As drought increases, ranchers speak up about the value – and science – of groundwater
I headed down the interstate across southeast Wyoming where as far as the eye can see was yellow prairie. Until I arrived at Alan Kirkbride's ranch. Here it was a lush oasis, thanks to the creek flowing through.
As soon as I arrived, Alan took me out on his ATV to see where this creek originates as groundwater seeping out of the ground. We followed the spring to where it flowed into Horse Creek.
"You see, these are coyote willows here, aren't they?" Alan asked, pointing out at the creek. "And the taller trees then you've got river willows, same as down by my house on Spraguer Creek, and then get some box elders that are taller. And all pretty much natives, all those guys."
Here the stream goes wide and flat thanks to beaver dams that slow down the water flow, creating even more wetlands. Alan said Horse Creek is the last remaining free flowing stream in Laramie County. Groundwater drilling has dried up all the rest. But now he's afraid even Horse Creek's days are numbered.
"We talk about people fighting over water, that they've been doing it for 100 years? Well, we see the future, it's very possible continual difficulties between different users. It's in our future, I guess," Alan said.
It's already happening right now. A big fight has pitted neighbor against neighbor.
At the heart of this dispute is access to the water in the Ogallala aquifer, an immense underground sea that stretches from Oklahoma and Texas, north across the Great Plains to the Rocky Mountains. Alan and his neighbors want to stop more drilling into the aquifer because they say it threatens their springs and wells.
Reba Epler is a water attorney and her family's ranch is also potentially affected. She remembers when her dad found out what one of their neighbors was planning to do.
"My dad noticed those ads in the paper because they have to give notice of those. And he was like, 'This is crazy. Eight wells?'"
Their neighbors, the Lerwick family, had applied to drill eight high capacity water wells into the Ogallala aquifer under southeast Wyoming. They said they needed it to irrigate their crops. But the amount of water they were asking for was enough to cover 4,700 acres with a foot of water - one and a half billion gallons.
"That's enough to water 13,000 people a year and their lawns," Reba said.
Reba's dad and the other neighbors knew what this could mean for the creeks and springs and wells they rely on. They'd heard about places in other states where the Ogallala aquifer had been drained down.
"Look what's happened in western Kansas and eastern New Mexico," Reba said. "Those towns are on the brink of having to just move because they've taken all their groundwater. That could happen here very easily."
So Reba, her dad and 16 other ranchers banded together to fight the application to drill the eight wells. Reba represented them in court:
"I assert to you that this creek, this stretch of the creek, is the last running creek in Laramie County," she told the advisory board overseeing water issues for the region in court. "The rest of the creeks have been harmed so detrimentally that they have passed their ecological threshold."
There were also questions about this massive need for water. Jim Pike is the retired district conservationist for Laramie County where Reba and all of her clients ranch. He helped ranchers come up with a way to seriously reduce their water usage.
"So I was surprised when the state engineer then issued an order to allow for some high capacity wells for people to apply for them," Jim said. "But I think it was probably in response to some of the larger oil companies that moved into Laramie County and needed water."
They needed water for their fracking process in drilling for natural gas.
This all raises an uncomfortably, squishy question. Was the Lerwick family applying for these permits so they could irrigate crops as they said, or so they could sell the water to energy companies? Because if so, there's a word for that: speculation, saying you need water for one thing and then hoarding it to use for something else.
But the Lerwicks insisted the water was for crops. "The proposed use in this situation is irrigation," their lawyer William Hiser said in court. "That's what we're asking for in this situation. To say that irrigation is not a beneficial use flies in the face of the statute."
But when a member of the Lerwick family was pressed in court on whether he would transfer the use of the water from irrigation to oil and gas development, he said, "possibly, but not likely." That word - possibly - set his neighbor's teeth on edge. But speculation - saying you need the water for one use and then using it for something else - isn't technically illegal in Wyoming and attorney William Hiser argued that the courtroom wasn't the place to debate that policy.
