PAWHUSKA, Ok so. – The long-planned Enid water pipeline – billed as the costliest construction project in the city’s history – may not be as necessary as city officials have claimed, argued the defense attorneys in court last week.
The legal team representing an Osage County landowner in a multi-year sentencing dispute alleges that the town of Enid’s long-standing financial relationship with the Koch fertilizer plant is the main factor behind the construction of the huge Kaw Lake pipeline, rather than expected increases in water demand or population.
In two days to question the leadership of town hall, lawyers for Dr James Merrifield, a retired orthodontist from Ponca City, made it clear that they did not object to the dollar amount recommended more than ‘one year as compensation for the city to acquire easements on its property. .
Instead, defense attorney Brad Hilton explicitly questioned the town of Enid’s overall need for a new water line Thursday and Friday in Osage County District Court.
âWhat we’re here on is not the exception to commissioners and determining the fairness of compensation. No, what we’re here on is the needâ¦ âHilton said Thursday morning in the courtroom of the Pawhuska courthouse, in response to a relevance objection from the town’s lawyer regarding the questioning of the first.
âAnd it’s simple,â Hilton told District Judge Stuart Tate, âRather, Enid makes wacky water commitments to people and entities.â
City Manager Jerald Gilbert and Director of Engineering Chris Gdanski both said on Thursday they categorically disagreed with Hilton that the project – through the sale of the lake’s water – was primarily aimed at benefit the future use of the Koch Industries plant, located just outside the town of Enid. limits.
“We believe the city has a right to use a prominent estate and has it in this case,” Gilbert said during his testimony, adding that he had never been a part of or been aware of the talks for that. the city receives private funding from Koch for the pipeline.
Enid’s sentencing attorney Danny Williams told News & Eagle on Friday that the state’s eminent domain statutes are clear about the city’s efforts to secure land under which to build its 32-mile pipeline. to 30 inches in diameter.
Kaw Lake is located in Kay and Osage counties with the project water intake site located in the old county. The transmission pipeline then travels 70 miles, crossing four counties to a terminal point in Enid and connecting to a new distribution system.
Williams cited a section of Title 11 of the Oklahoma State Statute, which states that private land can be acquired using a condemnation process within and outside a municipal boundary, and that the sale or the provision of water to any entity outside the city limits is not a defense against exercise of eminent domain.
Whether or not the city’s water supply is currently available, Williams said by law, âThe city has the right to anticipate future water needs. Clear as the day.
Gilbert said he believed the city also had an obligation to sell water outside its municipal boundaries to other municipalities and businesses, designated Thursday as the city of Enid’s service area. .
âI suggest that the city currently has an obligation to sell water, and in our geographic area, which extends beyond the limits of our city,â he said.
Gdanski testified that no water from Lake Kaw would be diverted to Koch because he believed the plant did not have the capacity to treat it.
The town of Enid has a contractual obligation to sell water to Koch Industries, for certain levels of drinking water (treated for consumption, at one of Enid’s two treatment sites) and wastewater. industrial.
Over the past three years, nearly two-thirds of the city’s water has been sold each year to commercial users according to the city’s financial records submitted as exhibits last week – to 39% of entities located in outside city limits, Koch was “by far” the city’s largest commercial water user, Hilton said.
Koch’s annual payment amounts to the city of Enid doubled between 2013 and 2020, as the amount of water sold to Koch fell by a third, the city of Enid’s chief financial officer said on Friday, Erin Crawford, reading a provided spreadsheet on Koch’s water use history. .
Gilbert confirmed that Enid’s municipal authority municipal trust collects more than $ 1 million per month in revenue from the sale of water.
He also confirmed he was involved in a new legal deal written with Koch earlier this year, which he said sought to resolve a disagreement between the two sides last year over levels of industrial wastewater used by installation. This agreement replaced the city of Enid which was concluded around 2010.
The EMA trust is managed by members of the Enid City Commission and has its own budget, with excess funds being returned periodically or annually to the Enid City General Fund, Gilbert said.
On April 21, 2021, the EMA voting body approved a new agreement delivering more than 5,500 gallons of water per minute to a delivery point in Koch.
Shortly thereafter, the town of Enid negotiated a forbearance agreement with the Osage Nation, Gilbert confirmed, saying May’s agreement was specifically aimed at preventing legal action that would cause delays in construction of the pipeline. The deal keeps the city out of an ongoing property dispute between the Osage Nation and the state of Oklahoma over rights to the water in the Arkansas River and its beds, Gilbert explained.
In exchange for the Osage Nation not also suing the town of Enid, the deal also offered two access points for future use by the nation, as well as a payment of $ 1 million, which, according to Gdanski, would be intended to cover potential future infrastructure costs. .
Gilbert said that even though the potential water amounts would be measured in feet-acres, they would be close to an average of 8 million gallons per day on a 36-inch-diameter pipeline running through Osage County.
At an April hearing earlier this year, lawyers for Merrifield also cited the 2020 Supreme Court ruling McGirt v. Oklahoma, which they say prevents the seizure of Merrifield property and other Osage County property by the town of Enid.
The attorneys will appear in court again for a third day on Monday over their report exceptions, which are one of only three pleadings allowed in the Oklahoma sentencing hearings, along with the original motions and demand for ‘a jury trial.
Hilton said Monday’s Osage County hearing will include two defense witnesses: a water rights expert and a financial analyst who reviewed the city’s financial records.
He said he believed the two would strongly challenge last week’s testimony.
âA big part of what we’re doing is setting the stage for Monday,â Hilton said after the day one hearing.
Williams, the city’s sentencing attorney, said on Friday he would challenge this week that the defense withhold the names of their witnesses, as is usually done in the process of finding a case.
Williams said the city’s condemnation petition for Merrifield’s land easements, filed in January 2020, was the longest lawsuit he’s worked on for the project.
Hearings last week followed several years of legal disputes for the Town of Enid, including a request for a declaratory judgment in 2019 to prevent the town from condemning the Merrifield property; an unsuccessful attempt to transfer Judge Tate; and several motions requested that the hearings be continued or postponed to a later date.
With an attempted restraining order, Merrifield had objected to the city entering its property in 2017 during the first attempts to survey the land.
For the past two years (and dating back to 2017), the town of Enid and Merrifield have been stuck in a legal deadlock – in which several related cases were brought to the state level – regarding the acquisition of easements on its three lots in eastern Osage County. for the city’s long-standing water pipeline.
Another temporary injunction successfully implemented in October 2020 prevents the city’s contract workers from entering to begin on the pipeline until its sentencing dispute is resolved.
The independent court-appointed commissioners had assessed in August 2020 $ 47,700 the city would have to pay Merrifield to acquire a 50-foot permanent easement and a 50-foot temporary construction easement on its 200-acre property for the pipeline, in accordance with to the state law on the eminent domain. .
Budgeted at about $ 317 million in total, the Lake Kaw Water Supply Program is the largest infrastructure project in the history of the Town of Enid. In addition to several loans from the Oklahoma Water Resources Board, the project is also funded by a ??% increase in sales tax and a ??-100 prorogation both adopted by Enid voters in 2016.
Construction has already started on the project bookends, the initial intake site in Kaw, and the new water treatment plant, but work on the actual pipeline is not expected to begin until next spring. , said the engineering contractors.
The Town of Enid has yet to acquire six of the 230 plots of land required for the pipeline portion of the project, including Merrifield.