Kansas Supreme Court examines roiling water dispute between crop irrigators and Hays, Russell

The Kansas Supreme Court is considering complex legal arguments about whether Hays and Russell can divert aquifer water from Edwards County to supplement its own supply despite attempts by rural agricultural irrigators to block the pipeline project. The cities want to begin drawing on water rights purchased in the 1990s. (Submitted)

TOPEKA — The Kansas Supreme Court endured a crossfire of claims and counterclaims Monday about whether an association of Edwards County irrigators can try to thwart plans by Hays and Russell to make use of water rights acquired decades ago to pipe water drawn from a rural aquifer to the cities.

Attorney Daniel Buller, representing the two cities, urged members of the Supreme Court to view the protracted legal battle through the lens of state law. He said transferring a large amount of water from an aquifer by pipeline to the cities rather than using the resource to grow crops was acceptable under the black-and-white text of Kansas statute.

He made the point by delving into a section of law declaring “nothing herein shall be construed to prevent the granting of applications because the proposed diversion may cause the water level to be lowered at the point of diversion.”

Kansas Department of Agriculture lawyer Stephanie Kramer as well as attorney Charles Lee, who represented the group of crop irrigators who filed a lawsuit to challenge the project, added their own insights to a case tied to the holy-grail subject of individual water rights in Kansas.

The litigation recognized the growing risk in Kansas, amid evidence of climate change, of relying heavily on slow-to-recharge aquifers to run crop irrigation systems to artificially inflate corn, wheat and soybean yields. The case highlighted the challenge of cities with less-reliable rainfall that want to anchor economic expansion to availability of water. It demonstrated the difficulty of state regulators striving to harmonize statute, regulation and court precedent.

Buller said common sense as well as state law recognized use of a water right would lower the level in an aquifer. In a lower court proceeding, he said, opponents of the water infrastructure project sought by his clients in Hays and Russell offered testimony that indicated the cost of the cities’ withdrawal of water was unlikely to raise operating costs of agriculture users in the county for at least 50 years.

“In this case, they’ve not alleged that another water right cannot be satisfied,” Buller said. “Without that, there is no impairment.”

Lee, representing irrigators who formed the Water Protection Association of Central Kansas, said the so-called WaterPACK opposed the project contemplated by Hays and Russell. The Edwards County Commission took specific action to block diversion of water to the two cities.

Lee said existing law and regulation was sufficient rationale for the Supreme Court to dismiss the Department of Agriculture water resource chief engineer’s “master order” allowing Hays and Russell to begin work to funnel water to both cities from their 7,000-acre R9 Ranch in Edwards County.

He argued the net result of the cities’ plan to consume water approximately 80 miles from wells in Edwards County would reduce recharge of the aquifer. The conversion of the ranch from crop to grassland use would cut the volume of moisture redeposited in the aquifer, he said.

WaterPACK claimed Hays and Russell would ultimately slash the aquifer level, increase well pumping costs, shrink crop yields and upset the county’s quality of life. An estimated 85% of water diverted from ground and surface water sources in Kansas was used for agriculture, including irrigation.

Lee said Department of Agriculture engineer Earl Lewis’ order would systematically replace statutory and regulatory requirements relative to water use with standards invented by the agency. He said the chief engineer’s order should be vacated by the Supreme Court.

“The master order authorizing the cities’ water transfer ignores reality and bypasses critical regulatory safeguards,” Lee said during oral argument Monday before the state Supreme Court. “By doing so, it threatens the long term viability of the aquifer and the property rights of WaterPACK members.”

The legal triangle was completed by Kramer, who addressed the Supreme Court in defense of the order issued by Lewis. She said WaterPACK lacked standing as an association to challenge to state engineer’s order. She said WaterPACK failed to demonstrate harm in the sense Edwards County irrigators would not be able to fulfill their water rights if Hays and Russell began pumping from the R9 Ranch. WaterPACK’s claims were the stuff of fiction, she said.

“WaterPACK has failed to allege that harm to its members will be caused by the approval of these change applications because it seeks to impose impairment and consumptive use standards that simply don’t exist,” she said.

Six justices of the state Supreme Court — minus Chief Justice Marla Luckert still recovering from a stroke in October — were called upon to read a pile of district court records and appellate briefs and listen to oral argument in an attempt to sort out the tangled perspectives and issue an opinion.

In the mid-1990s, Hays and Russell purchased the R9 Ranch and 32 water rights in Edwards County for the purpose of eventually building a pipeline to supply the drought-prone cities adjacent to Interstate 70. City officials requested permission about 10 years ago to change the ranch’s water use designation from irrigation to municipal. At the Department of Agriculture, Lewis approved the request.

Irrigators in Edwards County filed suit because they were concerned Hays and Russell would take too much water from agricultural pursuits. In 2024, Edwards County revised zoning regulations to block the water transfer. Hays and Russell characterized the zoning adjustments were unconstitutional.

The dispute began in district court, bounced to the state Supreme Court, returned to district court and found its way back to the Supreme Court.

During oral argument on Monday, Justice Dan Biles raised questions of WaterPACK’s claim the city water project would impair irrigators in the association. Justice Melissa Taylor Standridge sought explanation of whether attorneys believed the association had standing to bring the lawsuit.

Justice Eric Rosen, who performed duties of managing oral arguments normally left to Luckert, questioned whether issues raised on appeal were properly considered in district court.