Ratificationand approval is hereby given to the Bear River Compact as signed at Salt LakeCity, in the state of Utah, on the 22nd day of December, A.D., 1978, by GeorgeL. Christopulos, the state engineer of the state of Wyoming, and others, whichcompact was also signed by the duly authorized commissioners of the states ofIdaho and Utah, and approved by the representative of the United States, whichBear River Compact is in full as follows:
BEARRIVER COMPACT
The state ofIdaho, the state of Utah, and the state of Wyoming, acting through theirrespective commissioners after negotiations participated in by a representativeof the United States of America appointed by the president, have agreed to anamended Bear River Compact as follows:
ARTICLEI
A. The majorpurposes of this compact are to remove the causes of present and futurecontroversy over the distribution and use of the waters of the Bear River; toprovide for efficient use of water for multiple purposes; to permit additionaldevelopment of the water resources of Bear River; to promote interstate comity;to accomplish an equitable apportionment of the waters of the Bear River amongthe compacting states.
B. The physicaland all other conditions peculiar to the Bear River constitute the basis forthis compact. No general principle or precedent with respect to any otherinterstate stream is intended to be established.
ARTICLEII
As used in thiscompact the term
1. "BearRiver" means the Bear River and its tributaries from its source in theUinta Mountains to its mouth in Great Salt Lake;
2. "Bear Lake" means Bear Lake and Mud Lake;
3. "Upper division" means the portion of Bear River fromits source in the Uinta Mountains to and including Pixley Dam, a diversion damin the southeast quarter of section 25, township 23 north, range 120 west,sixth principal meridian, Wyoming;
4. "Central division" means the portion of the Bear Riverfrom Pixley Dam to and including Stewart Dam, a diversion dam in section 34,township 13 south, range 44 east, Boise base and meridian, Idaho;
5. "Lower division" means the portion of the Bear Riverbetween Stewart Dam and Great Salt Lake, including Bear Lake and its tributarydrainage;
6. "Upper Utah section diversions" means the sum of alldiversions in second-feet from the Bear River and the tributaries of Bear Riverjoining the Bear River upstream from the point where the Bear River crosses theUtah-Wyoming state line above Evanston, Wyoming; excluding the diversions bythe Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and HilliardWest Side Canal;
7. "Upper Wyoming section diversions" means the sum ofall diversions in second-feet from the Bear River main stem from the pointwhere the Bear River crosses the Utah-Wyoming state line above Evanston,Wyoming, to the point where the Bear River crosses the Wyoming-Utah state lineeast of Woodruff, Utah, and including the diversions by the Hilliard East ForkCanal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal;
8. "Lower Utah section diversions" means the sum of alldiversions in second-feet from the Bear River main stem from the point wherethe Bear River crosses the Wyoming-Utah state line east of Woodruff, Utah, tothe point where the Bear River crosses the Utah-Wyoming state line northeast ofRandolph, Utah;
9. "Lower Wyoming section diversions" means the sum ofall diversions in second-feet from the Bear River main stem from the pointwhere the Bear River crosses the Utah-Wyoming state line northeast of Randolphto and including the diversion at Pixley Dam;
10. "Commission" means the Bear River commission,organized pursuant to article III of this compact;
11. "Water user" means a person, corporation, or otherentity having a right to divert water from the Bear River for beneficial use;
12. "Second-foot" means a flow of one cubic foot of waterper second of time passing a given point;
13. "Acre-foot" means the quantity of water required tocover one acre to a depth of one foot, equivalent to 43,560 cubic feet;
14. "Biennium" means the 2-year period commencing onOctober 1 of the first odd numbered year after the effective date of thiscompact and each 2-year period thereafter;
15. "Water year" means the period beginning October 1 andending September 30 of the following year;
16. "Direct flow" means all water flowing in a naturalwatercourse except water released from storage or imported from a source otherthan the Bear River watershed;
17. "Border gauging station" means the stream flowgauging station in Idaho on the Bear River above Thomas Fork near theWyoming-Idaho boundary line in the northeast quarter of the northeast quarterof section 15, township 14 south, range 46 east, Boise base and meridian,Idaho;
18. "Smiths Fork" means a Bear River tributary whichrises in Lincoln County, Wyoming and flows in a general southwesterly directionto its confluence with Bear River near Cokeville, Wyoming;
19. "Grade Creek" means a Smiths Fork tributary whichrises in Lincoln County, Wyoming and flows in a westerly direction and in itsnatural channel is tributary to Smiths Fork in section 17, township 25 north,range 118 west, sixth principal meridian, Wyoming;
20. "Pine Creek" means a Smiths Fork tributary which risesin Lincoln County, Wyoming, emerging from its mountain canyon in section 34,township 25 north, range 118 west, sixth principal meridian, Wyoming, and inits natural channel is tributary to Smiths Fork in section 36, township 25north, range 119 west, sixth principal meridian, Wyoming;
21. "Bruner Creek" and "Pine Creek Springs"means Smiths Fork tributaries which rise in Lincoln County, Wyoming, insections 31 and 32, township 25 north, range 118 west, sixth principalmeridian, and in their natural channels are tributary to Smiths Fork in section36, township 25 north, range 119 west, sixth principal meridian, Wyoming;
22. "Spring Creek" means a Smiths Fork tributary whichrises in Lincoln County, Wyoming, in sections 1 and 2, township 24 north, range119 west, sixth principal meridian, Wyoming, and flows in a general westerlydirection to its confluence with Smiths Fork in section 4, township 24 north,range 119 west, sixth principal meridian, Wyoming;
23. "Sublette Creek" means the Bear River tributary whichrises in Lincoln County, Wyoming and flows in a general westerly direction toits confluence with Bear River in section 20, township 24 north, range 119west, sixth principal meridian, Wyoming;
24. "Hobble Creek" means the Smiths Fork tributary whichrises in Lincoln County, Wyoming and flows in a general southwesterly directionto its confluence with Smiths Fork in section 35, township 28 north, range 118west, sixth principal meridian, Wyoming;
25. "Hilliard East Fork Canal" means that irrigationcanal which diverts water from the right bank of the east fork of Bear River inSummit County, Utah, at a point west 1,310 feet and north 330 feet from thesoutheast corner of section 16, township 2 north, range 10 east, Salt Lake baseand meridian, Utah, and runs in a northerly direction crossing the Utah-Wyomingstate line into the southwest quarter of section 21, township 12 north, range119 west, sixth principal meridian, Wyoming;
26. "Lannon Canal" means that irrigation canal whichdiverts water from the right bank of the Bear River in Summit County, Utah,east 1,480 feet from the west quarter corner of section 19, township 3 north,range 10 east, Salt Lake base and meridian, Utah, and runs in a northerlydirection crossing the Utah-Wyoming state line into the south half of section20, township 12 north, range 119 west, sixth principal meridian, Wyoming;
27. "Lone Mountain Ditch" means that irrigation canalwhich diverts water from the right bank of the Bear River in Summit County,Utah, north 1,535 feet and east 1,120 feet from the west quarter corner ofsection 19, township 3 north, range 10 east, Salt Lake base and meridian, Utah,and runs in a northerly direction crossing the Utah-Wyoming state line into thesouth half of section 20, township 12 north, range 119 west, sixth principalmeridian, Wyoming;
28. "Hilliard West Side Canal" means that irrigationcanal which diverts water from the right bank of the Bear River in SummitCounty, Utah, at a point north 2,190 feet and east 1,450 feet from the southquarter corner of section 13, township 3 north, range 9 east, Salt Lake baseand meridian, Utah, and runs in a northerly direction crossing the Utah-Wyomingstate line into the south half of section 20, township 12 north, range 119west, sixth principal meridian, Wyoming;
29. "Francis Lee Canal" means that irrigation canal whichdiverts water from the left bank of the Bear River in Uinta County, Wyoming, inthe northeast quarter of section 30, township 18 north, range 120 west, sixthprincipal meridian, Wyoming, and runs in a westerly direction across theWyoming-Utah state line into section 16, township 9 north, range 8 east, SaltLake base and meridian, Utah;
30. "Chapman Canal" means that irrigation canal whichdiverts water from the left bank of the Bear River in Uinta County, Wyoming, inthe northeast quarter of section 36, township 16 north, range 121 west, sixthprincipal meridian, Wyoming, and runs in a northerly direction crossing overthe low divide into the Saleratus drainage basin near the southeast corner ofsection 36, township 17 north, range 121 west, sixth principal meridian,Wyoming and then in a general westerly direction crossing the Wyoming-Utahstate line;
31. "Neponset Reservoir" means that reservoir locatedprincipally in sections 34 and 35, township 8 north, range 7 east, Salt Lakebase and meridian, Utah, having a capacity of 6,900 acre-feet.
ARTICLEIII
A. There is hereby created an interstate administrative agency tobe known as the "Bear River Commission" which is hereby constituted alegal entity and in such name shall exercise the powers hereinafter specified.The commission shall be composed of nine commissioners, three commissionersrepresenting each signatory state, and if appointed by the president, oneadditional commissioner representing the United States of America who shallserve as chairman, without vote. Each commissioner, except the chairman, shallhave one vote. The state commissioners shall be selected in accordance withstate law. Six commissioners who shall include two commissioners from eachstate shall constitute a quorum. The vote of at least two-thirds of thecommissioners when a quorum is present shall be necessary for the action of thecommission.
B. The compensation and expenses of each commissioner and eachadviser shall be paid by the government which he represents. All expensesincurred by the commission in the administration of this compact, except thosepaid by the United States of America, shall be paid by the signatory states onan equal basis.
C. The commission shall have power to:
1. Adopt by-laws,rules, and regulations not inconsistent with this compact;
2. Acquire, hold,convey or otherwise dispose of property;
3. Employ such personsand contract for such services as may be necessary to carry out its dutiesunder this compact;
4. Sue and be sued as alegal entity in any court of record of a signatory state, and in any court ofthe United States having jurisdiction of such action;
5. Cooperate with stateand federal agencies in matters relating to water pollution of interstatesignificance;
6. Perform allfunctions required of it by this compact and do all things necessary, proper orconvenient in the performance of its duties hereunder, independently or incooperation with others, including state and federal agencies.
D. The commission shall:
1. Enforce this compactand its orders made hereunder by suit or other appropriate action;
2. Compile a reportcovering the work of the commission and expenditures during the currentbiennium, and an estimate of expenditures for the following biennium andtransmit it to the president of the United States and to the governors of thesignatory states on or before July 1 following each biennium.
ARTICLE IV
Rights to direct flow water shall be administered in each signatorystate under state law, with the following limitations:
A. When there is a water emergency, as hereinafter defined for eachdivision, water shall be distributed therein as provided below.
1. Upper division
a. When the divertible flow as defined below for the upper divisionis less than 1,250 second-feet, a water emergency shall be deemed to existtherein and such divertible flow is allocated for diversion in the riversections of the division as follows:
Upper Utah section diversions - 0.6 percent,
Upper Wyoming section diversions - 49.3 percent,
Lower Utah section diversions - 40.5 percent,
Lower Wyoming section diversions - 9.6 percent.
Such divertible flow shall be the total of the following five items:
(1) Upper Utah sectiondiversions in second-feet,
(2) Upper Wyoming sectiondiversions in second-feet,
(3) Lower Utah sectiondiversions in second-feet,
(4) Lower Wyomingsection diversions in second-feet,
(5) The flow insecond-feet passing Pixley Dam.
b. The Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch,and Hilliard West Side Canal, which divert water in Utah to irrigate lands inWyoming, shall be supplied from the divertible flow allocated to the UpperWyoming section diversions.
c. The Chapman, Bear River, and Francis Lee Canals, which divertwater from the main stem of Bear River in Wyoming to irrigate lands in bothWyoming and Utah, shall be supplied from the divertible flow allocated to theUpper Wyoming section diversions.
d. The Beckwith Quinn West Side Canal, which diverts water from themain stem of Bear River in Utah to irrigate lands in both Utah and Wyoming,shall be supplied from the divertible flow allocated to the Lower Utah sectiondiversions.
e. If for any reason the aggregate of all diversions in a riversection of the upper division does not equal the allocation of water thereto,the unused portion of such allocation shall be available for use in the otherriver sections in the upper division in the following order: (1) In the otherriver section of the same state in which the unused allocation occurs; and (2)In the river sections of the other state. No permanent right of use shall beestablished by the distribution of water pursuant to this paragraph e.
f. Water allocated to the several sections shall be distributed ineach section in accordance with state law.
2. Central division
a. When either the divertible flow as hereinafter defined for thecentral division is less than 870 second-feet, or the flow of the Bear River atBorder Gauging Station is less than 350 second-feet, whichever shall firstoccur, a water emergency shall be deemed to exist in the central division andthe total of all diversions in Wyoming from Grade Creek, Pine Creek, Bruner Creekand Pine Creek Springs, Spring Creek, Sublette Creek, Smiths Fork, and all thetributaries of Smiths Fork above the mouth of Hobble Creek including HobbleCreek, and from the main stem of the Bear River between Pixley Dam and thepoint where the river crosses the Wyoming-Idaho state line near Border shall belimited for the benefit of the state of Idaho, to not exceeding forty-three(43) percent of the divertible flow. The remaining fifty-seven (57) percent ofthe divertible flow shall be available for use in Idaho in the centraldivision, but if any portion of such allocation is not used therein it shall beavailable for use in Idaho in the lower division.
The divertible flow for the central division shall be the total ofthe following three items:
(1) Diversions insecond-feet in Wyoming consisting of the sum of all diversions from GradeCreek, Pine Creek, Bruner Creek and Pine Creek Springs, Spring Creek, SubletteCreek, and Smiths Fork and all the tributaries of Smiths Fork above the mouthof Hobble Creek including Hobble Creek, and the main stem of the Bear Riverbetween Pixley Dam and the point where the river crosses the Wyoming-Idahostate line near Border, Wyoming.
(2) Diversions insecond-feet in Idaho from the Bear River main stem from the point where theriver crosses the Wyoming-Idaho state line near Border to Stewart Dam includingWest Fork Canal which diverts at Stewart Dam.
(3) Flow in second-feetof the Rainbow Inlet Canal and of the Bear River passing downstream fromStewart Dam.
b. The Cook Canal, which diverts water from the main stem of theBear River in Wyoming to irrigate lands in both Wyoming and Idaho, shall beconsidered a Wyoming diversion and shall be supplied from the divertible flowallocated to Wyoming.
c. Water allocated to each state shall be distributed in accordancewith state law.
3. Lower division
a. When the flow of water across the Idaho-Utah boundary line isinsufficient to satisfy water rights in Utah, covering water applied tobeneficial use prior to January 1, 1976, any water user in Utah may file apetition with the commission alleging that by reason of diversions in Idaho heis being deprived of water to which he is justly entitled, and that by reasonthereof, a water emergency exists, and requesting distribution of water underthe direction of the commission. If the commission finds a water emergencyexists, it shall put into effect water delivery schedules based on priority ofrights and prepared by the commission without regard to the boundary line forall or any part of the division, and during such emergency, water shall bedelivered in accordance with such schedules by the state official charged withthe administration of public waters.
