A Laramie County family said last week statutes and regulations obligate the state engineer to approve its plan to drill eight high-capacity water wells into the troubled High Plains Aquifer, a plan some neighbors strongly oppose.
Members of the Lerwick family made their case for the new wells in a three-day public hearing in Cheyenne that pit neighbor against neighbor. Farmers and ranchers living near the proposed development said it would draw water from the aquifer under their lands, imperiling springs, creeks and wells on which their operations depend.
If the project moves forward, opponents said, they will be left with unsatisfactory legal recourse. But expert witnesses called by the Lerwicks contested those claims, saying that there’s enough water for the development and that they’re not looking to harm their neighbors
The hearing stemmed from a 2019 application by Ty Lerwick, Keith Lerwick and Rod and Jill Lerwick to the State Engineer’s Office for eight permits to drill irrigation wells in the High Plains Aquifer system.
The proceeding’s purpose was to provide information to the Laramie County Control Area Advisory Board and the State Engineer’s Office. The advisory board will make a recommendation to the state engineer, who will then issue a decision on the Lerwick applications.
George Moser, a hydrogeologist representing the state engineer’s office who served as hearing examiner, described the hearing as an “adversarial proceeding similar to a case in court.” The various parties presented their cases, and participation was limited to the parties, their representatives and their identified witnesses. Those opposed to the Lerwick wells were identified as contestants, and the Lerwicks as contestees.
The applications would allow the Lerwicks to drill high-capacity wells that protesters say would draw more than 1.5 billion gallons from the ground each year. Several farmers and ranchers testified that they would have to drill new wells at significant cost to replace water sources that could be lost if the proposed wells are approved.
“We have the ability to show that these wells will take senior water rights, will destroy the environment in these areas in time and that it is detrimental to the public interest,” Reba Epler, an attorney representing several of the contestants who is also a neighboring landowner, said. “Everyone who is contesting this is right to do it because they have a right to be utterly terrified.”
Epler even argued that approval could set a dangerous precedent for Wyoming.
The Lerwicks used their words sparsely throughout the proceeding. Rod Lerwick said his intention is to develop the water for irrigation, not harm his neighbors.
“If it never affects another person, that’d be our desire,” he said. “But I could go home with my tail between my legs; I guess we decided not to do that. So, we’re trying and we’ll see what happens. There’s no ill will intended toward anyone.”
Whose water is it anyhow?
The area in question, which covers two-thirds of eastern Laramie County, is designated as the Laramie County Control Area. Since it was established in 1981, groundwater levels have continued to decline, according to the state engineer’s records. Despite that, in 2015, then-state engineer Pat Tyrell issued an order that created potential for new high-capacity wells to be drilled in the area.
Both the Lerwicks and their opponents contend that the law is on their side.
Evidence shows there is water available for appropriation in the aquifer and that law requires the state engineer to approve development that is of benefit to the public interest, according to the Lerwicks’ lawyer, Laramie attorney Bill Hiser. The state engineer could impose regulations on the Lerwicks’ development designed to protect the public interest, and that his clients would comply, Hiser said.
He also noted that guideposts are in place to ensure development proceeds properly. Not only would people who believe they’ve been injured by the development have an interference claim as a recourse, Hiser said, but the state engineer has the ability to monitor the development as it proceeds. (Hiser said there is “no chance” the Lerwicks would start eight new high capacity wells at one time.)
Aside from having the state engineer never grant another permit in the control area, Hiser said, nothing would ultimately satisfy the contestants.
“I think we’re in the position where no matter what goes, the options are for the state engineer to grant these permits or say, ‘Look, no more permits will ever be granted,’” Hiser said.
The contestants, Hiser said, are driven by fear, not evidence. While that fear should create caution in how the development is carried out, it is not reason to deny the applications, he said. The Lerwicks have complied adequately with all the requirements of the application process and the law as it’s written obligates the state engineer to grant the permits, Hiser said.
“The fact that this room is full of people who are fearful doesn’t create an issue of public interest,” Hiser said. “What creates an issue of public interest is the administration of this law. I would advise you again, and strongly urge you, that specifically in this instance, the state engineer is bound by the constitution to administer all water in the public interest.”
Epler, attorney for the contestants, painted a different picture.
The Lerwicks’ permit applications are not legally sufficient, Epler said, pointing to what she saw as errors and omissions. The burden is on the applicants to demonstrate there is water available for appropriation in the source, and the Lerwicks failed to do so, she said.
The contestants’ position, Epler said, is that there is not, in fact, water available for the Lerwicks’ development. Granting the permits would only lead to more high capacity wells, she said, exacerbating the problem.
“I’m very worried about the potential, as we heard testimony that there could be 352 new wells drilled in the control area,” she said. “We won’t have a control area when this is all said and done.”
The rights of established water users needed to be considered, Mark Stewart, a Cheyenne attorney representing Lerwick-opponents at the Gross-Wilkinson Ranch, said. The ability to bring an interference claim, Stewart said, is an insufficient legal remedy.
“That’s too little too late,” Stewart said. “You’ve heard uncontroverted evidence that an injury to groundwater cannot be remedied immediately. It takes time to investigate, to determine the amount of injury, and it takes time to remedy and redress that.”
