Greg Shipe, owner of Davenport Orchards & Winery, 1394 E. 1900 Road, is one of many Kaw Valley farmers concerned about a new water district's ability to use eminent domain laws to pump groundwater from the valley between Lawrence and Eudora. Shipe says the law shouldn't allow the district to condemn property to gain water rights. The Kansas Supreme Court is set to decide the case.

The future of 1.2 billion gallons of groundwater in the fertile Kansas River Valley soon will be decided by the Kansas Supreme Court.

An attorney for area farmer and vintner Greg Shipe said Friday that the Supreme Court has agreed to hear a case that challenges a new water district’s ability to use eminent domain laws to pump groundwater from the valley between Lawrence and Eudora.

“At the end of the day, we’re seeing a water supply district that is somewhat of a rogue, somewhat of a black sheep,” said Burke Griggs, a Lawrence lawyer specializing in water law. “This has never been done before in the state.”

Shipe and other area farmers argue that the law doesn’t allow the water district to condemn property for the purposes of obtaining water rights.

The water district disagrees. Todd Luckman, an attorney working on the case for the water district, said the district clearly had the ability to use eminent domain to install water pipes, pump stations and other infrastructure. Luckman said using eminent domain to obtain an easement to drill a well should be no different.

Supreme Court justices will decide the case, although a date for a hearing hasn’t been set. The state’s highest court grabbed the case before it could be heard by an appeals court. Douglas County District Court Judge Robert Fairchild sided with the water district in April.

Griggs said the case could have major significance for eminent domain law across the state, but Shipe is contesting it mainly because it could have major implications on his future agricultural operations.

Shipe grows grapes and other produce as part of his Davenport Orchards & Winery. He said many farmers in the valley are interested in establishing truck farming operations that would grow fruits and vegetables. Those crops, however, likely will need irrigation to survive the Kansas weather.

Shipe thinks the amount of water the district is seeking would make it impossible for farmers to switch over to the new types of agriculture operations.

“The term that is used is dewatering the valley,” Shipe said. “We basically would have to go to dryland farming, and the value of the property would just go through the floor.”

Shipe and Griggs believe the water district should seek available water rights from the Kansas River, although that water may be more expensive to treat.

Water district leaders, however, have said they are clearly within their rights to seek the groundwater. That’s because the district is not seeking to take any water rights that currently are assigned to area farmers. Instead, the district is seeking to prove that the area has additional water that is not currently being used.

Attempts to reach Larry Wray, chairman of the wholesale water district and the leader of Douglas County Rural Water District No. 5, were unsuccessful. But previously, Wray has said the wholesale district is seeking the new water to ensure its member districts have enough water to serve households for the next 50 years.

The wholesale water district was formed by Douglas County Rural Water Districts No. 5 and No. 2 and by Osage County Rural Water District No. 5. The water pumped from the valley would be used in parts of southern Douglas County, and areas in Osage, Franklin and Shawnee counties. None of the water would be going to users in the valley, which is another point of contention for area farmers.

Griggs said he’s also concerned that the wholesale water district will ship the Douglas County water to quickly growing Johnson County. He said the amount of water the district is seeking from the valley – three permits that would allow for pumping of about 3,600 acre feet per year – seems excessive.

“If they only use a third of that, they could sell about 2,000 acre feet outside the district at whatever rate they see fit,” Griggs said. “That’s water speculation.”