Wyoming State Water Plan
Wyoming State Water Plan
Wyoming Water Development Office
6920 Yellowtail Rd
Cheyenne, WY 82002
|SUBJECT:|| Wind/Bighorn River Basin Plan|
Compacts and Decrees
|PREPARED BY:||BRS Engineering: Douglas Beahm, PE, PG|
|DATE:||March 10, 2003|
Section 1 - Introduction
Section 2 - Yellowstone Compact
Section 3 - Big Horn General Adjudication
Appendix A - Yellowstone Compact
Appendix B - Big Horn General Adjudication
Section 1 - Introduction
Within the Wind River, Clarks Fork, and Big Horn basins, surface water usage and flow is regulated by the Yellowstone River Compact of 1950 and the GENERAL ADJUDICATION OF ALL RIGHTS TO USE WATER IN THE BIG HORN RIVER SYSTEM and all other sources, State of Wyoming, February 24, 1988.
The Yellowstone River Compact is included in Appendix A.
A summary of the Big Horn General Adjudication from the Wyoming State Engineer's Office 1999 Annual Report is included in Appendix B.
Section 2 - Yellowstone Compact
The Yellowstone River Compact between the states of Wyoming and Montana divides the waters of four tributaries, two of which pertain to this planning process, to the Yellowstone River. To all tributaries the following rules apply.
The unappropriated waters in the tributaries, after meeting for existing water rights (1950) and supplemental supply for existing rights, are allocated as follows:
|Wind River/Big Horn||80% Wyoming,||20% Montana|
|Clarks Fork||60% Wyoming,||40% Montana|
Section 3 - Big Horn General Adjudication
The Wind River Reservation Tribes were awarded by the courts 500,000 acre feet of surface water annually for beneficial use. Within this allocation, approximately 209,000 acre feet is reserved for future developments on the reservation.
A summary of the adjudication is included in Appendix B.
YELLOWSTONE RIVER COMPACT
YELLOWSTONE RIVER COMPACT
Ratification and approval is hereby given to the Yellowstone RiverCompact as signed at the city of Billings, in the state of Montana, onthe 8th day of December, A. D. 1950, by L. C. Bishop, the state engineerof the state of Wyoming, and all of the above named assistantcommissioners, under and in accordance with the authority of section71-2601, Wyoming Compiled Statutes, 1945, which compact was also signedby the duly authorized commissioners of the states of Montana and NorthDakota, and approved by the representative of the United States, whichYellowstone River Compact is in full as follows:
YELLOWSTONE RIVER COMPACT
The state of Montana, the state of North Dakota, and the state ofWyoming, being moved by consideration of interstate comity, and desiringto remove all causes of present and future controversy between saidstates and between persons in one (1) and persons in another with respectto the waters of the Yellowstone River and its tributaries, other thanwaters within or waters which contribute to the flow of streams within the Yellowstone National Park, and desiring to provide for an equitabledivision and apportionment of such waters, and to encourage thebeneficial development and use thereof, acknowledging that in futureprojects or programs for the regulation, control and use of water in theYellowstone River basin the great importance of water for irrigation inthe signatory states shall be recognized, have resolved to conclude acompact as authorized under the act of congress of the United States ofAmerica, approved June 2, 1949 (Public Law 83, 81st congress, firstsession), for the attainment of these purposes, and to that end, throughtheir respective governments, have named as their respectivecommissioners:
The commission shall itself, or in conjunction with otherresponsible agencies, cause to be established, maintained, and operatedsuch suitable water gaging and evaporation stations as it finds necessaryin connection with its duties.
Nothing contained in this compact shall be so construed orinterpreted as to affect adversely any rights to the use of the waters ofYellowstone River and its tributaries owned by or for Indians, Indiantribes, and their reservations.
A lower signatory state shall have the right to acquire in an upperstate by purchase, or through exercise of the power of eminent domain,such lands, easements, and rights-of-way for the construction, operation,and maintenance of pumping plants, storage reservoirs, canals, conduits,and appurtenant works as may be required for the enjoyment of theprivileges granted herein to such lower state. This provision shall applywith equal force and effect to an upper state in the circumstance of thenecessity of the acquisition of rights by an upper state in a lowerstate.
