Legislature referees water squabble, raising local control issue

It began with a water squabble over a golf course in Laramie.

It ended, critics contend, with a new law that erodes local control and further limits Wyoming towns’ and counties’ authority to govern their jurisdictions.

Decades ago, the University of Wyoming announced plans for what would soon become the Jacoby Golf Course, a facility the university’s website describes as “one of the unique public courses in the nation.” While an impressive facility, it was also a demonstration of exemplary town-gown relations. In building the course, the city of Laramie and the university brokered a deal to keep the facility open to the public in exchange for reduced water rates. In the years since, UW has remained the city’s best-paying water customer.

As time went on though, the status quo shifted. With its water system failing and its funding mechanism broken, the city restructured its water rates in 2006. Facing rate increases, the university began seeking greater independence from the city’s water system. University officials applied in 2015 for permits to drill their own wells to water the course independent of the city’s water supply. The effort, officials believed, could save money, offset the course’s roughly $100,000 a year operating deficit and give the school greater control of its resources.

“The University believes the benefits of such a study would lead to a reduction in the use of potable water for irrigation, a reduction in man-hours to operate and maintain the golf course, a better financial outlook for the golf course operation, and better turf quality,” University officials wrote in a 2015 funding request for the project.

There was a problem, however: both of UW’s proposed wells appeared to fall within the boundaries of the city’s water supply, even though they would technically be on university property.

The years-long debate around the proposal has been a complicated one, full of twists, turns and minute detail. But the university’s primary position boils down to this:  it believed its right as a state entity to the water was clear and protected under the Wyoming Constitution. The school also needed to balance its books due to repeated budget cuts by the Wyoming Legislature.

City officials, however, saw things differently.

In written comments to the state engineer’s office in 2004, they argued the University’s plans would not only interfere with their water rights but jeopardize the integrity of their aquifer, threaten the city’s sovereignty and, potentially, raise water costs for their constituents. 

The back-and-forth came to a head last August, when the city enacted an ordinance that would have required the university to obtain franchise from the city council for the right to use water from its aquifer.

Then, this year, the longstanding dispute — like so many other land-use issues in Wyoming — found its way to the Wyoming Legislature in the form of House Bill 198 – University water system — a measure that sought to resolve the dispute. And like many similar cases heard by the Legislature, in the end the municipality lost. 

Phil Nicholas, a former state lawmaker representing the University, foretold the outcome in a July 2020 meeting of the Laramie City Council,  calling the ordinance a “fool’s errand” that “would anger people” and reduce the city’s stature statewide.  

“If you don’t think there won’t be legislation to clarify this on behalf of the university, I think you’re pretty naïve,” Nicholas told council members.

On March 23, the House of Representatives narrowly passed HB-198 by a 32-27 vote, advancing it to the Senate and later, to Gov. Mark Gordon, who signed it into law. Sponsored by Nicholas’ brother,  Rep. Bob Nicholas (R-Cheyenne), the bill gave UW the green light to pursue its water project while preventing any city or county government from interfering.

“We have a responsibility to manage our resources as efficiently and as effectively as possible,” Chad Baldwin, a spokesman for the University, said. “And it does not make sense to pay for potable water when a less expensive source of non-potable water is available.”

Critics, however, say the Legislature not only overruled a land-use policy with precedence in communities like Jackson and Gillette, but inappropriately injected itself into a matter of local control on behalf of powerful interests.

“It’s just a trend that continues to grow,” Laramie Mayor Paul Weaver said. “In some ways, these questions have already been answered, and there seems to be this willingness to ignore the answers. Because they’re not convenient to politically connected people that are involved in the state and utilize their relationships in the Legislature [to get what they want].

“Dancing around it isn’t serving anybody anymore,” he added. “Things have just gotten to the point where it really can’t be tolerated anymore.”

Nicholas did not respond to a voicemail requesting comment.

A growing trend

Local control — the conservative principle that the government closest to the people governs best — is so prominent in Wyoming’s political mythos that voters enshrined it in the Wyoming Constitution. The Wyoming Home Rule Amendment passed overwhelmingly via ballot initiative in 1972, formally establishing procedures for municipal governments to determine their own affairs.

The Legislature has taken an increasingly active interest in local land-use decisions in the past decade, however, resulting in the erosion of municipal local control in favor of special interest groups and politically connected individuals, according to Teton County Planning Commissioner turned state Rep. Andy Schwartz (D-Jackson). Schwartz, a fourth-term lawmaker, said the trend began in 2017, when lawmakers passed an agricultural valuation bill sponsored by Rep. Leland Christensen (R-Alta) apparently inspired by the needs of a single landowner.

