By BECKY KISER
Hays Post
After six days of testimony and almost 3,000 exhibits admitted to the record, Hays City Manager Toby Dougherty said things went as well as the Hays and Russell could have hoped for in the recent water transfer public hearing for the R9 Ranch long-term water project.
The hearing before Kansas Administrative Law Judge Matt Spurgin was in Wichita because the Edwards County property is in the Arkansas River Basin.
Hays and Russell want to annually move 5,000 acre feet of their water rights roughly 75 miles north from the ranch to Hays' Schoenchen well field south of town and then east to Russell's Pfeifer well field.
Doing so requires a trigger of the Kansas Water Transfer Act, the first time it will have been done in its current form. Every step of the process is outlined by state statute.
"The reason for the hearing is for the cities to lay out their compliance with the statutes. There are 26 or 27 criteria in the statutes," Dougherty said.
"It's a judicial proceeding, run pretty much like a trial, so intervenors can put on their cases and evidence in support or opposition of the proposed transfer."
Once the hearing is finished, the judge will make a recommendation to a three-person panel, which will ratify it or modify the ruling to become official.
The three-person panel is comprised of the secretary of the Kansas Department of Health and Environment, the director of the Kansas Water Office, and the chief engineer of the Division of Water Resources, part of the Kansas Department of Agriculture.
Although the record is closed, the hearing itself is still open for appropriate commenting agencies to weigh in on the transfer.
Judge Spurgin will reconvene the water transfer hearing Nov. 6 via Zoom for agency comments. Dougherty and the law team for Hays and Russell don't expect a lot, if any, comments.
At that time, presumably the hearing will be closed and the judge has 90 days to issue his ruling.
Then the water transfer hearing panel has 90 days to ratify or modify Spurgeon's ruling.
The final decision will come no later than May 2024 if both the judge and the hearing panel take their fully allotted time.
"We knew that we more than complied with all criteria in the statutes," Dougherty said, reflecting on the lengthy preparation for the hearing.
"We have gone above and beyond in every step in the process to make sure that we are using this water sustainably."
What this process boils down to is a statewide interest test, which is what the administrative judge is ultimately deciding aside from the criteria compliance, Dougherty said.
"Some of the criteria in the statutes are as simple as the cities have to have a plan to bring the water up from the ranch. We do," he said.
"The cities have to demonstrate they've looked at other alternatives. We've been doing that for 50 years.
"The cities have to demonstrate they have conservation measures. We've done that for decades. That we have a rate structure that discourages the waste of water. In Hays and Russell, the more you use, the more you pay."
In many U.S. cities, the more water you use, the less you pay per gallon.
Ultimately, the hearing officer and hearing panel are tasked with ensuring the benefit to the state of Kansas by allowing the water transfer outweighs the benefit by not allowing the transfer.
"We think that's a pretty easy bar to clear, but we cleared it by miles," Dougherty said.
Hays and Russell represent a $2 billion economy that's growing, one of few to do so in northwest Kansas.
"We have every intention of growing into the future, but we need this water to make sure that happens," Dougherty said.
During the June 20 public comment hearing at Fort Hays State University, Brad Kelly, president and CEO of PureField, which owns the wheat gluten manufacturing facility in Russell, said the company is ready to make a $300 million investment to expand the facility and create more than 50 new jobs but that can't happen unless Russell gets additional water.
Considerable opposition to the transfer has come from the Water Protection Association of Central Kansas, known as WaterPACK.
Members and lawyers for the group have said they're not opposed to the water transfer itself. They're concerned about sustainability.
Hays and Russell voluntarily gave up 30 percent of their water rights to assure sustainability, Dougherty said.
"What that means according to our modeler is, after 51 years of pumping our property at the maximum amount at our ranch boundaries, the water level decline that we caused is about 0.6 feet in 145 feet of saturated thickness," he said. "The irrigators around us will cause about nine feet of decline.
"They somehow want to claim that our 0.6 feet of decline will cause irreparable harm to them when they are causing nine feet of decline."
It's been a tedious process, Dougherty said, and he assumes it will be appealed.