B. The commission shall have authority upon its own motion (1) todeclare a water emergency in any or all river divisions based upon itsdetermination that there are diversions which violate this compact and whichencroach upon water rights in a lower state, (2) to make appropriate orders toprevent such encroachments, and (3) to enforce such orders by action beforestate administrative officials or by court proceedings.
C. When the flow of water in an interstate tributary across a stateboundary line is insufficient to satisfy water rights on such tributary in alower state, any water user may file a petition with the commission allegingthat by reason of diversions in an upstream state he is being deprived of waterto which he is justly entitled and that by reason thereof a water emergencyexists, and requesting distribution of water under the direction of thecommission. If the commission finds that a water emergency exists and thatinterstate control of water of such tributary is necessary, it shall put intoeffect water delivery schedules based on priority of rights and preparedwithout regard to the state boundary line. The state officials in charge ofwater distribution on interstate tributaries may appoint and fix the compensationand expenses of a joint water commissioner for each tributary. The proportionof the compensation and expenses to be paid by each state shall be determinedby the ratio between the number of acres therein which are irrigated bydiversions from such tributary, and the total number of acres irrigated fromsuch tributary.
D. In preparing interstate water delivery schedules the commission,upon notice and after public hearings, shall make findings of fact as to thenature, priority and extent of water rights, rates of flow, duty of water,irrigated acreages, types of crops, time of use, and related matters; providedthat such schedules shall recognize and incorporate therein priority of waterrights as adjudicated in each of the signatory states. Such findings of factshall, in any court or before any tribunal, constitute prima facie evidence ofthe facts found.
E. Water emergencies provided for herein shall terminate onSeptember 30 of each year unless terminated sooner or extended by thecommission.
ARTICLEV
A. Water rights in the lower division acquired under the laws ofIdaho and Utah covering water applied to beneficial use prior to January 1,1976, are hereby recognized and shall be administered in accordance with statelaw based on priority of rights as provided in Article IV, paragraph A.3.Rights to water first applied to beneficial use on or after January 1, 1976,shall be satisfied from the respective allocations made to Idaho and Utah inthis paragraph and the water allocated to each state shall be administered inaccordance with state law. Subject to the foregoing provisions, the remainingwater in the lower division, including ground water tributary to the BearRiver, is hereby apportioned for use in Idaho and Utah as follows:
(1) Idaho shall havethe first right to the use of such remaining water resulting in an annualdepletion of not more than 125,000 acre-feet;
(2) Utah shall have thesecond right to the use of such remaining water resulting in an annualdepletion of not more than 275,000 acre-feet;
(3) Idaho and Utahshall each have an additional right to deplete annually on an equal basis,75,000 acre-feet of the remaining water after the rights provided bysubparagraphs (1), and (2) above have been satisfied;
(4) Any remaining waterin the lower division after the allocations provided for in subparagraphs (1),(2), and (3) above have been satisfied shall be divided; thirty (30) percent toIdaho and seventy (70) percent to Utah.
B. Water allocated under the above subparagraphs shall be chargedagainst the state in which it is used regardless of the location of the pointof diversion.
C. Water depletions permitted under provisions of subparagraphs(1), (2), and (3), and (4) above, shall be calculated and administered by acommission-approved procedure.
ARTICLEVI
A. Existing storage rights in reservoirs constructed above StewartDam prior to February 4, 1955 are as follows:
Additional rights are hereby granted tostore in any water year above Stewart Dam, 35,500 acre-feet of Bear River waterand no more under this paragraph for use in Utah and Wyoming; and to store inany water year in Idaho or Wyoming on Thomas Fork 1,000 acre-feet of water foruse in Idaho. Such additional storage rights shall be subordinate to, and shallnot be exercised when the effect thereof will be to impair or interfere with(1) existing direct flow rights for consumptive use in any river division and(2) existing storage rights above Stewart Dam, but shall not be subordinate toany right to store water in Bear Lake or elsewhere below Stewart Dam. One-halfof the 35,500 acre-feet of additional storage right above Stewart Dam sogranted to Utah and Wyoming is hereby allocated to Utah, and the remainingone-half thereof is allocated to Wyoming.
B. In addition to the rights defined in paragraph A. of thisarticle, further storage entitlements above Stewart Dam are hereby granted.Wyoming and Utah are granted an additional right to store in any year 70,000acre-feet of Bear River water for use in Utah and Wyoming to be divided equally;and Idaho is granted an additional right to store 4,500 acre-feet of Bear Riverwater in Wyoming or Idaho for use in Idaho. Water rights granted under thisparagraph and water appropriated, including ground water tributary to BearRiver, which is applied to beneficial use on or after January 1, 1976, shallnot result in an annual increase in depletion of the flow of the Bear River andits tributaries above Stewart Dam of more than 28,000 acre-feet in excess ofthe depletion as of January 1, 1976. Thirteen thousand (13,000) acre-feet ofthe additional depletion above Stewart Dam is allocated to each of Utah andWyoming, and two thousand (2,000) acre-feet is allocated to Idaho.
The additional storage rights provided for in this paragraph shallbe subordinate to, and shall not be exercised when the effect thereof will beto impair or interfere with (1) existing direct flow rights for consumptive usein any river division and (2) existing storage rights above Stewart Dam, butshall not be subordinate to any right to store water in Bear Lake or elsewherebelow Stewart Dam; provided, however, there shall be no diversion of water tostorage above Stewart Dam under this paragraph B. when the water surfaceelevation of Bear Lake is below 5,911.00 feet, Utah Power & Light Companydatum (the equivalent of elevation 5,913.75 feet based on the sea level datumof 1929 through the Pacific Northwest Supplementary Adjustment of 1947). Waterdepletions permitted under this paragraph B. shall be calculated andadministered by a commission-approved procedure.
C. In addition to the rights defined in article VI, paragraphs A.and B., Idaho, Utah and Wyoming are granted the right to store and use waterabove Stewart Dam that otherwise would be bypassed or released from Bear Lakeat times when all other direct flow and storage rights are satisfied. Theavailability of such water and the operation of reservoir space to store waterabove Bear Lake under this paragraph shall be determined by acommission-approved procedure. The storage provided for in this paragraph shallbe subordinate to all other storage and direct flow rights in the Bear River.Storage rights under this paragraph shall be exercised with equal priority onthe following basis: six (6) percent thereof to Idaho; forty-seven (47) percentthereof to Utah; and forty-seven (47) percent thereof to Wyoming.
D. The waters of Bear Lake below elevation 5,912.91 feet, UtahPower & Light Company Bear Lake datum (the equivalent of elevation 5915.66feet based on the sea level datum of 1929 through the Pacific NorthwestSupplementary Adjustment of 1947) shall constitute a reserve for irrigation.The water of such reserve shall not be released solely for the generation ofpower, except in emergency, but after release for irrigation it may be used ingenerating power if not inconsistent with its use for irrigation. Any water inBear Lake in excess of that constituting the irrigation reserve may be used forthe generation of power or for other beneficial uses. As new reservoir capacityabove the Stewart Dam is constructed to provide additional storage pursuant toparagraph A. of this article, the commission shall make a finding in writing asto the quantity of additional storage and shall thereupon make an orderincreasing the irrigation reserve in accordance with the following table:
Lake surface elevation
Utah Power & Light
Additional storage Company
acre-feet BearLake datum
5,000................................. 5,913.24
10,000................................ 5,913.56
15,000................................ 5,913.87
20,000................................ 5,914.15
25,000................................ 5,914.41
30,000................................ 5,914.61
35,500................................ 5,914.69
36,500................................ 5,914.70
E. Subject to existing rights, each state shall have the use ofwater, including ground water, for ordinary domestic, and stock wateringpurposes, as determined by state law and shall have the right to impound waterfor such purposes in reservoirs having storage capacities not in excess, in anycase, of 20 acre-feet, without deduction from the allocation made by paragraphsA., B. and C. of this article.
F. The storage rights in Bear Lake are hereby recognized andconfirmed subject only to the restrictions hereinbefore recited.
ARTICLEVII
It is the policy of the signatory states to encourage additionalprojects for the development of the water resources of the Bear River to obtainthe maximum beneficial use of water with a minimum of waste, and in furtheranceof such policy, authority is granted within the limitations provided by thiscompact, to investigate, plan, construct, and operate such projects withoutregard to state boundaries, provided that water rights for each such projectshall, except as provided in article VI, paragraphs A. and B. thereof, besubject to rights theretofore initiated and in good standing.
ARTICLEVIII
A. No state shall deny the right of the United States of America,and subject to the conditions hereinafter contained, no state shall deny theright of another signatory state, any person or entity of another signatorystate, to acquire rights to the use of water or to construct or to participatein the construction and use of diversion works and storage reservoirs withappurtenant works, canals, and conduits in one state for use of water inanother state, either directly or by exchange. Water rights acquired forout-of-state use shall be appropriated in the state where the point ofdiversion is located in the manner provided by law for appropriation of waterfor use within such state.
B. Any signatory state, any person or any entity of any signatorystate, shall have the right to acquire in any other signatory state suchproperty rights as are necessary to the use of water in conformity with thiscompact by donation, purchase, or, as hereinafter provided through the exerciseof the power of eminent domain in accordance with the law of the state in whichsuch property is located. Any signatory state, upon the written request of thegovernor of any other signatory state for the benefit of whose water usersproperty is to be acquired in the state to which such written request is made,shall proceed expeditiously to acquire the desired property either by purchaseat a price acceptable to the requesting governor, or if such purchase cannot bemade, then through the exercise of its power of eminent domain and shall conveysuch property to the requesting state or to the person, or entity designated byits governor provided, that all costs of acquisition and expenses of every kindand nature whatsoever incurred in obtaining such property shall be paid by therequesting state or the person or entity designated by its governor.
C. Should any facility be constructed in a signatory state by andfor the benefit of another signatory state or persons or entities therein, asabove provided, the construction, repair, replacement, maintenance andoperation of such facility shall be subject to the laws of the state in whichthe facility is located.
D. In the event lands or other taxable facilities are acquired by asignatory state in another signatory state for the use and benefit of theformer, the users of the water made available by such facilities, as acondition precedent to the use thereof, shall pay to the political subdivisionsof the state in which such facilities are located, each and every year duringwhich such rights are enjoyed for such purposes, a sum of money equivalent tothe average of the amount of taxes annually levied and assessed against theland and improvements thereon during the ten years preceding the acquisition ofsuch land. Said payments shall be in full reimbursement for the loss of taxesin such political subdivision of the state.
E. Rights to the use of water acquired under this article shall inall respects be subject to this compact.
ARTICLEIX
Stored water, or water from another watershed may be turned into thechannel of the Bear River in one state and a like quantity, with allowance forloss by evaporation, transpiration, and seepage, may be taken out of the BearRiver in another state either above or below the point where the water isturned into the channel, but in making such exchange the replacement watershall not be inferior in quality for the purpose used or diminished inquantity. Exchanges shall not be permitted if the effect thereof is to impairvested rights or to cause damage for which no compensation is paid. Water fromanother watershed or source which enters the Bear River by actions within astate may be claimed exclusively by that state and use thereof by that stateshall not be subject to the depletion limitations of articles IV, V and VI.Proof of any claimed increase in flow shall be the burden of the state makingsuch claim, and it shall be approved only by the unanimous vote of thecommission.
ARTICLEX
A. The following rights to the use of Bear River water carried ininterstate canals are recognized and confirmed.
Date of Primary right Lands irrigated
Name of canal priority second-feet Acres State
Hilliard East
Fork ......... 1914 28.00 2,644 Wyoming
Chapman ...... 8-13-86 16.46 1,155 Wyoming
8-13-86 98.46 6,892 Utah
4-12-12 .57 40 Wyoming
5-3-12 4.07 285 Utah
5-21-12 10.17 712 Utah
2-6-13 .79 55 Wyoming
8-28-05 134.00 *
Francis Lee .. 1879 2.20 154 Wyoming
1879 7.41 519 Utah
*Under the right as herein confirmed not to exceed 134 second-feetmay be carried across the Wyoming-Utah state line in the Chapman Canal at anytime for filling the Neponset Reservoir, for irrigation of land in Utah and forother purposes. The storage right in Neponset Reservoir is for 6,900 acre-feetwhich is a component part of the irrigation right for the Utah lands listedabove.
All other rights to the use of water carried in interstate canalsand ditches, as adjudicated in the state in which the point of diversion islocated, are recognized and confirmed.
B. All interstate rights shall be administered by the state inwhich the point of diversion is located and during times of water emergency,such rights shall be filled from the allocations specified in article IV hereoffor the section in which the point of diversion is located, with the exceptionthat the diversion of water into the Hilliard East Fork Canal, Lannon Canal,Lone Mountain Ditch, and Hilliard West Side Canal shall be under theadministration of Wyoming. During times of water emergency these canals and theLone Mountain Ditch shall be supplied from the allocation specified in articleIV for the Upper Wyoming section diversions.
ARTICLEXI
Applications for appropriation, for change of point of diversion,place and nature of use, and for exchange of Bear River water shall be consideredand acted upon in accordance with the law of the state in which the point ofdiversion is located, but no such application shall be approved if the effectthereof will be to deprive any water user in another state of water to which heis entitled, nor shall any such application be approved if the effect thereofwill be an increase in the depletion of the flow of the Bear River and itstributaries beyond the limits authorized in each state in articles IV, V and VIof this compact. The official of each state in charge of water administrationshall, at intervals and in the format established by the commission, report onthe status of use of the respective allocations.
ARTICLEXII
Nothing in this compact shall be construed to prevent the UnitedStates, a signatory state or political subdivision thereof, person,corporation, or association, from instituting or maintaining any action orproceeding, legal or equitable, for the protection of any right under state orfederal law or under this compact.
ARTICLEXIII
Nothing contained in this compact shall be deemed:
1. To affect theobligations of the United States of America to the Indian tribes;
2. To impair, extend orotherwise affect any right or power of the United States, its agencies orinstrumentalities involved herein; nor the capacity of the United States tohold or acquire additional rights to the use of the water of the Bear River;
3. To subject anyproperty or rights of the United States to the laws of the states which werenot subject thereto prior to the date of this compact;
4. To subject anyproperty of the United States to taxation by the states or any subdivisionthereof, nor to obligate the United States to pay any state or subdivisionthereof for loss of taxes.
ARTICLE XIV
At intervals not exceeding twenty years, the commission shall reviewthe provisions hereof, and after notice and public hearing, may proposeamendments to any such provision, provided, however, that the provisionscontained herein shall remain in full force and effect until such proposedamendments have been ratified by the legislatures of the signatory states andconsented to by congress.
ARTICLEXV
This compact may be terminated at any time by the unanimousagreement of the signatory states. In the event of such termination all rightsestablished under it shall continue unimpaired.
ARTICLEXVI
Should a court of competent jurisdiction hold any part of thiscompact to be contrary to the constitution of any signatory state or to theconstitution of the United States, all other severable provisions of thiscompact shall continue in full force and effect.
ARTICLEXVII
This compact shall be in effect when it shall have been ratified bythe legislature of each signatory state and consented to by the congress of theUnited States of America. Notice of ratification by the legislature of thesignatory states shall be given by the governor of each signatory state to thegovernor of each of the other signatory states and to the president of theUnited States of America, and the president is hereby requested to give noticeto the governor of each of the signatory states of approval by the congress ofthe United States of America.
