Section 99-99-301 - Use of surface waters and tributaries for transportation of coal to other states(a) On the advice of the state engineer the legislature of the state of Wyoming hereby grants to Texas Eastern Wyoming, Inc., a Delaware corporation (to the extent that it is or may be the holder of a permit, certificate or application to appropriate, store or divert water), all approval required by W.S. 41-3-105 and 41-3-115 to use outside of the state of Wyoming not more than twenty thousand (20,000) acre-feet annually of the surface waters of the Little Bighorn River and its tributaries (including intrastate and interstate tributaries) as a medium of pipeline transportation of coal to another state or states and for uses related to or connected with a pipeline system of transportation of coal. No more than ten thousand (10,000) acre-feet of such water shall be used annually to transport coal other than coal mined within the boundaries of Wyoming.(b) The approval granted by this act to use not more than twenty thousand (20,000) acre-feet annually of such surface waters outside the state of Wyoming shall automatically terminate if there is a permanent termination of the use of such surface waters as a medium of pipeline transportation of coal.(c) The use of such surface waters outside the state of Wyoming pursuant to this approval shall not require a grant of reciprocal rights from any adjoining states as set forth in W.S. 41-3-115(c).(d) If any portion of the twenty thousand (20,000) acre-feet of surface water is conveyed outside the state of Wyoming and then returned to the state of Wyoming, any such water may be again conveyed outside the state but shall not be counted again in determining the total twenty thousand (20,000) acre-feet annual quantity of water.(e) Appropriation of the surface waters to be used pursuant to this section shall be in accordance with Title 41, Chapters 3 and 4, Wyoming Statutes 1977. Nothing in this section shall be construed as a directive to the state engineer to grant any approval or issue or amend permits, or in any way infringe on his discretion under the state law.(f) The approvals, rights and benefits granted by this section may be pledged, mortgaged or otherwise hypothecated in connection with any financing and shall also inure to the benefit of any successors or assigns of Texas Eastern Wyoming, Inc. Provided that each such successor or assign is a corporation, partnership, joint venture or other entity with respect to which Texas Eastern Wyoming, Inc., or a parent, subsidiary or other affiliate thereof, is a member or the holder of equity interest.(g) Notwithstanding the effective date of this section, the approval granted by this section shall terminate and expire unless, within ninety (90) days after the effective date of this section, an initial contract is entered into by and between but not limited to the state and Texas Eastern Wyoming, Inc., which is signed by the governor upon the advice of the attorney general that the contract contains in appropriate form and detail the provisions set forth in subsection (h) of this section.(h) The contract referred to in subsection (g) of this section shall contain provisions as follows: (i) There shall be a joint study, conducted pursuant to W.S. 41-2-114(c), to be funded entirely by Texas Eastern Wyoming, Inc., (hereinafter referred to as "Texas Eastern") to evaluate the feasibility of a water project to develop the surface waters of the Little Bighorn River including its interstate and intrastate tributaries. The present description of the water project, based upon engineering estimates of the water which will be available from the Little Bighorn River, consists of a maximum diversion of three hundred (300) cubic feet per second from the Little Bighorn River through a water pipeline to a reservoir or two (2) reservoirs to store forty-two thousand five hundred eighty (42,580) acre-feet of water annually;(ii) If, after completion of the joint feasibility study, Texas Eastern desires to proceed with development, the state will have three (3) options. The state will have the exclusive right to determine which option it desires to select;(iii) First option: (A) If the state determines to select the first option, Texas Eastern will finance, construct and own the water project and the related water rights, and Texas Eastern will operate and maintain the water project and pay all costs in connection therewith;(B) The water in excess of a firm yield of twenty thousand (20,000) acre-feet per annum (or any lesser quantity which is required for the slurry pipeline transportation system) will be made available for sale at the reservoir to the state at a cost equal to a pro rata share of all operating and maintenance costs of the water project;(C) The state will be entitled to sell the water it purchases from Texas Eastern at such prices as the state may determine but the state will agree that it will not sell water for industrial use at a price less than the cost per acre-foot of water to Texas Eastern. The state will also agree that it will not sell water for industrial use unless the purchaser contracts with Texas Eastern to pay an annual amount equal to the actual sums Texas Eastern is required to pay to the present owners of the water rights, but the state will have no liability for such payments to Texas Eastern or to the present owners of the water rights;(D) The state will be entitled to all revenues from water sales;(E) If the state sells water from the water project for industrial use, the state will sell the water only after complying with the review and public hearing processes provided by W.S. 41-2-115, and any water sale for industrial use will be contingent upon the industrial user's obtaining any permit required by law;(F) The reservoirs will be available for public recreational uses;(G) Texas Eastern will provide the state, political subdivisions or special districts an opportunity to obtain capacity in any water pipeline Texas Eastern constructs to transport water from the water project at a capital cost and operating cost equal only to the incremental cost of constructing and operating a larger water pipeline to provide additional capacity for use of the state, political subdivisions or special districts;(H) After the use of water from the water project for the slurry pipeline transportation system is permanently terminated, good and marketable title to the water project and the related water rights will be conveyed to the state without cost to the state.