“I know the guy who pushed Leland to bring the bill,” Schwartz said. “And I’m assuming he had done it before, because when I talked to him it became clear this was a technique that he was comfortable with, of getting a legislator to bring a bill to solve what was essentially a local problem. It’s just escalated since then.”

In 2013, lawmakers passed legislation repealing the five miles of extraterritorial jurisdiction around cities, a change in land-use policy that had later implications on municipalities’ expansion plans. That bill, Laramie Mayor Weaver said, was the result of two groups of homeowners in eastern Laramie concerned about the way existing septic systems were regulated in an area municipal leaders considered to be a sensitive watershed.

In 2019, the Legislature voted to overrule a land-use decision in Teton County in favor of a private school operated by Stephen Friess, son of millionaire philanthropist and GOP mega-donor Foster Friess. The following session, lawmakers weighed six bills challenging various land-use provisions passed in Teton County, which has limited land for development and a critical housing shortage.

The 2021 legislative session was particularly active for local-control bills. 

One such bill was House Bill 158 – Local land use planning and zoning, a bill inspired by a case out of Laramie County in which local planners rejected the development of a gravel quarry in an unzoned area because it conflicted with the county’s future land-use plans. While advocates of the bill say its passage is a victory for private property rights, critics say the bill and the Supreme Court decision that inspired it could hamstring municipalities’ efforts to develop comprehensive plans for future development. That could have statewide ramifications, they say.

Sen. Bo Biteman’s (R-Ranchester) Senate File 157 – Property rights-limitation on local authority passed by an overwhelming margin this spring, effectively sealing the fate of a planned affordable housing complex in Teton County that was opposed by a single landowner who supported the bill. The bill had attracted the attention of other powerful interests as well, including millionaire investor and former Republican gubernatorial candidate Sam Galeotos.

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“In discussing SF 157 with other folks, I have heard this bill being represented as a Jackson thing. This is far from the truth,” Galeotos wrote in an email to lawmakers supporting the bill. “SF 157 helps address concerns I have had here in Laramie County, and also in other counties in Southern Wyoming. It solves a statewide concern.”

Weaver believes that special interests — not the needs of cities and towns — have come to drive the legislative agenda, he said. 

“I think there is a larger issue that goes beyond just the city of Laramie’s water complaints,” he said. “And that’s the willingness of the Legislature to do the bidding of their friends and interest groups on the outside, even though it might not be in the best interest of the communities that are trying to use their own local control to regulate local issues.”

Conservative concerns

On many of the land use bills discussed this session, many lawmakers described their role as reining in municipalities that overstep their bounds, and as protectors of individuals’ property rights in the face of that overreach.

“How would you feel if this was your ranch?” Nicholas said on the floor in support of HB-198. “I would respectfully submit that you would feel just like the University of Wyoming does. And you would stand up and say ‘you don’t have the right to dictate how I can use this water well …’” 

Others were more hesitant, creating an unusual coalition of lawmakers who opposed the bill. Conservatives like Sen. Tara Nethercott (R-Cheyenne) and Rep. Chuck Gray (R-Casper) joined progressives like Rep. Karlee Provenza (D-Laramie) in opposing HB-198, saying that if there were legal problems with the ordinance, it should go through the proper legal channels, rather than be litigated on the floor of the Legislature.

“I’m concerned and not comfortable with delving into an issue that will not affect me directly in my community or in my district,” Rep. Hans Hunt (R-Newcastle), said during March 23 floor debate. “ … If this were a squabble in my community, I would not be comfortable coming to the Legislature with an answer to fix it hoping everyone would understand it at an intimate level as if it was going on in my own backyard.”  

Gov. Mark Gordon raised similar concerns with the bill in a letter to lawmakers after it passed into law.

“By advancing this bill, the Legislature agreed to allow a local matter to become ‘litigated through the Legislature,’ as Senator Nethercott aptly stated during the Senate floor debate on this bill,” he wrote.

In an interview with WyoFile, Weaver hinted the city may consider future court action to overturn the new law. 

But the trend of Legislative involvement in local affairs, Schwartz said, is unlikely to go away, and will only work to the detriment of residents’ quality of life in favor of individual interests. 

“We have strong planning here based on vision, and it’s actually working,” Schwartz said of Teton County. “If you look at it, we’re really making strides in preventing sprawl and encouraging density, discouraging the separation of residential from commercial and all that good stuff. That’s what planning is supposed to do.”