IN WITNESS WHEREOF, the commissioners and their advisers haveexecuted this compact in five originals, one of which shall be deposited withthe general services administration of the United States of America, one ofwhich shall be forwarded to the governor of each of the signatory states, andone of which shall be made a part of the permanent records of the Bear Rivercommission.
Done at Salt Lake City, Utah, this 22nd day of December 1978.
For the State of Idaho:
CliffordJ. Skinner /s/ Clifford J. Skinner
J.Daniel Roberts /s/ J. Daniel Roberts
DonW. Gilbert /s/ Don W. Gilbert
Forthe State of Utah:
S.Paul Holmgren /s/ S. Paul Holmgren
SimeonWeston /s/ Simeon Weston
DanielF. Lawrence /s/ Daniel F. Lawrence
Forthe State of Wyoming:
GeorgeL. Christopulos /s/ George L. Christopulos
JohnA. Teichert /s/ John A. Teichert
J.W. Myers /s/ J. W. Myers
Approved: Attest:
/s/Wallace N. Jibson /s/ Daniel F. Lawrence
WallaceN. Jibson Daniel F. Lawrence
Representativeof the Secretary of the Bear River
UnitedStates of America Compact Commission
41-12-102. When binding; notice of ratification.
Saidcompact shall not be binding or obligatory upon any of the high contractingparties thereto unless and until the same shall have been ratified by thelegislature of each of the said states and approved by the congress of theUnited States. The governor of Wyoming shall give notice of the ratificationand approval of said compact by the Wyoming legislature to the governors of thestates of Idaho and Utah and to the president of the United States.
ARTICLE 2 - BELLE FOURCHE RIVER COMPACT
41-12-201. Purpose.
(a) The major purposes of this compact are to provide for themost efficient use of the waters of the Belle Fourche River basin hereinafterreferred to as the basin for multiple purposes; to provide for an equitabledivision of such waters; to remove all causes, present and future, which mightlead to controversies; to promote interstate comity; to recognize that the mostefficient utilization of the waters within the basin is required for the fulldevelopment of the basin; and to promote joint action by the states and theUnited States in the efficient use of water and the control of floods.
(b) The physical and other conditions peculiar to the basinconstitute the basis for this compact; and none of the states hereby, nor thecongress of the United States by its consent, concedes that this compactestablishes any general principle or precedent with respect to any otherinterstate stream.
(c) Either state and all others using, claiming or in anymanner asserting any right to the use of the waters of the Belle Fourche Riverunder the authority of that state, shall be subject to the terms of thiscompact.
41-12-202. Definitions.
(a) As used in this compact:
(i) The term "Belle Fourche River" shall mean andinclude the Belle Fourche River and all its tributaries originating in Wyoming;
(ii) The term "basin" shall mean that area in SouthDakota and Wyoming which is naturally drained by the Belle Fourche River, andall its tributaries;
(iii) The term "beneficial use" is herein defined to bethat use by which the water supply of a drainage basin is depleted whenusefully employed by the activities of man, and includes water lost byevaporation, and other natural causes from streams, canals, ditches, irrigatedareas, and reservoirs;
(iv) Where the name of the state or the term "state"or "states" is used, these shall be construed to include any personor entity of any nature whatsoever using, claiming, or in any manner assertingany right to the use of the waters of the Belle Fourche River under theauthority of that state.
41-12-203. Administration.
(a) It shall be the duty of the two (2) states to administerthis compact through the official in each state who is now or may hereafter becharged with the duty of administering the public water supplies, and tocollect and correlate through such officials the data necessary for the properadministration of the provisions of this compact. Such officials may, byunanimous action, adopt rules and regulations consistent with the provisions ofthis compact.
(b) The United States geological survey, or whatever federalagency may succeed to the functions and duties of that agency, insofar as thiscompact is concerned, shall collaborate with the officials of the statescharged with the administration of this compact in the execution of the duty ofsuch officials in the collection, correlation, and publication of informationnecessary for the proper administration of this compact.
41-12-204. Water gauging stations.
Eachstate shall itself or in conjunction with other responsible agencies cause tobe established, maintained, and operated such suitable water gauging stationsas it finds necessary to administer this compact.
41-12-205. Allocation of waters.
(a) Wyoming and South Dakota agree that the unappropriatedwaters of the Belle Fourche River as of the date of this compact shall beallocated to each state as follows: Ninety percent (90%) to South Dakota Ten percent(10%) to Wyoming; provided, that allocations to Wyoming shall be exclusive ofthe use of these waters for domestic and stock use, and Wyoming shall beallowed unrestricted use for these purposes, except that no reservoir for suchuse shall exceed twenty (20) acre-feet in capacity. For storage of itsallocated water, Wyoming shall have the privilege of purchasing at cost not toexceed ten percent (10%) of the total storage capacity for any reservoir orreservoirs constructed in Wyoming for irrigation of lands in South Dakota, ormay construct reservoirs itself for the purpose of utilizing such water. Eitherstate may temporarily divert, or store for beneficial use, any unused part ofthe above percentages allotted to the other, but no continuing right shall beestablished thereby.
(b) Rights to the use of the waters of the Belle Fourche River,whether based on direct diversion or storage, are hereby recognized as of thedate of this compact to the extent these rights are valid under the law of thestate in which the use is made, and shall remain unimpaired hereby. Theserights, together with the additional allocations made under (a) of thissection, are agreed to be an equitable apportionment between the states of thewaters of the basin.
(c) The waters allocated under subsection (a) of this sectionand the rights recognized under subsection (b) of this section are hereinafterreferred to collectively as the apportioned water. For the purposes of theadministration of this compact and determining the apportioned water at anygiven date within a given calendar year, there shall be taken the sum of:
(i) The quantity of water in acre-feet that passed theWyoming-South Dakota state line during the period from January 1 of that yearto that given date;
(ii) The quantity of water in acre-feet in storage on that datein all reservoirs built in Wyoming on the Belle Fourche River subsequent to thedate of this compact.
41-12-206. Acquisition of property in another state.
Anyperson, entity, or state shall have the right to acquire necessary propertyrights in another state by purchase or through the exercise of the power ofeminent domain for the construction, operation and maintenance of storagereservoirs and of appurtenant works, canals, and conduits required for theenjoyment of the privileges granted by W.S. 41-12-205 and 41-12-207(a);provided, however, that the grantees of such rights shall pay to the politicalsubdivisions of the state in which such works are located, each and every yearduring which such rights are enjoyed for such purposes, a sum of moneyequivalent to the average annual amount of taxes assessed against the lands andimprovements thereon during the ten (10) years preceding the use of such landsin reimbursement for the loss of taxes to said political subdivisions of thestate.
41-12-207. Construction and use of dams; claims for storage ordiversion; appropriations.
(a) Either state shall have the right, by compliance with thelaws of the other state, to file applications for and receive permits toconstruct or participate in the construction and use of any dam, storagereservoir, or diversion works in such state for the purpose of conserving andregulating the apportioned water of the other state; provided, that such rightis subject to the rights of the other state to control, regulate, and use waterapportioned to it.
(b) Each claim hereafter initiated for storage or diversion ofwater in one (1) state for use in another state shall be filed in the office ofthe state engineer of the state in which the water is to be stored or diverted,and a duplicate copy of the application including a map showing the characterand location of the proposed facilities and the lands to be irrigated shall befiled in the office of the state engineer of the state in which the water is tobe used. If a portion or all the lands proposed to be reclaimed are located ina state other than the one (1) in which the water is to be restored ordiverted, then, before approval of the application shall be granted, saidapplication shall be checked against the records of the appropriate office ofthe state in which the water is to be used, and a notation shall be placedthereon by the officer in charge of such records to the effect that the landdescription does not indicate a conflict with existing water rights. Allendorsements shall be placed on both the original and duplicate copies of allsuch maps filed to the end that the records in both states may be complete andidentical.
(c) Appropriations may hereafter be adjudicated in the state inwhich the water is stored or diverted, and where a portion or all the landsirrigated are in the other state, such adjudications shall be confirmed in thelatter state by the proper authority. Each adjudication is to conform with thelaws of the state where the water is stored or diverted and shall be recordedin the county and state where the water is used.
41-12-208. Water for stock water use in South Dakota.
Incase any reservoir is constructed in Wyoming to be used principally forirrigation of lands in South Dakota, sufficient water not to exceed ten (10)cubic feet per second shall be released at all times for stock water use.
41-12-209. Size of reservoirs.
Noreservoir hereafter built solely to utilize the water allocated to Wyomingshall have a capacity in excess of one thousand (1,000) acre-feet.
41-12-210. Duration of compact.
Theprovisions of this compact shall remain in full force and effect until amendedby action of the legislature of the states and consented to and approved by thecongress of the United States in the same manner as this compact is required tobe ratified to become effective.
41-12-211. Termination of compact.
Thiscompact may be terminated at any time by unanimous consent of the states, andupon such termination, all rights then established hereunder or recognizedhereby shall continue to be recognized as valid by the states notwithstandingthe termination of the other provisions of the compact.
41-12-212. Rights of action preserved.
Nothingin this compact shall be construed to limit or prevent either state frominstituting or maintaining any action or proceeding, legal or equitable, in anyfederal court or the United States supreme court for the protection of anyright under this compact or the enforcement of any of its provisions.
41-12-213. Application of compact.
(a) Nothing in this compact shall be deemed:
(i) To impair or affect any rights or powers of the UnitedStates, its agencies, or instrumentalities, in and to the use of the waters ofthe Belle Fourche River nor its capacity to acquire rights in and to the use ofsaid waters;
(ii) To subject any property of the United States, its agencies,or instrumentalities to taxation by either state or subdivision thereof, or tocreate an obligation on the part of the United States, its agencies, orinstrumentalities, by reason of the acquisition, construction or operation ofany property or works of whatsoever kind, to make any payments to any state orpolitical subdivision thereof, state agency, municipality, or entity whatsoeverin reimbursement for the loss of taxes;
(iii) To subject any property of the United States, its agencies,or instrumentalities, to the laws of any state to an extent other than theextent to which these laws would apply without regard to the compact.
Ratificationand approval is hereby given to the Bear River Compact as signed at Salt LakeCity, in the state of Utah, on the 22nd day of December, A.D., 1978, by GeorgeL. Christopulos, the state engineer of the state of Wyoming, and others, whichcompact was also signed by the duly authorized commissioners of the states ofIdaho and Utah, and approved by the representative of the United States, whichBear River Compact is in full as follows:
BEARRIVER COMPACT
The state ofIdaho, the state of Utah, and the state of Wyoming, acting through theirrespective commissioners after negotiations participated in by a representativeof the United States of America appointed by the president, have agreed to anamended Bear River Compact as follows:
ARTICLEI
A. The majorpurposes of this compact are to remove the causes of present and futurecontroversy over the distribution and use of the waters of the Bear River; toprovide for efficient use of water for multiple purposes; to permit additionaldevelopment of the water resources of Bear River; to promote interstate comity;to accomplish an equitable apportionment of the waters of the Bear River amongthe compacting states.
B. The physicaland all other conditions peculiar to the Bear River constitute the basis forthis compact. No general principle or precedent with respect to any otherinterstate stream is intended to be established.
ARTICLEII
As used in thiscompact the term
1. "BearRiver" means the Bear River and its tributaries from its source in theUinta Mountains to its mouth in Great Salt Lake;
2. "Bear Lake" means Bear Lake and Mud Lake;
3. "Upper division" means the portion of Bear River fromits source in the Uinta Mountains to and including Pixley Dam, a diversion damin the southeast quarter of section 25, township 23 north, range 120 west,sixth principal meridian, Wyoming;
4. "Central division" means the portion of the Bear Riverfrom Pixley Dam to and including Stewart Dam, a diversion dam in section 34,township 13 south, range 44 east, Boise base and meridian, Idaho;
5. "Lower division" means the portion of the Bear Riverbetween Stewart Dam and Great Salt Lake, including Bear Lake and its tributarydrainage;
6. "Upper Utah section diversions" means the sum of alldiversions in second-feet from the Bear River and the tributaries of Bear Riverjoining the Bear River upstream from the point where the Bear River crosses theUtah-Wyoming state line above Evanston, Wyoming; excluding the diversions bythe Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and HilliardWest Side Canal;
7. "Upper Wyoming section diversions" means the sum ofall diversions in second-feet from the Bear River main stem from the pointwhere the Bear River crosses the Utah-Wyoming state line above Evanston,Wyoming, to the point where the Bear River crosses the Wyoming-Utah state lineeast of Woodruff, Utah, and including the diversions by the Hilliard East ForkCanal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal;
8. "Lower Utah section diversions" means the sum of alldiversions in second-feet from the Bear River main stem from the point wherethe Bear River crosses the Wyoming-Utah state line east of Woodruff, Utah, tothe point where the Bear River crosses the Utah-Wyoming state line northeast ofRandolph, Utah;
9. "Lower Wyoming section diversions" means the sum ofall diversions in second-feet from the Bear River main stem from the pointwhere the Bear River crosses the Utah-Wyoming state line northeast of Randolphto and including the diversion at Pixley Dam;
10. "Commission" means the Bear River commission,organized pursuant to article III of this compact;
11. "Water user" means a person, corporation, or otherentity having a right to divert water from the Bear River for beneficial use;
12. "Second-foot" means a flow of one cubic foot of waterper second of time passing a given point;
13. "Acre-foot" means the quantity of water required tocover one acre to a depth of one foot, equivalent to 43,560 cubic feet;
14. "Biennium" means the 2-year period commencing onOctober 1 of the first odd numbered year after the effective date of thiscompact and each 2-year period thereafter;
15. "Water year" means the period beginning October 1 andending September 30 of the following year;
16. "Direct flow" means all water flowing in a naturalwatercourse except water released from storage or imported from a source otherthan the Bear River watershed;
17. "Border gauging station" means the stream flowgauging station in Idaho on the Bear River above Thomas Fork near theWyoming-Idaho boundary line in the northeast quarter of the northeast quarterof section 15, township 14 south, range 46 east, Boise base and meridian,Idaho;
18. "Smiths Fork" means a Bear River tributary whichrises in Lincoln County, Wyoming and flows in a general southwesterly directionto its confluence with Bear River near Cokeville, Wyoming;
19. "Grade Creek" means a Smiths Fork tributary whichrises in Lincoln County, Wyoming and flows in a westerly direction and in itsnatural channel is tributary to Smiths Fork in section 17, township 25 north,range 118 west, sixth principal meridian, Wyoming;
20. "Pine Creek" means a Smiths Fork tributary which risesin Lincoln County, Wyoming, emerging from its mountain canyon in section 34,township 25 north, range 118 west, sixth principal meridian, Wyoming, and inits natural channel is tributary to Smiths Fork in section 36, township 25north, range 119 west, sixth principal meridian, Wyoming;
21. "Bruner Creek" and "Pine Creek Springs"means Smiths Fork tributaries which rise in Lincoln County, Wyoming, insections 31 and 32, township 25 north, range 118 west, sixth principalmeridian, and in their natural channels are tributary to Smiths Fork in section36, township 25 north, range 119 west, sixth principal meridian, Wyoming;
22. "Spring Creek" means a Smiths Fork tributary whichrises in Lincoln County, Wyoming, in sections 1 and 2, township 24 north, range119 west, sixth principal meridian, Wyoming, and flows in a general westerlydirection to its confluence with Smiths Fork in section 4, township 24 north,range 119 west, sixth principal meridian, Wyoming;
23. "Sublette Creek" means the Bear River tributary whichrises in Lincoln County, Wyoming and flows in a general westerly direction toits confluence with Bear River in section 20, township 24 north, range 119west, sixth principal meridian, Wyoming;
24. "Hobble Creek" means the Smiths Fork tributary whichrises in Lincoln County, Wyoming and flows in a general southwesterly directionto its confluence with Smiths Fork in section 35, township 28 north, range 118west, sixth principal meridian, Wyoming;
25. "Hilliard East Fork Canal" means that irrigationcanal which diverts water from the right bank of the east fork of Bear River inSummit County, Utah, at a point west 1,310 feet and north 330 feet from thesoutheast corner of section 16, township 2 north, range 10 east, Salt Lake baseand meridian, Utah, and runs in a northerly direction crossing the Utah-Wyomingstate line into the southwest quarter of section 21, township 12 north, range119 west, sixth principal meridian, Wyoming;
26. "Lannon Canal" means that irrigation canal whichdiverts water from the right bank of the Bear River in Summit County, Utah,east 1,480 feet from the west quarter corner of section 19, township 3 north,range 10 east, Salt Lake base and meridian, Utah, and runs in a northerlydirection crossing the Utah-Wyoming state line into the south half of section20, township 12 north, range 119 west, sixth principal meridian, Wyoming;
27. "Lone Mountain Ditch" means that irrigation canalwhich diverts water from the right bank of the Bear River in Summit County,Utah, north 1,535 feet and east 1,120 feet from the west quarter corner ofsection 19, township 3 north, range 10 east, Salt Lake base and meridian, Utah,and runs in a northerly direction crossing the Utah-Wyoming state line into thesouth half of section 20, township 12 north, range 119 west, sixth principalmeridian, Wyoming;
28. "Hilliard West Side Canal" means that irrigationcanal which diverts water from the right bank of the Bear River in SummitCounty, Utah, at a point north 2,190 feet and east 1,450 feet from the southquarter corner of section 13, township 3 north, range 9 east, Salt Lake baseand meridian, Utah, and runs in a northerly direction crossing the Utah-Wyomingstate line into the south half of section 20, township 12 north, range 119west, sixth principal meridian, Wyoming;
29. "Francis Lee Canal" means that irrigation canal whichdiverts water from the left bank of the Bear River in Uinta County, Wyoming, inthe northeast quarter of section 30, township 18 north, range 120 west, sixthprincipal meridian, Wyoming, and runs in a westerly direction across theWyoming-Utah state line into section 16, township 9 north, range 8 east, SaltLake base and meridian, Utah;
30. "Chapman Canal" means that irrigation canal whichdiverts water from the left bank of the Bear River in Uinta County, Wyoming, inthe northeast quarter of section 36, township 16 north, range 121 west, sixthprincipal meridian, Wyoming, and runs in a northerly direction crossing overthe low divide into the Saleratus drainage basin near the southeast corner ofsection 36, township 17 north, range 121 west, sixth principal meridian,Wyoming and then in a general westerly direction crossing the Wyoming-Utahstate line;
31. "Neponset Reservoir" means that reservoir locatedprincipally in sections 34 and 35, township 8 north, range 7 east, Salt Lakebase and meridian, Utah, having a capacity of 6,900 acre-feet.
