§ 41-3-401 — Failure to use water; extension of time; initiation by benefitted or injured user; hearing; appeal

(a) Where the holder of an appropriation of water from a
surface, underground or reservoir water source fails, either
intentionally or unintentionally, to use the water therefrom for
the beneficial purposes for which it was appropriated, whether
under an adjudicated or unadjudicated right, during any five (5)
successive years, he is considered as having abandoned the water
right and shall forfeit all water rights and privileges
appurtenant thereto. Notwithstanding any provision in this
section to the contrary, the holder of an appropriation for the
diversion and storage of water in a reservoir, from which water
or a portion thereof has not yet been beneficially used for the
purposes for which appropriated, or the owner of a lawful dam or
diversion system as defined in W.S. 41-3-307 under which
appropriated water becomes unused due to necessary repairs or
replacement, may apply to the board of control for an extension
of time not to exceed five (5) years, within which to use water
or reactivate use of water therefrom for the beneficial purposes
for which it was appropriated. In the application the holder
shall demonstrate the exercise of due diligence toward the
utilization of the appropriation, and that notwithstanding the
exercise of due diligence, reasonable cause exists for nonuse.
Reasonable cause includes but is not limited to delay due to
court or administrative proceedings, time required in planning,
developing, financing and constructing projects for the
application of stored water to beneficial use which require in
excess of five (5) years to complete, delay due to requirement
of state and federal statutes and rules and regulations
thereunder and any other causes beyond the control of the holder
of the appropriation. Upon receipt of an application for
extension, the board of control shall proceed under the
provisions of W.S. 16-3-101 through 16-3-115 and may grant an
extension of time as it finds proper, not to exceed five (5)
years, for the application of the appropriated water to the
beneficial use for which it was appropriated. A prior grant of
extension of time hereunder does not preclude the holder from
applying for additional extensions of time, each not to exceed
five (5) years, upon similar application and showing. The
granting of an extension of time precludes the commencement of
an abandonment action against the appropriation during the
period of extension.
(b) When any water user who might be benefitted by a
declaration of abandonment of existing water rights or who might
be injured by the reactivation of the water right, desires to
bring about a legal declaration of abandonment, he shall present
his case in writing to the state board of control. The board has
exclusive original jurisdiction in water right abandonment
proceedings. The board shall, if the facts so justify, refer the
matter to the superintendent of the water division where the
abandonment is claimed to have occurred for public hearing. The
total absence of water to divert during an irrigation season
precludes the inclusion of any such period of nonuse resulting
therefrom in the computation of the successive five (5) year
period under this section. The following persons have standing
to petition the state board of control to declare the
abandonment of existing water rights under this section:
(i) Any person who has a valid adjudicated water
right or is the holder of a valid permit from the same source of
supply which is equal to or junior in date of priority to the
right for which abandonment is sought; or
(ii) The holder of a valid water right entitled to
surplus water under W.S. 41-4-318 through 41-4-324, petitioning
to abandon a water right from the same source of supply if the
right sought to be abandoned has a priority date of March 1,
1945, or earlier.
(c) The superintendent shall notify the holders of water
rights 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. Parties initiating abandonment
actions are designated as contestants. Water right holders or
other persons with interests in the rights allegedly abandoned
are designated as contestees. In any case where notice by
certified mail cannot be accomplished an advertisement published
once a week for three (3) 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 forth the time, place and purpose of the hearing is
sufficient. Cost of advertising shall be paid by the contestant.
(d) A transcript shall be made of the hearing and
delivered to the superintendent. The contestant shall provide
and pay for the costs of the record. At the conclusion of the
hearing the transcript, all other evidence and the report of the
superintendent shall be transmitted to the board by the
superintendent. At its next meeting the board shall vote to
declare the right in question abandoned, either wholly or
partially, or to decline to do so.
(e) The board shall enter an order reflecting its action
on the abandonment hearing, and shall, within sixty (60) days,
send a certified copy of the declaration to each contestant and
contestee. Appeals may be taken as provided by law.
(f) An appropriation for irrigation use is not subject to
partial abandonment for failure of the appropriator to irrigate
part of the lands described in his permit or certificate of
appropriation during the successive five (5) year period if:
(i) Facilities to divert the water and to apply it to
beneficial use upon the lands which were not irrigated existed
in usable form during the period of nonuse; and
(ii) There was not a sufficient supply of water
available, because of regulation for prior water rights or
because shortage of supply resulted in insufficient water to
satisfy the appropriation in full, to irrigate the lands for
which abandonment is sought provided that a diligent effort was
made to use the supply which was available.