|
S.F. No. 0063 |
Irrigation
facility modification and maintenance. |
Sponsored
By: Senator(s) Case and Representative(s)
Baker
AN ACT
relating to water; requiring modifications to irrigation facilities to be
appropriately installed and maintained; providing for recovery of costs in
specified circumstances; and providing for an effective date.
1/13/2003 Bill Number Assigned
1/14/2003 S Received for Introduction
1/15/2003 S Introduced and Referred to S05
1/24/2003 S05 Recommended Amend and Do Pass
ROLL CALL
Ayes: Senator(s) Barton, Cathcart, Geis, Northrup
and Vasey
Ayes 5 Nays 0 Excused 0
Absent 0 Conflicts 0
1/24/2003 S Placed on General File
1/27/2003 S Amendments Considered
SF0063SS001.01/AC (CORRECTED COPY) (DIVIDED COPY) ADOPTED
Page 1-line 14 After
"flow" insert ", storage water or waste water".
Page 1-line 15 After
"downstream" insert "or upstream".
Page 2-line 2 Delete
"facility" insert "capacity and".
Page 2-line 3 Delete
"ten (10) days" insert "forty-eight (48) hours".
Page 2-line 4 After
"maintenance" insert ", repairs".
Page 2-line 5 Delete
"modification" insert "other work"; delete
"reasonable"; after "maintenance" insert ",
repairs".
Page 2-line 6 Delete
"modifications" insert "other work"; delete "direct
flow" insert "capacity and".
Page 2-line 7 After
"performance" insert "through the area of such unauthorized
modifications".
Page 2-line 9 Before
"modifications" insert "unauthorized".
Page 2-line 18 Before
"ditch" delete "said" insert "the"; before
"lien" delete "said".
GEIS, CHAIRMAN
SF0063SS001.02/FC (CORRECTED COPY) (DIVIDED COPY) FAILED
Page 3-after line 5 Insert:
"(c) This section shall not apply to any
irrigation facility relocated as a result of a construction project by a local,
state or federal agency when the modified facility provides capacity for all
appropriated water rights downstream of the facility, or when an agreement
relating to relocation and maintenance of an irrigation facility is in place
between the authorized downstream users and the owner or agency relocating the
facility.". GEIS, CHAIRMAN
SF0063SW001/A ADOPTED
Page 1-line 13 After
"An owner" insert "of property upon or through which an
irrigation facility is located".
Page 1-line 15 Delete
the Senate Standing Committee Amendment (SF0063SS001/A) to this line and
further amend as follows: delete
"downstream".
Page 1-line 16 Delete
"modified facilities" insert "unauthorized modifications".
Page 2-line 3 After
"performance" insert "through such modifications".
Page 3-lines 1 and 2 Delete
and renumber.
Page 3-line 4 Delete
"(ii)" insert "(i)"; delete "downstream" insert
"holder of a valid"; after "right" insert "such as an
individual,".
Page 3-line 5 Delete
through "irrigator or"; after "company" insert ",
irrigation district or other permitted use". GEIS, CATHCART
1/27/2003 S Passed CoW
1/28/2003 S Amendments Considered
SF0063S2001/A ADOPTED
Page 3-after line 5 Insert
and renumber:
"(ii) "Authorized modification" means
any modification which is required by the state engineer, water division
superintendent or his agent or any modification which has been agreed to by the
owner or owners of a majority, by volume, of the water rights diverted through
the irrigation ditch or facility.".
SCOTT
1/28/2003 S Passed 2nd Reading
1/29/2003 S Amendments Considered
SF0063S3001/A ADOPTED
Page 3-after line 5 In
the Scott Second Reading Amendment (SF0063S2001/A) to this line, in paragraph
(ii), after "has been agreed to by" insert "an affected ditch
company, or if no ditch company exists, by". CASE
SF0063S3002/A ADOPTED
Page 3-after line 5 In
the Scott Second Reading Amendment (SF0063S2001/A) to this line, in paragraph
(ii), after "ditch or facility" insert ", provided no
modification shall harm or impede the delivery or use of any water right or
rights associated with those rights".
MEIER
1/29/2003 S Passed 3rd Reading
ROLL CALL
Ayes: Senator(s) Anderson, J., Barrasso, Barton,
Boggs, Burns, Caller, Case, Cathcart, Coe, Decaria, Devin, Erb, Geis,
Goodenough, Hanes, Hawks, Hines, Job, Larson, Massie, Meier, Mockler, Northrup,
Peck, Roberts, Schiffer, Scott, Sessions and Vasey.