Should any facilities be constructed by a lower signatory state inan upper signatory state under the provisions of article VII, theconstruction, operation, repairs, and replacements of such facilitiesshall be subject to the laws of the upper state. This provision shallapply with equal force and effect to an upper state in the circumstanceof the necessity of the acquisition of rights by an upper state in alower state.
No water shall be diverted from the Yellowstone River basin without the unanimous consent of all the signatory states. In the event waterfrom another river basin shall be imported into the Yellowstone Riverbasin or transferred from one (1) tributary basin to another by theUnited States of America, Montana, North Dakota, or Wyoming, or any ofthem jointly, the state having the right to the use of such water shallbe given proper credit therefor in determining its share of the waterapportioned in accordance with article V herein.
The provisions of this compact shall remain in full force and effectuntil amended in the same manner as it is required to be ratified tobecome operative as provided in article XV.
This compact may be terminated at any time by unanimous consent ofthe signatory states, and upon such termination all rights thenestablished hereunder shall continue unimpaired.
Nothing in this compact shall be construed to limit or prevent anystate from instituting or maintaining any action or proceeding, legal orequitable, in any federal court or the United States supreme court, forthe protection of any right under this compact or the enforcement of anyof its provisions.
The physical and other conditions characteristic of the YellowstoneRiver and peculiar to the territory drained and served thereby and to thedevelopment thereof, have actuated the signatory states in theconsummation of this compact, and none of them, nor the United States ofAmerica by its consent and approval, concedes thereby the establishmentof any general principle or precedent with respect to other interstatestreams.
This compact shall become operative when approved by the legislatureof each of the signatory states and consented to and approved by thecongress of the United States.
(a) Nothing in this compact shall be deemed:
Should a court of competent jurisdiction hold any part of thiscompact to be contrary to the constitution of any signatory state or ofthe United States of America, all other severable provisions of thiscompact shall continue in full force and effect.
No sentence, phrase, or clause in this compact or in any provisionthereof, shall be construed or interpreted to divest any signatory stateor any of the agencies or officers of such states of the jurisdiction ofthe water of each state as apportioned in this compact.
IN WITNESS WHEREOF the commissioners have signed this compact inquadruplicate original, one (1) of which shall be filed in the archivesof the department of state of the United States of America and shall bedeemed the authoritative original, and of which a duly certified copyshall be forwarded to the governor of each signatory state.
Done at the city of Billings in the state of Montana, this 8th dayof December, in the year of our Lord, one thousand nine hundred andfifty.
Commissioners for the state of Montana:
|Fred E. Buck||/s/ Fred E. Buck|
|A. W. Bradshaw||/s/ A. W. Bradshaw|
|H. W. Bunston||/s/ H. W. Bunston|
|John Herzog||/s/ John Herzog|
|John M. Jarussi||/s/ John M. Jarussi|
|Ashton Jones||/s/ Ashton Jones|
|Chris Josephson||/s/ Chris Josephson|
|A. Wallace Kingsbury||/s/ A. Wallace Kingsbury|
|P. F. Leonard||/s/ P. F. Leonard|
|Walter M. McLaughlin||/s/ Walter M. McLaughlin|
|Dave M. Manning||/s/ Dave M. Manning|
|Joseph Muggli||/s/ Joseph Muggli|
|Chester E. Onstad||/s/ Chester E. Onstad|
|Ed F. Parriott||/s/ Ed F. Parriott|
|R. R. Renne||/s/ R. R. Renne|
|Keith W. Trout||/s/ Keith W. Trout|
Commissioners for the State of North Dakota:
|I. A. Acker||/s/ I. A. Acker|
|Einar H. Dahl||/s/ Einar H. Dahl|
|J. J. Walsh||/s/ J. J. Walsh|
Commissioners for the State of Wyoming:
|L.C. Bishop||/s/ L. C. Bishop|
|Earl T. Bower||/s/ Earl T. Bower|
|Ben F. Cochrane||/s/ Ben F. Cochrane|
|Ernest J. Goppert||/s/ Ernest J. Gopper|
|Richard L. Greene||/s/ Richard L. Greene|
|E. C. Gwillim||/s/ E. C. Gwillim|
|E. J. Johnson||/s/ E. J. Johnson|
|Lee E. Keith||/s/ Lee E. Keith|
|N. V. Kurtz||/s/ N. V. Kurtz|
|Harry L. Littlefield||/s/ Harry L. Littlefield|
|R. E. McNally||/s/ R. E. McNally|
|Will G. Metz||/s/ Will G. Metz|
|Mark N. Partridge||/s/ Mark N. Partridge|
|Alonzo R. Shreve||/s/ Alonzo R. Shreve|
|Charles M. Smith||/s/ Charles M. Smith|
|Leonard F. Thornton||/s/ Leonard F. Thornton|
|M. B. Walker||/s/ M. B. Walker|
/s/ R. J. Newell
R. J. Newell
Representative of the
United States of America.
