037-5 Wyo. Code R. § 5-6

Current through April 27, 2019

Section 5-6 - Proposed Subdivision Developments

Wyoming Statute 18-5-306(a) (xi) provides for the disposition of any water rights appurtenant to the lands involved in a proposed subdivision development prior to its approval by the county officials. If there are no water rights found appurtenant to the lands to be subdivided, the developer should obtain a statement confirming this fact from the office of the State Engineer for submittal to the county officials.

The disposition of each subject water right must be in accordance with one or more of the four (4) procedures outlined below:

a. The subdivider may submit the documentation necessary to relinquish all or part of the water rights as follows:

• (1) If the water rights are adjudicated, the developer will submit to the Board a petition for voluntary abandonment. The petition must be accompanied by a statement of ownership certified by the appropriate county clerk or some other acceptable proof of ownership. Other documentation may be required by the Board.

• (2) If the water rights are unadjudicated, the developer will submit a written request to the State Engineer for either a cancellation of the entire permit or for the elimination of the lands involved from the permit. Either request must be accompanied by a statement of ownership certified by the appropriate county clerk or some other acceptable proof of ownership.

b. The subdivider may petition for change in place of use of all or part of the water rights to new lands, or change all or part of the water rights to new uses, and thereby provide for the continued beneficial use of the water. A petition and accompanying map certified by a professional engineer or professional land surveyor licensed to practice in Wyoming will be required (see Section 11, this chapter entitled Authorizing Statutes and Part I, Chapter VIII, of the State Engineer's Regulations and Instructions on the preparation of maps).

c. In addition to disposing of the water rights under proposed roadways and other areas no longer to be irrigated, the subdivider may leave all or part of the water rights on the land and develop a plan for distribution within the subdivision. This plan will be evaluated so it does not introduce or perpetuate errors in the records of the State Engineer's Office.

The developer shall submit a plan, certified by a Professional Engineer or Professional Land Surveyor, to the State Engineer, and a copy to the local irrigation district board, association, or remaining appropriators in the case of an unorganized ditch or pipeline system for distribution of the water right(s) within and through the subdivision.

The Water Distribution Plan must show or satisfy that:

• (1) All existing water rights which will remain attached to the lands proposed to be subdivided.

• (2) How each water right is to be conveyed from the source to and beyond the lands proposed to be subdivided.

• (3) How the water is delivered to the various lots within the proposed subdivision.

• (4) How much acreage of each water right is to remain appurtenant to each lot within the proposed subdivision.

• (5) The water right items to be shown on the water distribution plan map for each proposed subdivision lot should include:
  • (a) Permit number, proof and certificate record (if adjudicated), court decree priority (if applicable, and stream name, name of supply facility, priority date, and source of the water right(s).
  • (b) Numbers of acres permitted or adjudicated and currently being actively irrigated.
  • (c) The facility which conveys water from the source stream to the proposed subdivision, should be shown in its entirety, on the location map.
  • (d) The means of conveyance of the water shall be shown to each lot entitled to water delivery. In addition, culverts to convey the delivery under driveways and streets within the subdivision should be shown.
  • (e) Contour lines, direction of slopes or other means of showing direction of water flow should be included, if necessary, to assist in the evaluation of the means of delivery and application of water to the lots within the proposed subdivision.
  • (f) Because property owners are responsible for the drainage of their waste water, depict how waste water is to be managed to insure that it does not damage any adjoining lands nor alter historic return flow patterns. To prevent property damage from irrigation or waste water to properties down-gradient within or below the proposed subdivision it may be necessary to design and show waste ditches or drains to capture waste water or return flow from the upper lots.

• (6) Since Wyoming law does not recognize any riparian water rights, lot owners have no right to water flowing past or through the proposed subdivision other than for permitted use(s) specifically appropriated or adjudicated to their lot via the State Engineer's Office or the State Board of Control. A statement to this effect shall be added to the plan.

• (7) Final approval by the State Engineer of the plan to deliver water to the proposed subdivision shall be sent to the appropriate county for notification pursuant to W.S. W.S. W.S. 18-5-301 through 18-5-318. Copies of the State Engineer's approval along with the map will also be sent to the subdivider, the water division superintendent, and the hydrographer/water commissioner.

