Slow Waters Run Deep

Wyoming helped develop western water law, including the very idea that public waters belong to all of us. But the state’s reluctance to update its laws has left ranchers scrambling to protect their streams and wells, as drought and water hoarding make water scarcer than ever.

Little Horse Creek is the last free flowing stream in Wyoming’s Laramie County due to groundwater drilling.

Imagine those great individualists of the late 19th century. They muster their courage to leave behind everything, sail across an ocean to America, buy themselves a set of oxen and a prairie schooner, load it up with provisions and embark westward into the setting sun. And when they lay eyes on the Rocky Mountains, what’s the very first thing they start looking for? Not gold. Not plentiful grass. Water. 

That’s what rancher Alan Kirkbride’s ancestors did when they came here from Yorkshire, England in 1889. They homesteaded on flowing water on Horse Creek on the plains of the newly minted state of Wyoming. Water melted from snow off the nearby Laramie Range. Crisp, clean water. Nothing like the polluted water back home. Those early settlers, man, they loved mountain waters.

“My great great uncle who homesteaded this in the next place, he drank out of the creek,” Alan said. “Everybody drank this. This was their drinking water. And he said, ‘it’s the best little creek there is.’”

It didn’t matter that lots of tribal nations were already relying on this water. It wasn’t long before all the land with flowing water was claimed. Indigenous people were relegated to reservations in the driest parts of the country. And it wasn’t just families snatching up all the well watered homesteads– often it was speculators and big cattle companies. After a while, all that was left was arid land. Almost as soon as Europeans arrived, the water disputes started. 

Anne McKinnon is the author of the book Public Waters: Lessons from Wyoming For the American West. Anne’s a Wyoming icon, a journalist who’s been covering water issues here for decades. Back then, she says the rule in the West was first in time, first in right. Of course, it overlooked that tribes were the ones actually first in time. 

But Anne says those early settlers only saw it from their own point of view: “Whoever got their hands on gold first or land first or water first, they ought to have the best rights to it, because, by God, it was a big effort to get there. And there's blood, sweat and tears and all that stuff. And so, in Wyoming, you know, for a while you could put a notice on a tree next to the creek to say that you claimed some of this water.”

Eventually, a scribbled note nailed onto a tree stopped feeling official enough. Maybe you’ve heard that old adage – “whisky is for drinking, water is for fighting?” Yeah, well, it was a real thing. And over the generations, it’s continued to be a thing. Alan Kirkbride inherited that homestead on Horse Creek and loved ranching along it. But he said the water wars his ancestors witnessed? They’re nothing compared to what’s coming.

“We talk about people fighting over water, that they’ve been doing it for 100 years?” said Alan. “Well, we see the future, it’s very possible [there will be] continual difficulties between different users. It’s in our future, I guess.”

And for Alan and his neighbors, that future has arrived. 

“It Is Going to Happen Here”

Southeast Wyoming is flat, thirsty country– yellow prairie as far as the eye can see. That is, until I arrived at Alan Kirkbride’s ranch. I drove down a bluff to his house among the flowering trees and evergreens. Here it was a lush oasis thanks to the creek flowing through.  As soon as I got there, Alan took me out on his ATV to see where this creek originates as groundwater seeping out of the ground. Like other ranchers we’ve met, Alan’s a rancher who’s been thinking a lot about how to help slow the climate crisis.

“So you see this little creek right here?” he said. “That's cattails, okay? And cattails, they’re one of the best carbon sinks going. They’re great. Wetlands are great carbon sinks.”

The cattails grow along a curve in some fascinating white cliffs. We followed the spring to where it flowed into Horse Creek. 

“You see, these are coyote willows here, aren't they?” said Alan. “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. A local ranching family – the Lerwicks – want to drill a bunch of enormous wells that would use vast amounts of water below this landscape. 

It’s terrible timing from Alan’s point of view. Right now, climate change is causing the American West to experience what’s being called a megadrought, the worst water shortage in 1200 years. The Ogallala Aquifer that feeds Horse Creek is a huge underground water source supplying eight states. It’s immense, an underground sea that stretches from Oklahoma and Texas north across the Great Plains to the Rocky Mountains. And those states are the country’s breadbasket; they use all that water to grow a fifth of the nation’s crops. It may seem safely stored away for the future. But Alan and some of his more environmentally-minded neighbors are finding out that water is disappearing fast. 