41-12-602. When binding; notice of ratification.
Said compact shall not be binding or obligatory upon any of the highcontracting parties thereto unless and until the same shall have beenratified by the legislature of each of the said states and approved bythe congress of the United States. The governor of Wyoming shall givenotice of the ratification and approval of said compact by the Wyominglegislature to the governors of the states of Montana and North Dakotaand to the president of the United States.
41-12-603. Diversions from the Yellowstone River Basin; definitions.
(a) Unless the context requires otherwise, in W.S. 41-12-603 through41-12-607 the following definitions apply:
41-12-605. Diversions from the Yellowstone River Basin; application; notice.
41-12-606. Diversions from the Yellowstone River Basin; objections; public hearing.
41-12-607. Diversions from the Yellowstone River Basin; criteria for approval; terms.
BIG HORN GENERAL ADJUDICATION
SPECIAL PROJECT DIVISION
WYOMING STATE ENGINEER'S OFFICE 1999 ANNUAL REPORT
W.S. 1-37-106, General Adjudication Statute, gave authorization to initiate the process through a judicial determination of the rights to use water of all persons on any river system. Subsequently in 1977, the State filed suit for the determination of water rights in the Big Horn River system and all other sources.
It is not an affront to his intelligence that the Judge could not foresee the tremendous complexity and consumption of human effort required by this case. By 1992, it became painfully evident that all parties had grossly underestimated the demands of the adjudication. And now more than 10 years after Judge Johnson's predicted conclusion, although completion is within sight, we are still far away.
Judge Hartman has expressed more than once his desire to see the adjudication wrapped up by April 2003. Remaining legal issues and their attendant factual matters include appurtenancy of fee land reserved rights and final decision on Walton right claims as reported recently by the Special Master. There are also numerous technical or administrative tasks that must be accomplished as each decision is handed down. Some of these are ordered by the court (e.g., cancellation of underlying state rights where reserved rights were awarded) while others are necessary functions to maintain proper records at the State Engineers Office (e.g., incorporating decreed rights in the Division 3 tabulation book). Lastly, there is a desire to have a document that wraps up all phases of the adjudication - a final decree. In preparation of the next biennium and in keeping with the 2003 goal of the district court, the staff developed a comprehensive plan for the Big Horn General Adjudication. It is expected to begin implementation of the plan by the fall of 1999.
General History, Past Accomplishments and Present Condition
The official birth date of the adjudication is January 24, 1977, when Wyoming filed its complaint in the District Court of the Fifth Judicial District. The case was filed two days after enactment of Wyoming's adjudication statute in an attempt to provide the state with further security and jurisdiction over potential federal claims for water. By far the most impressive claims and complex issues concerned the Wind River Tribes, who submitted federal reserved right claims for 739,000 acre-feet of water for numerous uses. The largest claim was for irrigation of 147,111 acres of historically irrigated and future projects lands, equaling a total diversion requirement of 708,058 acre-feet.
Trial for Tribal reserved rights (Phase I) was completed in December 1981, with the subsequent district court decisions ending in 1985. The Wyoming Supreme Court entered its first judgment and decree (Big Horn I) in 1988, awarding the Tribes nearly 500,000 acre- feet of water for irrigation uses only: 290,490 acre-feet for 54,216 acres of historically irrigated land and 209,372 acre-feet for 53,760 acres of future irrigation project lands. The United States Supreme Court affirmed the decision in 1989. A pending Consent Decree will establish appurtenancy to 28,137 acres and 157,668 acre-feet of 1868 rights, about 63 percent of the current in-use reserved right award.
