Past comments create new questions about why 2020 stormwater rules aren’t being applied to solar project

photo by: Chad Lawhorn/Journal-World

High voltage electric transmission lines run through a farm field near the site of the proposed Kansas Sky Energy Center. Developers of the solar project say the presence of the lines is one of the reasons the site would work well for the project.

In late 2020, Douglas County commissioners were told by their engineer it would be “tough” for big development projects to meet new, special stormwater regulations created for the rural area north of North Lawrence.

Now, less than four years later, that very area is the proposed site for the Kansas Sky Energy Center project, which with nearly 8 million square feet of solar panels on 600 acres is the largest development project ever considered by the county.

The tough stormwater regulations did nothing to dissuade the developers of the Kansas Sky Energy Center from selecting the flat farmland of northern Douglas County as the site for the massive project.

One reason why: The Kansas Sky Energy Center project hasn’t yet been required to meet the 2020 approved stormwater standards.

The county contends the solar project is not required to meet the 2020 standards, but it is unclear what legal basis the county has used to determine the project is exempt from the standards.

The discovery of the 2020 comments by County Engineer Chad Voigt also has created questions about whether the Kansas Sky Energy Center project would be able to comply with the 2020 regulations.

The county’s most recent answer is that the final stormwater plan for the solar project — which is still being crafted — “will meet and exceed the limited standards” approved in 2020, the county said via email on May 3.

But that wasn’t the county’s first response to the question. On April 29, the Journal-World asked the county via email whether the Kansas Sky Energy Center project would be required to meet the stormwater standards approved in 2020. The county’s response on April 30, in its entirety, was: “The scale of this project will require a completely different technical approach.”

The county did not start saying the solar project would “meet and exceed” the 2020-approved standards until after the Journal-World submitted a list of follow-up questions that began inquiring whether the county had violated its own codes by not requiring the solar project to meet the 2020 stormwater regulations — potentially nullifying the county’s approval of the Kansas Sky Energy Center project. On Monday, opponents of the project filed a lawsuit that argues the Kansas Sky Energy Center’s approval should be revoked because the county didn’t follow its prescribed approval process.

The county has not yet explained the difference between its April 30 and May 3 answers. The 2020 standards are technical in nature, and thus if the Kansas Sky Energy Center project is taking a “completely different technical approach,” it seemingly would be out of compliance with the 2020 standards.

The county’s May 3 response that calls the 2020 standards “limited,” also has a much different tone than what Voigt was telling county commissioners when the special stormwater standards were approved. The Journal-World discovered those comments after recently listening to hours of audio recordings of County Commission meetings from late 2020.

In October of 2020, county commissioners were contemplating whether to approve the new stormwater standards. One concern was that the new standards, inadvertently, might send a signal to developers that there was a path to build large projects in the Kansas River valley. A majority of county commissioners, at the time, generally were against the idea of large-scale development in the valley.

That’s when Voigt told commissioners that he didn’t think the stormwater standards would open any new door for large-scale development. In fact, they might close a few.

“The good thing is it would be very hard to do large-scale infiltration,” Voigt said in 2020 of the proposed stormwater standards. “This standard will be tough.”

Following the discovery of those comments, the Journal-World on May 6 asked Voigt via email for clarification. Does Voigt currently believe the 2020 standards wouldn’t adequately protect the area from stormwater runoff generated by the solar project? Or, does Voigt believe it would be infeasible for the Kansas Sky Energy Center project to meet the 2020 standards?

Voigt never responded to the question. Instead, a county spokeswoman responded via email and said the county would not answer that question or approximately 10 others the Journal-World had posed about stormwater issues.

“Douglas County will have no further comment until the stormwater plans and study for the Kansas Sky Energy Center are available for public review,” spokeswoman Karrey Britt said via email on May 6.

Voigt also made other comments in the Oct. 28, 2020, meeting that are creating questions about the solar project today. Voigt told commissioners that if a large project was proposed for the Kansas River valley area, and the project was not able to meet the 2020 stormwater standards, there would be a path forward for such projects, if commissioners were interested in approving the project.

That path forward would involve telling the project — an industrial park was the example used in 2020 — that it must pay for key pieces of stormwater infrastructure that the 2005 North Lawrence Drainage Study identified as key improvements. That study said a large $11 million pump — in 2005 dollars — was needed near the TeePee Junction on U.S. Highway 24/40 north of the city, if any large-scale development were to happen in the rural area north of North Lawrence. Voigt said the plan would be to employ a strategy of “development paying for itself” if developers chose to build in the river valley.

“It was real clear that the diversion pump that was needed at Highway 24 was the sort of cornerstone of being able to develop farther north,” Voigt told commissioners in 2020. “If somebody came in and said we want to put an industrial park up there, the fallback, I think, is then you need to put this infrastructure in place to offset that impact. The county isn’t going to do it. The township is obviously not going to do it. The city would need it.”

That is not the approach that the county has taken with the solar project. The county has refused to ask the Kansas Sky Energy Center project to pay even a portion of the cost that would be needed to build the recommended pump at TeePee Junction. The county is now saying the pump is not required for further development of the river valley. The Journal-World asked the county why it was taking a different approach than what was contemplated in 2020. The county has not answered the question.

In fairness, no one was contemplating a 600-acre solar farm project for the Kansas River valley when the stormwater regulations were approved in 2020. Also, the question of whether the 2020 regulations would be better than whatever the final stormwater plan will be for the Kansas Sky Energy Center project is an open question.

Additionally, while the solar project has drawn a large number of opponents, it also has a large number of supporters. Supporters have said the project would help Douglas County do its part in battling climate change by producing large amounts of clean, renewable energy. When completed, the project would produce enough electricity to power about 30,000 homes, the developers have said.

Some supporters have said the concerns about stormwater problems with the project have been much ado about nothing. They point to comments from the developer of the project, Savion, that contended the solar project would actually reduce the amount of stormwater coming off of the 600-acre site because many of the tilled farm fields would be planted with permanent vegetation that would do a better job of absorbing and slowing stormwater. As a result, Savion did not propose any stormwater detention basins to collect rain water coming off the solar panels.

But Voigt, the county engineer, has long since rejected that analysis. While Voigt said the idea of new vegetation improving the stormwater runoff situation has validity, he said Savion was overestimating the type of vegetation it would be able to grow and maintain on the site, and was failing to account for how much the construction project would compact the soil of the site, which would negate many of the benefits of the vegetation.

Voigt told Savion in early February that “stormwater storage will be necessary throughout the project.” The final stormwater plan for the project — which must receive approval from the County Commission before construction can begin — may well include enough basins to detain all stormwater from the solar project.

The County Commission has placed a condition on the solar project’s permit that the final stormwater plan must demonstrate that the solar site will produce no net increase in stormwater runoff. In other words, the plan should show stormwater flooding won’t be any worse than it already is in the area.

That idea of no net increase in stormwater runoff is also a key requirement listed in the 2020-approved stormwater standards. For that reason, some have argued that there’s no need for the solar project to meet the 2020 standards. However, the 2020 standards also list nine other technical conditions that must be met, many of which the county’s current permit for the solar project is silent on.

The 2020 regulations may become an issue in a lawsuit that Grant Township and several other parties have filed against the county. That lawsuit, which is seeking a reversal of the county’s approval of the solar project, lists stormwater concerns in its legal complaint. Bill Skepnek, a Lawrence attorney for the plaintiffs, told the Journal-World in a brief interview that he was very aware of the issues regarding the 2020 stormwater regulations and whether they should apply to the solar project.

He said that issue may become a larger part of the lawsuit against the county as the case progresses.


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