“Look what's happened on the South Plains, from West Texas, all the way up, it's been the same story, the water table goes down, creeks go dry,” Alan said. “So taking a hint from what's happened in the South and Central Plains, why, obviously, it is going to happen here if we don't do something.”

Alan said the Lerwick family saw an opportunity to make money in the short term but he and his ranching neighbors wanted to see Horse Creek keep flowing forever. Alan said there was no hero coming out of the woodwork to save them. If they wanted to stop those wells from getting drilled, they were going to have to do it themselves. So Alan and 17 other neighbors decided to hire a water attorney from among their ranks: Reba Epler.

“I Know What Will Be Lost”

It’s wintertime a few months later and I’m headed up to see the headwaters of one of the creeks that weren’t so lucky. Reba’s driving a terrifying, snow-packed highway up into the Laramie Range. It rises up out of the high plains in southeastern Wyoming, a long shaggy ridge covered in ancient limber pines and fascinating rock formations. It’s the birthplace of Lodgepole Creek that supplies the capital city, Cheyenne, with some of its water. Reba’s family has been bringing cattle to graze in the national forest on these mountain meadows for generations. She remembers growing up on these creeks. 

“Like, little old Lodgepole Creek used to have pretty good flow in it,” Reba says.
And when I was a kid, there used to be turtle migrations across the road and you’d have to stop and move them across or catch them and put them in a tank. There used to be, like, amphibians and reptiles down there.”

Lodgepole Creek used to be the longest creek in the US, but now it’s dried up in several areas due to groundwater pumping. 

Reba parks her car and we get out and tromp across the snow to see the creek. This time of year it’s frozen. Reba studied hydrology so I ask her how healthy this draw looks to her.  

“Well, obviously, you've got willows, and that is such a good thing,” she says. “Willows and beavers go together. Beavers are such an important part of the creeks. Well, I mean, look how the snow drifts in the creeks and in the willows, and you just have stored hydration.”

For Reba, thinking about the health of the land is kind of a family tradition. A decade ago, when the Colorado butterfly plant started sliding toward extinction, her parents worked with the US Fish and Wildlife Service and agreed to reduce grazing along the creek to help save the plant. 

“But we started out like one plant or maybe zero plants of that Colorado butterfly plant and over the course of the ten year period, I think we were up to 500 last count,” she tells me. 

They’ve worked hard to protect this landscape. That’s why it came as such a big shock when her dad found out what another ranching family had done.

“My dad noticed those ads in the paper because they have to give notice of those,” Reba says. “And he was like, ‘This is crazy. Eight wells?’”

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, 1.5 billion gallons. 

“That's enough to water 13,000 people a year,” Reba says. “And their lawns.”

After they heard about the well applications, Reba’s dad and some of the other neighbors knew what this could mean for the creeks and springs and wells they relied on. They’d heard about places in other states where the Ogallala aquifer had been drained down.

Reba says, “Look what’s happened in western Kansas and eastern New Mexico. Those towns are on the brink of having to just move because they’ve taken all their groundwater. That could happen here very easily.”

In southern Kansas, it’s so bad that groundwater has dropped 150 feet, forcing ranchers to abandon their wells altogether.  Reba agreed to represent 17 ranchers to fight the application to drill the eight wells. They especially wanted to try to save the creek that was still flowing, Horse Creek that I visited with Alan. 

In court, she made her case to a committee whose job was to oversee water decisions for the region: “I assert to you that this creek, this stretch of the creek, is the last running creek in Laramie County. The rest of the creeks have been harmed so detrimentally that they have passed their ecological threshold.”

In the courtroom, Reba didn’t let the formality of the setting stop her from expressing her passion for this place and its waters.

“These are some of the oldest surface water rights in the state of Wyoming, some of the oldest ranches, some of the most magnificent places you have ever seen, that stand to be lost,” she said. “It makes me almost cry, because I've seen them and I've been on them and I know what will be lost.”

