WICHITA — A battle over water has been brewing for a long time in Central Kansas and is not over yet. 

In the end, it may hinge not on the right to pump, but how much can be pumped.

The most recent hearing over a proposed water transfer by the communities of Hays and Russell began July 19 and ended July 28 in Wichita District Court. At the hearing before Kansas Administrative Law Judge Matt Spurgin, both sides collectively offered an estimated 3,000 pages of new exhibits. A significant percentage of the documents were developed by, or relied upon, the parties’ respective experts.

At issue is the communities’ right to transfer a combined annual total of 6,756.8 acre-feet of water more than 70 miles via pipeline, from a well field located in Edwards County. The communities have had joint ownership of the ranch for more than 20 years, since Hays purchased it at a cost of $4.3 million in 1995. Russell has an 18% interest in it. The communities maintain that the ranch was purchased as a long-term sustainable source of water that would contribute to both cities’ economies. The cost to build the pipeline is now estimated at around $130 million, up from an original estimated cost of about $75 million over that time span.

The water transfer process began in 2015, with the communities’ seeking permission from the state to transfer the water. An application was made to the Kansas Division of Water Resources the following year. 

According to state law, however, transfers of more than 2,000 acre-feet of water per year or over a distance of more than 35 miles must first demonstrate that the transfer would benefit the entire state of Kansas as spelled out by the Water Transfer Act. The communities’ proposal would be the first time that the WTA — in its current form — would be triggered.

Water PACK’s involvement

While Edwards County officials first protested Hays’ purchase of the ranch in 1995, primary opposition has come from a group concerned with water conservation in the region. The Water Protection Association of Kansas, a non-profit organization of agricultural producers and businesses whose mission is to promote, foster and encourage the beneficial, economical and sustainable use of quality water resources, maintains that the communities’ proposal is based upon want, not need. The transfer as proposed would adversely affect the water supply of the region.

“If the cities’ water transfer application is approved, the cities would be limited to withdrawing an average of 4,800 acre-feet annually over a 10-year period,” noted Chuck Lee, chief attorney for Water PACK. “One acre-foot of water equates to 325,851 gallons of water. Over 10 years, that withdrawal rate equals approximately 15.6 billion gallons of water.”

Lee noted that the 4,800 acre-foot figure was a limitation imposed by the state’s Chief Engineer as a condition of approving the cities’ earlier application to change the intended use of R9 water from irrigation to municipal.

“That was not a condition voluntarily offered by the cities,” he said.

Lee noted that Hays used 1,792 acre-feet of water in 2020 and Russell used less than 1,000 acre-feet. That means that the proposed 4,800 annual withdrawal is more than 2.5 times the cities’ water needs.

During the hearing, “Hays failed to present any current evidence of projected water needs,” Lee said.

Lee added that according to expert testimony offered by Water PACK during the hearing “the transfer, if approved, would increase impacts to groundwater levels by five times or more in places near the ranch boundary as compared to decreases predicted by the cities.

“That is so because the recharge rate will be significantly diminished as compared to the recharge rate when the ranch was irrigated,” he said.

While the organization is not opposed to water transfer, the amount of water in the transfer as submitted by their experts would be no more than 2,600 acre-feet per year. “That’s more in line with what they’ve been using,” he said.

A decision to be made

Judge Spurgin will reconvene the hearing Nov. 6 via Zoom for agency comments. At that time, the hearing will be closed and the judge will have 90 days to issue his ruling. The judge will make a recommendation to a three-person panel, which will ratify it or modify the ruling to become official. The 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.

The final decision will come no later than May 2024 if both the judge and the hearing panel take their fully allotted time.