In late 1988, the State Engineer's Office (SEO) began the court-ordered task of canceling all state rights that overlapped awarded federal reserved rights in Phase I. This effort required the dissection of the decree into 1,351 individual tracts of land, and development of databases. It also included the detailed analysis of over 800 adjudicated and unadjudicated water rights. Tabulation and mapping of each of these components was necessary to ensure accurate analysis and documentation of the reserved rights. This analysis ultimately required countless SEO staff hours to revise all affected state records, and notify hundreds of landowners whose water rights have changed. In conjunction with review by other parties and hearings before the court, this endeavor took seven years; there are still adjustments to be made due to interactions and conflicts with Phase III.
In the meantime, non-Tribal federal reserved rights (Phase II) were settled rather quickly, with a Partial Interlocutory Decree entered in early 1983. This document contains a potpourri of tables listing innumerable claims for stock ponds, instream flows, seeps, springs, wells and domestic uses that were never verified before entering the decree. The State and all other parties to the case were aware of this at settlement, and that substantiation of those claims was necessary before a final decree could be completed. Proof of those claims has trickled in since 1994 and the Surface Water Division, in addition to their daily responsibilities, has processed some 300 claims. There is now an accumulated backlog of 420 claims, with another 580 expected over the next year.
Phase III involves the fate of existing state rights. Field inspections to determine whether state permitted lands should be adjudicated or eliminated were initiated in the late 1980s and is nearing completion. Of the nearly 4,000 permits examined, only 42 remain to be investigated in the field. The Division 3 staff has reviewed and reported to the Court some 3,100 permits. Recent amendment to Phase III procedures has allowed the SEO to more efficiently handle review of large irrigation projects, but the process still requires on-the- ground verification. Aged reports-those that have a 5-year gap between fieldwork and reporting-are often sent back by the Court for reinvestigation due to ownership changes. A backlog of 698 permits, plus the 42 waiting inspection, need SEO review and reporting to the court.
The portion of the adjudication concerning the so-called Walton rights (successor rights to Indian allottee federal reserved rights) includes claims dating back to 1982. Walton rights are actually a part of Phase I. As the "technical arm of the court," the SEO was required to investigate 423 claims. An affirmative decision on a Motion for Summary Judgment concerning claims that did not stem from an allotment, as well as withdrawal by several claimants, reduced the caseload to 256 claims. These remaining claims required field inspections and records research, providing the Court with a factual account on each claim. Since the Tribes contested every claim, the State was obliged to participate in settlement of claims and review all analyses performed by the Tribes' technical experts. The State also took the lead role in contesting Tribal Walton claims for additional 1868 water and administrative issues contradictory to the law of the case that threatened the State Engineer's current role as administrator of all water in Wyoming. The District Court's decision on the final group of claimants and administrative issues is expected late this year.
Quantification of ground water uses by the Tribes and off-reservation is nearing completion, too. A list of Tribal wells and ground water uses is expected to be submitted to the court August 3, 1999. Non-Indian ground water use is part of Phase III and was completed in 1996. Over 7,730 stock and domestic wells and 742 larger wells for irrigation, municipal and other uses were reported to the court. This effort required 543 field inspections, resulting in the issuance of 452 Certificates of Record.
The judicial decisions have set off, and will continue to necessitate, an extraordinary amount of administrative and technical activities that the court required the state to undertake at its own expense.
What lies before us
Each phase of the adjudication is in a different stage of completion. An action plan has been created to assist in securing necessary budget and personnel, and to facilitate logistics. There are numerous activities already underway that need finalization, and new tasks that we anticipate beginning this year.
The remainder of this proposal is dedicated to identifying how to complete each phase, what resources are available or needed, and what work needs to be done. Plans specific to each phase and have been developed to address current and future responsibilities and accomplish them within four years. Implementation of the plan will begin September 1, 1999.
PHASE I - Walton Claims
From the 423 original Walton claims that were filed in 1992, 149 were disposed of by the Wyoming Supreme Court in Big Horn V, leaving 274 claims that were "Purist" claims derived from allotments. This year's efforts continued with settlement of the remaining Walton claims which included review and analysis of proposed prehearing memorandums, findings of fact and conclusions of law and the Special Master's Reports and Recommendations. In addition to settlement of the facts, extensive work was completed on mapping the Legal briefing on the global legal issues was completed in late 1998. These legal issues are: a) whether federal or state law control the perfected Walton right; b) ownership of the water if the Walton right is abandoned; c) the water duty of the perfected Walton right; d) whether the perfected Walton right is appurtenant to the land; and e) administration of a perfected Walton right. After the Court decision on Walton right claims (anticipated in late 1999), cancellation of underlying state rights needs to be performed. Final workable databases and maps for SEO records and use need to be developed. There is also some missing data from Sky Phifer's clients that he needs to produce for the State regarding the remand Walton appellants.
