Fights lay ahead as the oil industry creeps into the Flint Hills and Douglas County
“This doesn’t really have anything to do with your story,” Cindy Hoedel said, slowing her pickup truck — a 1990 red-and-white Ford XLT Lariat, outfitted with 10-ply heavy-duty tires — to a halt on a gravel road near the Greenwood County line. “But, I mean, look at those wild mustangs. Aren’t they just beautiful?”
Hoedel gawked out the window to the north, where dozens of horses — white horses, tan horses, brown and spotted horses — roamed a fenced-in field. It was a chilly, cloudy afternoon in mid-November, and Hoedel took advantage of the travel break to pour hot coffee from an ancient-looking Thermos into its small steel cap. She took a sip and continued.
“They’re, like, the rock stars of horses. They’re the Rolling Stones, you know? They’ve got these long, mangy tails and manes, and they’ll just stare you down. They’ve never been ridden, so they’re not intimidated by people. Oh, my god, I just love them.”
Hoedel is 56, with an impressive mane of her own — dark, wavy — and blue eyes that bulge when she is stimulated by a topic, which is often. One does not strain to comprehend why she might feel kinship with a wild horse. For 20 years, Hoedel worked as a writer and editor at The Kansas City Star. Toward the end of her tenure there, she favored assignments that took her far from the city: columns on roadside motels, stories about gravel bike races. By the time she was laid off, in September 2016, she had already moved to Matfield Green, a town of 113 people in the Flint Hills. Out here, in central Kansas, Hoedel has not only swapped a condo view for the sight of chickens in the yard; she also has traded the passive and frequently lonely existence of a reporter for self-directed work that’s more collaborative and immediate.
“I was ready to move on to the next thing, and part of the next thing was, I wanted to participate in stuff that for years I was only able to write about,” Hoedel said. “Specifically, political and environmental activism. And I hate that word, activism — that’s other people’s word. But, you know, just action.”
What energizes Hoedel these days is opposition to recent moves by the oil and gas industry in Kansas — specifically, the encroachment on parts of the state long unaffected by drilling and its effects. In January of this year, Hoedel learned that a company called Quail Oil and Gas had applied for a permit to put a wastewater-injection well in the Flint Hills town of Diamond Springs, in Morris County.
Ten years ago, an application for a well permit in Morris County would have drawn no objections. Even three years ago, after man-made earthquakes began to hammer Oklahoma and south-central Kansas at unprecedented rates, it’s unlikely anyone in the Flint Hills would have cared too much.
Then Pawnee happened.
On September 3, 2016, a 5.8-magnitude earthquake rippled out from its epicenter in Pawnee, Oklahoma, and was felt as far away as San Antonio, Texas; Memphis, Tennessee; Fargo, North Dakota; and Maricopa County, Arizona. Kansas City was not spared; the quake caused a crack in the Wyandotte County Courthouse that spans from the roof down to the ground.
Despite being nearly 200 miles north of the epicenter, Flint Hills residents experienced an intense battering, according to Hoedel and others, of more than a minute. Picture frames fell from walls, beds and chairs bounced around, and cracks were later found in home foundations. Before 2012, seismic activity was rare in this part of the country: Kansas averaged only one earthquake a year strong enough to feel. Then they started coming in droves: 115 in 2013 and 2014. Those were small rumbles, mostly, but now they seemed to be gaining strength. And there was an obvious culprit: wastewater-injection wells used by oil companies in the boomtowns of Oklahoma and the southern Kansas counties of Harper and Sumner.
Quail Oil sought a permit to inject as many as 5,000 barrels of wastewater a day deep into the ground in Diamond Springs. Its proposed well lay atop a site where three geologic formations converge: the Bourbon Arch, the Nemaha Uplift, and the Humboldt Fault, which 150 years ago experienced the largest recorded earthquake in Kansas history. The site is less than 100 miles from the Wolf Creek nuclear reactor, and 14 miles from the Tallgrass Prairie National Reserve. It’s also home to a spring, still in use, that has been renowned for the purity of its water since the days of the Santa Fe Trail.
“They called it Diamond Spring because the water is so clear and clean and delicious and sparkling,” Hoedel said. “And now this company wants to dump all this contaminated water into the ground nearby, using this process that we know causes earthquakes.”
In response, Hoedel and a few other like-minded souls in the community mobilized and formed a group called the Flint Hills Stewards. What was initially an effort to protect Morris County from the excesses of the oil and gas industry is gradually evolving into a larger effort across Kansas. It is a well-timed undertaking. The industry is on the move in Kansas, and, as the Flint Hills Stewards and others have quickly learned, almost nobody in the state is attempting to hold it accountable for its actions.
