Brian C. Shuck, P.C.
January 31, 2015
Helpful Hints for Change of Place of Use Petitions
Before the Wyoming Board of Control
By Brian C. Shuck
Under Wyoming law, water right holders can only change the place of use of a direct flow or groundwater irrigation water right by filing a change petition with the Wyoming Board of Control (BOC). The petition can only be granted for that portion they can show has been historically beneficially used. Further, the BOC may only approve the petition if the change does not injure other water right holders. Therefore, filing a successful change petition can be a challenge.
In consultations over the years with various staff in the State Engineer’s Office (SEO), BOC, and Attorney General’s Office, I have developed a list of helpful hints to avoid many mistakes the BOC repeatedly encounters in petitions for changes of place of use. Some of these hints are outlined below.
Start by Working with Your Water Commissioner/Superintendent.
First, work with the Water Commissioner or Superintendent to determine the probability of success, whether neighboring water users will be injured, and what issues may arise.
The Water Commissioner may be able to tell you if the water has been historically used, how much historically has been used, the type of use, and what changes are feasible on the ground.
Do Your Homework – Do the Water Rights Search First.
Have a thorough water rights search performed – what family members told you about the water rights may not be consistent with what is in the SEO paper records. Actual irrigation practices can evolve over time and may deviate from the mapping. You may find the facts are not as you believed or different petitions need to be filed.
Although you can do some searches online, those of us who perform water rights searches for a living are not ready to rely heavily on it. In the future, the SEO website may become a more reliable tool. For now, it is wiser to have a search performed using the SEO’s paper records in Cheyenne.
Copy and analyze all Order Records and Certificate Records noted on permits and other documents.
Research the land to be dried up for supplemental supplies, secondary permits, and water users using the same means of conveyance.
Identify the water rights for intervening water users as well as the current owners of intervening water uses.
Research the lands to be affected by the change to determine if the land already has water rights, the change cannot be administered, or the proposed change cannot be operated on the ground.
Determine Whether An Injury Would Occur.
After you have identified intervenors and other water users who may be injured, attempt to mitigate all potential legitimate injuries.
If you cannot avoid the injury, stop there and save your time and money.
Be Proactive and Provide Proof of Historic Use.
The BOC will want evidence the water historically has been beneficially used at the permitted location for the permitted use and they may ask for proof of such use for the last 5 years water was available. To prove this, look to Water Commissioner’s records, Water Commissioner’s field inspections, irrigation district delivery cards or records, canal or ditch company records, aerial photography, the electric company’s records for any groundwater well pumps involved, or the affidavit of a disinterested neighbor.
Provide Proof of Petitioner’s Authority to Sign.
If the landowner is a corporation or LLC, produce the attestation by the corporation’s Secretary on a resolution or minutes authorizing the President to file the petition.
If the petitioner is a partnership, have all partners sign.
If the petition involves marital property, it is best to have both spouses sign.
Get Consents.
Get consents from intervening water users.
Get consents from all other water users in the same ditch or canal.
Get consents from anyone else who may claim an injury.
Submit proof the person signing the consent owns the land, such as a certified copy of the deed.
You must attempt to get consents and fail before the BOC will refer the case for a hearing.
Ensure the Mapping is Correct.
Do not assume a surveyor/engineer knows exactly what is required to prepare the type of map required to accompany a change petition. The BOC Regulations are detailed and require numerous items on petition maps. I always carefully review the BOC Regulations with the mapmaker outlining what is required on the map and then review the drafts of the map carefully to make sure it includes everything.
If a client proposes to change from flood irrigation to a pivot irrigation system, the water use mapping will change from rectangles to circles and semi-circles. Make sure the map shows where the new circle will be and the same number of acres is being irrigated.
If you have 2 or more priority dates under the same center pivot, show which lands each water right will be attached to as concentric circles or in pie pieces so the pivot can be regulated when a call is placed on the river and part of the pivot needs to be regulated off.
Make sure the acreage math adds up.
Show flumes where the diversion works must cross a river, drainage, or other diversion system.
Be careful not to map lands where it is physically impossible to use the water.
Be specific as to the locations where water will be used. Remember, water rights records are as detailed as other real property records.
Show the diversion works, the river’s course, and land on which the water is currently used the way it exists on the ground, not the way it once appeared on original permit maps or subsequent maps.
Before you file the petition, review preliminary maps with BOC staff to ensure the map is right.
