An involuntary abandonment is the forfeiture of a water right
which has not been exercised for at least the five successive years past when
water was available to satisfy the water right. Years during which a water
supply was not available are not included. A petition for involuntary
abandonment may be brought before the State Board of Control by any
appropriator whose water right might be benefited by a declaration of
abandonment of an existing water right or whose water right might be injured by
the reactivation of an unused water right. Standing is determined by
demonstrating that the petitioner holds a valid adjudicated water right or
permit to appropriate water from the same source of supply which is equal to or
junior in date of priority to the water right for which abandonment is sought,
or a surplus water right if the water right sought to be abandoned has a
priority date of March 1, 1945, or earlier. A petition for involuntary
abandonment requires a fee (see Board Fee Schedule) for each appropriation for
which abandonment is sought. Statutory authority for this type of petition and
matters related is found in W.S. 41-3-401, and the contested case procedures
set out in these regulations. The State Engineer may also initiate abandonment
proceedings under certain conditions as stated in W.S. 41-3-402. A petition for
declaration of abandonment must be supported by complete documentation which
shows the ownership of each challenged appropriation, and the appropriation(s)
upon which the petitioner relies for standing so that the Board's staff may
provide notice to all persons known to have any interest in the proceedings.
The petitioner is required to specifically list the lands served by each
challenged appropriation, and to name all persons known or believed to have any
ownership interest. The Board's staff may be contacted for assistance in
describing adjudicated appropriations to be placed in contest, and the State
Engineer's Office may be contacted for assistance in describing unadjudicated
permits to appropriate water. The respective county records and all other
readily available public records should be searched by the petitioner to obtain
the names and addresses of the owners. As a minimum, the petition should
reference the appropriations' names shown on the records of the Board and
provide current ownership information. If the petitioner desires to use surplus
water for standing, it must be clearly described in the petition how the
standing is determined. The petition should be substantially in the form
indicated below and must contain the following information:
(a) HEADING - Sufficiently describe and
identify the appropriation(s) for which a declaration of abandonment is
sought.
(b) OPENING STATEMENT -
Identify the contestant(s), and show a mailing address, and give a general
introduction.
(c) BODY -
(i) ITEM 1 - Show that the contestant(s) is
the owner(s) of the appropriation for which standing is claimed. Identify the
appropriation by the name of the original appropriator, the name of the ditch,
the source of supply, the permit number, and the priority. Also describe the
lands under the appropriation. Indicate that proof of ownership from the county
clerk or other acceptable documentation accompanies the petition.
(ii) ITEM 2 - Set forth the present ownership
and completely describe the appropriation for which a declaration of
abandonment is sought, showing the name of the original appropriator, proof
number, stream, ditch, permit number, and priority. State that proof of
ownership from the county clerk or other acceptable documentation accompanies
the petition.
(iii) ITEM 3 - State
and fully describe the factual basis upon which the petitioner claims
standing.
(iv) ITEM 4 - State that
water has not been applied to beneficial use for at least five successive years
last past when water was available for use. The five years need not to be
consecutive if there were intervening years when water was not available.
However, the specific five years at issue must be specified in the
petition.
(v) ITEM 5 - State and
fully describe how the petitioner's water right(s) will be benefited by the
abandonment, or how the petitioner's water right(s) will be injured by the
reactivation of the water right for which abandonment is sought.
(d) PRAYER - Follow the format set
out in the sample petition in Appendix A of these Regulations and
Instructions.
(e) If the petition
seeks abandonment of only portions of an appropriation, the Board may require a
map or maps be submitted. Where less than full 40-acre subdivisions are sought
for abandonment, map(s) shall be submitted showing the situation as it
currently exists on the ground, including a description of the portion of each
40-acre subdivision for which the water rights are sought to be
abandoned.
(f) The division
superintendent shall notify the holder of the water right(s) sought to be
abandoned by certified mail that a hearing will be held. The hearing shall be
conducted pursuant to all applicable provisions of the Wyoming Administrative
Procedure Act. All notices shall advise interested parties of the time, place
and purpose of the hearing. The parties initiating abandonment actions are
designated as contestants. Water right holders or other persons with interest
in the water right(s) sought to be abandoned are designated as contestees.
Where notice by certified mail cannot be accomplished, an advertisement
published once a week for three consecutive weeks in a newspaper of general
circulation in the county in which the abandonment is alleged to have occurred,
naming the parties in the case and setting the time, place and purpose of the
hearing is sufficient. The costs of advertising shall be paid by the
contestant.
(g) A transcript shall
be made of the hearing and delivered to the Cheyenne Board office. The
contestants shall pay for the costs of establishing the record of the
proceedings. At the conclusion of the hearing, a report of the division
superintendent shall be transmitted to the Board by the division
superintendent. As soon thereafter as may be possible, the Board shall vote to
declare the water right(s) in question abandoned, either in whole or in part,
or vote to deny the petition.
