Alan Kirkbride explains the value of spring-fed Sprager Creek in the Laramie County Control Area. (Angus M. Thuermer, Jr./WyoFile)

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.

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

Reba Epler

“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.

Water flows into the Horse Creek Basin in the Laramie County Control Area from springs like this one on the ranch owned by Tim and Bernadette Rutledge. (Angus M. Thuermer, Jr./WyoFile)

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.”

Angus M. Thuermer Jr.

Angus M. Thuermer Jr. is the natural resources reporter for WyoFile. He is a veteran Wyoming reporter and editor with more than 35 years experience in Wyoming. Contact him at angus@wyofile.com or (307)...

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  1. Looks like Dan Larson is against protecting Wyoming
    water I will be voting against him also!

  2. I wish that wyofile would make available a post of that wonderful presentation you did on climate change and that highlighted the importance of water for future agriculture. It need wide distribution.

  3. Thanks Angus. I’ve said this before, the state Engineers in most of the western states were rubber stamping all ground water appropriation permit applications without taking into account the potential effect on existing water right holders. And that included the connectivity between surface water right holders and ground water right holders. I did extensive research on this matter and found the state engineers were ruled against by the various courts – over appropriation and failure to consider connectivity and existing water rights.

    The Wyoming State Engineers Office has a process called “interference with ground water right claim” where an aggrieved party can file a formal interference claim AFTER the damage has been done – so what’s wrong with making a determination of probable interference prior to the permit being issued???? These Ogallala water resources are finite and won’t last forever – in some of the irrigation districts in Kansas the ground water rights have been bought back due to over appropriation. The very worst case was in eastern Colorado where the state engineer had to rescind about 3000 high capacity ground water permits because of over appropriation AFTER THE FARMERS HAD DRILLED THE WELLS AND INVESTED IN THE INFRASTRUCTURE.

    The rights of the senior ground water right holders must be protected from over appropriation. Please note that the 4 state compact on the Platte River drainage in Colorado, Wyoming, Kansas and Nebraska specifies there will be no more high capacity ground water permits issued in the Platte River alluvial gravels in Wyoming – this is the compact approved by the Supreme Court of the US. The days of over appropriation are gone.

  4. Nebraska allowed unbridled well drilling into the Ogallala Aquifer. This has bitten them in the rear axle. Colorado has long required newly proposed well permits to provide an augmentation plan that must be approved by the Colorado State Engineer. Do not turn and look the other way when water diversions (which an irrigation well clearly us) are proposed.

  5. My favorite saying, on this, If it lands here in WYO. it is our’s, when it leaves the State, you can do what ever you what, Glad to see, Gov. Gordon did some new on this,People just do not understand,”NO”