Joint Ag Committee reviews water legislation

Wheatland – As the state sees high snowpack levels continue to linger, and a statewide average on May 2 at 157 percent of normal, the anticipated runoff is a hot topic this spring, but not the only water issue in discussion.
On May 2 the Joint Agriculture, State and Public Lands and Water Resources Interim Committee of the Wyoming Legislature met for the first time following the 2011 session, and first on the agenda were several interim topics pertaining to water rights legislation.
The first of them was House Bill 12, which was a subject of great debate in the past session.
“The interests who came in and presented the bill clearly have a concern: water rights that have long gone unused and can’t be used because they’re landlocked or under pavement. Our water laws make them very difficult, or impossible, to move, and those laws are intentional,” explained Wyoming State Engineer Pat Tyrrell of the situation.
“We understand it’s frustrating for some that we have thousands of adjudicated rights that can’t be moved, and it’s a frustration for people who own the lands, but the way our laws work is that, if you don’t move it right away, you will have problems moving it. The ability to keep it valid is the landowner’s and water right holder’s responsibility,” he continued.
Nonetheless, Tyrrell said his office has continued to work with the interests who brought the bill to find a compromise.
“We did come up with some language that would probably work to help some folks in certain situations,” he stated, referring to a section of the law known as amended certificates.
“If a person or a party wanted to come in and change a legal description on a certificate through the amended certificate process, they could do that if they could show there’s no injury within the district or the basin approximate to that change,” said Tyrrell.
He explained the concern is that if old, unused rights come back into production on new acres, there’s no way not to increase consumption in some fashion.
“The injury analysis would ensure there’s no change in return flow, so even if we did allow this change, nobody else on that system would see the difference,” he added.
“This is the window we’ve put into words – that if circumstances where the rights weren’t moved within five years of going out of irrigation could meet that test, with no harm to others, this language would let them move,” said Tyrrell.
Roger Huckfeldt of the North Platte Water Users Association said the compromise is a lot farther than the negotiations were a year ago.
“I have a sense that the State Engineer’s Office and the Board of Control have a better understanding of the complexity of this problem, and the longer we put this off, the more costly it will be to everyone involved,” said Huckfeldt.
“The language should be sufficient to address the concerns and problems of landowners regarding the change in place of use within water districts. This water is still being used, but it might not be on the lands for which it was originally appropriated. The amendments to the current law do allow for movements, providing there are no injuries to other appropriators, and notice is made in proper ways,” he continued.
Huckfeldt added that the waters in most of these irrigation districts are taxed, and there are landowners who continue to pay the tax, even though they don’t receive the water, because they want to make sure the water right remains in and is used by the district.
Joint Ag Committee Chairman Representative Semlek commended the two groups for their work since the session, and the committee passed the bill’s language unanimously.
Another issue of debate at the 2011 session was water rights on federal lands, dealing with how, and to whom, to write certificates of appropriation for water rights and points of use on federal lands.
“There’s some concern that federal land management agencies should perhaps not hold an adjudicated water right, or that the grazing lessee or permittee ought to have his name on the certificate of adjudication,” said Tyrrell.
Tyrrell said the approach his office has taken is to address the concern that land management agencies might move or cancel a permit without the input of the grazing permittee.
“The approach we’ve taken is to provide a consent role for those users of the land where they don’t currently have it,” he stated.
“The main thing is that the tenant of the land would be asked for their consent for a change. We won’t put their name on the certificate, but they would have standing to object that they don’t currently have,” he explained. “We’d put them in the position of other users who have to seek consent for other changes. If they object, there’s a hearing, and Board of Control will rule on the evidence at the hearing. This represents a role for permittees they don’t currently have.”
In addition to change of use, change in place of use, changes in points of divergence and means of conveyance, the language changes would also be added to the abandonment statute, requiring that, in a case where a voluntary abandonment is sought, the holder of the certificate seek consent for abandonment from any tenant of the land.
“From our perspective as Stock Growers, I don’t think this adequately addresses the issue, but it sets a stage for further discussion,” said Wyoming Stock Growers Association Executive Vice President Jim Magagna, adding that there are two things that concern him. “It seeks consent, but doesn’t require consent, and it ignores the most important part of this – the issuance of an adjudicated water right.”
There are some who question the ability of the federal government to hold a water right, as the agency fails to show beneficial use – the foundation of Wyoming water law.
The two groups were instructed to keep working on the bill, and the committee passed a motion to keep moving forward with the language.
Christy Martinez is managing editor of the Wyoming Livestock Roundup and can be reached at christy@wylr.net.