ARTICLEIII
A. There is hereby created an interstate administrative agency tobe known as the "Bear River Commission" which is hereby constituted alegal entity and in such name shall exercise the powers hereinafter specified.The commission shall be composed of nine commissioners, three commissionersrepresenting each signatory state, and if appointed by the president, oneadditional commissioner representing the United States of America who shallserve as chairman, without vote. Each commissioner, except the chairman, shallhave one vote. The state commissioners shall be selected in accordance withstate law. Six commissioners who shall include two commissioners from eachstate shall constitute a quorum. The vote of at least two-thirds of thecommissioners when a quorum is present shall be necessary for the action of thecommission.
B. The compensation and expenses of each commissioner and eachadviser shall be paid by the government which he represents. All expensesincurred by the commission in the administration of this compact, except thosepaid by the United States of America, shall be paid by the signatory states onan equal basis.
C. The commission shall have power to:
1. Adopt by-laws,rules, and regulations not inconsistent with this compact;
2. Acquire, hold,convey or otherwise dispose of property;
3. Employ such personsand contract for such services as may be necessary to carry out its dutiesunder this compact;
4. Sue and be sued as alegal entity in any court of record of a signatory state, and in any court ofthe United States having jurisdiction of such action;
5. Cooperate with stateand federal agencies in matters relating to water pollution of interstatesignificance;
6. Perform allfunctions required of it by this compact and do all things necessary, proper orconvenient in the performance of its duties hereunder, independently or incooperation with others, including state and federal agencies.
D. The commission shall:
1. Enforce this compactand its orders made hereunder by suit or other appropriate action;
2. Compile a reportcovering the work of the commission and expenditures during the currentbiennium, and an estimate of expenditures for the following biennium andtransmit it to the president of the United States and to the governors of thesignatory states on or before July 1 following each biennium.
ARTICLE IV
Rights to direct flow water shall be administered in each signatorystate under state law, with the following limitations:
A. When there is a water emergency, as hereinafter defined for eachdivision, water shall be distributed therein as provided below.
1. Upper division
a. When the divertible flow as defined below for the upper divisionis less than 1,250 second-feet, a water emergency shall be deemed to existtherein and such divertible flow is allocated for diversion in the riversections of the division as follows:
Upper Utah section diversions - 0.6 percent,
Upper Wyoming section diversions - 49.3 percent,
Lower Utah section diversions - 40.5 percent,
Lower Wyoming section diversions - 9.6 percent.
Such divertible flow shall be the total of the following five items:
(1) Upper Utah sectiondiversions in second-feet,
(2) Upper Wyoming sectiondiversions in second-feet,
(3) Lower Utah sectiondiversions in second-feet,
(4) Lower Wyomingsection diversions in second-feet,
(5) The flow insecond-feet passing Pixley Dam.
b. The Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch,and Hilliard West Side Canal, which divert water in Utah to irrigate lands inWyoming, shall be supplied from the divertible flow allocated to the UpperWyoming section diversions.
c. The Chapman, Bear River, and Francis Lee Canals, which divertwater from the main stem of Bear River in Wyoming to irrigate lands in bothWyoming and Utah, shall be supplied from the divertible flow allocated to theUpper Wyoming section diversions.
d. The Beckwith Quinn West Side Canal, which diverts water from themain stem of Bear River in Utah to irrigate lands in both Utah and Wyoming,shall be supplied from the divertible flow allocated to the Lower Utah sectiondiversions.
e. If for any reason the aggregate of all diversions in a riversection of the upper division does not equal the allocation of water thereto,the unused portion of such allocation shall be available for use in the otherriver sections in the upper division in the following order: (1) In the otherriver section of the same state in which the unused allocation occurs; and (2)In the river sections of the other state. No permanent right of use shall beestablished by the distribution of water pursuant to this paragraph e.
f. Water allocated to the several sections shall be distributed ineach section in accordance with state law.
2. Central division
a. When either the divertible flow as hereinafter defined for thecentral division is less than 870 second-feet, or the flow of the Bear River atBorder Gauging Station is less than 350 second-feet, whichever shall firstoccur, a water emergency shall be deemed to exist in the central division andthe total of all diversions in Wyoming from Grade Creek, Pine Creek, Bruner Creekand Pine Creek Springs, Spring Creek, Sublette Creek, Smiths Fork, and all thetributaries of Smiths Fork above the mouth of Hobble Creek including HobbleCreek, and from the main stem of the Bear River between Pixley Dam and thepoint where the river crosses the Wyoming-Idaho state line near Border shall belimited for the benefit of the state of Idaho, to not exceeding forty-three(43) percent of the divertible flow. The remaining fifty-seven (57) percent ofthe divertible flow shall be available for use in Idaho in the centraldivision, but if any portion of such allocation is not used therein it shall beavailable for use in Idaho in the lower division.
The divertible flow for the central division shall be the total ofthe following three items:
(1) Diversions insecond-feet in Wyoming consisting of the sum of all diversions from GradeCreek, Pine Creek, Bruner Creek and Pine Creek Springs, Spring Creek, SubletteCreek, and Smiths Fork and all the tributaries of Smiths Fork above the mouthof Hobble Creek including Hobble Creek, and the main stem of the Bear Riverbetween Pixley Dam and the point where the river crosses the Wyoming-Idahostate line near Border, Wyoming.
(2) Diversions insecond-feet in Idaho from the Bear River main stem from the point where theriver crosses the Wyoming-Idaho state line near Border to Stewart Dam includingWest Fork Canal which diverts at Stewart Dam.
(3) Flow in second-feetof the Rainbow Inlet Canal and of the Bear River passing downstream fromStewart Dam.
b. The Cook Canal, which diverts water from the main stem of theBear River in Wyoming to irrigate lands in both Wyoming and Idaho, shall beconsidered a Wyoming diversion and shall be supplied from the divertible flowallocated to Wyoming.
c. Water allocated to each state shall be distributed in accordancewith state law.
3. Lower division
a. When the flow of water across the Idaho-Utah boundary line isinsufficient to satisfy water rights in Utah, covering water applied tobeneficial use prior to January 1, 1976, any water user in Utah may file apetition with the commission alleging that by reason of diversions in Idaho heis being deprived of water to which he is justly entitled, and that by reasonthereof, a water emergency exists, and requesting distribution of water underthe direction of the commission. If the commission finds a water emergencyexists, it shall put into effect water delivery schedules based on priority ofrights and prepared by the commission without regard to the boundary line forall or any part of the division, and during such emergency, water shall bedelivered in accordance with such schedules by the state official charged withthe administration of public waters.
B. The commission shall have authority upon its own motion (1) todeclare a water emergency in any or all river divisions based upon itsdetermination that there are diversions which violate this compact and whichencroach upon water rights in a lower state, (2) to make appropriate orders toprevent such encroachments, and (3) to enforce such orders by action beforestate administrative officials or by court proceedings.
C. When the flow of water in an interstate tributary across a stateboundary line is insufficient to satisfy water rights on such tributary in alower state, any water user may file a petition with the commission allegingthat by reason of diversions in an upstream state he is being deprived of waterto which he is justly entitled and that by reason thereof a water emergencyexists, and requesting distribution of water under the direction of thecommission. If the commission finds that a water emergency exists and thatinterstate control of water of such tributary is necessary, it shall put intoeffect water delivery schedules based on priority of rights and preparedwithout regard to the state boundary line. The state officials in charge ofwater distribution on interstate tributaries may appoint and fix the compensationand expenses of a joint water commissioner for each tributary. The proportionof the compensation and expenses to be paid by each state shall be determinedby the ratio between the number of acres therein which are irrigated bydiversions from such tributary, and the total number of acres irrigated fromsuch tributary.
D. In preparing interstate water delivery schedules the commission,upon notice and after public hearings, shall make findings of fact as to thenature, priority and extent of water rights, rates of flow, duty of water,irrigated acreages, types of crops, time of use, and related matters; providedthat such schedules shall recognize and incorporate therein priority of waterrights as adjudicated in each of the signatory states. Such findings of factshall, in any court or before any tribunal, constitute prima facie evidence ofthe facts found.
E. Water emergencies provided for herein shall terminate onSeptember 30 of each year unless terminated sooner or extended by thecommission.
ARTICLEV
A. Water rights in the lower division acquired under the laws ofIdaho and Utah covering water applied to beneficial use prior to January 1,1976, are hereby recognized and shall be administered in accordance with statelaw based on priority of rights as provided in Article IV, paragraph A.3.Rights to water first applied to beneficial use on or after January 1, 1976,shall be satisfied from the respective allocations made to Idaho and Utah inthis paragraph and the water allocated to each state shall be administered inaccordance with state law. Subject to the foregoing provisions, the remainingwater in the lower division, including ground water tributary to the BearRiver, is hereby apportioned for use in Idaho and Utah as follows:
(1) Idaho shall havethe first right to the use of such remaining water resulting in an annualdepletion of not more than 125,000 acre-feet;
(2) Utah shall have thesecond right to the use of such remaining water resulting in an annualdepletion of not more than 275,000 acre-feet;
(3) Idaho and Utahshall each have an additional right to deplete annually on an equal basis,75,000 acre-feet of the remaining water after the rights provided bysubparagraphs (1), and (2) above have been satisfied;
(4) Any remaining waterin the lower division after the allocations provided for in subparagraphs (1),(2), and (3) above have been satisfied shall be divided; thirty (30) percent toIdaho and seventy (70) percent to Utah.
B. Water allocated under the above subparagraphs shall be chargedagainst the state in which it is used regardless of the location of the pointof diversion.
C. Water depletions permitted under provisions of subparagraphs(1), (2), and (3), and (4) above, shall be calculated and administered by acommission-approved procedure.
ARTICLEVI
A. Existing storage rights in reservoirs constructed above StewartDam prior to February 4, 1955 are as follows:
Additional rights are hereby granted tostore in any water year above Stewart Dam, 35,500 acre-feet of Bear River waterand no more under this paragraph for use in Utah and Wyoming; and to store inany water year in Idaho or Wyoming on Thomas Fork 1,000 acre-feet of water foruse in Idaho. Such additional storage rights shall be subordinate to, and shallnot be exercised when the effect thereof will be to impair or interfere with(1) existing direct flow rights for consumptive use in any river division and(2) existing storage rights above Stewart Dam, but shall not be subordinate toany right to store water in Bear Lake or elsewhere below Stewart Dam. One-halfof the 35,500 acre-feet of additional storage right above Stewart Dam sogranted to Utah and Wyoming is hereby allocated to Utah, and the remainingone-half thereof is allocated to Wyoming.
B. In addition to the rights defined in paragraph A. of thisarticle, further storage entitlements above Stewart Dam are hereby granted.Wyoming and Utah are granted an additional right to store in any year 70,000acre-feet of Bear River water for use in Utah and Wyoming to be divided equally;and Idaho is granted an additional right to store 4,500 acre-feet of Bear Riverwater in Wyoming or Idaho for use in Idaho. Water rights granted under thisparagraph and water appropriated, including ground water tributary to BearRiver, which is applied to beneficial use on or after January 1, 1976, shallnot result in an annual increase in depletion of the flow of the Bear River andits tributaries above Stewart Dam of more than 28,000 acre-feet in excess ofthe depletion as of January 1, 1976. Thirteen thousand (13,000) acre-feet ofthe additional depletion above Stewart Dam is allocated to each of Utah andWyoming, and two thousand (2,000) acre-feet is allocated to Idaho.
