New law protects groundwater rights in the wake of Ogallala fight

Gov. Mark Gordon has signed a bill that advocates say better protects groundwater rights like those at the center of Laramie County fracas in which neighbors clashed over a plan to drill eight high-capacity wells.

House Bill 136 — Underground water contested case hearings, which Gordon signed into law Monday, is said to better protect the holders of underground water rights that may be threatened by new development. The bill grew out of a still-pending case in the Laramie County Control Area in which farmers and ranchers fear new, deep wells could dry up their springs, creeks and agricultural operations.

Holders of existing water rights contested an application by the Lerwick family to drill the wells in a zone where the state engineer — Wyoming’s water czar — had put the brakes on unbridled drilling due to a diminishing water table. State Engineer Brandon Gebhart has yet to rule on the case and excused himself from a committee hearing on the bill when the topic turned to the ongoing dispute.

The bill amends a law to clarify that the burden of proof in a contested groundwater case shall be borne by the party seeking to obtain new water — the applicant or petitioner. That is the current practice under case law — decided issues that have set a precedent — but the amendment writes the principle into state statute and should make it easier and less expensive to defend existing rights, a supporter said.

“It’s not right that you have to read 10 cases to figure that out, [that] the applicant for groundwater permits bears the burden of proof,” said Reba Epler, an attorney and landowner who is involved with the Laramie County case.

“To defend existing, very senior water rights, holders had to spend a lot of their resources protecting that which should be protected by the Wyoming Constitution,” Epler said.

‘Protect what’s left’

Epler participated in a three-day hearing in 2021 at which the Lerwicks sought to convince a groundwater advisory board that their wells would not be detrimental to existing users in the control area. At issue were eight wells the family proposed drilling that would be capable of pumping up 1.5 billion gallons a year from the High Plains or Ogallala Aquifer.

Family members said the water would be used for their farms although they could sell flows, on a temporary basis, to oil and gas companies seeking to develop in the area. The Lerwick’s neighbors claimed that the new wells would lower the water table, jeopardizing their existing wells, springs and creeks that sustain a tapestry of ranches northeast of Cheyenne.

The advisory board recommended against permitting the new wells in the yet-to-be decided case before Gebhart.

Gebhart complained about the bill when he testified before the Senate Agriculture, State Lands & Public Waters Committee, careful to separate his testimony from the pending case.

“It could require a lot of resources,” Gebhart said of the bill’s effect on his office. The bill would create “the potential for objections to be filed where the validity of the objection is not known until well into the case.”

Lawmakers heard other objections, including from Rep. Dan Laursen (R-Powell), who raised questions about fluctuating levels in monitoring wells — with at least one reading showing a rising water table in the control area. A hydrologist in the state engineer’s office, Laursen voted against the bill in the House Agriculture Committee and again on third reading on the House floor.

But an influential ranching group backed the measure, which passed the House 41-16 and cruised through the Senate 30-0. Water rights owners should not have to defend themselves to an undue degree, Jim Magagna, executive vice president of the Wyoming Stock Growers Association, told lawmakers.

Having issued a water right, it’s logical that the state not put rights holders “in a position … where it’s [their] obligation to defend that right,” he said.

“It’s been granted by the state and protected by the state,” Magagna said. “And if someone is going to take an action that should infringe upon that right … they should bear the burden.”

Under the amendment, groundwater applicants in control areas “should recognize you might have to produce a lot more evidence than applicants have in the past,” Epler said in an interview. The contested case she is part of cost water rights holders “significantly more” than what the high-capacity well applicants likely spent on lawyers and experts, an amount she estimated to be tens of thousands of dollars. 

“We don’t want other people to have to go through what we went through,” she said.

The amendment goes into effect on July 1. Epler said she believes its passage sends a message.

“It’s signaling to the government: ‘No, we’re not going to take you over-granting water rights,” she said. “It’s a message to the State Engineer’s Office and the governor: we want to protect what’s left.”