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  • Writer's pictureMyndee Lee

Taking a Step Back to Move Forward: Kansas Supreme Court Remands Water Case for Further Examination

We are pleased to share an update on a seminal water rights case our team has been working on. In a noteworthy decision by the Kansas Supreme Court, a case pending before the Kansas Supreme Court involving the Cities of Hays and Russell, Kansas and our client the Water Protection Association of Central Kansas (Water PACK) is headed back to the district court as the result of a motion we filed with the Court.

The case has arisen in conjunction with the Cities’ attempt to obtain regulatory approval to transfer water from a location in Edwards County called the R9 ranch via a pipeline to serve as a supplementary source of water for the respective cities. Water PACK and another client, Edwards County, Kansas, seek to limit the amount of water that the Cities can transfer contending that the volume the Cities propose to transfer is in excess of their needs and will have a seriously detrimental effect on existing irrigation rights. The Cities successfully obtained an order at the administrative level approving their request to change the permissible use of the R9 water from irrigation to municipal use. The now remanded case before the Supreme Court involves an appeal by Water PACK from a decision by the district court that confirmed that administrative determination.

Without raising the issue before the district court, the Cities for the first time on appeal argued that Water PACK and its members lacked standing to object to the change of use order. Standing is a legal concept that requires an entity to show that it, or in this case Water PACK’s membership, is presently aggrieved or adversely affected by the agency action or may be in the future.

Because the Cities failed to bring that issue to the attention of the district court, no factual record was developed that would allow the Supreme Court to adequately analyze the standing question. That omission prompted us to file a motion asking the Kansas Supreme Court to return the case to the district court for additional fact-finding or, alternatively, to allow us to supplement the existing record to demonstrate Water PACK’s standing. The Supreme Court chose to remand the case to the district court for an evidentiary hearing.

We are delighted to have the opportunity before the district court to show conclusively that Water PACK members are at substantial risk of harm under the terms of the change of use order as it is presently constituted.

The opinion can be read here.

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