The additional storage rights provided for in this paragraph shallbe subordinate to, and shall not be exercised when the effect thereof will beto impair or interfere with (1) existing direct flow rights for consumptive usein any river division and (2) existing storage rights above Stewart Dam, butshall not be subordinate to any right to store water in Bear Lake or elsewherebelow Stewart Dam; provided, however, there shall be no diversion of water tostorage above Stewart Dam under this paragraph B. when the water surfaceelevation of Bear Lake is below 5,911.00 feet, Utah Power & Light Companydatum (the equivalent of elevation 5,913.75 feet based on the sea level datumof 1929 through the Pacific Northwest Supplementary Adjustment of 1947). Waterdepletions permitted under this paragraph B. shall be calculated andadministered by a commission-approved procedure.
C. In addition to the rights defined in article VI, paragraphs A.and B., Idaho, Utah and Wyoming are granted the right to store and use waterabove Stewart Dam that otherwise would be bypassed or released from Bear Lakeat times when all other direct flow and storage rights are satisfied. Theavailability of such water and the operation of reservoir space to store waterabove Bear Lake under this paragraph shall be determined by acommission-approved procedure. The storage provided for in this paragraph shallbe subordinate to all other storage and direct flow rights in the Bear River.Storage rights under this paragraph shall be exercised with equal priority onthe following basis: six (6) percent thereof to Idaho; forty-seven (47) percentthereof to Utah; and forty-seven (47) percent thereof to Wyoming.
D. The waters of Bear Lake below elevation 5,912.91 feet, UtahPower & Light Company Bear Lake datum (the equivalent of elevation 5915.66feet based on the sea level datum of 1929 through the Pacific NorthwestSupplementary Adjustment of 1947) shall constitute a reserve for irrigation.The water of such reserve shall not be released solely for the generation ofpower, except in emergency, but after release for irrigation it may be used ingenerating power if not inconsistent with its use for irrigation. Any water inBear Lake in excess of that constituting the irrigation reserve may be used forthe generation of power or for other beneficial uses. As new reservoir capacityabove the Stewart Dam is constructed to provide additional storage pursuant toparagraph A. of this article, the commission shall make a finding in writing asto the quantity of additional storage and shall thereupon make an orderincreasing the irrigation reserve in accordance with the following table:
Lake surface elevation
Utah Power & Light
Additional storage Company
acre-feet BearLake datum
5,000................................. 5,913.24
10,000................................ 5,913.56
15,000................................ 5,913.87
20,000................................ 5,914.15
25,000................................ 5,914.41
30,000................................ 5,914.61
35,500................................ 5,914.69
36,500................................ 5,914.70
E. Subject to existing rights, each state shall have the use ofwater, including ground water, for ordinary domestic, and stock wateringpurposes, as determined by state law and shall have the right to impound waterfor such purposes in reservoirs having storage capacities not in excess, in anycase, of 20 acre-feet, without deduction from the allocation made by paragraphsA., B. and C. of this article.
F. The storage rights in Bear Lake are hereby recognized andconfirmed subject only to the restrictions hereinbefore recited.
ARTICLEVII
It is the policy of the signatory states to encourage additionalprojects for the development of the water resources of the Bear River to obtainthe maximum beneficial use of water with a minimum of waste, and in furtheranceof such policy, authority is granted within the limitations provided by thiscompact, to investigate, plan, construct, and operate such projects withoutregard to state boundaries, provided that water rights for each such projectshall, except as provided in article VI, paragraphs A. and B. thereof, besubject to rights theretofore initiated and in good standing.
ARTICLEVIII
A. No state shall deny the right of the United States of America,and subject to the conditions hereinafter contained, no state shall deny theright of another signatory state, any person or entity of another signatorystate, to acquire rights to the use of water or to construct or to participatein the construction and use of diversion works and storage reservoirs withappurtenant works, canals, and conduits in one state for use of water inanother state, either directly or by exchange. Water rights acquired forout-of-state use shall be appropriated in the state where the point ofdiversion is located in the manner provided by law for appropriation of waterfor use within such state.
B. Any signatory state, any person or any entity of any signatorystate, shall have the right to acquire in any other signatory state suchproperty rights as are necessary to the use of water in conformity with thiscompact by donation, purchase, or, as hereinafter provided through the exerciseof the power of eminent domain in accordance with the law of the state in whichsuch property is located. Any signatory state, upon the written request of thegovernor of any other signatory state for the benefit of whose water usersproperty is to be acquired in the state to which such written request is made,shall proceed expeditiously to acquire the desired property either by purchaseat a price acceptable to the requesting governor, or if such purchase cannot bemade, then through the exercise of its power of eminent domain and shall conveysuch property to the requesting state or to the person, or entity designated byits governor provided, that all costs of acquisition and expenses of every kindand nature whatsoever incurred in obtaining such property shall be paid by therequesting state or the person or entity designated by its governor.
C. Should any facility be constructed in a signatory state by andfor the benefit of another signatory state or persons or entities therein, asabove provided, the construction, repair, replacement, maintenance andoperation of such facility shall be subject to the laws of the state in whichthe facility is located.
D. In the event lands or other taxable facilities are acquired by asignatory state in another signatory state for the use and benefit of theformer, the users of the water made available by such facilities, as acondition precedent to the use thereof, shall pay to the political subdivisionsof the state in which such facilities are located, each and every year duringwhich such rights are enjoyed for such purposes, a sum of money equivalent tothe average of the amount of taxes annually levied and assessed against theland and improvements thereon during the ten years preceding the acquisition ofsuch land. Said payments shall be in full reimbursement for the loss of taxesin such political subdivision of the state.
E. Rights to the use of water acquired under this article shall inall respects be subject to this compact.
ARTICLEIX
Stored water, or water from another watershed may be turned into thechannel of the Bear River in one state and a like quantity, with allowance forloss by evaporation, transpiration, and seepage, may be taken out of the BearRiver in another state either above or below the point where the water isturned into the channel, but in making such exchange the replacement watershall not be inferior in quality for the purpose used or diminished inquantity. Exchanges shall not be permitted if the effect thereof is to impairvested rights or to cause damage for which no compensation is paid. Water fromanother watershed or source which enters the Bear River by actions within astate may be claimed exclusively by that state and use thereof by that stateshall not be subject to the depletion limitations of articles IV, V and VI.Proof of any claimed increase in flow shall be the burden of the state makingsuch claim, and it shall be approved only by the unanimous vote of thecommission.
ARTICLEX
A. The following rights to the use of Bear River water carried ininterstate canals are recognized and confirmed.
Date of Primary right Lands irrigated
Name of canal priority second-feet Acres State
Hilliard East
Fork ......... 1914 28.00 2,644 Wyoming
Chapman ...... 8-13-86 16.46 1,155 Wyoming
8-13-86 98.46 6,892 Utah
4-12-12 .57 40 Wyoming
5-3-12 4.07 285 Utah
5-21-12 10.17 712 Utah
2-6-13 .79 55 Wyoming
8-28-05 134.00 *
Francis Lee .. 1879 2.20 154 Wyoming
1879 7.41 519 Utah
*Under the right as herein confirmed not to exceed 134 second-feetmay be carried across the Wyoming-Utah state line in the Chapman Canal at anytime for filling the Neponset Reservoir, for irrigation of land in Utah and forother purposes. The storage right in Neponset Reservoir is for 6,900 acre-feetwhich is a component part of the irrigation right for the Utah lands listedabove.
All other rights to the use of water carried in interstate canalsand ditches, as adjudicated in the state in which the point of diversion islocated, are recognized and confirmed.
B. All interstate rights shall be administered by the state inwhich the point of diversion is located and during times of water emergency,such rights shall be filled from the allocations specified in article IV hereoffor the section in which the point of diversion is located, with the exceptionthat the diversion of water into the Hilliard East Fork Canal, Lannon Canal,Lone Mountain Ditch, and Hilliard West Side Canal shall be under theadministration of Wyoming. During times of water emergency these canals and theLone Mountain Ditch shall be supplied from the allocation specified in articleIV for the Upper Wyoming section diversions.
ARTICLEXI
Applications for appropriation, for change of point of diversion,place and nature of use, and for exchange of Bear River water shall be consideredand acted upon in accordance with the law of the state in which the point ofdiversion is located, but no such application shall be approved if the effectthereof will be to deprive any water user in another state of water to which heis entitled, nor shall any such application be approved if the effect thereofwill be an increase in the depletion of the flow of the Bear River and itstributaries beyond the limits authorized in each state in articles IV, V and VIof this compact. The official of each state in charge of water administrationshall, at intervals and in the format established by the commission, report onthe status of use of the respective allocations.
ARTICLEXII
Nothing in this compact shall be construed to prevent the UnitedStates, a signatory state or political subdivision thereof, person,corporation, or association, from instituting or maintaining any action orproceeding, legal or equitable, for the protection of any right under state orfederal law or under this compact.
ARTICLEXIII
Nothing contained in this compact shall be deemed:
1. To affect theobligations of the United States of America to the Indian tribes;
2. To impair, extend orotherwise affect any right or power of the United States, its agencies orinstrumentalities involved herein; nor the capacity of the United States tohold or acquire additional rights to the use of the water of the Bear River;
3. To subject anyproperty or rights of the United States to the laws of the states which werenot subject thereto prior to the date of this compact;
4. To subject anyproperty of the United States to taxation by the states or any subdivisionthereof, nor to obligate the United States to pay any state or subdivisionthereof for loss of taxes.
ARTICLE XIV
At intervals not exceeding twenty years, the commission shall reviewthe provisions hereof, and after notice and public hearing, may proposeamendments to any such provision, provided, however, that the provisionscontained herein shall remain in full force and effect until such proposedamendments have been ratified by the legislatures of the signatory states andconsented to by congress.
ARTICLEXV
This compact may be terminated at any time by the unanimousagreement of the signatory states. In the event of such termination all rightsestablished under it shall continue unimpaired.
ARTICLEXVI
Should a court of competent jurisdiction hold any part of thiscompact to be contrary to the constitution of any signatory state or to theconstitution of the United States, all other severable provisions of thiscompact shall continue in full force and effect.
ARTICLEXVII
This compact shall be in effect when it shall have been ratified bythe legislature of each signatory state and consented to by the congress of theUnited States of America. Notice of ratification by the legislature of thesignatory states shall be given by the governor of each signatory state to thegovernor of each of the other signatory states and to the president of theUnited States of America, and the president is hereby requested to give noticeto the governor of each of the signatory states of approval by the congress ofthe United States of America.
IN WITNESS WHEREOF, the commissioners and their advisers haveexecuted this compact in five originals, one of which shall be deposited withthe general services administration of the United States of America, one ofwhich shall be forwarded to the governor of each of the signatory states, andone of which shall be made a part of the permanent records of the Bear Rivercommission.
Done at Salt Lake City, Utah, this 22nd day of December 1978.
For the State of Idaho:
CliffordJ. Skinner /s/ Clifford J. Skinner
J.Daniel Roberts /s/ J. Daniel Roberts
DonW. Gilbert /s/ Don W. Gilbert
Forthe State of Utah:
S.Paul Holmgren /s/ S. Paul Holmgren
SimeonWeston /s/ Simeon Weston
DanielF. Lawrence /s/ Daniel F. Lawrence
Forthe State of Wyoming:
GeorgeL. Christopulos /s/ George L. Christopulos
JohnA. Teichert /s/ John A. Teichert
J.W. Myers /s/ J. W. Myers
Approved: Attest:
/s/Wallace N. Jibson /s/ Daniel F. Lawrence
WallaceN. Jibson Daniel F. Lawrence
Representativeof the Secretary of the Bear River
UnitedStates of America Compact Commission
41-12-102. When binding; notice of ratification.
Saidcompact shall not be binding or obligatory upon any of the high contractingparties thereto unless and until the same shall have been ratified by thelegislature of each of the said states and approved by the congress of theUnited States. The governor of Wyoming shall give notice of the ratificationand approval of said compact by the Wyoming legislature to the governors of thestates of Idaho and Utah and to the president of the United States.
ARTICLE 2 - BELLE FOURCHE RIVER COMPACT
41-12-201. Purpose.
(a) The major purposes of this compact are to provide for themost efficient use of the waters of the Belle Fourche River basin hereinafterreferred to as the basin for multiple purposes; to provide for an equitabledivision of such waters; to remove all causes, present and future, which mightlead to controversies; to promote interstate comity; to recognize that the mostefficient utilization of the waters within the basin is required for the fulldevelopment of the basin; and to promote joint action by the states and theUnited States in the efficient use of water and the control of floods.
(b) The physical and other conditions peculiar to the basinconstitute the basis for this compact; and none of the states hereby, nor thecongress of the United States by its consent, concedes that this compactestablishes any general principle or precedent with respect to any otherinterstate stream.
(c) Either state and all others using, claiming or in anymanner asserting any right to the use of the waters of the Belle Fourche Riverunder the authority of that state, shall be subject to the terms of thiscompact.
41-12-202. Definitions.
(a) As used in this compact:
(i) The term "Belle Fourche River" shall mean andinclude the Belle Fourche River and all its tributaries originating in Wyoming;
(ii) The term "basin" shall mean that area in SouthDakota and Wyoming which is naturally drained by the Belle Fourche River, andall its tributaries;
(iii) The term "beneficial use" is herein defined to bethat use by which the water supply of a drainage basin is depleted whenusefully employed by the activities of man, and includes water lost byevaporation, and other natural causes from streams, canals, ditches, irrigatedareas, and reservoirs;
(iv) Where the name of the state or the term "state"or "states" is used, these shall be construed to include any personor entity of any nature whatsoever using, claiming, or in any manner assertingany right to the use of the waters of the Belle Fourche River under theauthority of that state.
41-12-203. Administration.
(a) It shall be the duty of the two (2) states to administerthis compact through the official in each state who is now or may hereafter becharged with the duty of administering the public water supplies, and tocollect and correlate through such officials the data necessary for the properadministration of the provisions of this compact. Such officials may, byunanimous action, adopt rules and regulations consistent with the provisions ofthis compact.
(b) The United States geological survey, or whatever federalagency may succeed to the functions and duties of that agency, insofar as thiscompact is concerned, shall collaborate with the officials of the statescharged with the administration of this compact in the execution of the duty ofsuch officials in the collection, correlation, and publication of informationnecessary for the proper administration of this compact.
41-12-204. Water gauging stations.
Eachstate shall itself or in conjunction with other responsible agencies cause tobe established, maintained, and operated such suitable water gauging stationsas it finds necessary to administer this compact.
41-12-205. Allocation of waters.
(a) Wyoming and South Dakota agree that the unappropriatedwaters of the Belle Fourche River as of the date of this compact shall beallocated to each state as follows: Ninety percent (90%) to South Dakota Ten percent(10%) to Wyoming; provided, that allocations to Wyoming shall be exclusive ofthe use of these waters for domestic and stock use, and Wyoming shall beallowed unrestricted use for these purposes, except that no reservoir for suchuse shall exceed twenty (20) acre-feet in capacity. For storage of itsallocated water, Wyoming shall have the privilege of purchasing at cost not toexceed ten percent (10%) of the total storage capacity for any reservoir orreservoirs constructed in Wyoming for irrigation of lands in South Dakota, ormay construct reservoirs itself for the purpose of utilizing such water. Eitherstate may temporarily divert, or store for beneficial use, any unused part ofthe above percentages allotted to the other, but no continuing right shall beestablished thereby.
