Hays, Russell sue Edwards County over efforts to block water transfer project
Hays and Russell are suing Edwards County over regulations they argue are targeted at their proposal to draw groundwater from the R9 Ranch in Edwards County for their residents. ()
Two western Kansas towns are accusing a neighboring county of interfering with their efforts to pipe in water for their residents to battle frequent drought and contamination.
The cities of Hays and Russell last week filed a lawsuit against Edwards County over zoning regulations they argue target their plan to draw groundwater from the R9 Ranch in Edwards County to supplement their municipal water supplies.
Hays and Russell's lawsuit says their current supplies are "highly susceptible to drought and contamination" and calls their plan to pipe water from the ranch one of "existential importance."
According to the lawsuit, Edwards County has opposed the R9 Ranch project from the outset.
"The county's opposition to the cities' project is based on the unreasonable assertion, which is contrary to Kansas law, that groundwater on the R9 Ranch belongs to Edwards County residents, or more precisely to a few farmers with irrigation wells near the R9 Ranch," the lawsuit says, adding that Kansas law says all water belongs to the state.
Hays city manager Toby Dougherty said even without Edwards County's history of opposition to the cities' project, the regulations would be illegal. But coupled with their distaste for the project, "It's not hard to discern the intent."
"It's not hard to discern that this is just a blatant case of NIMBYism for a project they don't like," Dougherty said.
NIMBY is an acronym for "not in my backyard."
Edwards County's attorney, Mark Frame, declined to comment, saying the county was still reviewing the information in the lawsuit.
"We're taking that under advisement," he said, "and we'll go from there."
Hays and Russell, like most of arid central and western Kansas, are easily stricken by drought. Both cities' municipal water supplies rely on the Smoky Hill River and Big Creek, which have seen periods of minimal or no flow, according to the lawsuit.
Realizing it would one day need to supplement its existing water sources, Hays bought the R9 Ranch, which lies more than 70 miles away, in 1995. Russell soon thereafter bought a stake in the ranch. The cities evaluated other options for years before determining in 2014 that drawing water from the R9 Ranch was their best option, Dougherty said.
Since the cities bought the R9 Ranch, the lawsuit argues, Edwards County has taken a number of steps, against Kansas law, to keep Hays and Russell from completing the project.
In 1996, Edwards County established a five-member planning commission made up almost exclusively of individuals opposed to the R9 Ranch project, the lawsuit says. One member, according to the lawsuit, said in a public meeting about the purchase of the ranch that Hays and Russell "might get this water someday, but not before I have exhausted every resource to keep you from it."
The following year, the commission adopted zoning regulations requiring a permit from the county to develop land in unincorporated parts of the county for uses other than agricultural or single-family residences. In its preamble to the regulations, the county says land uses aside from agricultural and residential purposes "in most cases, are not appropriate" outside the county's larger towns.
"The stated 'purpose and intent' of the conditional use permitting system makes the county's plan to bar the cities' project plain," the lawsuit says.
The regulations prohibit new water supply well fields unless the county's board of zoning appeals finds it will not adversely affect neighboring properties.
The lawsuit notes that some of the members of the county commission and planning commission are nearby property owners "who have repeatedly — albeit unsuccessfully — alleged that use of their properties will be 'adversely affected' by the cities' project."
Dougherty said Hays and Russell waited to challenge the 1997 county regulations, opting to first ensure their plan would clear state regulatory hurdles. He said as they prepared the lawsuit over the 1997 regulations earlier this year, Edwards County added more roadblocks to their zoning codes.
According to the lawsuit, the county in April adopted more zoning regulations "in its unrelenting and most brazen effort to date to outright prohibit the cities' project."
The new regulation, according to the lawsuit, prohibits permits from being issued for a "water supply project" that would cross a county right-of-way or county-owned property.
"This provision is an outright prohibition on the cities' project because the pipeline to transport water from the R9 Ranch to the cities must cross several county roads between the R9 Ranch and the Edwards/Pawnee County line," the lawsuit says.
Dougherty called the regulations a county-level version of the state law that governs water transfers, "except they made it much more cumbersome, much more complex and almost impossible for us to comply with."
Edwards County adopted the regulations after a state hearing officer earlier this year sided with Hays and Russell in a regulatory process to transfer the water from Edwards County.
That decision still faces another level of review by a state panel, which is subject to further litigation from critics of the cities' project who are challenging the makeup of the panel.