"This forum is not the place to challenge those rules," attorney Hiser said. "That's down the hall and up the stairs if you want to change the rules. If you want to change the law, that's where you need to go. Not here."
Down the hall and up the stairs is the Wyoming legislature.
Anne McKinnon is the author of the book "Public Waters: Lessons from Wyoming For the American West." She said the state of Wyoming has become more reluctant to change its water laws over the years. Maybe because it's here that western water law was originally developed, including the very idea of public waters - that water belongs to us all and how it's used must benefit us all.
"Wyoming people, very justifiably, are very proud of their water law system," Anne said. "It was an important system and a sort of a key system that others followed in the 1890s. But people also often tend to think that it is practically tablets written in stone."
Anne said with the onset of climate change, those stone tablets may need some revising. Scientists say in the next 50 years, the Ogallala aquifer is expected to be depleted by 70 percent.
"One of the great strengths of Wyoming water law is that it's changed over time to accommodate the needs of our society in this particular place, as that society has changed over 130 years, and that it will need to keep on changing."
Reba, the water attorney, said lots of people - including policymakers - have the wrong idea about groundwater that collects in aquifers. They think it's separate from surface water, like rain, or water in streams, when really, it's all part of the same system.
"They're basically the same thing, you know," said Olivia Miller, a hydrologist with the US Geological Survey in Utah. "Water, whether it's snow or rain, falls on the land surface, some of it runs off into streams, and some of it seeps through soils and then enters aquifers."
Olivia said people also seem to think that groundwater is safe from the evaporation caused by climate change. But that's incorrect.
"Groundwater is vulnerable to climate change because the whole water cycle is so closely linked to the climate system. The water cycle, it's that precipitation and temperature that is our climate system."
Olivia said in the West, people tend to think of groundwater as an unlimited resource.
"People turn to groundwater more, so they use it more," Olivia said. "But it's sort of like your savings account where you put a little bit in at a time, and then you kind of can draw on it when you need to. But if you just start to rely on that, it'll eventually run out."
Then ranchers have to start drilling deeper wells and that gets expensive.
But right now, water law in the West doesn't reflect this science. Reba, the attorney representing the ranchers, wants to change that.
"First of all, the water law needs to recognize that the groundwater and surface water are one," said Reba. "We have to stop looking at this as if it's somehow two different things. Somehow that became the thought in Wyoming and it's just not true. There's no science to support that thought."
She also wants lawmakers to make speculation illegal so people can't hoard water for future uses they aren't honest about and to set a minimum baseflow to protect streams.
And Reba's not just dreaming, she's taking action. In this year's legislative session, she and Alan and their neighbors went down the hall and up the stairs and proposed a bill to lawmakers that would make the guy applying for a water well responsible for proving it wouldn't hurt his neighbors. Right now, it's the people who are trying to stop the drilling who are paying for lawyers and experts to prove these wells will drain their creeks.
Alan Kirkbride, the rancher I visited, had been especially proactive. He sat before lawmakers and made his case.
"The request is, we felt, is so excessive we just had to respond and contest it," Alan testified.
Thanks to Alan and the other ranchers, Wyoming lawmakers did pass that law putting the burden of proof on applicants to show their wells wouldn't injure other water users.
But Alan didn't live to see it signed into law. At 73, he died in his sleep reading a book on geology just days before the final vote. Reba said the stress from this case might have been too much. She said Alan will be sorely missed.
"He did the work of ten men, so we're really going to need a lot of people to step up in his place."
But the passage of the bill did not slow down the Lerwicks' applications for those high-capacity wells. The state engineer has continued moving forward to grant them. Reba said this case in southeast Wyoming should serve as a warning across the West as droughts and aquifer depletion worsen.
"They want to go in that direction of unbridled rape and extraction of our resources," said Reba. "That's where we're going with all this. We can't allow that, I mean, as a society."
And Reba plans to keep fighting to protect her beloved creeks - and the aquifer supplying them with water - all the way to the Supreme Court, if that's what it takes.