037-9 Wyo. Code R. § 9-7

Current through April 27, 2019

Section 9-7 - Petition for Exchange of Water

a. Under the provisions of Section 41 - 5, Wyoming Statutes 1 957, as amended by Section 1, Chapter 160, Session Laws of Wyoming 1973, the State Engineer is authorized, upon written petition of any appropriator of valid water rights, to enter an order allowing an exchange of water provided that the proposed exchange would not adversely affect the rights of other appropriators, would not, in the opinion of the State Engineer, be too difficult to administer and would not be adverse to the public interest. The key as to whether there will be any adverse affect on other appropriators is whether the proposal would involve an expansion of historic use under the appropriation which is to provide water for the exchange* Exchanges of water may be allowed among any combination of direct flow, storage, and ground water rights.

b. An exchange of water involves providing water from another source, either direct flow, storage or ground water, as "make up" water. This "make up" water is supplied to prior rights, in exchange or as replacement for water diverted by an appropriation whose original source is insufficient to fully satisfy such appropriation; when better conservation and utilization of the State's water can be accomplished or when water from the new source cannot economically be conveyed directly to the point of use.

c. Exchanges of water are accomplished either by application for permit to the State Engineer or by petition to the State Engineer, depending on whether the "make up" water provided for the exchange is to be appropriated or is already appropriated.

(1) An application for permit will be filed in the case where the proposed exchange is to be accomplished by appropriation of previously unappropriated water from another source of supply, either from a direct flow, storage or ground water source, for the express purpose of providing "make up" or "replacement" water for that diverted under the proposed exchange. The application will be submitted on an original ditch form (Form S.W.1), enlargement form (Form S.W.2), reservoir form (Form S.W.3) or ground water form (Form U.W. 5), as appropriate, and will be accompanied by a proper filing map following the same general procedures and with the same general requirements for filing of surface water rights, as outlined in Chapters II, III, V, VII and VIII of this Manual or for a ground water source as outlined in Chapter V of the ground Water Manual. Generally, the lands to receive water by exchange will already have an appropriation and therefore water from the new source will be for supplemental, secondary or additional supply.
The details of the proposed exchange must be outlined on the appropriate application form and must also be shown on the accompanying map. A sample map proposing the exchange of direct flow water for direct flow water is shown on page 66, Chapter VIII.

Any restrictions or conditions deemed necessary to protect the rights of other appropriators will be imposed by the State Engineer at the time a permit is granted.

(2) A petition to the State Engineer will be filed if the "make up" or "replacement" water for the proposed exchange is to be supplied from already appropriated water. In the majority of cases, this will involve appropriated stored water, not allocated to specific lands for irrigation or to a specific point of use for some other purpose. Water from the reservoir source must be appropriated for the same purpose for which water will be used under the exchange. Only rarely will the physical conditions be such that water from one already appropriated direct flow or ground water right can be exchanged for water from another already appropriated direct flow or ground water right, since there must be an actual simultaneous "trading" or exchange of water between the two rights.
A sample petition, with the accompanying map, has been prepared as an example of the information required in a typical, proposed exchange. (See page 92, this Chapter.) This sample petition involves unallocated stored water. (This is stored water which is not attached to specific lands or point of use by a secondary permit or other instrument.) This stored water is to be released into the stream to replace or in exchange for water which will be diverted from that stream for the irrigation of lands which cannot practically or economically utilize this water except by exchange.

If the rights to the two appropriations involved are owned by different parties, the parties may join in the petition as co-petitioners or the petition may be filed by the party wishing to divert the water under the exchange. In the latter case, an exchange agreement must also be filed with the petition setting out the conditions of the exchange.

The sample petition involves two different owners of the appropriations to be exchanged.

After the petition for exchange is filed with the State Engineer, with proper recording fees, the petition will be examined for correctness and completeness and to determine if the proposed exchange should be allowed. If the exchange is allowed, an order will be entered by the State Engineer setting out the conditions under which the exchange will operate. No exchange will be allowed until such an order has been entered and no exchange may be terminated without the issuance of an order approving termination, unless the order allowing the exchange provides for termination on a specified date.

After the order has been entered, it and the petition will be recorded in "Miscellaneous Records" of the State Engineer's Office and said order will also be recorded in the county or counties where any part of the land involved is situated. In addition, a notation concerning the exchange will be made on the proper records of the State Engineer and Board of Control for the appropriation furnishing water for the exchange. A copy of the approved petition and map and the Order will also be returned to the petitioner(s) and will also be furnished to the appropriate Water Commissioner.

