February 7, 2013 BOARD MATTER H-1

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1 February 7, 2013 BOARD MATTER H-1 ACTION: Consider issuance of Warranty Deed on behalf of the Wyoming Water Development Commission to the Platte River Recovery Implementation Foundation AUTHORITY: WYO. STAT. ANN BACKGROUND: In the 1980s, the State of Wyoming planned to build Deer Creek Reservoir southwest of Glenrock, Wyoming, in the North Platte River Drainage. The reservoir would provide storage water that growing Wyoming municipalities could purchase and use as supplementation in the event senior water rights downstream on the North Platte River ever made a call on the municipalities rights. Building the new reservoir required a 404 permit from the U.S. Army Corps of Engineers (the Corps), and Wyoming was required to provide habitat mitigation to receive the permit. In 1988, the State of Wyoming, through the Water Development Commission (WWDC), purchased two properties along the Platte River in central Nebraska (Nebraska Property) to provide species habitat. See Attachment A (warranty deeds for the Nebraska Property). After the State of Wyoming purchased the Nebraska Property, the Corps issued the State of Wyoming the 404 permit. However, the Nebraska v. Wyoming lawsuit on the North Platte River prevented the State of Wyoming from continuing to develop or construct Deer Creek Reservoir. Eventually, the parties to the lawsuit agreed, as a term of settlement, to allow an alternative project to go forward, the Pathfinder Modification Project. By modifying the spillway of the Pathfinder Dam, the State of Wyoming could increase the capacity of Pathfinder Reservoir, creating a Wyoming Account of storage water that Wyoming municipalities could use, and an Environmental Account of water that the State of Wyoming could use as contribution to the Platte River Recovery Implementation Program (PRRIP). The PRRIP is a cooperative program primarily between Wyoming, Colorado, Nebraska, and the United States Fish and Wildlife Service (USFWS) and Bureau of Reclamation to address the needs of endangered and threatened bird and fish species on the Platte River in central Nebraska (the same species and habitat that Wyoming originally purchased the Nebraska Property to support). The PRRIP officially launched in 2007, but it was the product of years of development that began during the Nebraska v. Wyoming lawsuit. As part of the Nebraska v. Wyoming settlement, the parties entered a stipulation allowing for the modification of Pathfinder Reservoir subject to the provision that the new storage would be used partially for Wyoming municipalities and partially for the PRRIP. The Pathfinder Modification Stipulation included the following statement: 10. Upon completion of the Pathfinder Modification Project, Wyoming will release the 404 permit and the water rights for the Deer Creek Project, a proposed and permitted reservoir with a capacity of approximately 66,000 acre feet and provide fee simple title to the 470 acres of habitat it owns in the critical habitat area in Central Nebraska to the USFWS or other entities as deemed appropriate by the USFWS. Nebraska will move to dismiss Jess v. West, No (D. Neb.). See Attachment B (excerpt from the Amended Pathfinder Modification Stipulation). The final settlement agreement for the Nebraska v. Wyoming litigation incorporated the Stipulation. The U.S. Supreme Court adopted the final settlement agreement into the Modified North Platte Decree. Nebraska v. Wyoming and Colorado, 534 U.S. 40, 40 (2001). Page 1 of 2

