By BECKY KISER
Hays Post
The R9 Ranch water case involving the cities of Hays and Russell has been remanded back to district court by the Kansas Supreme Court.
An appeal by the Water Protection Association of Central Kansas, commonly known as Water PACK, was filed Tuesday prior to the public comments hearing in Hays that night.
In an email Wednesday to Hays Post, Myndee Lee, Lee Schwalb, LLC attorneys for Water PACK and Edwards County, wrote that the state supreme court's ruling is in response to a request by her clients.
"The crux of the remand is to determine whether Water PACK and Edwards County indeed possess the legal standing required to pursue the appeal.
"In their brief, the cities of Hays and Russell argued ... that Water PACK and Edwards County may lack the necessary standing to proceed with the case. In response ... [Water PACK and Edwards County] sought the Supreme Court's intervention to remand the case back to the district court for an evidentiary hearing. Alternatively, they requested ... permission to supplement the existing record," Lee wrote.
This development "marks a significant victory for Water PACK and Edwards County," Lee said.
Hays City Manager Toby Dougherty, who testified at Tuesday night's public hearing as did Russell City Manager Jon Quinday, said Wednesday morning he is not worried about the remand.
Dougherty said this is an appeal of a district court judge's decision on the actual master order in the R9 water rights development process. The master order governs the water rights.
There was a legal challenge to that order that was adjudicated in district court. Hays and Russell prevailed in the matter.
That ruling in district court was appealed.
"We filed a motion to move it to the Supreme Court ... because we wanted to get it done as soon as possible," Dougherty said.
Then Tuesday afternoon, Hays and Russell got an order from the chief justice that the Supreme Court is remanding a small portion of that order back to Edwards County District Court Judge Bruce Gatterman.
"The Supreme Court had a question on whether or not Water PACK had a standing in the matter to actually bring the case forward," Dougherty said. "The Supreme Court does not decide on matters of standing. That's an issue that's done in a lower court.
"Essentially what they did is set everything aside, put the proceedings on hold and sent a very specific question back to Judge Gatterman about standing.
"If Water PACK doesn't have standing, then the case goes away. If Judge Gatterman confirms they do have standing, then the proceedings move on as originally planned."
Dougherty said he thought the public comments hearing overseen by Kansas Administrative Law Judge Matthew Spurgin went about as expected.
"I was happy for our comments from Hays and Russell ... the people who spoke had very poignant things to say," Dougherty said.
Dougherty said the comments by the attorneys and public speaking on behalf of Water PACK and Edwards County were filled with "mistruths and twisted logic. We've been fighting [those] since day one."
Attorney Charles Lee spoke for his clients Water PACK and Edwards County.
"We're not opposed in principle. Our objection is to the volume of water the cities seek to transfer," Lee said.
He went on to express concerns about "serious adverse impact to the aquifer over time and a projection that the capacity to irrigate (from the aquifer) will be diminished or eliminated.
Quoting from their own expert, Lee said the groundwater recharge from precipitation on the R9 Ranch under the conditions associated with the proposed transfer would only be about 56 percent of the recharge that was estimated for the historical conditions that existed from 1991 to 2007.
Lee said Water PACK and Edwards County want to share a finite resource important to rural and urban constituencies. "We believe there is a middle ground," he concluded.
John Janssen farms near the R9 Ranch property and is a member of Water PACK.
"When you put that water in the pipeline, it no longer goes into the subsurface as recharge. It disappears completely."
Janssen said he thinks the transfer will happen and he has no problem with that, but he thinks the amount the cities plan to use each year is too much.
There are approximately 7,647 acre feet of water rights for irrigation on the R9 Ranch.
Utilizing consumptive-use calculations, engineers for the project have determined 6,756 acre feet of water will be available for municipal use each year. The cities voluntarily agreed to limit actual use to a ten-year rolling average of 4,800 acre feet.
Janssen thinks that's still too much.
"I wish we'd sit down at the table and figure out that Hays and Russell could live with 4,000 [acre feet] and we could live with that 4,000."
Hays has stopped irrigating the ranch as it gradually converted the land back to a natural state.
Russell City Council member Dustin Madden noted that triggering the water transfer act - which would be for the first time in Kansas in its current form - requires proof that the project will benefit the entire state.
"Our area represents over 35,000 people and a more than $2 billion economy.
"Think about what the loss of that would do to the state of Kansas (if there is no long-term water supply). That right there meets the criteria for benefiting the state of Kansas, to me."
Madden referenced the water conservation measures both Russell and Hays have had in place for years.
"We have exhausted all other feasible options."
Also speaking on behalf of Hays and Russell were state Rep. Barb Wasinger and Eber Phelps, both of whom are former Hays city commissioners involved in the R9 project.
Oral arguments that had been set for September 13 have been removed from the Supreme Court's September docket.
The formal public hearing for the water transfer process is scheduled to start July 19 in Wichita.