Any agreement or other document drawn in connection with the exchange may be recorded in the county or counties in which any part of the land involved is situated, at the discretion of the parties to the exchange,

d. A petition for exchange of water must meet the following requirements :

(1) HEADING - State the purpose of the petition, identify the appropriations involved by permit number, name, and if either or both appropriations are adjudicated, also show proof number, Order Record Book and Page and Certificate Record Book and page.

(2) OPENING STATEMENT -- Identify the petitioner(s), show a mailing address(es), and give a general introduction.

(3) ITEM 1 - State that the petitioner(s) is (are) sole owner(s) of the appropriations involved in the exchange (ditch and lands irrigated thereby and of the reservoir right to furnish water for the exchange); which statement should be substantiated by documentary evidence, such as a Certificate of Ownership from the County Clerk of the county in which the lands are located for the ditch right. In the case of the reservoir right, a showing that the reservoir or storage right is held by the petitioner, either by issuance of the original storage permit to petitioner, if unadjudicated; by adjudication of the permit in the name of the petitioner, if adjudicated, or by transfer of the reservoir right to petitioner by proper assignment or other instrument.

(4) ITEM 2 -- Give the status of the permits, such as "Permit No. 00000 is adjudicated for the irrigation of 000 acres under Proof No. 00000, Order Record Book 00, page 00, Certificate Record Book 00, Page 00", or if the right is unadjudicated. such as "permit No. 0000 Res. is in good standing, with all the required notices filed, and that beneficial use of water is presently being made under said permit".

(5) ITEM 3 - Indicate the reason why the exchange is requested and indicate that the stored water is unallocated and does not attach to Specific lands.

(6) ITEM 4 -- Give the length cf time the exchange is to operate or if two appropriators are involved, this item may be expanded to include whatever conditions the parties wish to include to govern the exchange.

(7) ITEM 5 - Identify the lands to receive water under the exchange .

(8) ITEM 6 -- Give complete details on how the exchange will operate including rate of diversion, total amount of water involved, the period of the year during which the exchange will operate, the point where the "make up" or "replacement" water will enter the stream, the point where the "exchange" water will be diverted and any other information which will fully explain the proposal.

(9) ITEM 7 - Indicate whether or not there are any intervening appropriations diverting between the point where the "make up" or "replacement" water will enter the stream and the point where the "exchange" water will be diverted. If there are intervening appropriations, they should be listed by permit number, ditch name and priority, and should also be shown on the accompanying petition map. No exchange can be made unless sufficient water remains in the stream to satisfy these intervening appropriations. If information concerning the intervening appropriations is not available, it may be secured from the State Engineer.

(10) ITEM 8 -- State the Water Commissioner will be notified and that the exchange will be under the supervision of the Water Commissioner.

(11) ITEM 9 -- State whether or not any other appropriator from the same source of supply will be injured.

(12) ITEM 10 -- The accompanying map should show complete details on how the exchange will operate as generally outlined in Items 6 and 7 above, and should include the location of all involved ditches, reservoirs and intervening points of diversion, properly located. As a guide in preparation of the map, see the sample map, page 67, Chapter VIII. Mapping requirements will be the same as for other petitions filed with the State Engineer, as outlined in Section 2, page 71 of this Chapter.

(13) ITEM 11 -- Indicate the amount of fees which accompany the petition. The fees include a recording fee of two (2) dollars for the first page and one (1) dollar for each subsequent page for recording of the petition in the State Engineer's "Miscellaneous Records" and fees, at the same rate, for recording of the Order of the State Engineer in both the State Engineer's "Miscellaneous Records" and in the county records of the appropriate county. The normal Order should not exceed three pages so that fees in the amount of eight (8) dollars (four (4) dollars for State Engineer recording and four (4) dollars for recording in the county records) should be sufficient, in addition to the fees for recording of the petition. Any overpayment of recording fees will be refunded .

(14) PRAYER - The prayer of the petitioner should set-out the results the petitioner desires to accomplish.

d. The sample petition on page 92 may be used as a guide for preparing a petition for exchange of water. *

PETITION FOR DIVERSION OF )

WATER UNDER PERMIT NO. 1234, )

SNAKE DITCH, PROOF NO. 4000, ) BEFORE THE

O.R. HOOK 3, PAGE 16, C.R. ) STATE ENGINEER

BOOK 3, PAGE 427, IN EXCHANGE CHEYENNE, WYOMING

FOR AN EQUAL AMOUNT OF WATER )

RELEASED FROM THE SNAKE RESER- )

VOIR, PERMIT NO. 6789 RES. )

STATE OF WYOMING )

) SS.

