Raising the Visibility of Groundwater
Think about the water we drink. Something so important to Wyoming’s everyday life needn’t be invisible, although oftentimes groundwater is exactly that. Hidden beneath our feet, we can’t see it diminish the way we can watch a stream dwindle in the late summer during drought. And because of that, groundwater is often taken for granted. Many of our towns and cities use at least some groundwater as their primary water supply, and the majority of all drinking water supplied in the state of Wyoming comes from wells. So, while we can’t see it, we’d better not ignore it. Whether it’s a water quality or an availability issue, a groundwater problem can affect lots of people quickly.
Back in 1957, our lawmakers showed great foresight in adopting groundwater laws that give useful tools to this agency – the State Engineer’s Office – and our appropriators, or water users. Whether it be our groundwater laws in general, Control Area laws, found in Wyoming Statute (W.S.) 41-3-912, et seq, or our “one source of supply” statute, found at W.S. 41-3-916, pretty strong authority is in place to protect senior water rights and the groundwater resource from overdevelopment to the point of damage.
Under the “one source” statute, there are tools in place to protect senior surface water users if they are impacted or injured by junior priority wells when the aquifer and the stream are connected.
For example, shallow alluvial wells can drain water from a nearby stream or intercept water that was on its way to feed the nearby stream. Our lawmakers acknowledged that in such instances, if not regulated in priority, the junior wells could in fact dry up a creek and “injure” the senior surface water users. And, in virtually every instance, groundwater rights are later in time, or junior, compared to our surface water rights.
The “one source of supply” statute went along largely unused until facts in a couple parts of the state recently needed it.
Mind you, the fact that this statute has been on the books since 1957 without significant use doesn’t mean the state hasn’t experienced conflicts between groundwater and surface water users. We have.
In the Horse Creek Basin near LaGrange, users of groundwater and users of surface water have had disagreements that resulted in litigation back in the 1970s. We have had groundwater development in the Bates Creek drainage that was suspected of being hydraulically connected to Bates Creek proper, but regulation of the two as the same source of supply didn’t commence until after a final hydrogeologic study in 2006.
And finally, the depletive effects of shallow groundwater use along the Lower North Platte River near Torrington had to be recognized in the 2001 Modified North Platte Decree.
In all these cases, it was simply a combination of local tension, the real or imminent threat of suit and the obtaining of sound hydrogeologic analysis that brought new management tools to the table. Where you have tractable issues presented for years or decades, there comes a time when fair water management under our priority system demands the use of these statutory tools. And, in both the Horse Creek and Bates Creek cases, opportunity for an appropriator-devised solution was provided.
As is often the case, mediated or negotiated solutions among appropriators with different points of view can be tough to obtain. It was only after those opportunities appeared to be exhausted that further regulation occurred or orders were entered.
Our groundwater control area laws have not endured excessive use either. Our groundwater control areas weren’t designated as such until the early 1980s, and even today, we only have three of them. One is in the eastern two-thirds of Laramie County, another is around Wheatland and the third is in extreme northeast Goshen County. Such a designation has not stopped permitting of new large wells in these areas, but that permitting has slowed considerably. And, it has not stopped water level declines from worsening, at least in places. Groundwater is still actively used in all these areas, and one could say that the existence of the control areas has, in a way, at least kept the water flowing.
At present, we are in the midst of a groundwater study in Laramie County designed to evaluate what might be done to control, arrest or recover the drawdowns in the High Plains (Ogallala) Aquifer system.
In places, these drawdowns have continued for decades, despite the existence of a Control Area established in 1981. Wells go dry during summer, and some groundwater rights have been abandoned, made more palatable by the availability of the Natural Resources Conservation Service’s Agriculture Water Enhancement Program and funding. We continue to see demand for light industrial groundwater use, and the recent Niobrara oil play sought groundwater both under new permits and under temporary agreements with existing wells.
Rural domestic use – think subdivisions – also continues to grow. All in a county where the central and eastern part have no real reliable source of water other than – you guessed it – groundwater.
In the face of growth, how do we manage this precious resource for a sustainable future supply?
These questions and problems are not new to Wyoming or the West.
If you look around, you’ll see much written about groundwater management in the San Luis Valley in southern Colorado, the Snake Plain Aquifer in Idaho, the Edwards Aquifer issues in Texas, the mining of the aquifer beneath Albuquerque, N.M. and many more. In all those cases, studies of aquifer over use, or conjunctive use along with surface water and how to deal with it are critical whether the ultimate answer comes from the regulated community or their version of the “state engineer.” We learned a lot from those places.
Until the Bates Creek decisions beginning in 2007 and the Horse Creek order from 2013, Wyoming had been able to get along without significant resources or regulation related to these topics. But, at some point in the process, we simply had to quit whistling past the graveyard and address our situations head-on. Absent decisions from either the water users or this office, all these cases would be back in court. So one has to ask the question, do we want to solve the problem administratively or judicially? It’s not Wyoming’s fault. It’s just our turn.
Dealing with these tough issues is something about which Wyoming should be proud. And dealing with thorny topics has never been something of which we in Wyoming have been afraid. While the processes can be painful as we’re going through them, the statutes at least promote fairness along with respect for our time-honored priority system.
The business of sharing a scarce resource – especially using the relatively newer science behind managing groundwater by itself or in conjunction with surface water – can bring out the rough-hewn cowboy in anybody.
As a new way of looking at water management, there, of course, are skeptics too. Believe me, I hear from them! It will be an interesting ride as we move into the future, improving the science, our data and our collective ability to divide the water, but I am convinced we’re better off for the effort. It’s the road we’re on, and it’s the right one.