(b) Rights to the use of the waters of the Belle Fourche River,whether based on direct diversion or storage, are hereby recognized as of thedate of this compact to the extent these rights are valid under the law of thestate in which the use is made, and shall remain unimpaired hereby. Theserights, together with the additional allocations made under (a) of thissection, are agreed to be an equitable apportionment between the states of thewaters of the basin.
(c) The waters allocated under subsection (a) of this sectionand the rights recognized under subsection (b) of this section are hereinafterreferred to collectively as the apportioned water. For the purposes of theadministration of this compact and determining the apportioned water at anygiven date within a given calendar year, there shall be taken the sum of:
(i) The quantity of water in acre-feet that passed theWyoming-South Dakota state line during the period from January 1 of that yearto that given date;
(ii) The quantity of water in acre-feet in storage on that datein all reservoirs built in Wyoming on the Belle Fourche River subsequent to thedate of this compact.
41-12-206. Acquisition of property in another state.
Anyperson, entity, or state shall have the right to acquire necessary propertyrights in another state by purchase or through the exercise of the power ofeminent domain for the construction, operation and maintenance of storagereservoirs and of appurtenant works, canals, and conduits required for theenjoyment of the privileges granted by W.S. 41-12-205 and 41-12-207(a);provided, however, that the grantees of such rights shall pay to the politicalsubdivisions of the state in which such works are located, each and every yearduring which such rights are enjoyed for such purposes, a sum of moneyequivalent to the average annual amount of taxes assessed against the lands andimprovements thereon during the ten (10) years preceding the use of such landsin reimbursement for the loss of taxes to said political subdivisions of thestate.
41-12-207. Construction and use of dams; claims for storage ordiversion; appropriations.
(a) Either state shall have the right, by compliance with thelaws of the other state, to file applications for and receive permits toconstruct or participate in the construction and use of any dam, storagereservoir, or diversion works in such state for the purpose of conserving andregulating the apportioned water of the other state; provided, that such rightis subject to the rights of the other state to control, regulate, and use waterapportioned to it.
(b) Each claim hereafter initiated for storage or diversion ofwater in one (1) state for use in another state shall be filed in the office ofthe state engineer of the state in which the water is to be stored or diverted,and a duplicate copy of the application including a map showing the characterand location of the proposed facilities and the lands to be irrigated shall befiled in the office of the state engineer of the state in which the water is tobe used. If a portion or all the lands proposed to be reclaimed are located ina state other than the one (1) in which the water is to be restored ordiverted, then, before approval of the application shall be granted, saidapplication shall be checked against the records of the appropriate office ofthe state in which the water is to be used, and a notation shall be placedthereon by the officer in charge of such records to the effect that the landdescription does not indicate a conflict with existing water rights. Allendorsements shall be placed on both the original and duplicate copies of allsuch maps filed to the end that the records in both states may be complete andidentical.
(c) Appropriations may hereafter be adjudicated in the state inwhich the water is stored or diverted, and where a portion or all the landsirrigated are in the other state, such adjudications shall be confirmed in thelatter state by the proper authority. Each adjudication is to conform with thelaws of the state where the water is stored or diverted and shall be recordedin the county and state where the water is used.
41-12-208. Water for stock water use in South Dakota.
Incase any reservoir is constructed in Wyoming to be used principally forirrigation of lands in South Dakota, sufficient water not to exceed ten (10)cubic feet per second shall be released at all times for stock water use.
41-12-209. Size of reservoirs.
Noreservoir hereafter built solely to utilize the water allocated to Wyomingshall have a capacity in excess of one thousand (1,000) acre-feet.
41-12-210. Duration of compact.
Theprovisions of this compact shall remain in full force and effect until amendedby action of the legislature of the states and consented to and approved by thecongress of the United States in the same manner as this compact is required tobe ratified to become effective.
41-12-211. Termination of compact.
Thiscompact may be terminated at any time by unanimous consent of the states, andupon such termination, all rights then established hereunder or recognizedhereby shall continue to be recognized as valid by the states notwithstandingthe termination of the other provisions of the compact.
41-12-212. Rights of action preserved.
Nothingin this compact shall be construed to limit or prevent either state frominstituting or maintaining any action or proceeding, legal or equitable, in anyfederal court or the United States supreme court for the protection of anyright under this compact or the enforcement of any of its provisions.
41-12-213. Application of compact.
(a) Nothing in this compact shall be deemed:
(i) To impair or affect any rights or powers of the UnitedStates, its agencies, or instrumentalities, in and to the use of the waters ofthe Belle Fourche River nor its capacity to acquire rights in and to the use ofsaid waters;
(ii) To subject any property of the United States, its agencies,or instrumentalities to taxation by either state or subdivision thereof, or tocreate an obligation on the part of the United States, its agencies, orinstrumentalities, by reason of the acquisition, construction or operation ofany property or works of whatsoever kind, to make any payments to any state orpolitical subdivision thereof, state agency, municipality, or entity whatsoeverin reimbursement for the loss of taxes;
(iii) To subject any property of the United States, its agencies,or instrumentalities, to the laws of any state to an extent other than theextent to which these laws would apply without regard to the compact.
41-12-214. When compact becomes operative.
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Ratificationand approval is hereby given to the Bear River Compact as signed at Salt LakeCity, in the state of Utah, on the 22nd day of December, A.D., 1978, by GeorgeL. Christopulos, the state engineer of the state of Wyoming, and others, whichcompact was also signed by the duly authorized commissioners of the states ofIdaho and Utah, and approved by the representative of the United States, whichBear River Compact is in full as follows:
BEARRIVER COMPACT
The state ofIdaho, the state of Utah, and the state of Wyoming, acting through theirrespective commissioners after negotiations participated in by a representativeof the United States of America appointed by the president, have agreed to anamended Bear River Compact as follows:
ARTICLEI
A. The majorpurposes of this compact are to remove the causes of present and futurecontroversy over the distribution and use of the waters of the Bear River; toprovide for efficient use of water for multiple purposes; to permit additionaldevelopment of the water resources of Bear River; to promote interstate comity;to accomplish an equitable apportionment of the waters of the Bear River amongthe compacting states.
B. The physicaland all other conditions peculiar to the Bear River constitute the basis forthis compact. No general principle or precedent with respect to any otherinterstate stream is intended to be established.
ARTICLEII
As used in thiscompact the term
1. "BearRiver" means the Bear River and its tributaries from its source in theUinta Mountains to its mouth in Great Salt Lake;
2. "Bear Lake" means Bear Lake and Mud Lake;
3. "Upper division" means the portion of Bear River fromits source in the Uinta Mountains to and including Pixley Dam, a diversion damin the southeast quarter of section 25, township 23 north, range 120 west,sixth principal meridian, Wyoming;
4. "Central division" means the portion of the Bear Riverfrom Pixley Dam to and including Stewart Dam, a diversion dam in section 34,township 13 south, range 44 east, Boise base and meridian, Idaho;
5. "Lower division" means the portion of the Bear Riverbetween Stewart Dam and Great Salt Lake, including Bear Lake and its tributarydrainage;
6. "Upper Utah section diversions" means the sum of alldiversions in second-feet from the Bear River and the tributaries of Bear Riverjoining the Bear River upstream from the point where the Bear River crosses theUtah-Wyoming state line above Evanston, Wyoming; excluding the diversions bythe Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch, and HilliardWest Side Canal;
7. "Upper Wyoming section diversions" means the sum ofall diversions in second-feet from the Bear River main stem from the pointwhere the Bear River crosses the Utah-Wyoming state line above Evanston,Wyoming, to the point where the Bear River crosses the Wyoming-Utah state lineeast of Woodruff, Utah, and including the diversions by the Hilliard East ForkCanal, Lannon Canal, Lone Mountain Ditch, and Hilliard West Side Canal;
8. "Lower Utah section diversions" means the sum of alldiversions in second-feet from the Bear River main stem from the point wherethe Bear River crosses the Wyoming-Utah state line east of Woodruff, Utah, tothe point where the Bear River crosses the Utah-Wyoming state line northeast ofRandolph, Utah;
9. "Lower Wyoming section diversions" means the sum ofall diversions in second-feet from the Bear River main stem from the pointwhere the Bear River crosses the Utah-Wyoming state line northeast of Randolphto and including the diversion at Pixley Dam;
10. "Commission" means the Bear River commission,organized pursuant to article III of this compact;
11. "Water user" means a person, corporation, or otherentity having a right to divert water from the Bear River for beneficial use;
12. "Second-foot" means a flow of one cubic foot of waterper second of time passing a given point;
13. "Acre-foot" means the quantity of water required tocover one acre to a depth of one foot, equivalent to 43,560 cubic feet;
14. "Biennium" means the 2-year period commencing onOctober 1 of the first odd numbered year after the effective date of thiscompact and each 2-year period thereafter;
15. "Water year" means the period beginning October 1 andending September 30 of the following year;
16. "Direct flow" means all water flowing in a naturalwatercourse except water released from storage or imported from a source otherthan the Bear River watershed;
17. "Border gauging station" means the stream flowgauging station in Idaho on the Bear River above Thomas Fork near theWyoming-Idaho boundary line in the northeast quarter of the northeast quarterof section 15, township 14 south, range 46 east, Boise base and meridian,Idaho;
18. "Smiths Fork" means a Bear River tributary whichrises in Lincoln County, Wyoming and flows in a general southwesterly directionto its confluence with Bear River near Cokeville, Wyoming;
19. "Grade Creek" means a Smiths Fork tributary whichrises in Lincoln County, Wyoming and flows in a westerly direction and in itsnatural channel is tributary to Smiths Fork in section 17, township 25 north,range 118 west, sixth principal meridian, Wyoming;
20. "Pine Creek" means a Smiths Fork tributary which risesin Lincoln County, Wyoming, emerging from its mountain canyon in section 34,township 25 north, range 118 west, sixth principal meridian, Wyoming, and inits natural channel is tributary to Smiths Fork in section 36, township 25north, range 119 west, sixth principal meridian, Wyoming;
21. "Bruner Creek" and "Pine Creek Springs"means Smiths Fork tributaries which rise in Lincoln County, Wyoming, insections 31 and 32, township 25 north, range 118 west, sixth principalmeridian, and in their natural channels are tributary to Smiths Fork in section36, township 25 north, range 119 west, sixth principal meridian, Wyoming;
22. "Spring Creek" means a Smiths Fork tributary whichrises in Lincoln County, Wyoming, in sections 1 and 2, township 24 north, range119 west, sixth principal meridian, Wyoming, and flows in a general westerlydirection to its confluence with Smiths Fork in section 4, township 24 north,range 119 west, sixth principal meridian, Wyoming;
23. "Sublette Creek" means the Bear River tributary whichrises in Lincoln County, Wyoming and flows in a general westerly direction toits confluence with Bear River in section 20, township 24 north, range 119west, sixth principal meridian, Wyoming;
24. "Hobble Creek" means the Smiths Fork tributary whichrises in Lincoln County, Wyoming and flows in a general southwesterly directionto its confluence with Smiths Fork in section 35, township 28 north, range 118west, sixth principal meridian, Wyoming;
25. "Hilliard East Fork Canal" means that irrigationcanal which diverts water from the right bank of the east fork of Bear River inSummit County, Utah, at a point west 1,310 feet and north 330 feet from thesoutheast corner of section 16, township 2 north, range 10 east, Salt Lake baseand meridian, Utah, and runs in a northerly direction crossing the Utah-Wyomingstate line into the southwest quarter of section 21, township 12 north, range119 west, sixth principal meridian, Wyoming;
26. "Lannon Canal" means that irrigation canal whichdiverts water from the right bank of the Bear River in Summit County, Utah,east 1,480 feet from the west quarter corner of section 19, township 3 north,range 10 east, Salt Lake base and meridian, Utah, and runs in a northerlydirection crossing the Utah-Wyoming state line into the south half of section20, township 12 north, range 119 west, sixth principal meridian, Wyoming;
27. "Lone Mountain Ditch" means that irrigation canalwhich diverts water from the right bank of the Bear River in Summit County,Utah, north 1,535 feet and east 1,120 feet from the west quarter corner ofsection 19, township 3 north, range 10 east, Salt Lake base and meridian, Utah,and runs in a northerly direction crossing the Utah-Wyoming state line into thesouth half of section 20, township 12 north, range 119 west, sixth principalmeridian, Wyoming;
28. "Hilliard West Side Canal" means that irrigationcanal which diverts water from the right bank of the Bear River in SummitCounty, Utah, at a point north 2,190 feet and east 1,450 feet from the southquarter corner of section 13, township 3 north, range 9 east, Salt Lake baseand meridian, Utah, and runs in a northerly direction crossing the Utah-Wyomingstate line into the south half of section 20, township 12 north, range 119west, sixth principal meridian, Wyoming;
29. "Francis Lee Canal" means that irrigation canal whichdiverts water from the left bank of the Bear River in Uinta County, Wyoming, inthe northeast quarter of section 30, township 18 north, range 120 west, sixthprincipal meridian, Wyoming, and runs in a westerly direction across theWyoming-Utah state line into section 16, township 9 north, range 8 east, SaltLake base and meridian, Utah;
30. "Chapman Canal" means that irrigation canal whichdiverts water from the left bank of the Bear River in Uinta County, Wyoming, inthe northeast quarter of section 36, township 16 north, range 121 west, sixthprincipal meridian, Wyoming, and runs in a northerly direction crossing overthe low divide into the Saleratus drainage basin near the southeast corner ofsection 36, township 17 north, range 121 west, sixth principal meridian,Wyoming and then in a general westerly direction crossing the Wyoming-Utahstate line;
31. "Neponset Reservoir" means that reservoir locatedprincipally in sections 34 and 35, township 8 north, range 7 east, Salt Lakebase and meridian, Utah, having a capacity of 6,900 acre-feet.
ARTICLEIII
A. There is hereby created an interstate administrative agency tobe known as the "Bear River Commission" which is hereby constituted alegal entity and in such name shall exercise the powers hereinafter specified.The commission shall be composed of nine commissioners, three commissionersrepresenting each signatory state, and if appointed by the president, oneadditional commissioner representing the United States of America who shallserve as chairman, without vote. Each commissioner, except the chairman, shallhave one vote. The state commissioners shall be selected in accordance withstate law. Six commissioners who shall include two commissioners from eachstate shall constitute a quorum. The vote of at least two-thirds of thecommissioners when a quorum is present shall be necessary for the action of thecommission.
B. The compensation and expenses of each commissioner and eachadviser shall be paid by the government which he represents. All expensesincurred by the commission in the administration of this compact, except thosepaid by the United States of America, shall be paid by the signatory states onan equal basis.
C. The commission shall have power to:
1. Adopt by-laws,rules, and regulations not inconsistent with this compact;
2. Acquire, hold,convey or otherwise dispose of property;
3. Employ such personsand contract for such services as may be necessary to carry out its dutiesunder this compact;
4. Sue and be sued as alegal entity in any court of record of a signatory state, and in any court ofthe United States having jurisdiction of such action;
5. Cooperate with stateand federal agencies in matters relating to water pollution of interstatesignificance;
6. Perform allfunctions required of it by this compact and do all things necessary, proper orconvenient in the performance of its duties hereunder, independently or incooperation with others, including state and federal agencies.