Kansas is less flat in real life than it is in the popular imagination. Yes, the journey from Lawrence to Colorado along Interstate 70 is so flat and monotonous as to be grueling. But Kansas is technically the seventh-flattest state in the union, behind Florida, Louisiana and Delaware. And nowhere in Kansas is the unexpected variance in topography more apparent than in the Flint Hills, a verdant region (roughly 10,000 square miles, from above Manhattan down to the Oklahoma border) home to rocky hills, wildflowers and some of the last remaining tallgrass prairie in America.
After admiring the stallions, Hoedel and I passed Teterville, a 1920s oil town that’s now a ghost, notable for a Stonehenge-like monument that beckons travelers to the vistas that await at the end of the elevated, bumpy gravel road one must traverse to reach it. In November, the view was Texas-like in its vastness and dustiness. Come spring, I was assured, it would again be a prairie bouquet of green, yellow, blue and pink.
A few miles past Teterville, we arrived at a Greenwood County oil site where the Flint Hills Stewards have recently protested an injection-well permit application. I pointed at a well on the property and asked Hoedel if it was the well in question. She shook her head. “That’s just a standard vertical-shaft oil well,” Hoedel said. “Nobody’s worried about those.”
The concern is over injection wells, which come in two varieties. The first are disposal wells, like the one in Diamond Springs. These are for oil companies looking to get rid of the toxic fluids that are a byproduct of conventional drilling or hydraulic fracturing (also known as fracking). Dumping massive quantities of these fluids deep into the earth at high pressure can lubricate fault lines, causing them to slip and trigger earthquakes. The other kind of injection well — the kind that’s been proposed for the Greenwood County site — is known as an enhanced recovery well. These wells are used to dredge up hard-to-access reservoirs of oil that remain after conventional drilling has taken place at a site. This is accomplished by blasting toxic wastewater into shallow rock layers. Whereas disposal wells are linked to earthquakes, enhanced recovery wells are seen as a threat to surrounding bodies of water.
Soon, Susan and Daniel Sykes joined us at the Greenwood County site. A couple in their 60s, they moved from Topeka to Burlington about three years ago.
“We’ve had friends down in this area for 30 years, and so we knew there were wells around here,” Susan Sykes told me. “We even have friends who are in oil. But we were not aware we were moving into oil country. Two years ago, we were driving to get groceries in Iola on this gorgeous sunny day. And I noticed this rainbow bouncing off a pond. We pulled over and had a look, and the water was absolutely full of oil. We’re seeing things like that all the time. You’re driving along next to a creek, clearly in a floodplain, and 3 feet off the creek bed is an oil well. And it’s like, really?”
Experiences like these have compelled the Sykeses to spend large chunks of their free time documenting and reporting oil spills in eastern and central Kansas. They register their complaints with the Kansas Department of Health and Environment, the state agency tasked with responding to oil spills. But permits for new wells are granted by a more obscure body called the Kansas Corporation Commission. If you live in Kansas and you have concerns about an oil company’s disposal well or enhanced recovery well, you take them to the KCC — where, for a variety of reasons, you have almost no chance of winning.
Decisions at the KCC are made by three commissioners, all of whom are appointed by the governor. Each current commissioner — Pat Apple, Shari Feist Albrecht and Jay Scott Emler — owes his or her job to Sam Brownback. The KCC typically approves oil-well permit applications unless it receives letters of protest within 30 days of the company publishing a public notice in a local newspaper.
As Hoedel and others have learned, though, there is a pattern in Kansas of oil companies publishing notices telling the public it has only 15 days to object. The KCC also appears to have been issuing permits after only 15 days — that is, not following its own regulations — in the cases of least 21 recent wells. Fifteen of those wells have applications pending, and the KCC now says it will require the offending companies to re-notice the wells in a newspaper. But six of the wells are already operating and permitted.
“Those six wells are operating illegally, according to state law,” Hoedel says. “I think they should be shut down.”
Linda Berry, a spokeswoman for the KCC, told me that “the matter is currently under review by our agency.”
But even if an oil company gives proper notice to the public, and you happen to read the paper that day, and you mail your protest letter on time — letters can’t be sent electronically, per the KCC’s outdated requirements — the system still favors industry over individuals.
“You write a letter, and the KCC sends you back three pages of dense, intimidating language that says you must follow all these regulations and be willing to testify in 10 days,” Hoedel says. “We thought there’d be some kind of town hall meeting where we could voice our concerns. Instead, at every stage, you’re getting these scary, complex, serious-sounding legal responses from them that seem designed to intimidate you from moving forward.”
