Water Transfers in Times of Water Transfers in Times of Drought: Drought:

Perspectives from the Ground Water User and Perspectives from the Ground Water User and the Power Companythe Power Company

Presented by:

Kara Brighton, Esq.

Hageman & Brighton, P.C.

Jenifer Scoggin, Esq.Holland & Hart,

Wyoming’s Temporary Use Wyoming’s Temporary Use StatuteStatute

W.S. 41-3-110– Right to acquire temporary water rights

for highway or railroad roadbed construction or repair

W.S. 41-3-110 con’tW.S. 41-3-110 con’t

Any person shall have the right to acquire by purchase, gift or lease the right for a period not to exceed two (2) years for temporary purposes.

A transfer will be allowed only if no other appropriator is injured thereby.

W.S. 41-3-110 Filing W.S. 41-3-110 Filing RequirementsRequirements

Application must be filed with the State Engineer’s Office.

State Engineer can authorize such use, and designating the method, place and period of use. – No loss, abandonment or impairment of water

rights shall occur or attach as a result of the order.

W.S. 41-3-110 RequirementsW.S. 41-3-110 Requirements

What Water can be Transferred? – Only Consumptively Used under Historical Use

of the water right may be diverted by a temporary user.

– Return Flow shall be presumed to be fifty percent (50%) or adjusted accordingly.

– Actual Historic Return Flow or 50% will be left in the stream for down stream appropriators.

– State Engineer Filing Fee (not more than $100)

Power Company Power Company PerspectivesPerspectives

Water AvailabilityWater Availability

How Much Water is Available for Transfer?– Historical Consumptive Use– Records are important for determination.

SEO has ultimate authority to determine amount of water for transfer.

Communication with SEO is key.

DiligenceDiligence

Check the status of the water right– Is it in good standing with the SEO?– Make sure landowner is the holder of the right.– Make sure landowner has fee title for

easements sought.– Are the water rights encumbered?– Check Equipment Status.

Landowner AgreementsLandowner Agreements

Negotiations – Payment Structure Considerations– Agreement Terms– Use of Owner Equipment and Facilities– Rights of Way and Easements– What happens at the end of the term?

Drafting Owner AgreementsDrafting Owner Agreements

Exhibits

Representations and Agreements

Express Conditions to the Agreement

Other ConsiderationsOther Considerations

Are there court decrees or other agreements limiting the water right?

Are there other sources available?Creative IdeasCommunity Support

Landowner Landowner PerspectivesPerspectives

Easement and AccessEasement and Access

An interest in land which entitles the holder to limited enjoyment over another’s property

Creates two estatesDominant EstateServient Estate

W.S. 34-1-141W.S. 34-1-141

Describes rights and requirements for an easement– Must specifically describe the location of the

easement – Non-Specific Descriptions or Rights to locate

easement are effective for one (1) year. Specific Description must be recorded within one

(1) year.

– Description is not limited to a survey

Easement RequirementsEasement RequirementsSpecific Description

– Not limited to survey, but must be able to locate – Easement or agreement without specific description

is valid for one (1) year Must be specifically described and recorded in one (1)

year.

Exceptions– Emmett Ranch v. Goldmard Engineering Inc.

Failure to Record is not fatal where proponent of the failure to record has full notice of the conveyance and suffers no prejudice.

Case LawCase Law

Lozier v. Blattland Investments, LLCWilson v. Lucerne Canal and Power Co.Markstein v. Countryside L.L.C.White v. AllenConner v. Board of County Commissioners

Natrona County

Lozier v. BlattlandLozier v. Blattland

100 P.3d 380 (Wyo. 2004)Can easement be transferred to subsequent

landowners?Wyoming Supreme Court:

– Easement document did not limit transferability– Easement is perpetual

Wilson v. Lucerne Canal and Wilson v. Lucerne Canal and Power CompanyPower Company

77 P.3d 412 (Wyo. 2003)How can easement holder enforce

easement?Remedies:

– Permanent Injunction– Damages

Markstein v. CountrysideMarkstein v. Countryside

77 P.3d 389 (Wyo. 2003)77 P.3d 389 (Wyo. 2003) Issues:Issues:

– BankruptcyBankruptcy– License v. EasementLicense v. Easement

Wyoming Supreme Court:Wyoming Supreme Court:– Property owners had permanent easement Property owners had permanent easement

for fishing rights on ranchfor fishing rights on ranch

White v. AllenWhite v. Allen

65 P.3d 395 (Wyo. 2003)65 P.3d 395 (Wyo. 2003)What constitutes undue “burden” on What constitutes undue “burden” on

servient ownerservient ownerWyoming Supreme Court:Wyoming Supreme Court:

– Balance reasonableness of burden placed Balance reasonableness of burden placed on servient owner with substantiality of on servient owner with substantiality of inconvenience imposed on dominant inconvenience imposed on dominant ownerowner

Connor v. Natrona County Connor v. Natrona County CommissionersCommissioners

54 P.3d 1274 (Wyo. 2002)54 P.3d 1274 (Wyo. 2002) Issues: Issues:

– Whether eminent domain can be used to Whether eminent domain can be used to extend an easement; andextend an easement; and

– DamagesDamagesWyoming Supreme CourtWyoming Supreme Court

– Condemnation appropriateCondemnation appropriate– Damages were properly determinedDamages were properly determined

Water Transfers in Times of Water Transfers in Times of Drought: Drought:

Perspectives from the Ground Water User and Perspectives from the Ground Water User and the Power Companythe Power Company

Presented by:

Kara Brighton, Esq.

Hageman & Brighton, P.C.

Jenifer Scoggin, Esq.Holland & Hart,