By Kerin Clark, Wyoming Farm Bureau Federation (Written June 2007)
Wyoming water law has a lot of history associated with its development dating back to territorial days in 1868. That history, along with different components of Wyoming’s water law were presented at a “Water 101” seminar presented by the Wyoming Farm Bureau Foundation.
“The issues surrounding this important resource could have an incredible impact on water use in Wyoming and so we felt this seminar would be an excellent educational opportunity for Wyoming’s citizens to learn more about Wyoming water law,” WyFB Executive Vice President Ken Hamilton said. The seminar was held in Casper June 5-6.
When looking at Wyoming water law it is important to begin with the history behind its development. Craig Cooper, a former water superintendent for the Board of Control, gave an overview on water history.
Beginning in 1868, Wyoming has worked through water claims, appropriating water, establishing beneficial use and developing water. “We are upstream from everybody for the most part,” Cooper explained. “We (Wyoming) were later to be settled and have a smaller population than our downstream neighbors. We have to be diligent about our water supplies.”
“When we begin to even think of changing our water laws we need to put it in context of our history,” Cooper said. “Why was it developed? Is it really wrong for today just because it is on the books?”
“Let’s look at the history first and find out why we have it that way before we consider tweaking water law,” Cooper concluded.
Wyoming water law is based on the Constitution. Harriet Hageman and Kara Brighton, with the Hageman and Brighton Law Firm, reviewed basic water rights principles for the audience. Hageman urged the attendees to print off their water right permits and understand the legal descriptions. Water rights can be found on the State Engineer’s website and searched via permit number or legal description.
“Your water rights are only protected from the standpoint of what is on paper,” Hageman explained. “You need to have your paper water rights.”
Wyoming’s first groundwater law was passed in 1945 compared to Nebraska who passed their first groundwater law in 1996. “Wyoming should be given a lot of credit for getting into the water issues early and providing statutory regulation,” Brighton said during the discussion on regulation of groundwater.
Moving on to water development, the audience heard from Anne MacKinnon, a Wyoming Water Development Commission (WWDC) Commissioner from Casper. MacKinnon reviewed the responsibilities and actions of the WWDC.
With Wyoming being a headwaters state, interstate water issues are ever present. “At the turn of the century it was very clear that our downstream neighbors were going to grow quicker than we were,” Jeff Fassett, former Wyoming State Engineer and National Water Resources Director for HDR Engineering, said. “In the teens and 1920s the concern that senior rights could call out to junior rights in others state, the thought that a downstream state could develop and preclude water use in the future, was the prelude to the development of interstate compacts.”
According to Fassett, interstate compacts put in a legal mechanism to allow each state to have a sense of their share of the water resource. “Each state could then develop their own resource at their own pace without the risk of ‘first in time, first in right’ taking it away,” Fassett continued. “You have to be a player to protect our water.”
Wyoming is party to seven interstate compacts. An interstate compact summary sheet is available at www.wyfb.org, click on issues, water.
The audience also learned more about water permits versus adjudication of water rights. When a water permit is issued it authorizes the holder to make use of the water as limited by the permit. According to Brighton, adjudication means that a water right is publicly recognized and specifically defined.
“You want to make sure your permits are adjudicated,” Brighton urged the audience. “Adjudication is a perfected water right and the best way to protect your rights.”
Attorney Eydie Trautwein reviewed Wyoming’s abandonment statutes and the cases involving abandonment proceedings. According to Trautwein, there are four elements to prove to the Board of Control in abandonment proceedings. They are: 1) Non-use: must establish through evidence that non-use has occurred for five consecutive years; 2) Standing; 3) Benefit or injury; and 4) Evidence.
Supreme Court decisions regarding water issues were also reviewed by Hageman and related to Wyoming water law. “There have only been three equitable apportionment cases before the United States Supreme Court and Wyoming has been party to two of them,” Hageman said. “Wyoming has always fought for our water.”
“The information provided was very timely,” Hamilton concluded. “Wyoming water law is very important to our state. This precious resource needs to be understood by all Wyoming citizens and we urge people to learn more before trying to change Wyoming’s water law.”