Just to get an administrative hearing before the KCC, the Flint Hills Stewards had to start a GoFundMe page to raise $10,000 to pay an attorney and an expert witness to represent them.
“It’s an absurd process where they [the KCC] are restricting participation by residents,” says Joe Spease, chairman of the fracking committee for the Kansas chapter of the Sierra Club. “It’s an enormous expense for ordinary people just to get in front of them [the KCC]. Meanwhile, there’s almost nothing requiring the oil and gas companies to demonstrate that a proposed site is safe.” (The KCC requires operators to meet certain construction requirements intended to ensure that groundwater will not be affected. Berry also says KCC staff conducts an “area of review” study looking for improperly plugged wells within a quarter-mile of the proposed well.)
Finally, there is no statutory requirement that the KCC consider induced seismicity when making decisions. In other words, despite the fact that the U.S. Geological Survey has formally declared that “wastewater disposal is the primary cause of the recent increase in earthquakes in the central United States,” and despite the testimony of James Aber — a professor emeritus of geology at Emporia State University who is familiar with the Flint Hills — that such a well constituted an “uncontrolled experiment” that would increase the risk of earthquakes due to the convergence of fault lines in the region, the KCC commissioners were under no obligation to pay attention. Nor did they heed the urging of a letter addressed to them by 30 state legislators asking them to “err on the side of caution” when considering the application. In the end, they ruled in favor of Quail Oil and Gas.
“They basically pointed to their own regulations that said, unless the protesters can make the case that this well will harm water resources, or you can show that the well constitutes an immediate seismic emergency, the permit ought to be granted,” says Bob Eye, the attorney representing the Flint Hills Stewards in the hearing. “The problem is that the legal and regulatory framework at the KCC just hasn’t evolved to keep pace with the new problem of induced seismicity in Kansas.”
Hoedel puts it more plainly: “They completely ignored the evidence. They said, Well, there haven’t been any earthquakes in Morris County yet. Well, yeah: That’s because there haven’t been any high-pressure injection wells here yet. The past is no indication. There weren’t any earthquakes down in Harper County four years ago, either.”
The first oil well in Kansas was drilled in 1860, one year before statehood came to the territory. Throughout the first half of the 20th century, company towns dotted the landscape. Production peaked in 1956, when the state produced 124 million barrels. It steadily dipped, down to 33 million barrels in 2005.
Then fracking and horizontal drilling came along.
The advent of hydraulic fracturing, or fracking, allowed energy companies to access hard-to-reach reservoirs of oil and gas by blasting water, mixed with other chemicals, underground to break up rocks that stood in the way. Horizontal drilling gave companies the capability to dig miles to the side rather than simply straight down. As these technological innovations came into vogue over the past few decades, Kansas looked poised to benefit from it economically.
And in some ways, it has. Between 2011 and 2013, oil companies invested more than a billion dollars in Kansas, hoping for a boom. Production rose from 35 million barrels in 2006 to 50 million in 2014.
Down in Harper County, property owners were getting huge offers from oil companies to drill on their land.
“For the longest time, it was $20 an acre the oil companies would give you to drill on your land,” says Frank Smith, who lived in Harper County. “Then the boom came, and in 2012, 2013, the offer is $1,000 an acre or even $1,500 an acre. There’s a lot of dirt-poor farmers down here that have been struggling for years raising cattle and winter wheat. They were living a precarious existence. All of a sudden, if you own even a section [640 acres], you’re on your way to being a millionaire. I don’t know anybody who’d walk away from a check like that.” (Smith’s wife, who owned their land, received $1,200 an acre for the 48 acres she owned. They’ve since moved to Oregon.)
The hope was for a North Dakota–like oil rush along Kansas’ Mississippi Lime formation. Brownback, whose signature tax cuts were on their way to being confirmed as the worst policy decision in the history of the state, prayed for the tax dollars a boom would generate. But that didn’t pan out.
Instead of a statewide financial bonanza, fracking created a lot of wastewater, which was then dumped down disposal wells in underground rock formations. In Harper County alone, wastewater injected into disposal wells rose from 10 million barrels in 2010 to 52 million in 2013. This, as we now know, begat seismic activity in the area.
The earthquakes and the damage that resulted from these disposal wells (including a million-dollar repair bill at the Harper County Courthouse) forced the KCC to finally acknowledge, in 2015, that it had a problem on its hands. It used an emergency statute to cap the amount of wastewater that could be disposed, but only in Harper and Sumner counties, where the majority of fracking, and thus wastewater disposal, was occurring. (Brownback did even less: He convened a task force to study the connection between wastewater disposal and earthquakes; the task force found no direct connection.)
