photo by: Adobe Stock

Aerial drone view of solar panels at a solar energy generation farm at Sunset in South Wales, UK

Updated at 3:51 p.m. Friday, May 3

In the fall of 2020, there was an urgency in the Douglas County Courthouse about flooding.

A building roughly the size of a football field — home to the offices of a sod shop — had been built in the rural area north of North Lawrence, sparking concerns that other big buildings would follow and that the flat ground would become even more flood-prone than it already is.

So, in lightning-speed time — by government standards — county staff had created and county commissioners had approved stringent stormwater standards for much of the rural area north of North Lawrence.

Just a little more than two months had elapsed from the approval of the sod shop building to the creation of the new regulations.

Then, urgency hit a roadblock: a bureaucratic mistake.

The county’s staff failed to complete the final step in the process for the regulations. The resolution that county commissioners approved on Nov. 18, 2020, called for the regulations to be added to the County Code, which is the legal document that lists the multitude of regulations that individuals and businesses must follow on any number of matters.

Inserting the regulations into the code would give them the sharpest teeth possible and, from a more practical standpoint, it would be the easiest way to ensure that builders of future projects knew the regulations existed. Architects, engineers and others frequently consult the code as they develop projects.

Instead, the section of the code meant to house the stormwater regulations sat empty on the county website that houses the online version of the code for more than three years — until earlier this week, when the county added the regulations to the code after the Journal-World inquired about the regulations’ absence.

“It was an error that the code was not updated,” county spokeswoman Karrey Britt said in an email response on Tuesday to Journal-World questions.

It is an error that could have major ramifications for the proposed $234 million Kansas Sky Energy Center, a massive utility-scale solar farm that would occupy approximately 600 acres of land in the area north of North Lawrence.

Opponents of the project — who have objected to it, in part, over concerns that its 237,000 solar panels will create area flooding problems — are now questioning whether the County Commission’s approval of the solar project should be set aside due to the error.

“It is a legitimate question to ask whether the entire project should go back to square one,” said Nancy Thellman, a former Douglas County commissioner who lives in the rural area and has been a vocal opponent of the solar project.

photo by: Shawn Valverde

This site north of Lawrence is the proposed location of the Kansas Sky Energy Center solar project.

To start the approval process over would mean that the developers of the project — a subsidiary of Shell Energy that is working on behalf of the regional electric utility Evergy — would have to go all the way back to the Lawrence-Douglas County Planning Commission for a new public hearing. The project then would have to go to the Douglas County Commission again for a new hearing before that body. A restart would add months to the project. The last County Commission meeting on the project, by itself, lasted nearly 10 hours.

It is a step that may need to be taken, though, if the county wants to comply with its own process for approving conditional use permits, which is the type of permit that county commissioners approved for the Kansas Sky Energy Center project.

One of the mandated considerations for the County Commission in approving conditional use permits is to consider “whether the proposed use complies with all applicable provisions of these regulations,” which refers to the county code.

The question that hangs over the project now is: How could the County Commission — or its advisory body, the Planning Commission — meet the obligation of determining whether the project complied with regulations, when some of the required regulations were never listed in the code to begin with?

In other words, do you have to first be aware of the regulations before you can determine whether a project complies with them?

But that is not the only question now attached to the proposed solar project. The Journal-World also asked the county whether the solar project would be required to meet those stormwater regulations approved in 2020. While the solar project has received approval for its conditional use permit, that approval is contingent upon the developers submitting a final stormwater management plan for the solar project. Britt, the county spokeswoman, essentially said the project would not be required to comply with the county’s approved stormwater regulations.

“The scale of this project will require a completely different technical approach,” Britt said via email.

However, it is unclear what authority the county has to simply exempt the solar project from the county’s approved stormwater regulations. The first sentence of the approved regulations states that conditional use permits “must meet this standard to control stormwater runoff from impervious surfaces within Maple Grove watershed,” which is a technical name for the area in which the solar project is proposed.

