'This is about water'

Wyoming’s unofficial motto “water’s for fighting, whiskey’s for drinking” was on full display as people from across the Platte Valley attended a public hearing held by the Wyoming State Engineer’s Office on June 4.

The hearing was in regards to State Engineer Docket No. 2023-6-2024, over the HF Sinclair Water Exchange.

HF Sinclair purchased the Encampment River Ranch in January 2023 to supplement the refinery’s water supply during dry months, when the refinery’s water rights are not enough to fulfill its needs.

As previously reported by the Saratoga Sun, the priority to the Pathfinder Reservoir water rights was established in 1904. Seventy-five percent of those rights are owned by the state of Nebraska.

Water rights between Nebraska and Wyoming were settled in the U.S. Supreme Court in a lawsuit in 1945. This settlement is referred to as the decree of equitable apportionment or the Modified North Platte Decree, which was ratified by the Supreme Court in 2001.

In Wyoming, priority to water is determined by the age of the water right. The older the water right, the earlier one is able to access the water before others. Using water out of priority means the water needs to be replaced.

The exchange would allow the company to use the water from the ER Ranch property, as dictated by Wyo. Statute 41-3-106.

“Any appropriator owning a valid water right in and to the use of the ground, surface or reservoir waters of the state, where the source of the appropriation is at times insufficient to fully satisfy such appropriation, or better conservation and utilization of the state’s water can be accomplished, or the appropriator can develop appropriable water but cannot economically convey it to its point of use, may petition the state engineer for an order allowing an exchange and the use of stored, direct flow, or ground water from another source,” the statute states. “No exchange will be allowed unless a sufficient quantity of makeup water is introduced to replace the water diverted and withdrawn under the exchange.”

One of the representatives for HF Sinclair, Pat Tyrrell, started the meeting with a presentation.

“Since about 2002, the refinery in Sinclair has been at a serious operational risk of a water shortage in the months of February, March and April in those years that we call an allocation year,” Tyrrell said. “The fact of the matter is, the refinery water rights are not sufficient to continue operation if that allocation occurs. So in past years, what those dry years have caused us to do is go out onto the open market and try to find a willing seller and entertain a temporary use agreement.”

Tyrrel said the dry years happen approximately “a quarter of the time”.

“Sinclair is merely exercising its property rights under Wyoming law. HF Sinclair owns the ranch and its permanent water rights, which may be exchanged,” he said. “We do not want to buy and dry the ranch … drying up agriculture properties has been an issue throughout the west and [we] didn’t want to contribute to that, we didn’t need to.”

The exchange water would only be used during the dry months in an allocation year, with the rest of the year having no irrigation on the land from April 1 to September 30.

“That water is staying in ditches, tributaries and rivers and is available to other water right holders in the [Platte Valley] basin,” Tyrrell said. “It’s true that when the refinery diverts exchange water from the February to April period no injury to any other water right holder can occur during that period, as no agriculture holders are irrigating.”

Following the opening statements, members of the public presented comments to the State Engineer.

Comments from the public seemed to fall generally into three camps: comments in support of the petition, comments in opposition due to worries of water shortage and comments in opposition due to worries of how the petition would affect future Wyoming water law.

Jeb Steward wrote a letter concerning how the petition was written, arguing changes should be made.

“Sinclair proposes to simply leave water in the river by closing head gates, and does not propose to measure that water in any way. Because Sinclair has not demonstrated how they will measure the amount of water left un-diverted in the river, they have not demonstrated how they can operate the proposed exchange without injury to senior appropriators. The statute requires delivery of an ‘equality of water’, which cannot be determined without measurement,” Steward wrote. “Surface water rules associated with WS 41-3-106 also validate an actual ‘this for that’ trading of water. Further, we find in the rules that if stored water is used, it must be for the same purpose … A change of use from irrigation to industrial is not part of the HF Sinclair Petition and it should be.”

Steward also provided spoken comments.

“Water users in this small area, north of Riverside, have gotten along for over 100 years without needing regulation by the state to use this very important resource,” he said. “Now they have a new neighbor that did not really buy the ranch next to them to be in the ranching business just like them. HF SInclair just wants the water … This plan from the refinery will dry up the ER Ranch for the whole irrigation season during an allocation year. During that time there will be strict, unwanted regulation that will descend on them [local ranchers] and their historic use practices.”

Laura Bucholz, on behalf of XH Ranch, wrote a letter concerning how the petition would affect XH Ranch.

“XH Ranch does not agree that there has always been sufficient water at their diversion for the Encampment Platte Valley Ditch,” she wrote. “Irrigation water applied to the lands above XH Ranch fills and keeps full this sponge of sub-surface water that slowly percolates over time to keep minimum flows in the Grand Encampment River higher, later in the year to then be available for appropriation again. Drying up nearly 500 acres for six months will cause measurable depletions to water availability for downstream appropriators disrupting historic use of water and causing injury to XH Ranch.”

Other members of the public also brought concern regarding lack of irrigation damaging the sponge created by flood water.

Tyrrell said the petition does not consider harm from reductions in use, and the Platte Valley would still be “fairly damp.”

Mayor of Rawlins Terry Weickum provided one of the few comments in support of the petition.

“I know that if they [the refinery] were to shut it down for three months because they don’t have water, it would be absolutely devastating to the entire county,” he said.

Don Burkhart, Jr., Wyoming House District 15 Representative, echoed Weickum’s comments.

“[HF] Sinclair has always been a good corporate neighbor. During all the COVID nonsense, they kept every employee working. Without that, Rawlins and Sinclair would have been in a world of hurt,” Burkhart said.

Community member Jon Nelson emphasized the impact this petition would have on Wyoming water law.

“This isn’t a subjective vote on whether we like the refinery or not. As someone in the Valley, not in Rawlins or Sinclair, we do appreciate the community support from the refinery and the jobs they provide,” Nelson said. “We didn’t come here to try to fight the refinery. This is about water … I was under the impression the water belonged to the land. What you guys are about to consider is whether that changes for Wyoming, forever.”

Bucholz spoke about the effect on water law as well.

“I recently attended a water symposium at the University of Wyoming. One of the speakers spoke about how countries all over the world look to Wyoming for their water law,” she said. “We have good water law, it’s worked for a long time. I’d hate to see us screw it up.”

The State Engineer’s Office closed comments for the HF Sinclair Petition on June 14. No decision has yet been made on whether to accept or deny the petition.