Right now, oil prices are low — about $56 a barrel, down from about $100 a barrel three years ago. But they will eventually go back up. Oil is a nearly $3 billion industry in Kansas — which is Koch country, as good an energy-industry insurance policy as a state can have. Judging by permits filed in the central and eastern parts of the state, activity is set to migrate north.
That’s Scott Dawson’s impression, too. A 35-year-old Chase County resident, Dawson spends his days on top of a horse, tending to cattle on a ranch that, as an employee working there, he said he’d rather not name. The ranch also hosts drilling and wastewater disposal wells.
“I’d say the last four years, there’s definitely been a noticeable uptick in this chunk of the Flint Hills,” Dawson told me. “Chase County, Butler County, Marion County. A lot more of my neighbors got a well. You see the rigs going by on Highway 50. You see them building some new road across a pasture to a pump jack or tank battery. Even with low oil prices, they’re still punching holes in the ground — more so than back when we were paying $3 a gallon for gas and oil was high.”
At the ranch where Dawson works, he has observed the cost. Cows turn up “healthy one day, dead the next,” he says, having found their way into a containment area and drunk from a wastewater pit. A month ago, a pressure gauge on a tank failed and blew wastewater 40 feet in the air, visible a mile away. Dawson says he believes it was several hours before anything was done to cap the tank.
“To me, if I owned the ranch, that would be very concerning,” Dawson says. “If you got a saltwater [wastewater] spill that soaks in deep enough, you got a dead spot there forever. And then if it leaches into the groundwater or the aquifers, I mean, hell.”
He continued: “It’s weird to me that a lot of ranchers, who work outside all day and make a living because we have land you can raise a cow on, are like, ‘Who gives a crap?’ about some of this stuff. It’s like, hell, you want to leave something for your kids and grandkids. God’s not making any more land.”
I heard similar sentiments expressed by Sarah Uher, who owns an antiques store in downtown Cottonwood Falls and lives in a 100-year-old home with her husband and kids outside that Flint Hills town.
“A lot of people around here depend on agriculture,” Uher said. Her point was easily made; we were standing in a field, within sight of a big red barn. “If this land becomes contaminated, all that is gone. Same with the water supply. If it goes bad, you can’t haul enough water here to support livestock.”
I had crossed over the Cottonwood River to reach Uher’s house. She noted that, situated as her family is on the other side of town from the river, running water from the city will never reach her family. Her water well is almost literally a lifeline.
“We like to fish,” she said. “We like to swim in the creek. People tube in the river. A lot of people eat fish out of the river.”
There’s also, of course, an economic argument to make in favor of pumping the brakes on oil production in the Flint Hills. Cottonwood Falls, with its quaint downtown and recently rehabbed historic courthouse, is a tourist attraction that generates revenue for the county. Outside of a small aviation company, there’s no other significant industry here.
“We’re on a roll the last five years, with one or two businesses opening every year,” Uher said. “For us, that’s huge.”
This was roughly the argument advanced in the mid-2000s by then-Gov. Kathleen Sebelius, when she established about 5,000 square miles of the Flint Hills as off-limits to wind farms. Brownback expanded that zone more than twofold, to 11,000 square miles. None of this environmental stewardship, though, seems to apply when it’s the oil and gas industry at the table.
As a result, Uher recently had to purchase earthquake insurance on her home, a cost that she and others say amounts to yet another subsidy for oil companies at the expense of ordinary people.
“The Flint Hills lucked out [historically] by having this rocky soil that prevented the land from being tilled and turned into a different ecosystem,” Uher says. “We have some of the last tallgrass prairie left in North America. And now we’re just going to choose to tear up the little bit that’s left? It doesn’t make any sense.”
As long as Kansas’ government remains so hospitable, oil and gas companies will search the state for new places to drill. Even liberal Douglas County, home to deep-blue Lawrence, has felt the tentacles.
Amy Adamson, who owns 15 acres in south Douglas County, returned to her home one day in 2014 and found an oil and gas company setting up shop on her land. The company argued that it had a lease for mineral rights on her property. But that paperwork was a century old — no longer valid, Adamson and her lawyer would argue in court.