(iv) Second option:(A) If the state determines to select the second option, the state will issue its tax exempt revenue bonds to finance the water project and the state will construct, own and operate the water project and will own the related water rights. Good and marketable title to the related water rights will be conveyed to the state without cost to the state;(B) The state will sell and Texas Eastern will purchase a firm yield of twenty thousand (20,000) acre-feet per annum from the state (or any lesser quantity which is required for the pipeline transportation system);(C) Texas Eastern will pay the present owners of the water rights an annual amount for use of the water for the slurry pipeline transportation system pursuant to the water rights. In addition, Texas Eastern will pay the following amounts to the parties indicated for the water purchased, regardless of the amount of water actually used by Texas Eastern: (I) An annual amount equal to all principal and interest payable on the revenue bonds of the state;(II) An annual amount to be determined by the state treasurer equal to the difference between the actual interest on the tax exempt revenue bonds of the state and the interest which would have been paid if corporate bonds had been issued to finance the water project as a part of the slurry pipeline transportation system payable to the Wyoming Water Development Account;(III) An annual amount in lieu of taxes equal to all ad valorem taxes for all taxing jurisdictions payable to the taxing jurisdictions to the same extent as if Texas Eastern owned the water project;(IV) An annual amount equal to all operating and maintenance costs of the water project.(D) The state will be entitled to sell water in excess of the water committed to Texas Eastern at such prices as the state may determine but the state will agree that it will not sell water for industrial use at a price less than the cost per acre-foot of water to Texas Eastern. The state will also agree that it will not sell water for industrial use unless the purchaser contracts with Texas Eastern to pay an annual amount equal to the actual sums Texas Eastern is required to pay to the present owners of the water rights, but the state will have no liability for such payments to Texas Eastern or to the present owners of the water rights;(E) To the extent that the state sells water from the water project other than to Texas Eastern, the state will pay a pro rata share of the operating and maintenance costs of the water project and will to such extent credit Texas Eastern's obligation to pay all operating and maintenance costs;(F) The state will be entitled to all revenues from water sales under subparagraph (D) of this subsection;(G) If the state sells water from the water project for industrial use, the state will sell the water only after complying with the review and public hearing processes provided by law and any water sale for industrial use will be contingent upon the industrial user's obtaining any permit required by law;(H) Texas Eastern will provide the state, political subdivisions or special districts an opportunity to obtain capacity in any water pipeline Texas Eastern constructs to transport water from the water project at a capital cost and operating cost equal only to the incremental cost of constructing and operating the water pipeline to provide additional capacity for use of the state, political subdivisions or special districts.(v) Third option:(A) If the state determines to select the third option, Texas Eastern will finance, construct and operate the water project and will own the related water rights without participation by the state;(B) Texas Eastern will amend the water permits so that the water is not authorized to be used for industrial use other than for a slurry pipeline transportation system;(C) The reservoir will be available for public recreational uses;(D) Texas Eastern will provide the state, political subdivisions or special districts an opportunity to obtain capacity in any water pipeline Texas Eastern constructs to transport water from the water project at a capital cost and operating cost equal only to the incremental cost of constructing and operating a larger water pipeline to provide additional capacity for use in the state, political subdivisions and special districts;(E) After the use of water for the slurry pipeline system is permanently terminated, good and marketable title to the water project and the related water rights will be conveyed to the state without cost to the state, if agreed to by the state.(vi) As a material consideration for and as a condition of the use of the water described in subsection (a) of this section, Texas Eastern Wyoming, Inc., shall agree, by contract, that if any coal slurry preparation plant utilizing water authorized under this section is constructed outside of the state of Wyoming, then Texas Eastern Wyoming, Inc. shall annually pay to each entity involved an amount equal to the ad valorem taxes which would be due to any taxing entity having authority to levy an ad valorem tax on the plant if the preparation plant facilities were located at the principal reservoir site in Sheridan County, Wyoming.(j) In connection with the implementation of this section, on behalf of the state, the governor may enter into contracts on such terms and conditions as may be deemed desirable with any persons or entities with regard to development of a water project using the waters of the Little Bighorn River or connected with the project. Nothing in this section may be construed as requiring the governor to enter into any contract.Laws 1979, Ch. 97, §1; 2005, Ch. 231, § 1; Renumbered from 41-2-301 by Laws 2009 , Ch. 168, § 401.