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…
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…
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.
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.)…
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…
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…
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…
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…
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…
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…
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.