John Hampton, Adamson’s attorney, says, “When Amy bought land — what the Kansas Supreme Court has said is, if there’s a lease like that from 1918 and expires and there’s no affidavit of production on file with the deeds office, you have the right to rely on the termination provision of that lease. This one expired in 1923. And in this case there is no affidavit of production on file.” But a judge in Douglas County ruled against Adamson, citing a rationale similar to the one at KCC, putting the onus on citizens rather than on industry.
“What he’s saying is, we had to prove they didn’t have right to be on our property rather than other way around,” Hampton says. “We had to prove they didn’t have a valid lease, rather than they had to prove they did. And that’s the center of this — who has the burden of proof. We believe a landowner just has to prove they own property and haven’t given permission. And it’s incumbent on oil and gas to show their defense of a valid oil and gas lease.” (Adamson’s appeal is pending.)
There are now 177 enhanced recovery wells and two disposal wells in Douglas County, according to the KCC. Another oil and gas company, Midstates Energy Operating LLC, has recently filed applications to build enhanced recovery wells near Eudora. Like other companies in the state, it published an inaccurate 15-day public notice.
The county has no power to deny these permits; that lies with the KCC. But Douglas County administrator Craig Weinaug and Lawrence City Manager Tom Markus wrote a joint letter to the commission asking it to require the company to restart the notice process so that citizens could have adequate time to protest. The KCC agreed.
“We’re not saying all injection wells are bad,” Weinaug says. “Our lens is that the burden of proof is on the KCC to prove this injection well won’t endanger [the] water table or put residents at risk of earthquakes. And we want to know how they are going to reach that conclusion.”
The proposed Eudora wells lie in Douglas County Commissioner Nancy Thellman’s district.
“It’s been an incredibly opaque and complicated process just to even bring these concerns to the KCC,” Thellman tells me. “Even as a commissioner, I have no real power. My conclusion is that our best hope to contain this type of activity is for the legislature to improve regulations around this aggressive drilling, and then hold the KCC accountable to those new regulations.”
The legislature has this power. Other states, such as Ohio, have changed their permitting laws to reflect the growing risk of earthquakes. Though the KCC is appointed by the governor, it must follow rules set by the legislature. Dennis “Boog” Highberger, who represents Lawrence in the Kansas House, says he was “surprised to see injection wells this far north,” meaning Douglas County.
“I think it would be in the legislature’s purview to make it a requirement that the KCC consider it [seismicity] when making rulings,” he says.
Marci Francisco, who represents Lawrence in the Kansas Senate (and is reportedly eyeing a run for secretary of state), says she supports something like a statewide comprehensive plan for oil and gas, carving out areas deemed risky due to fault lines or important for preservation.
“I also think, as these earthquakes keep hitting, the state needs to assess fees overall to allocate for damages,” Francisco says. “The legislature should not be allowing activity that creates property damage without some way to reimburse the individuals who suffer those damages as a result. We do that for drivers. We require them to carry insurance. We have that for workman’s compensation. When we take risks like this, we need to make sure there’s insurance for those harmed.”
Outside her home in Matfield Green, Hoedel scooped her Australian shepherd, Okie, into her truck, and I followed them up Highway 177, toward Morris County. We passed horse stables and rolled-up hay bales. We passed a tire swing swaying in the wind. We passed oil wells gesturing slowly toward the earth like those vintage drinking-bird toys. A deer hopped over one fence, crossed the road, then jumped over another fence. Along the road were barns on which the paint was fading from red to brown, and iron entrance gates to places with names such as Carl Farm and Division Ranch. Then we passed through the gates of Diamond Creek Ranch and followed dirt and gravel roads to Diamond Spring. It’s on private property, but Hoedel had permission from the owner to be there.
In July — after the Flint Hills Stewards raised enough money to pay for a hearing to protest the Morris County well, but before the KCC ruled against them — Hoedel proposed a picnic out here by the spring for everyone involved in the cause.
“It was a hot day, but there was shade, and then this wonderful spring, of course,” Hoedel said. “And my friend Alexa performed a water-blessing ceremony. It was one of those deals where it was like, ‘No pressure, you don’t have to participate in this if you don’t want to.’ But everybody was totally into it: We got in a circle and everybody got blessed or smudged or whatever. It was just so great.”
The spring itself is just a little rectangle in the ground, maybe 8 feet by 4 feet. We bent down, cupped our hands and drank from it. Okie lapped some up, too. Maybe it was the moment or the historical context of the place, but there really did seem to be an unusual purity to this water.
“Right?” Hoedel said, nodding with satisfaction. “I truly think it’s the best water I’ve ever tasted. The irony of that, you know” — that this freshwater spring would be endangered by dirty oil wastewater — “that was just too cruel. That was just too much for us.”