COUNTY OF PLATTE )

COME NOW, John Doe and Joe Blow, Town of Exchange, County of Platte, State of Wyoming, who being duly sworn according to law, do hereby make the following statement of facts and petition:

1. THAT they are sole owners of the valid adjudicated water rights to be exchanged which are identified as follows:
- a. JOHN DOE is the sole owner of the Snake Ditch, Permit No. 1234, diverting from Snake Creek, tributary of Big Creek with priority of June 17, 1897, and of all lands irrigated thereunder, as evidenced by Certificate of Ownership of the County Clerk of Platte County accompanying this petition.
- b. JOE BLOW is the sole owner of the Snake Reservoir, Permit No. 6789 Res., storing water from Snake Creek, tributary of Big Creek with priority of May 17, 1969, with the original permit being issued to said Joe Blow.

2. THAT Permit No. 1234, the Snake Ditch, is adjudicated in the amount of 2.74 c.f.s. for the irrigation of 192 acres under Proof No. 4000, Order Record Book 3, Page 16, Certificate Record Book 3, Page 427 and further that Permit No. 6789 Res. is in good standing for the storage of 201 acre-feet of water for irrigation, with all the required notices filed and chat beneficial use of water is presently being made under said permit.

3. THAT the petitioners desire to make an exchange of water between the two appropriations identified in paragraphs one (1) and two (2) of this petition for the reason that the priority of the water right under Permit No. 1234 is such that there is not sufficient water available to provide a full supply to the lands irrigated thereunder but water can be provided for these lands, by exchange, from water stored in the Snake Reservoir, Permit No. 6789 Res., thereby better utilizing and conserving the waters of the State of Wyoming. Water stored in the Snake Reservoir is unallocated and in not attached to specific Lands by secondary permit or other instrument.

4. THAT petitioners hereby agree to such exchange under the conditions set out in this petition and the conditions imposed by the Order of the State Engineer in granting this petition. It is further agreed that such exchange shall remain in effect until October 1, 1977, unless a mutual request is submitted by your petitioners for an extension or for an earlier termination of such exchange.

5. THAT the lands under Permit No. 1234, the Snake Ditch, to receive water under this exchange are described as follows:
Section 17, T.20N., R.66W.

23 acres - SE-1/4NW1/4

39 acres - NE1/4SW1/4

40 acres - SE1/4SW1/4

8 acres - NE1/4SE1/4

36 acres - NW1/4SE1/4

40 acres - SW1/4SE1/4

6 acres - SE1/4SE1/4

192 acres - TOTAL

6, THAT the exchange of water will be accomplished by releasing storage water from the Snake Reservoir, Permit No. 6789 Res., at a maximum rate of 3.0 c.f.s., with a total release of no more than 100 acre-feet of water each irrigation season (May 1 through September 30) at the outlet of said reservoir located N.72° 35' E., 2695 feet from the W1/4 corner of Section 17, T.20N., R.66W, and in the SEiNW of said Section 17; said storage water will provide "make up" or "replacement" water to downstream prior rights, for water to be diverted in an equal amount into the Snake Ditch at a point S.57° 20' E., 1770 feet from the NW corner of Section 17, T.20N., R.66W., and in the NE1/4NW1/4 of said Section 17.

7. THAT there are no intervening appropriations between the point of diversion of the Snake Ditch and the point where the exchange water will be returned to the stream from the Snake Reservoir.

8. THAT the Water Commissioner for this district will be notified when the exchange of water will operate and such exchange will be under the supervision of the Water Commissioner at all times.

9. THAT no other appropriations from the same source of supply involved in the exchange will be injured in any way,

10. THAT a map in duplicate prepared and certified by a licensed engineer and land surveyor, accompanies this petition.

11. THAT recording fees in the amount of S_______ accompany this petition.

12. IT IS THE PRAYER of the petitioners that this exchange be allowed without loss of priority; that a proper Order of the State Engineer be entered allowing same; that a proper notation be entered on the records for Permit No, 6789 Res.; that the petition be recorded in Miscellaneous Records in the State Engineer's Office; and that the Order of the State Engineer be recorded in Miscellaneous Records in the State Engineer's Office and in the records of the County Clerk of Platte County, Wyoming.
Respectfully submitted,

(Signed)______________________________________

JOHN DOE

(Signed)______________________________________

JOE BLOW

The foregoing instrument is acknowledged before me this day of _________________________________, 19_____.

Witness my hand and official seal.

(Signed)______________________________________

Notary Public

My commission expires:___________________________________

037-9 Wyo. Code R. § 9-7