Board of Control takes comments on subdivision water rightsWritten by Christy Martinez
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.