City: R9 Ranch foes show double standard

Margaret Allen
Hays Daily News

Opponents of Hays and Russell developing their 7,000-acre R9 Ranch as a municipal water source are guilty of a double standard, according to Hays city manager Toby Dougherty.

Speaking to the Hays City Commission at its regular work session last Thursday evening, Dougherty said attacks by Big Bend Groundwater Management District No. 5 and WaterPACK, a nonprofit agriculture irrigation lobby, show the state’s water rights rules aren’t being applied fairly.

The $80-million R9 project has been in the works for more than 25 years, with Hays and Russell navigating the state’s complicated legal and regulatory process to develop the groundwater source. The project will pipe water 67 miles from the R9 Ranch in Edwards County to Ellis and Russell counties.

Situated in the middle of irrigation farming country, the R9 has water rights that authorize irrigation quantities of 7,647 acre-feet of water a year, or 6,757 acre-feet for municipal use. But Hays and Russell have voluntarily agreed to sustainable use. That limits actual use by 30% of the water rights to a 10-year rolling average of 4,800 acre-feet to allow aquifer replenishment.

WaterPACK, however, more recently has demanded the cities limit use by 40%, the latest step by the lobbying group and GMD No. 5 to thwart the project.

A lawyer for the opponents said GMD 5 is trying to protect 466 farms that rely on irrigation to generate crop and livestock sales of $198 million annually.

“That’s important, and I understand that,” Dougherty told the commissioners, then added, “but you’re dealing with 35,000 people and a $2 billion economy, and this is the future of their water that they own. This is their water future. We think that’s important as well.”

December deal

Dougherty told the commissioners there is no Plan B for the cities for water.

“This is something the communities own,” he said of Hays’ and Russell’s R9 Ranch. “They didn’t steal it, they didn’t condemn it, they bought it on the open market, water rights and property rights in Kansas. We should be treated like every other property right. We should have the ability to work within the system of Kansas’ water laws and regulations, just like everybody else does. And that’s all we’ve been asking for, is a level playing field.”

Recent events especially play up what Dougherty characterizes as WaterPACK and GMD No. 5’s double standard.

The two in December reached a deal with the U.S. Fish and Wildlife Service in “a sort of détente,” Dougherty said.

Fish and Wildlife for years has pressed the case that irrigators in the GMD 5 with junior water rights upstream are impeding water flow into 22,000-acre Quivira National Wildlife Refuge, thereby impairing the refuge’s senior water rights.

Quivira, a marsh and sand prairie habitat for more than 300 migratory species of birds in the Central Flyway, draws from Rattlesnake Creek subbasin.

The subbasin is one of nine in the 2.5 million-acre GMD 5. By Kansas water law, the state would begin administering the water rights, meaning shutting off the junior water rights, until Quivira is no longer impaired, Dougherty explained.

Millions for a wellfield

The December agreement changes that. GMD 5 now is on track to lobby for federal money to find subsidized flows through the Rattlesnake Creek subbasin.

“There are no impairment claims, current, past or pending, in the area of the R9 Ranch,” Dougherty said. Despite that, “Groundwater Management District No. 5 board, at the request of WaterPACK, voted to make a recommendation to the state to cut our water rights by another 10%, to 40%, saying 30% was not enough.”

“Meanwhile,” he continued, “on the other side of the district, where there is a very clear impairment claim and the chief engineer of the division of water resources has said very clearly that a 30% reduction by irrigators causing the impairment would solve the claim, that’s a nonstarter for the Groundwater Management District and WaterPACK. It’s a nonstarter to cut one drop, let alone 30%.”

As part of the deal, GMD 5 is seeking tens of millions of federal dollars to build an augmentation wellfield that would artificially pump water into the Rattlesnake Creek subbasin and flow into Quivira wetlands, Dougherty said. The wellfield, roughly the same size as the R9 Ranch, would produce about 5,000 acre-feet of water annually, he said.

Short-term fix

That is only a short-term fix, not a sustainable path forward, Dougherty said.

“Our frustration is, if 30% is a good starting point for us, it should be a good starting point for them,” he said.

Worst case scenario over a 50-year period, drawdown at the R9 is 0.8 feet of the aquifer. Drawdown of the augmentation field is 5 feet over the long term.

“If we were irrigating, we could use up to 8,000 acre-feet of water, if we wanted to,” he said. “But we’ve decommissioned the ranch, and put it back to native grass and we’re trying to do the right thing from the stewardship standpoint.”

Dougherty said Kansas has a double standard when it comes to agriculture versus municipal water rights, erring on the side of agriculture.

Delay costs millions

In the latest delay to the project, the GMD 5 and WaterPACK asked for judicial review to challenge the procedures taken so far in what Dougherty called a legal delay tactic. That went to a hearing last Friday in district court in Edwards County, with a ruling expected at a later date.

“We assume the judge is going to rule in our favor,” Dougherty said. “We’re hoping that by mid-summer we can start the water transfer process, and that in itself is a 14- to 24-month process. We’re confident we can navigate that.”

The process has been delayed about 2 1/2 years by all the barriers from GMD 5 and WaterPACK, he said.

“We’re looking at a million dollars, the cost of this delay to the taxpayers of Hays and Russell,” Dougherty said. “When you’re looking at an $80 million project, that’s delayed at least three years, you’re looking at $3 million. We could be looking at at least a $4 million delay just because they’re trying to hold us to unreasonable standards.”

No Plan B

“People really do need to understand, we do not have a Plan B,” said Commissioner Sandy Jacobs. “It’s not like we haven’t looked at every other source that we considered available.

“And the citizens of Hays have been doing so well on conserving water,” said Commissioner Mason Ruder. “The city of Hays has won awards.”

“I would think that they would want to go with this shared sacrifice down there so that this would be sustainable in the future,” said commissioner Ron Mellick.

“Right, there’s a lot of things they could do, if they wanted to,” Dougherty said. “But right now they’re choosing to chase federal tax dollars in order to subsidize people that are causing legal impairment to a senior water right. And the district that is trying to hold us to an unreasonable standard is condoning it.”