Jim Pike made a very similar case to the state of Wyoming a dozen years ago when bad droughts started heating up. Jim is the retired district conservationist for Laramie County, where Reba and all her clients’ ranch. Back in 2010, Jim noticed monitors were showing the aquifer drawing down way too fast. He knew that could dry up creeks and wells in no time. So Jim partnered with a state lawmaker to apply for some funding through the Farm Bill to adopt a program that paid ranchers to quit irrigating so much with their center pivots – that’s those big sprinkler systems on wheels – and it encouraged the state to stop issuing permits for new high capacity wells. Jim’s program was wildly successful.

“Everybody was on board and so in about four years, we reduced annual pumping by a billion gallons of water annually,” Jim recalls. “And 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. Now I'm speculating, 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. I reached out to the Lerwicks and their lawyer but they declined to comment. But in court, the Lerwicks insisted the water was for crops. 

“The proposed use in this situation is irrigation,” says their lawyer William Hiser. “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, quote, "possibly, but not likely." That word – possibly – set his neighbor’s teeth on edge. Speculation isn’t technically illegal in Wyoming, but Reba argues it’s basically illegal since courts have punished it over and over again throughout state history.

Reba says, “There is case law in Wyoming that is still controlling that says that speculation of water rights is not permitted. It is completely contrary to public policy and public interest. And so if there is an ulterior motive, then it should not be something that the state engineer is holding in the back of his mind, saying, ‘Well, they might be putting water to a very marginal use but in a couple years they’ll be able to sell it to frack and it’s really going to benefit the state.’ That is the purest definition of speculation.”

Sure, there might be legal precedence, but attorney William Hiser argues that the courtroom isn’t the place to set such policy. 

“This forum is not the place to challenge those rules,” he says. “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 state legislature. Last year the state of Colorado tried – and failed – to pass anti-speculation legislation. If it didn’t fly in Colorado, I can tell you this, it definitely ain’t gonna fly in Wyoming. Anne McKinnon, the water historian we heard from earlier, says 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,” says Anne. “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 says with the onset of climate change, those stone tablets may need some revising. At this rate, scientists say in the next 50 years, the Ogallala aquifer is expected to be depleted by  70 percent. That’ll make a few people wealthy in the short term. But without groundwater feeding streams and wetlands, America’s breadbasket will go dry, and will release what’s left of all that stored grassland carbon into the atmosphere. As we’ve heard, grasslands are the most threatened ecosystem in the world.

“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, ”Anne says.

But to make such changes, it’ll take some education. A lot of people, including policy makers, have screwy ideas about groundwater. They think it’s separate from surface water when really, it’s all part of the same system. 

Olivia Miller, a hydrologist with the US Geological Survey in Utah, makes this case: “They're basically the same thing. You know, 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,” she says.

Olivia says people also seem to think that groundwater is safe from the evaporation caused by climate change.  She says, nope, not even kinda.

“Groundwater is vulnerable to climate change because the whole water cycle is so closely linked to the climate system,” says Olivia. “The water cycle, it's that precipitation and temperature that is our climate system.”

Olivia says in the West, people tend to think of groundwater as an unlimited resource.

“People turn to groundwater more, so they use it more,” she says. “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.” 

So yeah, in the West, we’ve come to have a very unhealthy relationship with water. Coming up next, we’ll hear from someone with big ideas about how to heal that relationship.

Water as a Verb

“We tend to think of water as a thing. And we have it and it's here, and maybe I have some, and you don't have some or maybe I want what you have, and we fight about it.”

You might recognize that voice. It’s Judith Schwartz, the ranching optimist who believes cows can save the planet that we heard from a couple episodes back. She also wrote a book called Water In Plain Sight: Hope for a Thirsty World about how to heal the water cycle. To do that, she says we need to start thinking of water as a verb instead of a noun.

“But it's really useful to understand how water is always in motion,” says Judith. “It's like a shapeshifter. It's changing form so it's always on the move. And what's really interesting is that it's driven by life, you know, it's not static.”