Brian Shuck is a Cheyenne attorney with offices located 3 blocks from the State Engineer’s Office. He has represented numerous Ag producers in Wyoming and Montana and successfully petitioned to move the place of use for a client’s water rights approximately 30 miles. Early in his practice, Mr. Shuck represented the State of Wyoming in the Big Horn River Adjudication and represented the State Engineer’s Office related to interstate compacts, endangered species, federal agency overreaching, and other water and natural resource issues involving numerous Western States and federal agencies.
© Brian C. Shuck 2015
NEWS, ARTICLES, AND LAW BLOG
March 7 and 21, 2015
Best Practices to Protect Yourself Before
Entering Temporary Water Use Agreements
By Brian C. Shuck
Ordinarily, a water right is obtained by filing an application for a permit with the Wyoming State Engineer’s Office (SEO). However, under some circumstances, an existing water right can be used temporarily by another water user for other purposes and different locations by filing a Temporary Water Use Agreement (TWUA) with the SEO instead. Some of the most common uses of TWUA’s are oil and gas uses and road construction, although there are a handful of other uses enumerated in the statutes.
The SEO’s job is to make sure the statutory requirements are met in each TWUA. However, it is not the SEO’s job to protect water right holders from the things that could go wrong when another party is temporarily using their water rights. Therefore, it is the duty of each water right holder entering into a TWUA to protect himself. Although the SEO does not require it and cannot give legal advice, the best practice is to utilize a two-step approach. First, you should enter into a separate agreement with the oil and gas company or other water user (hereinafter the “end user”) to cover all the other issues that can arise. Second, after the separate agreement has been signed, you should file a TWUA with the SEO.
In the right circumstances, allowing the temporary use of your water rights for a fee sounds attractive. However, it is important for you to protect yourself, your land, and your water rights in the process. Here are some of the issues you should consider.
In Whose Name Will the TWUA be Filed? Do you want the end user to be the holder of the TWUA or do you want to be the holder of the TWUA? If the end user is the holder of the TWUA, they are in control and you have no way of ensuring the process is handled correctly and give up your ability to protect yourself on other issues through a separate agreement.
How Do You Ensure Payment? The SEO’s TWUA does not protect farmers or ranchers with respect to ensuring payment. Therefore, we have developed a separate agreement ensuring farmers and ranchers get paid and address numerous other issues.
Do You Want to Give the End User an Exclusive Deal? In effect, the SEO’s TWUA creates an exclusive agreement to temporarily use your water rights if the end user is the holder of the TWUA. It is best to avoid giving an exclusive right to any temporary end user. However, there are alternatives. For example, if the landowner enters into an agreement with himself under the TWUA, then he can work out an arrangement where more than one end user can use water.
Who Cleans Up Environmental Contamination? One might assume that, when a water pump truck is pumping water from your ditch or wellhead, that water only flows one direction. The reality is that contaminated water from the pump truck can flow out of the truck and into your ditch or your groundwater well. The SEO started requiring back flow prevention devices on all groundwater wells involved in a TWUA a few years ago. However, this does not answer the question of who must clean up the mess if your land or water is contaminated in the process. Therefore, the best approach is to have a separate agreement that addresses these liability issues.
Avoid Giving Up Your Right to Use Your Water for an End User Who Uses Little of Your Water. The SEO has taken the position that, with respect to groundwater wells in Laramie County, the landowner cannot irrigate for the entire season if even one gallon of water is pumped from the groundwater well. Therefore, the landowner may enter into a TWUA and hereby give up his right to farm for an entire season thinking that the end user will be using significant quantities of water at X cents per barrel, just to find out the end user did not use enough water to justify giving up their right to irrigate or otherwise use the water. Under this example, the water user gave up his right to farm for the year and did not generate enough income from the TWUA to justify giving up the right to farm. The SEO’s TWUA does not protect the landowner in circumstances such as these. For this reason, the best practice is to have a separate agreement that addresses this issue.
What Price Can I Command for Use of the Water? In most instances, end users pay by the barrel. The price will vary significantly depending on the area of Wyoming in which the land is located, the other available sources of water, the lack of access to water sources by public or private roads, and other issues. In some areas, 35-40¢ per barrel is not uncommon. However, in other parts of the State, where other water sources may be scarce, it is possible to command a much higher price.