2 The WWDC began construction on the Pathfinder Modification Project in The project is now complete, and Pathfinder Reservoir was able to successfully fill both of the new accounts during the 2012 water year. The Pathfinder Modification Stipulation now requires the State of Wyoming to finally put Deer Creek Reservoir to rest by releasing the 404 permit and water rights, and conveying the Nebraska Property to the USFWS or its designee. The USFWS has indicated to the WWDC that the Nebraska Property should be conveyed to the PRRIP s foundation, the Platte River Recovery Implementation Foundation (PRRIF), which holds title to other habitat properties owned and managed for the PRRIP. DISCUSSION: The WWDC currently holds title to the real estate described in Attachment A. The Commission does not have explicit statutory authority to sell or otherwise dispose of real estate for the State of Wyoming. Pursuant to the Wyoming Constitution Article 18, Section 3, the Wyoming Board of Land Commissioners may dispose of state lands on behalf of the State of Wyoming and the WWDC. The Modified North Platte Decree, incorporating the Final Settlement Stipulation, see Attachment B, Nebraska v. Wyoming and Colorado, 534 U.S. 40, 40 (2001), orders that: Upon completion of the Pathfinder Modification Project, Wyoming will... provide fee simple title to the 470 acres of habitat it owns in the critical habitat area in Central Nebraska to the USFWS or other entities as deemed appropriate by the USFWS. The Pathfinder Modification Project is now complete. The USFWS deems it appropriate that the State of Wyoming convey fee simple title to the lands it owns in the critical habitat area in Central Nebraska, described in Attachment A to the Platte River Recovery Implementation Foundation, a Nebraska Nonprofit Corporation, Trustee, until such time as the Platte River Recovery Implementation Foundation dissolves. DIRECTOR S RECOMMENDATION: The Director recommends the Board of Land Commissioners approve and execute the attached Quitclaim Deed from the State of Wyoming, Board of Land Commissioners, on behalf of the Wyoming Water Development Commission, Grantor, to the Platte River Recovery Implementation Foundation, a Nebraska Nonprofit Corporation, Trustee, as Grantee. BOARD ACTION: Page 2 of 2

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10 QUITCLAIM DEED Return to: Brian F. Beckner, Attorney at Law, P.O. Box 218, Osceola, NE WHEREAS, the Wyoming Water Development Commission does not have explicit statutory authority to sell or otherwise dispose of real estate for the State of Wyoming; and WHEREAS, pursuant to the Wyoming Constitution article 18, section 3, the Wyoming Board of Land Commissioners subject to the limitations of this constitution and under such regulations as may be provided by law shall have the direction, control, disposition and care of all lands that have been heretofore or may hereafter be granted to the state ; and WHEREAS, the Wyoming Board of Land Commissioners therefore may dispose of state lands on behalf of the State of Wyoming and the Wyoming Water Development Commission; and WHEREAS, the Modified North Platte Decree, incorporating the Final Settlement Stipulation, see Nebraska v. Wyoming and Colorado, 534 U.S. 40, 40 (2001), orders that: Upon completion of the Pathfinder Modification Project, Wyoming will... provide fee simple title to the 470 acres of habitat it owns in the critical habitat area in Central Nebraska to the USFWS or other entities as deemed appropriate by the USFWS ; and WHEREAS, the Pathfinder Modification Project is now complete; and WHEREAS, the United States Fish and Wildlife Service, United States Department of the Interior, deems it appropriate that Wyoming provide fee simple title to the lands it owns in the critical habitat area in Central Nebraska, described in Exhibit A attached hereto, to the Platte River Recovery Implementation Foundation, as evidenced by the letter attached hereto as Exhibit B. THEREFORE, the State of Wyoming Board of Land Commissioners, GRANTOR, whose address is 122 West 25th Street 3W, Cheyenne, Wyoming 82002, for the Wyoming Water Development Commission, in consideration of one dollar ($1.00) and other valuable consideration, receipt of which is hereby acknowledged, quitclaims and conveys to GRANTEE, Platte River Recovery Implementation Foundation, a Nebraska Nonprofit Corporation, Trustee, whose address is P.O. Box 83107, Lincoln, Nebraska , the following described real estate (as defined in Neb. Rev. Stat ), in Buffalo and Kearney Counties, Nebraska: See attached Exhibit A DATED this day of, SEAL STATE OF WYOMING Matthew H. Mead, President Board of Land Commissioners Page 1 of 2

11 Countersigned: Ryan M. Lance, Secretary Board of Land Commissioners STATE OF WYOMING ) ) ss: COUNTY OF LARAMIE ) This Quitclaim Deed was acknowledged before me on, 2013, by Matthew H. Mead, President, for the State of Wyoming, Board of Land Commissioners. Witness my hand and official seal. My Commission Expires: Notary Public STATE OF WYOMING ) ) ss: COUNTY OF LARAMIE ) This Quitclaim Deed was acknowledged before me on, 2013, by Ryan M. Lance, Secretary, for the State of Wyoming, Board of Land Commissioners. Witness my hand and official seal. My Commission Expires: Notary Public Attorney General's Office Approval As To Form Justin Daraie, Assistant Attorney General Date Page 2 of 2

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