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Osage Co. judge set to rule on Enid condemnation; entire Kaw Lake pipeline possibly at stake

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PAWHUSKA, Okla. — An Osage County judge is expected to rule on the city of Enid’s attempt to take a landowner’s piece of property for its long-planned water pipeline, after a final day in court saw respective legal teams remain diametrically opposed in closing arguments.

District Judge Stuart Tate could also rule on the necessity of the city’s entire Kaw Lake water project, which defense attorneys had pointedly objected to in three days of hearings in the Pawhuska courthouse, in exception to a report from three court-appointed appraisers.

Commissioners in August 2020 had decided to allow the city to proceed with constructing the pipeline by paying Merrifield $47,700 as compensation, as permitted under Oklahoma’s eminent domain statutes.

“We think the city has the legal right to condemn the property for the pipeline,” Enid City Manager Jerald Gilbert said Thursday afternoon, “and so we’re believing that the judge is going to issue a ruling soon that confirms that.”

The city’s condemnation attorney, Danny Williams, previously said he expects Tate to also lift an injunction preventing city workers from entering the property to start construction if he rules in the city’s favor.

The city has been in a legal tête-à-tête with Dr. James Merrifield for two years to condemn two 50-foot easements on his 200 privately owned acres, through which the first leg of the 70-mile pipeline would be built.

Kaw Lake map

This map from design firm Garver shows the span of the Kaw Lake Water Supply project from Kaw Lake’s intake site, through a 70-mile pipeline, to a water treatment plant in Enid.

The retired Ponca City orthodontist said he believed a lot of people living in Enid don’t want the expense of the pipeline. He also said people don’t realize that the city is making $1 million to $1.5 million a month from the sale of water to Koch Industries, whose fertilizer plant uses millions of gallons of water a day.

“I am sure at this moment and (in) the recent past that the Enid population doesn’t know it’s been duped as much as they have,” Merrifield said afterwards Thursday. “They have really had the wool pulled over their eyes, from a financial standpoint.”

Both legal teams argued Thursday that presented evidence was “absolutely clear” that the city either does or does not have a legal right to condemn Merrifield’s property — and that long-planned water pipeline project, as a whole, is or is not an attempt to make money by selling the water to Koch.

“There has been no evidence that (the pipeline is) not for a public purpose,” Williams said Thursday. “There is no evidence that it is unconstitutional. There is no evidence we are peddling water to third parties for purely economic purposes. This is done because the citizens of Enid in future years will need another water source.”

Defense attorney Brad Hilton argued that the city’s $300-plus million project was not only unnecessary, but unsubstantiated on nothing but “future hope.”

“If this is all it takes … there’s no reason to file an exception (to a condemnation) in the future,” he said. “Then I’m not sure it’s possible to ever suggest that anything is not a public necessity.”

Experts who testified Thursday on behalf of the defense presented evidence that neither Enid’s population nor the need for water is likely to increase in the future, or that the city’s current wells can’t already supply the needs of its residents.

Well house 1 AE

A city of Enid-operated well house, located off Oakwood, is shown Dec. 30, 2021, one of 25 wells completed in the Enid Isolated Terrace Aquifer. (Alexander Ewald / Enid News & Eagle)

Enid’s population is almost exactly the same as in 1980, and water tables in the five Northwest Oklahoma well fields Enid draws from are somewhat higher than 40 years ago, Tulsa environmental geoscientist Bert Fisher told the court that morning.

Aquifer water levels from 2018 showed “remarkably stable profiles” similar to levels from 1980, Fisher testified with charts he had drafted with the city’s water table data, which was provided by Hilton’s law firm and through the Oklahoma Water Resources Board.

Actual water use has trended down since 2012, during which Western Oklahoma faced a severe periodic drought, Fisher said.

220101-news-top 10 economy 3 BH.jpg

Cranes stand tall as the expansion of Koch Fertilizer continues east of Enid in 2021.

A 2009 commissioned report serving as Enid’s water system master plan asserted that the city would need another source of water, as levels in Enid’s current well fields were generally declining long-term, faster than calculated recharge rates.

However, Fisher said over two-thirds of daily water level data points were based on flawed data, as the firm in charge of the study, Guernsey, had included data from around 28,000 daily well field levels that had been initially collected as late as two years prior.

“The data overall is really in terrible condition,“ he said. “But in a data set that is that contaminated by bad information, I would find it hard to rely on that data set at all. … I would not want to sponsor an opinion based on that information.”

Enid’s then-engineering director, Chris Gdanski, Gilbert and Utilities Director David Hunter had testified last month that they had not read the entire 112-page report, instead only summaries or exhibit slides.

Hilton also said Koch Industries has been the “cash cow,” paying the city 20% of profits from annual average water sales but using 40% of the city’s water supply for its fertilizer plant located outside city limits.

“Enid has cleverly tried to make this not look like they are a branch of Koch Industries,” he said. “And it’s all just a scheme so the city of Enid can fill its pockets.”

Two 20-year agreements approved last spring hold that the city will sell Koch potable water at a fluctuating rate and industrial at 50 cents per thousand gallons, increasing 2% annually.

Williams, in a rebuttal, then countered, “Enid makes money. That is not illegal. And it doesn’t change the purpose of the waterline.”

Williams said it was not the city’s legal burden to prove the necessity of the pipeline, but that it had followed proper condemnation procedure under state statute.

“The four times, five times we’ve been here, we’ve never talked about the purpose of the waterline,” he said. “It’s always this implication that we’re in cahoots.”

Williams pointed out that Gilbert and other city staff had earlier testified under oath that Koch was not part of pipeline discussions nor had privately funded the project, and that the facility would not be connected to the pipeline’s distribution system.

Both Koch Industries and the Osage Nation have publicly stayed out of the two-year legal dispute. The Nation’s attorney general previously declined to respond to Merrifield’s allegations to the News & Eagle last month.

A spokesperson for Koch also told the News & Eagle last week that the company has remained uninvolved in the pipeline project.

“Koch has never taken a position, and our POV remains the same today as it did when the city put this project on the ballot,” communications director Rob Carlton said in an email Jan. 3, referring to Enid’s proposition passed in 2016 that increased the city’s sales tax rate to help fund the pipeline.

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Ewald is copy editor and city/education reporter for the Enid News & Eagle.

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