City of De Soto offers water rights settlement
The De Soto City Council has offered an agreement to settle its lawsuit against Sunflower Redevelopment L.L.C. and the Kansas Water Resource Office.
The agreement would carve out
2 million gallons a day for the city of De Soto of water right No. 38, an 8 million-gallon-a-day ground water right associated with the former Sunflower Army Ammunition Plant. De Soto, which operates the ground water plant at Sunflower and is to get title to the treatment plant when it is declared environmentally clean, currently uses about 750,000 gallons a day.
The city filed suit in Kansas District Court in Topeka last year seeking to overturn the Kansas Water Resource Office's decision to give water right No. 38 to development partners SRL, to whom the Sunflower was transferred in 2005.
In its lawsuit, the city viewed water right No. 38 as an anachronism of Sunflower's production days and said the right should be abandoned and reassigned with demonstrated needs. It also cited a Kansas statute former Rep. John Ballou shepherded through the Kansas Legislature when Oz Entertainment Inc. was negotiating for Sunflower, which reserved for the Legislature any transfer of the Sunflower water rights. The statute required the water rights be returned to the state and terminated or held in trust by the state while specifically forbidding the Kansas Water Office (a different agency from the Kansas Water Resource Office, which actually assigns water rights) from assigning, transferring or disposing of the water rights.
De Soto obtained a 125.-million-a-day junior water right to No. 38 in 2001 when the water resource office determined its diversion of water from the Sunflower well field for municipal use wasn't compatible with its defined use at the munitions plant. In the agreement that will eventually deed the water plant to De Soto, SRl agreed to honor that junior right but also stated it might seek water right No. 38.
Nonetheless, De Soto city officials saw the water resource office's decision to transfer water right No. 38 to SRL as a constraint on obtaining future water rights because the state agency would have to view No. 38's remaining 6.75 million gallons a day as allotted no matter that De Soto was actually the only entity using water from that right.
Although the Kansas Water Resource Office responded to the city's lawsuit, SRL never did. Instead its representatives asked to work with the city to come to an agreement. City Administrator Pat Guilfoyle said the SRL developed the framework of the agreement the city council unanimously supported last Thursday.
In addition, to the 2-million-
gallon-a-day allotment from water right No. 38, the city is asking SRL, Kansas University, Kansas State University and Johnson County Parks and Recreation - the entities with ownership rights to No. 38 with De Soto because parts of the Sunflower plant will be transferred to them - and the city of Olathe to agree not to drill a well in an area designated by the city of De Soto for the next 21 years.
City engineer Mike Brungardt said the protected areas would be the well field associated with the city's old Shawnee water plant and a well field south of the Kansas River and west Riverfest Park tied to water right No. 38 and the Sunflower water treatment plant.
Brungardt is proposing the city not ask for protection for the well field north of the Kansas River that is part of water right No. 38. The city currently does not use those wells, and it would be expensive to rehabilitate them. Should the city want to get water from the north well field it would also want to ensure the water line from them under the Kaw was in good condition, which could be an expensive proposition, he said.
Olathe has expressed interest in drilling wells north of the river, Brungardt said.
The De Soto City Council approved the settlement agreement one week before it is to have a once-delayed water workshop on the future of its water department. To be discussed is refurbishing the Sunflower water treatment plant and the option of purchasing wholesale water from the city of Olathe.
City officials said De Soto would benefit from the agreement with either decision. Obviously, De Soto would control its water rights and well field should it continue producing water.
Should the city enter into a wholesale arrangement with Olathe, De Soto could transfer its water rights to that city while retaining the right to take them back should it decide in the future to once again start producing water.
Moreover, the city would be able to assign those rights to the southern Sunflower well field even if it wasn't used during the time De Soto purchased water from Olathe, Brungardt said.
The 2 million gallons a day available from water right No. 38 and the 320,000 gallons a day available from the city's old well field that supplied the Shawnee water treatment would suffice for the foreseen build out of that part of the city served by the city water department, Brungardt said.
One of the reasons the city is exploring a wholesale water purchase agreement is the limitations on growth of its customer base. De Soto growth areas to the west and south are served by Johnson County Rural Water District No. 6.
In recommending the settlement agreement to the council, Guilfoyle, City Attorney Pat Reavey and Brungardt said it offered the city more than it had and put it in a better position should water right No. 38 be abandoned.
It gave 2 million gallons daily of senior rights, protection of its well field and greater ability to secure added rights should t