• (8) Upon final approval of the subdivision by the appropriate county's Board of County Commissioners, a reproducible map of the subdivision plat shall be provided by the county to the State Engineer's Office for incorporation into its records. The approved water distribution plan should be available for inspection through the appropriate county agency.

• (9) The subdivider should allow at least ninety (90) days from the time the water distribution plan is submitted to the State Engineer's Office for final approval by the State Engineer. If the Water Distribution Plan is associated with a Petition or Authorization to Detach Water Rights, it is possible that the plan approval by the State Engineer will be delayed until the Board of Control has taken final action on the associated Petition or Authorization to Detach Water Rights at its quarterly meeting.

d. Authorization to Detach Water Rights

• (1) The authority to enter into an Authorization to Detach Water Rights (ADWR) resides in the Board of Control's general rulemaking authority under W.S. W.S. W.S. 41-4-211, as it relates to the Board of Control's constitutional and statutory responsibilities for water administration and management.
  • (a) An accepted ADWR shall constitute authorization for the grantee to request change of use or change of place of use or voluntary abandonment of a water right. If a change of use or change of place of use petition is not filed with the Board of Control within Five (5) years of the date of acceptance of the ADWR, or if such petition is timely filed and not subsequently granted, the water right(s) is deemed to be voluntarily abandoned on the five year anniversary date of the ADWR acceptance, and the State Board of Control will issue an order to that effect.
  • (b) Once accepted, an ADWR cannot be rescinded unless the county does not approve any subdivision for which the ADWR was sought, financial hardship of the water right holder is demonstrated, or in other circumstances where the Board finds good cause. A request to rescind the ADWR must be filed before the five year anniversary date of the ADWR acceptance.
  • (c) The Board will only entertain a petition to place water rights on subdivision lands if it is accompanied by an approved water distribution plan.

• (2) Map Requirements
  • (a) If an ADWR is filed with a petition or a Water Distribution Plan, then all existing map requirements must be met. The same map requirements apply if an ADWR is not associated with a petition or a Water Distribution Plan, except that a paper map is acceptable. All maps involved with ADWRs must delineate the area of each water right involved to be authorized for detachment, specifying the acreage within each quarter-quarter. The title block must show that it is also the "Map to Accompany the Authorization to Detach Water Rights" when with a petition or Water Distribution Plan.

• (3) Land Ownership
  • (a) Land ownership by the grantor in the form of a certificate of ownership or a copy of a recorded warranty deed is required for all lands under an ADWR.
  • (b) The grantor or their successors are responsible for providing notice, to the purchasers of those lands, of the status of the water rights authorized for detachment and that this water right will be moved or abandoned within five (5) years.

• (4) Historic Use Requirements
  • (a) Prior to filing a petition and map for a change of place of use or change of use for lands that were previously authorized for detachment by the Board of Control, evidence of recent historical use, within the five (5) years immediately prior to the acceptance of the ADWR or during its pendency, will be needed for submittal with the associated petition. If the water rights are being placed in a subdivision, a Water Distribution Plan will also be required. Until such change or abandonment is granted by the Board of Control, water rights involved in the ADWR remain attached to the lands for the described permitted use. If no petition completing the detachment change in use or change in place of use has been received prior to the end of the five (5) year period, the Board of Control, without further notice to landowners, will enter an order abandoning the water rights on those lands from the records of the Board of Control.

• (5) Fees
  • (a) See Fees, Wyoming State Engineer's Office, Wyoming State Board of Control, Chapter 1, Section 5(h).

• (6) Form Requirements
  • (a) The form in Appendix A on page A-28-29 should be completely filled out and signatures of the grantee and grantor on the ADWR must both be notarized. The notarized ADWR forms with accompanying map, fees and current land ownership documentation will be reviewed and considered by the Board of Control.

• (7) Consent or Disclaimer
  • (a) Notarized disclaimer(s) of interest or consent (s) for an ADWR are required where the authorization to detach is only for a portion of an un-defined blanket appropriation or court decree water right, including any appropriation where the acreage within the affected quarter-quarter (s) is undefined. This requirement is intended to show that the other landowner(s) within the affected area are not injured by the apportionment of the appropriation between the landowners as shown in the ADWR and its accompanying map.

037-5 Wyo. Code R. § 5-6