrogiapher-Commissioners who are full-time state employees skilled in the measurement of water and in water administration. The more complex water administrative areas are generally administered by Hydrographer-Commissioners. The balance of the water administration is handled by the Water Commissioners who are County employees paid by the County with some supplemental funds provided by the State, in certain instances.

As mentioned earlier, water rights are administered in order of priority so that during times of shortage, water rights with later priorities are regulated or shut down to provide water for the earlier priorities. This is true no matter what use is made of the water; priority strictiy coverns as to who gets the water during times of shortage, including water for municipal and domestic supplies. The amount of water appropriated for a direct flow right for irrigation is fixed at a statutory rate of 1 cubic foot per second for each 70 acres of land irrigated with an additonal cubic foot per second being available in times of surplus. Water rights for other purposes are fixed by reasonable use, based on the capacity of the facility.

A permit is required for any storage or diversion of water. There are thousands of reservoirs built in the State of Wyoming for stock purposes and a water right is required for these reservoirs as well as for the diversion of water for stock purposes. Storage water rights are adjudicated in acre-feet and in the case of an off-channel reservoir, a quantity of rate of diversion in cubic feet per second is also fixed for a supply ditch or pipeline to furnish the reservoir. A reservoir is limited to one fill per year and any water that is carried over from one year to the next counts against the next year's fill. For example, if a reservoir appropriation is for 100 acre-feet and 75 acre-feet is used in a year, with 25 acre-feet earned over into the following year, the reservoir is entitled to store 75 acre-feet to bring it back up to full capacity the following year. On-channel reservoirs oftentimes present problems in administration since inflows must be conveyed through the reservoirs to prior downstream appropriators. Administration of such a reservoir requires the close monitoring of reservoir levels so that there can be an accounting for withdrawals from storage. If found necessary, the Superintendent may order a measuring device be installed in the stream channels above and below a reservoir in order to facilitate regulation of the reservoir. A Water Division Superintendent has authority to order headgates and measuring devices in all ditches or other points of diversion in order to allow for the proper regulation of the facility and also to determine the quantity of water that is being conveyed through the system.

The law requires that before a change in point of diversion or means of conveyance, is made or a water right is changed in any manner, a petition must be filed, generally with the Board of Control for all adjudicated water rights and to the State Engineer for unadjudicated water rights. Many factors must be considered before such a change in point of diversion, means of conveyance or changes in use, can be allowed. A change in use can only be granted by the Board of Control and can often be very complex. Such changes involve changes from irrigation to municipal or industrial use. A thorough review is necessary to make sure that there is no injury to other appropriators by the allowance of a change. Such a change cannot exceed the amount of water historically diverted, nor exceed the historic rate of diversion or decrease the historic amount of return flow or increase the historic amount of water consumptively used. The time period during which a right that has been changed can be diverted and used is fixed bv the historic period of diversion. The Board in looking at such changes may also consider the economic loss to a community and to the state if the use of the right is transferred to some other use and as to whether the economic loss will be offset by the new use and whether other sources of water are available for the new use.

Through the years, sophisticated water regulation has occurred in many areas of the state. This is especially true in the southeastern portion of the state where the streams are most fully appropriated. This administration is accomplished by utilizing state-paid personnel on a year-round basis. This is also true to a more limited extent in other Water Divisions in the state. The most highly regulated stream in Wyoming, (and one of the more highly regulated in the nation), is the North Platte River which is regulated on a daily basis. Detailed records are kept of diversions and inflows, etc., on the total river system.

The requirement for regulation and administration of groundwater has not been done as extensively in Wyoming as it has been in many of the other states since the groundwater use is of more recent origin. We do have a provision in the law which allows for the establishment of "Ground Water Control Areas." These are areas where there are groundwater problems occurring or which may occur in the future. When a Ground Water Control Area is established under the procedure set out in the law, then no further permits for groundwater are allowed without a considerable review. Permits are only allowed if this can be done without injuring other appropriations in the control area.

All in all, the water administration in Wyoming has generally been satisfactory and the laws have been quite wolkable. They have been modified from time-to-time to modernize and update them, but as I have mentioned, they have worked very well up to this point and we expect that water administration will improve as years pass, and the competition for water becomes such that additional administration is needed.

After many unsuccessful attempts to enact instream flow legislation, the 1986 Wyoming Legislature passed Enrolled Act No. 53 which will be effective June 11, 1986.

The Act provides that the storage of water for providing instream flow purposes or for recreation is a beneficial use of water in Wyoming. The Act also privides that an appropriation of direct flow for an instream flow is a beneficial use of water, and allows for the conversion of existing water rights to instream flow purposes. The Act establishes how an instream flow is to be appropriated, by whom, (only the State of Wyoming), and establishes a procedure for the granting of permits by the State Engineer.

Instream flows can now be appropriated from the natural flow of an identified stream segment. The law also provides that reservoir appropriations can be made for instream flows or that storage water can be provided from existing reservoirs to maintain a minimum flow in an identified stream segment.

The Wyoming State Engineer's Office, the Game and Fish Commission, the Water Development Commission, and the Economic Development and stabilization Board are the State agencies who will be coordinating the implementation of this legislation.

Briefly, a description of how this legislation will work for appropriation of water is as follows: the Game and Fish Commission reports to the Water Development Commission on instream flow needs. Game and Fish conducts studies on the proposed segments, and Water Development investigates the feasibility of direct flow appropriation or of providing flows from existing or new storage. The Water Division of the EDS Board files applications with the State Engineer at the time the Water Development Commission study is initiated. Applications can be acted an by the State Engineer after appropriate advertising and public hearings and after all appropriate studies are done. For storage, Water Development requests the Legislature to authorize design and construction. The State Engineer may condition a permit to require a review of the continuation as an instream flow right.

Thank you for your attention and I shall be happy to address any questions you may have.

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