D. The commission shall:
1. Enforce this compactand its orders made hereunder by suit or other appropriate action;
2. Compile a reportcovering the work of the commission and expenditures during the currentbiennium, and an estimate of expenditures for the following biennium andtransmit it to the president of the United States and to the governors of thesignatory states on or before July 1 following each biennium.
ARTICLE IV
Rights to direct flow water shall be administered in each signatorystate under state law, with the following limitations:
A. When there is a water emergency, as hereinafter defined for eachdivision, water shall be distributed therein as provided below.
1. Upper division
a. When the divertible flow as defined below for the upper divisionis less than 1,250 second-feet, a water emergency shall be deemed to existtherein and such divertible flow is allocated for diversion in the riversections of the division as follows:
Upper Utah section diversions - 0.6 percent,
Upper Wyoming section diversions - 49.3 percent,
Lower Utah section diversions - 40.5 percent,
Lower Wyoming section diversions - 9.6 percent.
Such divertible flow shall be the total of the following five items:
(1) Upper Utah sectiondiversions in second-feet,
(2) Upper Wyoming sectiondiversions in second-feet,
(3) Lower Utah sectiondiversions in second-feet,
(4) Lower Wyomingsection diversions in second-feet,
(5) The flow insecond-feet passing Pixley Dam.
b. The Hilliard East Fork Canal, Lannon Canal, Lone Mountain Ditch,and Hilliard West Side Canal, which divert water in Utah to irrigate lands inWyoming, shall be supplied from the divertible flow allocated to the UpperWyoming section diversions.
c. The Chapman, Bear River, and Francis Lee Canals, which divertwater from the main stem of Bear River in Wyoming to irrigate lands in bothWyoming and Utah, shall be supplied from the divertible flow allocated to theUpper Wyoming section diversions.
d. The Beckwith Quinn West Side Canal, which diverts water from themain stem of Bear River in Utah to irrigate lands in both Utah and Wyoming,shall be supplied from the divertible flow allocated to the Lower Utah sectiondiversions.
e. If for any reason the aggregate of all diversions in a riversection of the upper division does not equal the allocation of water thereto,the unused portion of such allocation shall be available for use in the otherriver sections in the upper division in the following order: (1) In the otherriver section of the same state in which the unused allocation occurs; and (2)In the river sections of the other state. No permanent right of use shall beestablished by the distribution of water pursuant to this paragraph e.
f. Water allocated to the several sections shall be distributed ineach section in accordance with state law.
2. Central division
a. When either the divertible flow as hereinafter defined for thecentral division is less than 870 second-feet, or the flow of the Bear River atBorder Gauging Station is less than 350 second-feet, whichever shall firstoccur, a water emergency shall be deemed to exist in the central division andthe total of all diversions in Wyoming from Grade Creek, Pine Creek, Bruner Creekand Pine Creek Springs, Spring Creek, Sublette Creek, Smiths Fork, and all thetributaries of Smiths Fork above the mouth of Hobble Creek including HobbleCreek, and from the main stem of the Bear River between Pixley Dam and thepoint where the river crosses the Wyoming-Idaho state line near Border shall belimited for the benefit of the state of Idaho, to not exceeding forty-three(43) percent of the divertible flow. The remaining fifty-seven (57) percent ofthe divertible flow shall be available for use in Idaho in the centraldivision, but if any portion of such allocation is not used therein it shall beavailable for use in Idaho in the lower division.
The divertible flow for the central division shall be the total ofthe following three items:
(1) Diversions insecond-feet in Wyoming consisting of the sum of all diversions from GradeCreek, Pine Creek, Bruner Creek and Pine Creek Springs, Spring Creek, SubletteCreek, and Smiths Fork and all the tributaries of Smiths Fork above the mouthof Hobble Creek including Hobble Creek, and the main stem of the Bear Riverbetween Pixley Dam and the point where the river crosses the Wyoming-Idahostate line near Border, Wyoming.
(2) Diversions insecond-feet in Idaho from the Bear River main stem from the point where theriver crosses the Wyoming-Idaho state line near Border to Stewart Dam includingWest Fork Canal which diverts at Stewart Dam.
(3) Flow in second-feetof the Rainbow Inlet Canal and of the Bear River passing downstream fromStewart Dam.
b. The Cook Canal, which diverts water from the main stem of theBear River in Wyoming to irrigate lands in both Wyoming and Idaho, shall beconsidered a Wyoming diversion and shall be supplied from the divertible flowallocated to Wyoming.
c. Water allocated to each state shall be distributed in accordancewith state law.
3. Lower division
a. When the flow of water across the Idaho-Utah boundary line isinsufficient to satisfy water rights in Utah, covering water applied tobeneficial use prior to January 1, 1976, any water user in Utah may file apetition with the commission alleging that by reason of diversions in Idaho heis being deprived of water to which he is justly entitled, and that by reasonthereof, a water emergency exists, and requesting distribution of water underthe direction of the commission. If the commission finds a water emergencyexists, it shall put into effect water delivery schedules based on priority ofrights and prepared by the commission without regard to the boundary line forall or any part of the division, and during such emergency, water shall bedelivered in accordance with such schedules by the state official charged withthe administration of public waters.
B. The commission shall have authority upon its own motion (1) todeclare a water emergency in any or all river divisions based upon itsdetermination that there are diversions which violate this compact and whichencroach upon water rights in a lower state, (2) to make appropriate orders toprevent such encroachments, and (3) to enforce such orders by action beforestate administrative officials or by court proceedings.
C. When the flow of water in an interstate tributary across a stateboundary line is insufficient to satisfy water rights on such tributary in alower state, any water user may file a petition with the commission allegingthat by reason of diversions in an upstream state he is being deprived of waterto which he is justly entitled and that by reason thereof a water emergencyexists, and requesting distribution of water under the direction of thecommission. If the commission finds that a water emergency exists and thatinterstate control of water of such tributary is necessary, it shall put intoeffect water delivery schedules based on priority of rights and preparedwithout regard to the state boundary line. The state officials in charge ofwater distribution on interstate tributaries may appoint and fix the compensationand expenses of a joint water commissioner for each tributary. The proportionof the compensation and expenses to be paid by each state shall be determinedby the ratio between the number of acres therein which are irrigated bydiversions from such tributary, and the total number of acres irrigated fromsuch tributary.
D. In preparing interstate water delivery schedules the commission,upon notice and after public hearings, shall make findings of fact as to thenature, priority and extent of water rights, rates of flow, duty of water,irrigated acreages, types of crops, time of use, and related matters; providedthat such schedules shall recognize and incorporate therein priority of waterrights as adjudicated in each of the signatory states. Such findings of factshall, in any court or before any tribunal, constitute prima facie evidence ofthe facts found.
E. Water emergencies provided for herein shall terminate onSeptember 30 of each year unless terminated sooner or extended by thecommission.
ARTICLEV
A. Water rights in the lower division acquired under the laws ofIdaho and Utah covering water applied to beneficial use prior to January 1,1976, are hereby recognized and shall be administered in accordance with statelaw based on priority of rights as provided in Article IV, paragraph A.3.Rights to water first applied to beneficial use on or after January 1, 1976,shall be satisfied from the respective allocations made to Idaho and Utah inthis paragraph and the water allocated to each state shall be administered inaccordance with state law. Subject to the foregoing provisions, the remainingwater in the lower division, including ground water tributary to the BearRiver, is hereby apportioned for use in Idaho and Utah as follows:
(1) Idaho shall havethe first right to the use of such remaining water resulting in an annualdepletion of not more than 125,000 acre-feet;
(2) Utah shall have thesecond right to the use of such remaining water resulting in an annualdepletion of not more than 275,000 acre-feet;
(3) Idaho and Utahshall each have an additional right to deplete annually on an equal basis,75,000 acre-feet of the remaining water after the rights provided bysubparagraphs (1), and (2) above have been satisfied;
(4) Any remaining waterin the lower division after the allocations provided for in subparagraphs (1),(2), and (3) above have been satisfied shall be divided; thirty (30) percent toIdaho and seventy (70) percent to Utah.
B. Water allocated under the above subparagraphs shall be chargedagainst the state in which it is used regardless of the location of the pointof diversion.
C. Water depletions permitted under provisions of subparagraphs(1), (2), and (3), and (4) above, shall be calculated and administered by acommission-approved procedure.
ARTICLEVI
A. Existing storage rights in reservoirs constructed above StewartDam prior to February 4, 1955 are as follows:
Additional rights are hereby granted tostore in any water year above Stewart Dam, 35,500 acre-feet of Bear River waterand no more under this paragraph for use in Utah and Wyoming; and to store inany water year in Idaho or Wyoming on Thomas Fork 1,000 acre-feet of water foruse in Idaho. Such additional storage rights shall be subordinate to, and shallnot be exercised when the effect thereof will be to impair or interfere with(1) existing direct flow rights for consumptive use in any river division and(2) existing storage rights above Stewart Dam, but shall not be subordinate toany right to store water in Bear Lake or elsewhere below Stewart Dam. One-halfof the 35,500 acre-feet of additional storage right above Stewart Dam sogranted to Utah and Wyoming is hereby allocated to Utah, and the remainingone-half thereof is allocated to Wyoming.
B. In addition to the rights defined in paragraph A. of thisarticle, further storage entitlements above Stewart Dam are hereby granted.Wyoming and Utah are granted an additional right to store in any year 70,000acre-feet of Bear River water for use in Utah and Wyoming to be divided equally;and Idaho is granted an additional right to store 4,500 acre-feet of Bear Riverwater in Wyoming or Idaho for use in Idaho. Water rights granted under thisparagraph and water appropriated, including ground water tributary to BearRiver, which is applied to beneficial use on or after January 1, 1976, shallnot result in an annual increase in depletion of the flow of the Bear River andits tributaries above Stewart Dam of more than 28,000 acre-feet in excess ofthe depletion as of January 1, 1976. Thirteen thousand (13,000) acre-feet ofthe additional depletion above Stewart Dam is allocated to each of Utah andWyoming, and two thousand (2,000) acre-feet is allocated to Idaho.
The additional storage rights provided for in this paragraph shallbe subordinate to, and shall not be exercised when the effect thereof will beto impair or interfere with (1) existing direct flow rights for consumptive usein any river division and (2) existing storage rights above Stewart Dam, butshall not be subordinate to any right to store water in Bear Lake or elsewherebelow Stewart Dam; provided, however, there shall be no diversion of water tostorage above Stewart Dam under this paragraph B. when the water surfaceelevation of Bear Lake is below 5,911.00 feet, Utah Power & Light Companydatum (the equivalent of elevation 5,913.75 feet based on the sea level datumof 1929 through the Pacific Northwest Supplementary Adjustment of 1947). Waterdepletions permitted under this paragraph B. shall be calculated andadministered by a commission-approved procedure.
C. In addition to the rights defined in article VI, paragraphs A.and B., Idaho, Utah and Wyoming are granted the right to store and use waterabove Stewart Dam that otherwise would be bypassed or released from Bear Lakeat times when all other direct flow and storage rights are satisfied. Theavailability of such water and the operation of reservoir space to store waterabove Bear Lake under this paragraph shall be determined by acommission-approved procedure. The storage provided for in this paragraph shallbe subordinate to all other storage and direct flow rights in the Bear River.Storage rights under this paragraph shall be exercised with equal priority onthe following basis: six (6) percent thereof to Idaho; forty-seven (47) percentthereof to Utah; and forty-seven (47) percent thereof to Wyoming.
D. The waters of Bear Lake below elevation 5,912.91 feet, UtahPower & Light Company Bear Lake datum (the equivalent of elevation 5915.66feet based on the sea level datum of 1929 through the Pacific NorthwestSupplementary Adjustment of 1947) shall constitute a reserve for irrigation.The water of such reserve shall not be released solely for the generation ofpower, except in emergency, but after release for irrigation it may be used ingenerating power if not inconsistent with its use for irrigation. Any water inBear Lake in excess of that constituting the irrigation reserve may be used forthe generation of power or for other beneficial uses. As new reservoir capacityabove the Stewart Dam is constructed to provide additional storage pursuant toparagraph A. of this article, the commission shall make a finding in writing asto the quantity of additional storage and shall thereupon make an orderincreasing the irrigation reserve in accordance with the following table:
Lake surface elevation
Utah Power & Light
Additional storage Company
acre-feet BearLake datum
5,000................................. 5,913.24
10,000................................ 5,913.56
15,000................................ 5,913.87
20,000................................ 5,914.15
25,000................................ 5,914.41
30,000................................ 5,914.61
35,500................................ 5,914.69
36,500................................ 5,914.70
E. Subject to existing rights, each state shall have the use ofwater, including ground water, for ordinary domestic, and stock wateringpurposes, as determined by state law and shall have the right to impound waterfor such purposes in reservoirs having storage capacities not in excess, in anycase, of 20 acre-feet, without deduction from the allocation made by paragraphsA., B. and C. of this article.
F. The storage rights in Bear Lake are hereby recognized andconfirmed subject only to the restrictions hereinbefore recited.
ARTICLEVII
It is the policy of the signatory states to encourage additionalprojects for the development of the water resources of the Bear River to obtainthe maximum beneficial use of water with a minimum of waste, and in furtheranceof such policy, authority is granted within the limitations provided by thiscompact, to investigate, plan, construct, and operate such projects withoutregard to state boundaries, provided that water rights for each such projectshall, except as provided in article VI, paragraphs A. and B. thereof, besubject to rights theretofore initiated and in good standing.
ARTICLEVIII
A. No state shall deny the right of the United States of America,and subject to the conditions hereinafter contained, no state shall deny theright of another signatory state, any person or entity of another signatorystate, to acquire rights to the use of water or to construct or to participatein the construction and use of diversion works and storage reservoirs withappurtenant works, canals, and conduits in one state for use of water inanother state, either directly or by exchange. Water rights acquired forout-of-state use shall be appropriated in the state where the point ofdiversion is located in the manner provided by law for appropriation of waterfor use within such state.
B. Any signatory state, any person or any entity of any signatorystate, shall have the right to acquire in any other signatory state suchproperty rights as are necessary to the use of water in conformity with thiscompact by donation, purchase, or, as hereinafter provided through the exerciseof the power of eminent domain in accordance with the law of the state in whichsuch property is located. Any signatory state, upon the written request of thegovernor of any other signatory state for the benefit of whose water usersproperty is to be acquired in the state to which such written request is made,shall proceed expeditiously to acquire the desired property either by purchaseat a price acceptable to the requesting governor, or if such purchase cannot bemade, then through the exercise of its power of eminent domain and shall conveysuch property to the requesting state or to the person, or entity designated byits governor provided, that all costs of acquisition and expenses of every kindand nature whatsoever incurred in obtaining such property shall be paid by therequesting state or the person or entity designated by its governor.
C. Should any facility be constructed in a signatory state by andfor the benefit of another signatory state or persons or entities therein, asabove provided, the construction, repair, replacement, maintenance andoperation of such facility shall be subject to the laws of the state in whichthe facility is located.
D. In the event lands or other taxable facilities are acquired by asignatory state in another signatory state for the use and benefit of theformer, the users of the water made available by such facilities, as acondition precedent to the use thereof, shall pay to the political subdivisionsof the state in which such facilities are located, each and every year duringwhich such rights are enjoyed for such purposes, a sum of money equivalent tothe average of the amount of taxes annually levied and assessed against theland and improvements thereon during the ten years preceding the acquisition ofsuch land. Said payments shall be in full reimbursement for the loss of taxesin such political subdivision of the state.
