By BECKY KISER
Hays Post
The frustration was clear on the faces and in the voices of Hays city commissioners and City Manager Toby Dougherty as they discussed the status of the R9 Ranch project - the long term water supply for Hays and Russell - at the end of Thursday's work session.
The cities, joint owners of the 7,000 acre ranch located in southwest Edwards County, have been waiting 17 months for a judge's ruling in an administrative review of the application to convert the irrigation rights of the ranch to municipal use for the cities.
Hays and Russell filed a change application on the water rights with the Kansas Department of Agriculture’s Division of Water Resources (DWR) in June 2015.
That lengthy process culminated in a master order issued in March 2019 from the DWR chief engineer.
"It says here's how much you can use, here's how quickly you can pull it out of the ground, here's where you pull it out of the ground, and here's any other limiting things that I wanted placed on it," Dougherty reminded the commission during a quick review of the process.
In June 2019, WaterPACK (Water Protection Association of Central Kansas), an irrigator advocacy group, 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.
"Essentially what they said is the state didn't follow proper rules and regulations in order to get the master order granted," Dougherty said.
" ... We filed as an intervener ... Obviously the state of Kansas, Department of Agriculture, Hays and Russell argued that we not only followed the rules, but they followed the rules to the letter of the law.
"The judge held a hearing in January of 2020 and we have been waiting essentially 17 months for the ruling."
Due to the quantity of water and the distance it will be transported for its new use, the project requires approval under the state’s Water Transfer Act. It would be the first time it is triggered.
Chief Judge Bruce T. Gatterman, of the 24th Judicial District which includes Edwards County, is the judge reviewing the petition.
Commissioner Shaun Musil asked if Dougherty could talk to the judge on behalf of the city about the delay.
"I have been advised by our attorney that it's not proper for me or them to reach out and talk to a judge while they have a case under advisement," Dougherty said. "It's probably not advisable for you (commissioners) to reach out as a representative of the city."
Musil said the stalled ruling affects more than Hays and Russell. Ellis and Victoria are interested in utilizing the water supply.
"This is gonna help us all grow. You know if we get this water, we're always going to conserve the best we can. How long do we have to wait to go forward?" Musil wondered.
Dougherty said lawyers have told him that "taking this long on a ruling is unprecedented."
"I don't know why it's taking so long. I've had no communication with the court. ... I'm biased, but we think this is a pretty cut-and-dried case."
Mayor Mason Ruder noted the longer the ruling is delayed, the more the project cost increases. He pointed to the current inflation rate which is the highest in 40 years.
Dougherty estimated the total project cost has increased 30 to 35 percent since 2018 "just because of the legal, procedural delays in this process."
"It's just unacceptable," said Sandy Jacobs, commissioner.
She asked Dougherty to communicate with the city's attorneys again to see if there is any other legal maneuver to find out the status of the ruling and to alert the judge to the increasing cost.
The water project attorney is David Traster of Foulston Siefkin in Wichita. Daniel Buller, a Foulston Siefkin attorney in Kansas City, works with Buller on the matter.
Dougherty was also tasked to reach out to legislators, including Hays Representative Barb Wasinger and U.S. Sen. Jerry Moran, a former Hays resident, for assistance. He will also talk to the state department of agriculture counsel "and figure out where they're at."
"I think it's so ridiculous we're still waiting almost two years now," Musil added.
Once the ruling is issued, there still remains a two-year regulatory process to go through - the Water Transfer Act itself - and then the design and construction of the approximately 70- mile water line from Edwards County to Ellis County.
"I think we can do some design concurrently with the other regulatory process," Dougherty said, "but it's hard to recommend to you to spend six or seven million dollars on design when we're not through this process yet."
"It feels like we're being held hostage," Jacobs said. "I don't like that."
Commissioner Reese Barrick, director of the Sternberg Museum of Natural History, in an earlier meeting said the region is likely going into a drought cycle.
The drought cycle is what prompted Hays to move forward with the R9 Ranch project.
"It was the 2011 through 2014 drought that made the commission of Hays and the Russell city council say it's time to make this happen," Dougherty recalled.
"Last year we had water, water everywhere," Jacobs said. "It begins to get frightening again."
There is an appeals process for the city if the judge were to rule against it.
Barrick asked if the city could file for compensatory damages if it were determined the WaterPack petition was submitted to intentionally delay the water project.
Dougherty wasn't sure.
"I think the difficulty would be that this is an administrative proceeding. I'm not necessarily sure that this is a plaintiff-caused delay as much as the hearing itself is not being ruled on in a timely manner. I think the burden of proof would be was that there was a knowledge of that."
It's another question Dougherty will ask of the cities' water project counsel and report back to the commission at a future meeting.
The R9 Ranch, which has been converted to grassland, has been owned by Hays and Russell since 1995.