The development’s relative harm to the community would “far outweigh” the benefit to the Lerwicks, Conner Nicklas, a Cheyenne attorney representing Harding Ranch, Inc., said. Nicklas said his client had already seen water drying up in wells and on the surface, and estimated it would cost $500,000 to resupply water lost because of the Lerwick development.
“The Lerwicks are good people,” Niklas said. “It’s clear they don’t want to harm their neighbors. But at the same time, the evidence shows that the development of these well applications, the proposed locations of the wells and the analysis as to whether these wells will harm others have all been done poorly at this point. Because of this, the evidence cannot suggest there is available water for appropriation at these quantities.”
‘Nothing to hide’
When asked by Epler why eight wells and why now, Ty Lerwick gave a simple explanation: the time is right.
“If you look at the history of the situation, economics can change for a person,” Ty Lerwick said. “We may have been willing, but not able. But now we’re able, and we’re all willing.”
Probing the ultimate purpose, contestants’ attorneys asked Lerwick about any plans to transfer water rights temporarily — potentially for significant profit — for oilfield use. Lerwick testified that he had not entered into third-party agreements to transfer water rights for fracking and that there was no third-party financing of the application.
Epler asked if there could be a profit incentive to eventually transfer water for fracking, to which Lerwick replied it was “possible, but not likely.”
Rod Lerwick said he has “nothing to hide” when it comes to the family’s plans for groundwater development. The plan for now, he said, is to use the development for irrigation.
When asked how he would feel if he were in the contestants’ situation, Rod Lerwick said he has thought about that, but doesn’t know if he would be among protesters to a permit application.
“I’m not going to say I’d be sitting at home reading my comic books,” Rod Lerwick said. “If I knew I was going to damage my neighbors, that’s pretty weighty, but I don’t know that. I’m not convinced of that. There are a lot of hydrologists, a lot of experts that have come to some opinions. I’d like to try to better our situation.”
Advisory board member Laurie Jackson pressed Rod Lerwick as to what bettering his situation meant. He said he didn’t know all the why’s, but that “I’m not doing it to lose money and I don’t need the tax write-offs.
“I could say some things, but I don’t know whether to or not,” Rod Lerwick said. “Water on grass makes it grow. I’m not signing on to say I have to produce corn or wheat or alfalfa. It’s whatever we decide is going to work best for us. … There are various ways we can go with how to use it irrigation-wise. We’re trying to better our situation by taking away some risk. It’s a risk it might not rain for 90 days.”
Expert testimony
Two expert witnesses testified for the Lerwicks that there is groundwater available for high-capacity irrigation wells in the Laramie County Conservation Area.
In 2012, the state engineer’s office contracted with AMEC Environment & Infrastructure to conduct a hydrogeologic study largely focused on the conservation area. The modeling depicted current aquifer drawdown compared to pre-development conditions, and also evaluated future groundwater level changes with several modeling scenarios.
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Ben Jordan, senior hydrologist at Weston Groundwater Engineering in Laramie, said that the modeling in what’s known as the AMEC Report, as well as hydrographs and monitoring wells, tell him there is water available for appropriation in the district where the proposed wells would be located.
When looking at flow meters between 2017 and 2019, Jordan said the actual average pumping rate was only 60% of what the average model predicted in the AMEC report.
“It was a conservative effort on the part of AMEC, and whatever drawdowns were predicted were going to be less,” Jordan said. “Of course, that’s a pretty short timeframe, but regular review of the order and conditions are critical.”
Jordan also said there “are tools in place to make sure harm is minimized,” whether that’s the state engineer putting certain requirements on the permit or the recourse of filing an interference claim.
Not only would the Lerwick development be within the bounds of the law, but it would be an economic boon for Wyoming if successful, Todd Rhodes, a consultant and the owner and president of Wyoming Water Rights Consulting, Inc., said.
“Beneficial use is what built this state — we wouldn’t be here if we didn’t appropriate this water for beneficial use,” Rhodes said.
The contestants responded with their own expert witnesses, who questioned the picture Jordan and Rhodes painted.
Russ Dahlgren, a hydrologist and engineer with Dahlgren Consulting, Inc., testified that he does not believe there is water available for a development like the one proposed by the Lerwicks. The AMEC model, he said, needs to be vetted, reviewed and modified. In an April 2020 letter to the State Engineer’s Office, Dahlgren wrote that the 2015 order that opened up the conservation area to high-capacity drilling should be discontinued and urged a moratorium on new high-capacity wells.
Dahlgren also testified that filing an interference claim takes a significant amount of time and effort. “I think we can do better than that particular standard,” he said.
The application now moves to the Laramie County Control Area Advisory Board, which has yet to set a date to consider the information gathered at the hearing.
This story is supported by a grant through Wyoming’s Established Program to Stimulate Competitive Research (EPSCoR) and the National Science Foundation.
