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Subdivision Development and Water Right Transfers

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  1. Subdivision Development and Water Right Transfers Dealing with the Conflict between Historic and New Land Use March 6, 2012

  2. Today’s Presentation • Introduction • Issues Raised by Subdivision Development • Wyoming Population Growth • Wyoming’s Subdivision Statute • County Regulation of Subdivisions • Options Under Wyoming Law • Irrigation District Concerns • Conclusion

  3. Introduction • Wyoming Water Law • History of Subdivisions and Water Rights

  4. Issues Raised by Subdivisions • Inadequacy of Delivery Systems • Ground Water Impacts • Quantity • Quality • Liability Concerns

  5. Inadequacy of Delivery Systems • Irrigation Systems not Constructed to Deliver Water to Small Acreages • Historical Points of Diversion and Means of Conveyance

  6. Ground Water Impacts • Reduction of Surface Irrigation results in: • Ground Water Quantity Reductions • Ground Water Quality Concerns

  7. Liability Concerns • Always an Issue • Increased Population increases chances of incidents

  8. Wyoming Population Growth and Land Use • Population Change • Patterns of Land Use • Status of Agricultural Lands • Demographics • Impacts of Residential Development

  9. Authority Definitions Exemptions Permit Required Enforcement Minimum Requirements Planning Commission Board Approval Permit Fee Investigatory Powers Penalties Minimum Provisions Wyoming Subdivision Statute (18-5-301 – 18-5-315)

  10. W.S. 18-5-301: Authority • Vested in Board of County Commissioners in which the land is located • Each County approaches this Issue Differently

  11. W.S. 18-5-302: Definitions • Person: includes individual, corporation, association. • Subdivision: creation of division of a lot, tract, parcel or other unit of land for immediate or future purpose of sale or development for residential, recreational, industrial, commercial or public uses. • Water Supply System: . . .Separate water supply systems used solely for irrigation or stock water are not included.

  12. W.S. 18-5-303: Exemptions from Provisions • Single Gift or Sale to Member of Landowner’s Immediate Family • Eminent Domain • Boundary Line Adjustments • Creates Cemetery Lots • Parcels are 35 Acres or Larger

  13. W.S. 18-5-304: Permit Required • No person shall subdivide land or commence the physical layout or construction of a subdivision without first obtaining a subdivision permit from the board of the county in which the land is located.

  14. W.S. 18-5-305: Enforcement • In accordance with Wyoming Administrative Procedures Act • Counties shall adopt rules and regulations as necessary to implement provisions of Act and insure compliance with intent and purpose of the article

  15. Compliance with zoning regulations Survey Plat Title Sewage System Study Easements Water Supply System Study Roadway Access Evidence of Financial Resources Proof of Notice Water Rights Conservation District review (60 days) DEQ Review of sewage and water supply systems (30 days) W.S. 18-5-306: Minimum Requirements for Permits

  16. W.S. 18-5-306(a)(xi): Appurtenant Water Rights • Prior to Final Approval, subdivider shall provide: • Evidence of relinquishment to SEO (Authorization to Detach) OR • Evidence of petitions to Board of Control OR • Water Distribution Plan approved by SEO AND • If located within Irrigation District, evidence that plan has been submitted AND • Evidence of notice on all offers and solicitations

  17. County Regulation of Subdivisions • Rules and Regulations • Summary of Wyoming Counties

  18. Options Under Wyoming Law • Voluntary Abandonment of Water Rights • Transfer of Water Rights • Retain Water Rights • Water Distribution Plan • 4th Option: ADWR

  19. Option # 1 - Abandonment • Voluntary Abandonment • Removing water right from land forever • Requires Petition to State Engineer or BOC (depends on Status)

  20. Option #2 - Transfer • Change Place of Use from the Subdivided Lands to Other Irrigable, Non-Permitted Lands • Requires Petition to State Engineer or Board of Control (depends on water right status)

  21. Option #3 – Water Distribution Plan • Retains Water Rights on Subdvided Lands • Requires Submittal and Approval by SEO • May Require Petition to State Engineer or BOC • Bonding Issues

  22. Option #4 - ADWR • Authorization for Detachment of Water Rights • Allows Five Years to Transfer the Water Right or Voluntary Abandonment

  23. Irrigation Districts • Statute was Revised to Change Timing of Involvement to Address: • Water Rights • Irrigation District Infrastructure • Easements

  24. W.S. 18-5-306(a)(xi)(D) • If the subdivision is located within the boundaries of an irrigation district that is subject to the provisions of Title 41, chapter 7 of the Wyoming statutes, the application shall include a review and recommendations from the irrigation district regarding the attached water rights and the irrigation district’s easements.

  25. W.S. 18-5-306(a)(xi)(E) • If the subdivision will create a significant additional burden or risk of liability to the irrigation district, company, association or remaining appropriators including appropriators on an unorganized ditch, the applicant shall provide an adequate and responsible plan to reduce or eliminate the additonal burden or risk of liability.

  26. Address ID Impacts • County Regulations • Statutory Changes • Separated Title 41 Districts from Ditch Companies etc. • Addressed Timing

  27. The Subdivision Gap • The Board may EXEMPT from the minimum requirements the subdivision of one or more units of land into not more than a total of five units of land • Lots that are 35 acres or larger are EXEMPT (except W.S. 18-5-316)

  28. W.S. 18-5-312: Enforcement • Enforceable by all appropriate legal remedies including to, but not limited to: • Injunctive Relief • Writ of Mandamus • Board may request Attorney General to initiate civil or criminal proceedings

  29. IV. Conclusion • Statute Provides Reasonable Options • Timing of Completing Changes • Enforcement of Option • Gaps in Law make Administration Difficult • Irrigation Districts are Struggling • Subdivisions Raise Complex Issues

  30. Questions? Kara Brighton Hageman & Brighton, P.C. 222 E. 21st Street Cheyenne, WY 82001 307-635-4888 www.hblawoffice.com