E. Rights to the use of water acquired under this article shall inall respects be subject to this compact.
ARTICLEIX
Stored water, or water from another watershed may be turned into thechannel of the Bear River in one state and a like quantity, with allowance forloss by evaporation, transpiration, and seepage, may be taken out of the BearRiver in another state either above or below the point where the water isturned into the channel, but in making such exchange the replacement watershall not be inferior in quality for the purpose used or diminished inquantity. Exchanges shall not be permitted if the effect thereof is to impairvested rights or to cause damage for which no compensation is paid. Water fromanother watershed or source which enters the Bear River by actions within astate may be claimed exclusively by that state and use thereof by that stateshall not be subject to the depletion limitations of articles IV, V and VI.Proof of any claimed increase in flow shall be the burden of the state makingsuch claim, and it shall be approved only by the unanimous vote of thecommission.
ARTICLEX
A. The following rights to the use of Bear River water carried ininterstate canals are recognized and confirmed.
Date of Primary right Lands irrigated
Name of canal priority second-feet Acres State
Hilliard East
Fork ......... 1914 28.00 2,644 Wyoming
Chapman ...... 8-13-86 16.46 1,155 Wyoming
8-13-86 98.46 6,892 Utah
4-12-12 .57 40 Wyoming
5-3-12 4.07 285 Utah
5-21-12 10.17 712 Utah
2-6-13 .79 55 Wyoming
8-28-05 134.00 *
Francis Lee .. 1879 2.20 154 Wyoming
1879 7.41 519 Utah
*Under the right as herein confirmed not to exceed 134 second-feetmay be carried across the Wyoming-Utah state line in the Chapman Canal at anytime for filling the Neponset Reservoir, for irrigation of land in Utah and forother purposes. The storage right in Neponset Reservoir is for 6,900 acre-feetwhich is a component part of the irrigation right for the Utah lands listedabove.
All other rights to the use of water carried in interstate canalsand ditches, as adjudicated in the state in which the point of diversion islocated, are recognized and confirmed.
B. All interstate rights shall be administered by the state inwhich the point of diversion is located and during times of water emergency,such rights shall be filled from the allocations specified in article IV hereoffor the section in which the point of diversion is located, with the exceptionthat the diversion of water into the Hilliard East Fork Canal, Lannon Canal,Lone Mountain Ditch, and Hilliard West Side Canal shall be under theadministration of Wyoming. During times of water emergency these canals and theLone Mountain Ditch shall be supplied from the allocation specified in articleIV for the Upper Wyoming section diversions.
ARTICLEXI
Applications for appropriation, for change of point of diversion,place and nature of use, and for exchange of Bear River water shall be consideredand acted upon in accordance with the law of the state in which the point ofdiversion is located, but no such application shall be approved if the effectthereof will be to deprive any water user in another state of water to which heis entitled, nor shall any such application be approved if the effect thereofwill be an increase in the depletion of the flow of the Bear River and itstributaries beyond the limits authorized in each state in articles IV, V and VIof this compact. The official of each state in charge of water administrationshall, at intervals and in the format established by the commission, report onthe status of use of the respective allocations.
ARTICLEXII
Nothing in this compact shall be construed to prevent the UnitedStates, a signatory state or political subdivision thereof, person,corporation, or association, from instituting or maintaining any action orproceeding, legal or equitable, for the protection of any right under state orfederal law or under this compact.
ARTICLEXIII
Nothing contained in this compact shall be deemed:
1. To affect theobligations of the United States of America to the Indian tribes;
2. To impair, extend orotherwise affect any right or power of the United States, its agencies orinstrumentalities involved herein; nor the capacity of the United States tohold or acquire additional rights to the use of the water of the Bear River;
3. To subject anyproperty or rights of the United States to the laws of the states which werenot subject thereto prior to the date of this compact;
4. To subject anyproperty of the United States to taxation by the states or any subdivisionthereof, nor to obligate the United States to pay any state or subdivisionthereof for loss of taxes.
ARTICLE XIV
At intervals not exceeding twenty years, the commission shall reviewthe provisions hereof, and after notice and public hearing, may proposeamendments to any such provision, provided, however, that the provisionscontained herein shall remain in full force and effect until such proposedamendments have been ratified by the legislatures of the signatory states andconsented to by congress.
ARTICLEXV
This compact may be terminated at any time by the unanimousagreement of the signatory states. In the event of such termination all rightsestablished under it shall continue unimpaired.
ARTICLEXVI
Should a court of competent jurisdiction hold any part of thiscompact to be contrary to the constitution of any signatory state or to theconstitution of the United States, all other severable provisions of thiscompact shall continue in full force and effect.
ARTICLEXVII
This compact shall be in effect when it shall have been ratified bythe legislature of each signatory state and consented to by the congress of theUnited States of America. Notice of ratification by the legislature of thesignatory states shall be given by the governor of each signatory state to thegovernor of each of the other signatory states and to the president of theUnited States of America, and the president is hereby requested to give noticeto the governor of each of the signatory states of approval by the congress ofthe United States of America.
IN WITNESS WHEREOF, the commissioners and their advisers haveexecuted this compact in five originals, one of which shall be deposited withthe general services administration of the United States of America, one ofwhich shall be forwarded to the governor of each of the signatory states, andone of which shall be made a part of the permanent records of the Bear Rivercommission.
Done at Salt Lake City, Utah, this 22nd day of December 1978.
For the State of Idaho:
CliffordJ. Skinner /s/ Clifford J. Skinner
J.Daniel Roberts /s/ J. Daniel Roberts
DonW. Gilbert /s/ Don W. Gilbert
Forthe State of Utah:
S.Paul Holmgren /s/ S. Paul Holmgren
SimeonWeston /s/ Simeon Weston
DanielF. Lawrence /s/ Daniel F. Lawrence
Forthe State of Wyoming:
GeorgeL. Christopulos /s/ George L. Christopulos
JohnA. Teichert /s/ John A. Teichert
J.W. Myers /s/ J. W. Myers
Approved: Attest:
/s/Wallace N. Jibson /s/ Daniel F. Lawrence
WallaceN. Jibson Daniel F. Lawrence
Representativeof the Secretary of the Bear River
UnitedStates of America Compact Commission
41-12-102. When binding; notice of ratification.
Saidcompact shall not be binding or obligatory upon any of the high contractingparties thereto unless and until the same shall have been ratified by thelegislature of each of the said states and approved by the congress of theUnited States. The governor of Wyoming shall give notice of the ratificationand approval of said compact by the Wyoming legislature to the governors of thestates of Idaho and Utah and to the president of the United States.
ARTICLE 2 - BELLE FOURCHE RIVER COMPACT
41-12-201. Purpose.
(a) The major purposes of this compact are to provide for themost efficient use of the waters of the Belle Fourche River basin hereinafterreferred to as the basin for multiple purposes; to provide for an equitabledivision of such waters; to remove all causes, present and future, which mightlead to controversies; to promote interstate comity; to recognize that the mostefficient utilization of the waters within the basin is required for the fulldevelopment of the basin; and to promote joint action by the states and theUnited States in the efficient use of water and the control of floods.
(b) The physical and other conditions peculiar to the basinconstitute the basis for this compact; and none of the states hereby, nor thecongress of the United States by its consent, concedes that this compactestablishes any general principle or precedent with respect to any otherinterstate stream.
(c) Either state and all others using, claiming or in anymanner asserting any right to the use of the waters of the Belle Fourche Riverunder the authority of that state, shall be subject to the terms of thiscompact.
41-12-202. Definitions.
(a) As used in this compact:
(i) The term "Belle Fourche River" shall mean andinclude the Belle Fourche River and all its tributaries originating in Wyoming;
(ii) The term "basin" shall mean that area in SouthDakota and Wyoming which is naturally drained by the Belle Fourche River, andall its tributaries;
(iii) The term "beneficial use" is herein defined to bethat use by which the water supply of a drainage basin is depleted whenusefully employed by the activities of man, and includes water lost byevaporation, and other natural causes from streams, canals, ditches, irrigatedareas, and reservoirs;
(iv) Where the name of the state or the term "state"or "states" is used, these shall be construed to include any personor entity of any nature whatsoever using, claiming, or in any manner assertingany right to the use of the waters of the Belle Fourche River under theauthority of that state.
41-12-203. Administration.
(a) It shall be the duty of the two (2) states to administerthis compact through the official in each state who is now or may hereafter becharged with the duty of administering the public water supplies, and tocollect and correlate through such officials the data necessary for the properadministration of the provisions of this compact. Such officials may, byunanimous action, adopt rules and regulations consistent with the provisions ofthis compact.
(b) The United States geological survey, or whatever federalagency may succeed to the functions and duties of that agency, insofar as thiscompact is concerned, shall collaborate with the officials of the statescharged with the administration of this compact in the execution of the duty ofsuch officials in the collection, correlation, and publication of informationnecessary for the proper administration of this compact.
41-12-204. Water gauging stations.
Eachstate shall itself or in conjunction with other responsible agencies cause tobe established, maintained, and operated such suitable water gauging stationsas it finds necessary to administer this compact.
41-12-205. Allocation of waters.
(a) Wyoming and South Dakota agree that the unappropriatedwaters of the Belle Fourche River as of the date of this compact shall beallocated to each state as follows: Ninety percent (90%) to South Dakota Ten percent(10%) to Wyoming; provided, that allocations to Wyoming shall be exclusive ofthe use of these waters for domestic and stock use, and Wyoming shall beallowed unrestricted use for these purposes, except that no reservoir for suchuse shall exceed twenty (20) acre-feet in capacity. For storage of itsallocated water, Wyoming shall have the privilege of purchasing at cost not toexceed ten percent (10%) of the total storage capacity for any reservoir orreservoirs constructed in Wyoming for irrigation of lands in South Dakota, ormay construct reservoirs itself for the purpose of utilizing such water. Eitherstate may temporarily divert, or store for beneficial use, any unused part ofthe above percentages allotted to the other, but no continuing right shall beestablished thereby.
(b) Rights to the use of the waters of the Belle Fourche River,whether based on direct diversion or storage, are hereby recognized as of thedate of this compact to the extent these rights are valid under the law of thestate in which the use is made, and shall remain unimpaired hereby. Theserights, together with the additional allocations made under (a) of thissection, are agreed to be an equitable apportionment between the states of thewaters of the basin.
(c) The waters allocated under subsection (a) of this sectionand the rights recognized under subsection (b) of this section are hereinafterreferred to collectively as the apportioned water. For the purposes of theadministration of this compact and determining the apportioned water at anygiven date within a given calendar year, there shall be taken the sum of:
(i) The quantity of water in acre-feet that passed theWyoming-South Dakota state line during the period from January 1 of that yearto that given date;
(ii) The quantity of water in acre-feet in storage on that datein all reservoirs built in Wyoming on the Belle Fourche River subsequent to thedate of this compact.
41-12-206. Acquisition of property in another state.
Anyperson, entity, or state shall have the right to acquire necessary propertyrights in another state by purchase or through the exercise of the power ofeminent domain for the construction, operation and maintenance of storagereservoirs and of appurtenant works, canals, and conduits required for theenjoyment of the privileges granted by W.S. 41-12-205 and 41-12-207(a);provided, however, that the grantees of such rights shall pay to the politicalsubdivisions of the state in which such works are located, each and every yearduring which such rights are enjoyed for such purposes, a sum of moneyequivalent to the average annual amount of taxes assessed against the lands andimprovements thereon during the ten (10) years preceding the use of such landsin reimbursement for the loss of taxes to said political subdivisions of thestate.
41-12-207. Construction and use of dams; claims for storage ordiversion; appropriations.
(a) Either state shall have the right, by compliance with thelaws of the other state, to file applications for and receive permits toconstruct or participate in the construction and use of any dam, storagereservoir, or diversion works in such state for the purpose of conserving andregulating the apportioned water of the other state; provided, that such rightis subject to the rights of the other state to control, regulate, and use waterapportioned to it.
(b) Each claim hereafter initiated for storage or diversion ofwater in one (1) state for use in another state shall be filed in the office ofthe state engineer of the state in which the water is to be stored or diverted,and a duplicate copy of the application including a map showing the characterand location of the proposed facilities and the lands to be irrigated shall befiled in the office of the state engineer of the state in which the water is tobe used. If a portion or all the lands proposed to be reclaimed are located ina state other than the one (1) in which the water is to be restored ordiverted, then, before approval of the application shall be granted, saidapplication shall be checked against the records of the appropriate office ofthe state in which the water is to be used, and a notation shall be placedthereon by the officer in charge of such records to the effect that the landdescription does not indicate a conflict with existing water rights. Allendorsements shall be placed on both the original and duplicate copies of allsuch maps filed to the end that the records in both states may be complete andidentical.
(c) Appropriations may hereafter be adjudicated in the state inwhich the water is stored or diverted, and where a portion or all the landsirrigated are in the other state, such adjudications shall be confirmed in thelatter state by the proper authority. Each adjudication is to conform with thelaws of the state where the water is stored or diverted and shall be recordedin the county and state where the water is used.
41-12-208. Water for stock water use in South Dakota.
Incase any reservoir is constructed in Wyoming to be used principally forirrigation of lands in South Dakota, sufficient water not to exceed ten (10)cubic feet per second shall be released at all times for stock water use.
41-12-209. Size of reservoirs.
Noreservoir hereafter built solely to utilize the water allocated to Wyomingshall have a capacity in excess of one thousand (1,000) acre-feet.
41-12-210. Duration of compact.
Theprovisions of this compact shall remain in full force and effect until amendedby action of the legislature of the states and consented to and approved by thecongress of the United States in the same manner as this compact is required tobe ratified to become effective.
41-12-211. Termination of compact.
Thiscompact may be terminated at any time by unanimous consent of the states, andupon such termination, all rights then established hereunder or recognizedhereby shall continue to be recognized as valid by the states notwithstandingthe termination of the other provisions of the compact.
41-12-212. Rights of action preserved.
Nothingin this compact shall be construed to limit or prevent either state frominstituting or maintaining any action or proceeding, legal or equitable, in anyfederal court or the United States supreme court for the protection of anyright under this compact or the enforcement of any of its provisions.
41-12-213. Application of compact.
(a) Nothing in this compact shall be deemed:
(i) To impair or affect any rights or powers of the UnitedStates, its agencies, or instrumentalities, in and to the use of the waters ofthe Belle Fourche River nor its capacity to acquire rights in and to the use ofsaid waters;
(ii) To subject any property of the United States, its agencies,or instrumentalities to taxation by either state or subdivision thereof, or tocreate an obligation on the part of the United States, its agencies, orinstrumentalities, by reason of the acquisition, construction or operation ofany property or works of whatsoever kind, to make any payments to any state orpolitical subdivision thereof, state agency, municipality, or entity whatsoeverin reimbursement for the loss of taxes;
(iii) To subject any property of the United States, its agencies,or instrumentalities, to the laws of any state to an extent other than theextent to which these laws would apply without regard to the compact.