The impact of the eight high capacity wells does not affect only Laramie County. As is written by others above, it is well known that the Ogallala aquifer is declining. A number of years ago I served on a local water board and we were involved in a hearing re: a proposed dairy in our community, the impact of which would have been devastating. The board rejected the proposal. However, the state engineer’s office would have let it pass. Fortunately, the costs involved made the prospective developer bow out. Already in my community, livestock wells have gone dry, including one on my own land. The decision should be all inclusive, not just in Laramie County. When I brought up the idea at a local Farm Bureau meeting, that laws need to reflect the issue of saving water, a local state senator stood up and basically said that would not happen. I hope there are people out there willing to take a look at the impact of these wells and act in a manner fair to all. The number of wells proposed by one family is stunning and over the top.
Finding of Facts and Conclusion of Law.
As a County Planner, I found that the best way to document the results of a public hearing is for the Board to finalize their decision in a written document called a “Finding of Facts and Conclusion of Law”. The Finding of Facts is just as its name implies wherein the Board lists the significant facts they heard during the hearing. And then, they come to the conclusions they derived from the evidence and testimony. Once the ” Findings of Facts and Conclusion of Law” has been approved by the Board it essentially becomes the legal position which the Board may have to defend upon appeal or in court. In this case, it appears that the Laramie County Control Area Advisory Board would be the party making their recommendations to the State Engineers Office hopefully in a well drafted document with no arbitrary considerations- just the facts that they heard. Absolutely no arbitrary considerations – just facts which will hold up in court. This document must be very well written an experienced person.
The first Finding of Facts and Conclusion of Law that I ever saw was provided to me by the Natrona County Planning Office ( public record) concerning a salvage yard which the County Commissioners had reviewed. They did a superb job in documenting the matter. Very professionally done.
Likewise, the State Engineer’s Office surely documented the 2015 order by Pat Tyrell which allowed for additional high capacity irrigation wells. So I wonder, was the State Engineer required to follow the Administrative Procedures Act, provide public notice and conduct public hearings?? The State Engineers are very professional and a public record must exist on how the decision was reached. Worst case scenario is to submit a FOIA application for the supporting documents. His decision appears to be of paramount importance in this matter. It all boils down to documentation of facts, testimony and supporting studies – especially by consultants and experts. It needs to be done right!!!
Please be thorough, let everyone have their say, follow normal well established public hearing rules and document your conclusions. Time to be professional – keep emotions out of it as much as you can. Good luck, Lee
This is Wyoming Supreme Court stuff.
Example: The Montana Smith River case which went to the Montana Supreme Court. A Mennionite Colony several miles away from the Smith River had acquired access to the alluvial gravels on the Smith River flood plain and had applied for ground water appropriation permits to pump the alluvial water to the farm land several miles away. The flow of the Smith River had already been reduced by approximately 50% and down stream surface right water right holders, several municipalities, fishing and float industry interests were concerned that there was “connectivity” between the alluvial gravels and the flow of the Smith River. They presented considerable evidence at the public hearing which supported their claim that the flow of the Smith River would be further reduced by the propose high capacity irrigation wells; and that, there was connectivity between the alluvial gravels and surface flow of the Smith. Despite the considerable evidence, the Montana State Engineer issued the permits for the high capacity ground water wells and ignored the testimony and evidence presented by the opposing parties. The matter proceeded to the Montana Supreme Court which ruled against the State Engineer and revoked the permits. Again, the State Engineer was reversed as has been the case in many such cases in the west.
If the State Engineer doesn’t consider the evidence and testimony in this case the matter could easily go to the Wyoming Supreme Court for resolution.
The decline in Ogallala ground water levels is very well known and there is abundant information available about the declining levels – the aquifer stretches from the Hat Creek breaks in Niobrara County ( the Pine Ridge in Nebraska/ South Dakota ) all the way into Texas. I even have a National Geographic magazine which was almost completely devoted to the Ogallala – particularly the impacts of irrigating the high plains with its water – the thousands of green irrigation circles you see from the air when flying out of DIA. Enough is known now that I would call it common knowledge.
Hot Springs County negotiated a ground water permit review procedure with the State Engineer’s Office which allows the County to review ground water permit applications located fairly close to the Big Spring. During the review of the matter at County Commissioner meetings, it was learned that the State Engineer’s Office had never denied or turned down a permit application – ever!! They simply rubber stamp applications.
There is one precedent setting decision affecting high capacity ground water wells on the North Platte River in the alluvial gravels. The four state compact involving Kansas, Nebraska, Wyoming and Colorado which was approved by the US Supreme Court, set a limit on high capacity ground water irrigation wells in the alluvial gravels of the Platte River. That is, no new wells are allowed by the compact in Wyoming. The compact of course, was entered into due to insufficient flows in the Platte River in Nebraska which had declined due to over use of surface water in the South Platte of Colorado and the North Platter of Wyoming. Simply put, a minimum instream flow was established for the Platte in Nebraska in order to avoid listing of about 5 threatened species which depend on Platte River flow. The compact represents the first restriction on high capacity irrigation wells in Wyoming that I know of.
There now exists plentiful information about the impact of high capacity irrigation wells in the high plains and the State Engineer’s Office can no longer ignore the precedence setting historical cases of the last 25 years. The evidence is there to reject the proposed 8 well application.