Who is Responsible for Dust Suppression? In most instances, water is delivered by pump trucks. Therefore, the more pump trucks, the dustier the roads become. The SEO’s TWUA does not address dust suppression, but does recognize dust suppression as a beneficial use for which water may be used under the TWUA. The best practice is to address the issue in a separate agreement
Who Bears the Expense of Installing Groundwater Well Metering and Back Flow Prevention Devices? Although the SEO now requires meters and back flow prevention devices be placed on groundwater wells used for TWUAs, they do not provide who must incur that expense. Therefore, the best practice is to utilize a separate agreement requiring end users to install meters and back flow prevention devices. Further, the separate agreement should provide that meters and back flow prevention devices become the landowner’s property and remain with the well after pumping under the TWUA has ceased.
From What Location Will Water be Pumped? The best practice is to use a separate agreement requiring end users to provide a parking pad from which pump trucks load water. This prevents pump trucks from blocking roads and bridges while loading water and ensures pump truck drivers do not create new roads or drive across ditches or damage sensitive riparian areas. Further, the separate agreement should require end users to repair damage to roads.
Who is Responsible if the Land is Damaged? The SEO’s TWUA does not protect landowners from damage by the end user. The best practice is to use a separate agreement that addresses damage to reservoirs, wells, troughs, ditch banks, dam banks, spillways, livestock, crops, fences, cattle guards and other improvements and requires them to repair them or provide the landowner with compensation in the event of damage. Further, the best practice is to use a separate agreement requiring end users to perform reclamation.
How Do I Enforce the Terms? In most instances, the end user and the people loading water into the pump trucks are 2 separate entities. Therefore, you need to ensure pump truck companies and their drivers understand the terms of your separate agreement with the end user. The best practice is to require all pump truck drivers to carry a list of rules outlining the terms of the separate agreement in each truck’s glove compartment to ensure pump truck drivers use only authorized roads, only park on the designated parking pad, do not access the land for any purpose other than loading water, close gates to ensure livestock does not get out, and numerous other issues addressed in your separate agreement.
Who is Required to File Reports with the SEO? Under the SEO’s TWUA, the responsibility to file periodic reports with the SEO falls on the holder of the TWUA. However, the landowner to the end user the landowner may want to file the reports instead, particularly where end users have not been reliable in filing past reports.
This is a short summary of some issues you should address in a separate agreement before you enter into the SEO’s TWUA. The issues each landowner must guard against differ based upon whether the proposed source is reservoir water, groundwater, or direct flow surface water from a ditch and the unique characteristics of the land and ag operation. The best practice is to require a separate agreement to ensure you and your lands are adequately protected.
Brian Shuck is a Cheyenne attorney with offices located 3 blocks from the State Engineer’s Office. He has represented numerous Ag producers in Wyoming and Montana and has represented clients across Wyoming in entering into TWUA’s and employing the two-step approach. Earlier in his practice, Mr. Shuck represented the State of Wyoming in the Big Horn River Adjudication and represented the State Engineer’s Office related to interstate compacts, endangered species, federal agency overreaching, and other water and natural resource issues involving numerous Western States and federal agencies.
© Brian C. Shuck 2015
June 1, 2017
National Association Of Distinguished Counsel List Brian C. Shuck as a Member of Nation's
Top One Percent
Brian Shuck, of Law Office of Brian C. Shuck, P.C., has been selected to the 2017 list as a member of the Nation’s Top One Percent by the National Association of Distinguished Counsel. NADC is an organization dedicated to promoting the highest standards of legal excellence. Its mission is to objectively recognize the attorneys who elevate the standards of the Bar and provide a benchmark for other lawyers to emulate.
Members are thoroughly vetted by a research team, selected by a blue ribbon panel of attorneys with podium status from independently neutral organizations, and approved by a judicial review board as exhibiting virtue in the practice of law. Due to the incredible selectivity of the appointment process, only the top one percent of attorneys in the United States are awarded membership in NADC. This elite class of advocates consists of the finest leaders of the legal profession from across the nation.