Nays: Senator(s) Kunz
Ayes 29 Nays 1 Excused 0
Absent 0 Conflicts 0
1/31/2003 H Received for Introduction
2/4/2003 H Introduced and Referred to H05
2/20/2003 H05 Recommended Amend and Do Pass
ROLL CALL
Ayes: Representative(s) Brechtel, Diercks,
Hageman, Harvey, Morgan, Powers, Prosser, Semlek and Slater
Ayes 9 Nays 0 Excused 0
Absent 0 Conflicts 0
2/20/2003 H Placed on General File
2/25/2003 H Amendments Considered
SF0063HS001/AE (TO ENGROSSED COPY) ADOPTED
Page 1-line 4 After
";" insert "specifying legislative intent;".
Page 2-line 5 After
"may" delete balance of the line.
Page 2-lines 6 and 7 Delete.
Page 2-lines 8 Delete
"necessary,".
Page 2-after line 24 Insert:
"(b) Remedies afforded under subsection (a) of
this section shall be cumulative to all other actions or remedies available
under other statutory or common-law provisions.".
Page 3-line 2 Delete "(b)"
insert "(c)".
Page 3-after line 16 Insert:
"Section
2. This act shall not be construed
to prohibit or otherwise affect actions or other remedies available under other
statutory or common-law provisions.
Except where in direct conflict with a provision of this act, the common
law existing prior to this act shall remain unabrogated.".
Page 3-line 18 Delete
"2" insert "3". HAGEMAN, CHAIRMAN
SF0063HW001/AE (TO ENGROSSED COPY) ADOPTED
Page 2-line 5 Delete
"such" insert "the".
Page 2-line 10 Delete
"such" insert "the".
Page 2-line 13 Delete
"so".
Page 2-line 16 Delete
"thereof"; delete "forth" insert "out".
Page 2-line 17 Delete
"so".
Page 2-line 18 Delete
"wherein" insert "where".
Page 2-line 19 Delete
"so".
Page 2-line 20 Delete
"such" insert "the".
Page 2-line 22 Delete
"," insert "."; delete "which" insert
"The"; delete "when so taken".
Page 3-line 5 Delete
"such as" insert "including".
Page 3-line 9 Delete
"which is".
Page 3-line 11 Delete
"which has been". ROBINSON
2/25/2003 H Passed CoW
2/26/2003 H Laid Back Pursuant to HR 9-3
2/27/2003 H Amendments Considered
SF0063H2001/AE (TO ENGROSSED COPY) ADOPTED
Page 1-line 3 After
"for" insert "remedies and".
Page 2-line 10 After
"modifications." insert "The user may remove the modifications
if it is not feasible to maintain or repair the modifications.".
Page 2-line 11 Delete
"and" insert ", repair, other necessary work or removal of
the".
Page 2-line 13 After
"modifications." delete balance of the line.
Page 2-line 14 Delete
the line through "modifications" insert "The user".
Page 2-line 15 After
"claim" insert "for costs".
Page 2-line 17 Delete
"," insert ". The
statement shall be filed".
Page 3-line 4 After
"right" insert "who also has authority to use the ditch or
irrigation facility,".
Page 3-line 9 Before
"required" insert "duly".
Page 3-line 10 After
"agent" insert "or the board of commissioners of an irrigation
district,". PHILP, BAKER
2/27/2003 H Passed 2nd Reading
2/28/2003 H Laid Back Pursuant to HR 9-3
3/1/2003 H Laid Back Pursuant to HR 9-3
3/3/2003 H Amendments Considered
SF0063H3001/ACE (CORRECTED COPY) (TO ENGROSSED COPY) ADOPTED
Delete the standing committee amendment (SF0063HS001/AE).
Delete the Robinson committee of the whole amendment (SF0063HW001/AE).
Delete the Philp, Baker second reading amendment (SF0063H2001/AE).
Further amend as follows:
Page 1-line 1 Delete
"requiring" insert "providing for restoration of wrongful".
Page 1-line 2 After
"facilities" insert ";" and delete the balance of the line.
Page 1-line 3 Delete
"maintained;".
Page 1-line 4 After
"circumstances;" insert "providing for attorney fees as
specified;".
Page 1-lines 13 through 17 Delete.
Page 2-lines 1 through 24 Delete.
Page 3-lines 1 through 16 Delete.
Page 3-After line 16 Insert:
"(a) Any person who, acting directly
or indirectly through an agent or representative, in trespass or in other
violation of the rights of a user, wrongfully modifies an existing irrigation
ditch or other irrigation facility in any manner that diminishes the capacity
or adversely affects the utility of the ditch or irrigation facility is liable
to the users for all restoration costs.
If restoration is not feasible and the effort or cost of maintaining the
modified ditch or facility is increased, then the person is thereafter liable
to the users for the amount of increased maintenance that results from the
modifications.
(b) For
cases in which restoration is feasible, any adversely affected user may serve a
written demand for restoration. If restoration
is not feasible and requires increased maintenance, efforts or costs, any
adversely affected user may serve a written demand for immediate and continued
maintenance. A copy of this section
shall be annexed to the written demand.