The resolution that created the regulations contained no specific provision for an exception to the regulations.

Attempts to get more information from the county have not yet been fully successful. The Journal-World on Thursday morning asked for a follow-up interview with county officials to inquire about both the county’s authority to exempt the solar project from the regulations, and also for the county’s view on whether the error that left the regulations unpublished was fatal to the CUP approval process. The county has not yet made an official available for an interview.

The county at about 10 a.m. on Friday provided an emailed response that partially answered some questions that the Journal-World shared Thursday evening with the county via email. In that Friday response, the county said it believes that the stormwater plan that will be approved for the solar project will meet the intent of the 2020 approved stormwater regulations.

Britt, the county spokeswoman, also said in the emailed response that the county believes the ultimate stormwater plan for the solar project will be more stringent than what was possible under the 2020 approved stormwater regulations. She said the 2020 regulations are “not adequate for a project of this scale.”

The county said its determination is that the conditional use permit for the solar project met the county’s prescribed approval process. The county doesn’t believe the solar project needs to start the process over, and the county contends the 2020 approved stormwater regulations simply don’t apply to the project.

However, the county did not point to any provision — neither in the county’s general code nor in its specific solar regulations — that nullifies the plain language of the 2020 stormwater regulations. Those regulations state all conditional use permits in the Maple Grove watershed — which everyone agrees the solar project is in — “must meet this standard to control stormwater runoff…”

Instead, the county pointed to a provision in the solar regulations that lists the types of stormwater documents that must be included in the application materials for a large-scale solar project. The part of the solar code the county pointed to does not place any requirements on how the county must review stormwater issues, but rather merely identifies which documents must be submitted for an application to be accepted. The provision is silent about the approved 2020 stormwater regulations.

Opponents of the project said the county’s approach to the stormwater issues has been emblematic of the entire approval process for the solar project.

“It is the same as them not using any of the other information, studies and master plans that they have,” said Ted Boyle, president of the North Lawrence Improvement Association, who has argued North Lawrence is at severe risk of increased flooding as a result of the solar project being built upstream of the city. “They have not adhered to any of it at all.

“They have just bullied and pushed this solar farm in here.”

Thellman, who was on the County Commission in 2020 when the stormwater regulations were approved, said the failure to publish the regulations was a “really serious wrinkle in this whole process.”

“Publishing this material years later — after (the newspaper) made the county aware of it — is a problem,” Thellman said.

But she contends it has been one of many problems in the approval process.

“That is one of the things that has been so troubling about this project,” Thellman said. “It seems to have taken a special, privileged path from start to finish to clear the way for it to move forward.”

photo by: Kansas Sky Energy application

The boundaries of the Kansas Sky Energy project are shown. Also shown are soil types in the project. Areas shown in red are soils that are rated to have high stormwater runoff potential.

Thellman said this project should be one that the county should have processed in a manner that is beyond reproach because of its size and impact on the countryside. The project would add nearly 8 million square feet of solar panels to the Kansas River valley. From a size standpoint, that is the equivalent of about 4,000 homes that are an average of 2,000 square feet in size.

While few people contend the solar panels would create the same stormwater impact of that many homes — the ground beneath the solar panels won’t be covered in concrete, for instance — there has been disagreement over how much stormwater runoff the project will create.

An investigation by the Journal-World last month reported that the county does believe the solar project will increase the amount of runoff that currently exists in the area, but county officials contend the runoff can be managed with a few detention basins and other methods. But the county engineer — a stormwater engineer by training — acknowledged that if the county is wrong in its assessment, it would create significant new flooding risks for North Lawrence, given that essentially all water from the solar project that is not able to be absorbed into the ground will flow through the developed portions of North Lawrence.

“If this were a small, insignificant project, you might think bad process, no harm done,” Thellman said. “But it can’t be said enough times that this is the biggest project that Douglas County has ever taken on.

“If ever there was a project to give extra scrutiny and the highest requirements, this would be it,” Thellman said.