By BECKY KISER
Hays Post
The city of Hays has asked the IRS to check into the nonprofit status of WaterPACK, the "only active opponent" in the long-term water supply project for Hays.
The Water Protection Association of Central Kansas is opposed to triggering the state's Water Transfer Act in connection with the R9 Ranch in Edwards County, owned since 1995 by Hays and Russell as a 75-plus year water supply.
"I would like to be able to explain what WaterPACK is, but I can't," City Manager Toby Dougherty told city commissioners last week.
"They are a claimed non-profit but they're somewhat secretive and there's not a lot of information out there about them. I do know it's a membership organization comprised I believe mainly of irrigators that I think sort of reflects the Groundwater Management District #5 footprint. But again there's nothing public known about WaterPACK."
A final master order was issued March 27 by David Barfield, chief engineer at the Kansas Department of Agriculture’s Division of Water Resources (DWR, approving change applications to convert the irrigation rights of the R9 Ranch to municipal use for the cities.
In June, WaterPACK filed a petition for judicial review with the court in Edwards County. It's a final check in the process before triggering the Water Transfer Act.
The process has been delayed.
"They have contracted an attorney to file the request for administrative review, and as attorneys do, they are doing their best to try to delay the procedure with every legal trick they can take right now."
The judge had planned on having the scheduling hearing back in September, according to Dougherty. That would have set the schedule of events moving forward.
"That hearing hasn't happened because of some antics by the Water PACK lawyer."
The cities believe WaterPACK has staked out an illogical position.
"They are asking the state essentially to treat Hays and Russell differently than all other water rights holders are treated."
When a water use right is changed, state law requires a certain process be followed. "It's regulatory, it's extremely straight forward and it's very formulaic."
The R9 has approximately 8,000 acre feet of water rights. The consumptive use rights, or yield figured by the state, is 6,756 acre feet annually. The cities voluntarily committed to an average sustainable yield of 4,800 acre feet per year, 30 percent less than they're legally allowed to pump.
WaterPACK claims its research shows the sustainable yield should be less than that.
"They're looking at every trick in the book to stop Hays and Russell's development of the R9 Ranch even though we have the legal right to do this. They're ignoring the fact that the consequences could be enormous if they're successful."
Dougherty says a review of publicly available water use reports shows neighboring landowners near the R9 are not cutting their own usage. "They are pumping every drop they can to grow crops but when it comes to us, [they say] we can't utilize even what's sustainable."
There are only so many procedural delays that can be tried and the judicial review process will only last so long.
"At some point we're going to get to a hearing," Dougherty assured commissioners. "At some point I'm certain that Russell's attorney, Hays's attorney and the state attorney will demonstrate to the judge that all the rules and regulations were followed, as they were. The judge is going to sign off on it. We'll start the transfer process, make it through that, and be successful after that."
WaterPACK is federally registered as a 501 C (6) nonprofit organization.
"However, when we ask for their filing documents to determine why they're a 501 C (6, they 'don't have them,' so we've requested them from the IRS because we'd like to know why they exist, what their reason for non-profit status is."
"We think that it's questionable," said John Bird, city attorney, "and we're questioning it."