Judith says, water is always in motion but the best is when it’s in slow motion. “We've built our cities so that we get rid of wastewater as quickly as possible,” she says. “But in nature, water moves slowly. So it moves slowly through the soil profile. And one of the reasons that it does move slowly is that we've got a lot of critters that are building pathways like earthworms and dung beetles that are creating pathways for the water to slowly meander, and therefore doesn't rush off and create damage.”

Beavers also help slow down the movement of water, causing streams to slither all over the land, spreading moisture around. But pouring 4,700 acre feet of groundwater onto bare dirt like the Lerwicks could decide to do? That’s what you call fast water. Reba is a slow water evangelist too.

“Slow it down, spread it out and sink it in,” says Reba. “You don't want to let water get off your place. When you see water running anywhere, it means the hydrological cycle is broken. People are just accustomed to seeing water run off fields and stuff. But that's bad, that's wrong, we cannot let it run off the field, it has to go in the ground.”

Both Judith and Reba say protecting a minimum flow coming up from groundwater and filling streams is crucial because of what it does for the climate. 

“If we step back, and we ask ourselves, how does the Earth manage heat, we will see that largely, it's through water-based processes, through the phased changes of water, through transpiration, through the upward movement of water through plants, that is a cooling mechanism,” Judith says. “And how that water vapor rises up and becomes clouds and how those clouds are reflecting sunlight. And this whole choreography of natural processes. And the extraordinary thing is that we know how we can restore any kind of landscape. And pivotal to that restoration is restoring the water cycle.”

“We have to save our creeks,” says Reba. “We have to save our wetlands. I don't know but whatever's left is sacred and has to be saved.”

Up at the headwaters of Lodgepole Creek, Reba looks east toward Cheyenne and imagines this dwindling creek flowing down the mountain into water treatment plants and out into people’s homes, filling their bathtubs, boiling their spaghetti. It’s not just the energy industry that’s slavering for water. Cheyenne is growing rapidly and the Lerwicks could decide to sell their water to the municipality too. Reba understands that need. Water, Reba says, it is life. We are water.

“Well, water represents emotion,” she tells me. “It represents the heart. It's in our bodies. When you're young, I think you were like 80 percent water and as we get older, the water content of our bodies gets less. I think at our age it would probably be down to like 70 percent or 65.”

“So you feel like that kind of allows you to communicate through water?” I ask.

“Yeah, just like us going out and like talking about the creek,” she says. “We are acknowledging the land, we're giving respect to the land, we're talking about the positive attributes of the creek and the animals on the creek. And that just gives beauty to them. And then think about that: you bless the water in that way. And then the people in Cheyenne are gonna drink that water. And that gives them a blessing.”

Yeah, we are all part of the water cycle. But for right now, Reba just wants to get the state of Wyoming to recognize a small piece of that cycle: the interconnection of groundwater and surface water. 

Reba says, “First of all, the water law needs to recognize that the groundwater and surface water are one. 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.”

That’s just one of Reba’s big goals. She also wants to get lawmakers to make speculation illegal so people can’t hoard water for future uses they aren’t honest about. And she wants 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 to drill groundwater responsible for proving it wouldn’t hurt other water users. 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, who showed me his ranch, was especially proactive. He sat before lawmakers and made his case. 

“And the request is, we felt, so excessive we just had to respond and contest it,” Alan said.

The Wyoming state engineer Brandon Gebhart also testified -- but against the bill. He said passing it would make it too easy for ranchers to submit complaints about groundwater drilling applications.

“These contested cases aren’t easy, they aren’t cheap and they take a lot of our staff time,” said Brandon.

Brandon Gebhart declined to comment on a pending case. But thanks to Alan and Reba 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. It’s no anti-speculation law, but it’s something.

Sadly, 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 says the stress from this case might have been too much. She says Alan will be sorely missed.

“He gave a lot to this water case,” says Reba. “He was a motor. 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 it might be hard for other ranchers to step up. Most of them aren’t so young either. In fact, the average age of ranchers these days is 55 years old. And yet, it’s these farmers and ranchers fighting on the front lines of the climate crisis in courtrooms and committee rooms all over the West. 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 says 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,” says Reba. “That’s where we’re going with all this. We can’t allow that, I mean, as a society.”

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.