Upon perfection and award of the Walton rights, the determinations of overlap between Walton rights and State rights will be completed pursuant to orders from the Court. The overlap process of updating all State Engineer Office records for Walton Rights cannot begin until the Court processing of Walton claims has been
Phase I - Tribal reserved rights
Complementing the legal aspects of Walton is another legal effort driven by several appropriators seeking appurtenance of the tribal reserved rights. Tribal reserved rights have already been determined. The pending Consent Decree regarding appurtenancy of 1868 rights for allotted and fee lands is the only current outstanding issue affecting closure of Phase I. The results of this decree will require correction of state records, recording the "permanent rights" at county offices, and database modifications. Current data quality needs to be reviewed to assure products for office and field use are accurate and available. Final workable databases and maps for SEO records and use need to be developed.
Phase I - Tribe's Groundwater Quantification
On October 16, 1992, the District Court ordered the Tribes to identify and quantify their 1985 ground water uses awarded by the Supreme Court. The Tribes were required to submit a list to the Court by April 1994, but received an extension of time until October 31, 1994. The Tribes were not able to meet the deadline of January 1998 and have now sought an extension until December 31, 1998. The District Court granted the extension. The staff review and analysis of the Tribe's proposed quantification continued until a stipulation was agreed upon by the parties. It is anticipated that a final tabulation will be generated by the fall of 1999.
PHASE II - Federal (non-Indian) Reserved Water Rights
Requests from the federal agencies to delete specific water rights from the decree continue to filter into the staff. As a result, a determination has been made by the parties to the Big Horn lawsuit, as well as the Court, that a complete revision of the Phase II Interlocutory Decree will be necessary. The staff responsibility will continue to increase during the analysis of the decree in order to provide the revised decree to the Court. Due to past turnover at the Forest Service, the submission of 800 recordation permits will be delayed. We are hopeful that these permits will be submitted during the next biennium. This submission will impact the Surface and Ground Water Sections, and the Big Horn Adjudication staff.
PHASE III - Surface Water
Using the May 19, 1997 amended Court procedures, the staff persists at a consistent pace with the comprehensive review of all unadjudicated State water rights in Water Division III.
The field staff and the Tribes continue to jointly inspect the State permits located within the exterior boundaries of the WRIR. This includes all unadjudicated permits located either on Tribal or non-Indian lands. The joint inspections are proceeding in a timely fashion. The field personnel obtained ownership information, then scheduled on the ground inspections with individual appropriators, then conducted and prepared a detailed inspection report for 19 permits. The field staff also completed three reinspections due to requests of the court or a landowner.
The District Court increased the responsibility of the staff on July 26, 1993, due to the resignation of the Special Master. The staff continues its reporting to the court and is responsible for all uncontested cases in place of the Special Master in order to alleviate the burden on the Court. In addition, the staff participated in pre-hearing conferences to provide clarification and assistance in resolving disputes. These efforts, put forth by the staff, resolved the issues of concern and avoided the necessity for any hearings before the Court during this biennium. 70 surface water permits were reported to the District Court. Certificates of Appropriation issued from Court Orders totaled 91.
PHASE III - Ground Water
During this period, the efforts of the staff continued by reporting 13 ground water permits to the District Court. The staff also prepared a total of 18 Certificates of Appropriation of Ground Water to be recorded in the county clerk's office.
Continuous efforts are being made after the Court orders are issued to integrate the decreed rights into the State Engineer records. This integration process involves a lengthy, detailed update of the actual permit records, stream cards, township cards, certificates being issued, amended and canceled, updates of the computer water rights database, microfilm all records involved, and so on. This process has impacted the flow of work throughout the State Engineer's office.
The staff will continue their dedication, hard work and patience while dealing with the appropriators and all parties involved in this complex water case.