The demand shall be delivered to the actor in person, or if the actor
cannot be found then the demand shall be delivered conspicuously to the actor’s
usual place of business or residence.
If the actor fails to accomplish complete restoration or all the
currently necessary maintenance within forty-eight (48) hours after the written
demand is delivered in accordance with this subsection, the user may perform
the restoration and may do the maintenance that is then necessary, as well as
that which becomes necessary thereafter, and may recover the reasonable costs
thereof from the actor. If the
modification is so gross that restoration cannot reasonably be completed within
the forty-eight (48) hour period, then the duty to restore is satisfied when:
(i) Within
twenty-four (24) hours after delivery of the demand, the actor undertakes a
good faith effort to mitigate harm to other users and to restore the facility
and the effort is:
(A) Commensurate with the
magnitude of harm or potential harm to the users; and
(B) Continuously and diligently
pursued to completion in a timely manner.
(c) Every
user who provides the restoration or maintenance shall have a lien on the
actor’s interest or property that is involved in the modification. If the property involved is land, the lien extends
to one (1) acre, unless the modification extends or covers more than one (1)
acre, in which case the lien shall extend to all the additional land covered by
the modification. If the land subject
to the modification is located in any city, town or subdivision, the lien shall
extend to each entire lot upon which the modification is located. If the actor's interest or property is only
a ditch right or reservoir right, or such, then the one (1) acre shall be at the
site where the water under the actor's ditch or reservoir right, or other
interest is first applied to beneficial use.
(d) In
order to have a perfected lien, a lien claimant shall file with the county
clerk a lien statement that conforms to the requirements of W. S. 29‑1‑301,
and shall notify the last known owner as provided in W.S. 29‑1‑301. The county clerk shall file and index the
statement as provided in W.S. 29‑1‑301. When so perfected, the lien may be enforced in the same manner as
provided in W. S. 29‑4‑101 and 29‑4‑102 and is subject
to the limitation in W.S. 29‑2‑109.
(e) If
litigation is necessary to enforce the lien, the prevailing party shall be
awarded reasonable attorney's fees and costs of litigation, to be fixed and
awarded by the court, unless the court finds that the nonprevailing party had
reasonable grounds to expect to prevail.
(f) The
remedies provided by this section are not exclusive but are supplemental to
other remedies in law or equity. This
section does not in any way alter or affect law regarding water rights, covenants,
easements or other servitudes, or other rights.
(g) As
used in this section:
(i) "Actor"
means a person who wrongfully modifies an existing irrigation ditch or other
irrigation facility as specified in subsection (a) of this section;
(ii) "User"
means an individual, ditch company whether organized or unorganized, irrigation
district, or other person or entity lawfully permitted to use water under an
adjudicated or other valid water right who uses a ditch or facility for
conveyance of direct flow, or waste water, or storage of water in the
beneficial use of water under the water right.
NICHOLAS
3/3/2003 H Passed 3rd Reading
ROLL CALL
Ayes: Representative(s) Anderson, R., Bagby,
Baker, Berger, Boswell, Brechtel, Buchanan, Bucholz, Childers, Cohee, Cooper,
Diercks, Esquibel, Gentile, Hageman, Harshman, Harvey, Hinckley, Iekel,
Illoway, Jansen, Johnson, L., Johnson, W., Jones, Jorgensen, Landon, Latta,
Law, Lockhart, Martin, McMurtrey, Meuli, Meyer, Morgan, Nicholas, Osborn,
Parady, Petersen, Powers, Prosser, Reese, Robinson, Ross, Semlek, Simpson,
Slater, Thompson, Tipton, Walsh, Warren, Wasserburger and Wostenberg.
Nays: Representative(s) Alden, Edwards, Gilmore,
Luthi, McOmie, Miller, D., Olsen and Philp.
Ayes 52 Nays 8 Excused 0 Absent
0 Conflicts 0
3/4/2003 S Did Concur
ROLL CALL
Ayes: Senator(s) Anderson, J., Barrasso, Boggs,
Burns, Caller, Case, Cathcart, Coe, Decaria, Devin, Erb, Geis, Goodenough,
Hanes, Hawks, Hines, Job, Larson, Massie, Mockler, Northrup, Peck, Roberts,
Schiffer, Scott and Sessions.
Nays: Senator(s) Barton, Kunz, Meier and Vasey.
Ayes 26 Nays 4 Excused 0
Absent 0 Conflicts 0
3/4/2003 Assigned Number SEA 0076
3/4/2003 S President Signed SEA No. 0076
3/5/2003 H Speaker Signed SEA No. 0076
3/7/2003 Governor Signed SEA No. 0076
Chapter No.
0192 Session Laws of Wyoming 2003.