Call: 307-432-0767
May 16, 2015
Urgent Call for Comments and Action:
Proposed Labor Regulations Detrimental
to Cattle and Sheep Producers Alike
By: Brian C. Shuck
With the Department of Labor’s proposed new regulations affecting migrant workers, the Obama Administration is continuing its assault against western agriculture. Although some mistakenly view the proposed regs as only a sheep industry issue, the proposed regs affect the cattle industry with equal force. Western grazing permittees already face numerous difficulties with federal agencies with respect to grazing permit renewals, threats to curtail domestic sheep grazing arguably to protect bighorn sheep, and limits on grazing to arguably protect other species that are neither threatened nor endangered, but the proposed labor regs threaten to end cattle and sheep grazing operations entirely. The Wyoming media acknowledges the proposed labor regulations would triple migrant worker wages and put many of Wyoming’s oldest agricultural producers out of business. See Wyofile article dated April 28, 2015. Wyoming livestock producers agree. “Our family’s cattle and sheep operations have been in operation for over 110 years and we have supported the Fremont and Sublette County’s tax base and local businesses for over 110 years. Not only would these proposed regulations end our 110-year grazing operations in 45 days, it would adversely impact the local tax base and local businesses,” explains Pete Arambel, who owns and operates Midland Livestock Company, Dunton Sheep Company, and other Wyoming livestock companies. Arambel explains that their sheep and cattle grazing operations would be run out of business if the proposed labor regulations are approved.
Other long-time agricultural producers in Wyoming express the same concern. Pat O’Toole of the Ladder Ranch, who runs both sheep and cattle operations, explains that the proposed regs “call for the elimination of an industry.” Further, John Raftopoulos, of the Diamond Peak Cattle Co., who runs cattle in Wyoming, Colorado, and Utah, explains: “They will mess up the system by trying to fix it and will make people not use the H-2A system and end up hurting the people they are arguably trying to help.” A recent ASI memo explains: “Simply forcing employers to triple their wages will only result in a flow of a projected $45 million out of the U.S. economy to foreign-herders’ home countries over the next 5 years; all while U.S. employers go out of business from the burden. Given the current domestic and international market, however, few, if any, of these employers will still be in business by 2020.” ASI further explains: “Each H-2A open-range herder position creates 8 U.S. full-time jobs, and the loss of each H-2A position will mean the loss of those jobs, mostly in small western towns.”
Livestock industry groups question the wisdom of doubling or tripling migrant workers’ wages when sheep industry wool and slaughter lamb prices are not sufficient to support such an increase in labor costs. Such groups also question the appropriateness of the definitions of “open range” and the job description attributed to these workers. “First, the Department of Labor must withdraw their proposed wage formulation and replace it with a new common sense rate that is sustainable. Second, the proposal attempts to re define the job description of open range livestock worker and sheep herder. [The proposed regs would] mean many ranchers will no longer be eligible to employ the herders due to fences,” explains Peter Orwick, Executive Director of the American Sheep Industry Association (ASI). Orwick urges cattle and sheep producers and government officials to file comments by e-mail on these issues before the June 1 deadline.
Many question the timing of the proposed rules, which originally only allowed for a 30-day comment period and fell during the time most sheep producers are shearing sheep and preparing for lambing and cattle producers are calving. Further, livestock producers report that their H-2A workers are happy and some have been coming back for the last 10-25 years. For this reason, livestock producers argue this is an attempt to fix a problem that does not exist and the proposed rules should simply be rejected. Further, many livestock producers question whether the proposed labor regs are really being pushed by environmental groups who seek to eliminate grazing on public lands and other multiple uses of federal land.
Given the dire consequences of the proposed regulations, the following steps must be taken to block the proposed regulations:
Cattle and sheep producers, Boards of County Commissioners, industry groups, and State agencies must submit comments to the Department of Labor before the June 1, 2015 deadline. It is late in the process to file comments by mail and is best to submit them via e-mail instead. A link to easily file comments by e-mail is available on ASI’s website.
Concerned livestock producers and industry groups should work with the Wyoming Attorney General’s Office and the Wyoming Governor’s Office and urge them to not only submit comments before the June 1, 2015 deadline, but build a coalition with other western States to submit joint comments urging the proposed rules be rejected. Wyoming Attorney General’s Office, acting to build its own coalitions and through the Conference of Western Attorney’s General (CWAG) and the National Association of Attorney’s General (NAAG), has been successful in the past in blocking proposed federal rules by submitting comments jointly with other States. Such an approach could be highly effective in opposing the proposed labor regs.
Brian Shuck is a Cheyenne attorney and he has represented numerous Ag producers in Wyoming and Montana. Early in his practice, Mr. Shuck represented the State of Wyoming as Senior Assistant Attorney General and was involved in opposing rulemaking proposed during the last several months of the Clinton administration and represented the State Engineer’s Office related to interstate compacts, endangered species, federal agency overreaching, and other water and natural resource issues involving numerous Western States and federal agencies.
© Brian C. Shuck 2015