A decades-long battle over water in one of Kansas’ most famous natural areas — and one of its most agriculture-rich swaths — is set to enter a new chapter.
For years, the Quivira National Wildlife Refuge and its allies have maintained that years of irrigation in the Rattlesnake Creek Basin in south-central Kansas have deprived the refuge of water that it needs and is entitled to under Kansas water law.
A federal appeals court earlier this year tossed a lawsuit brought by Audubon of Kansas in a bid to force federal and state agencies to enforce the refuge’s water right, which is believed to take precedence over most of the other landowners in the area.
The refuge has been in years of negotiations with landowners, local units of government that handle water policy and other groups in a bid to find a compromise. But in February, it filed paperwork that could mean dramatic change in how water is doled out in the region, seeking to enforce its water right, which could mean cutting back on water for other area landowners.
Audubon now says state officials are delaying much needed action and has gone to state court in a bid to force regulators to step up to the plate.
“The problem at Quivira is a discreet and local example of the problem across the Ogallala Aquifer,” said Burke Griggs, a professor at the Washburn University School of Law and an attorney for the group, referring to the aquifer that spans much of the Great Plains region.
Lawsuit comes after years of negotiations on Quivira issue
Advocates for Quivira say the problem dates back to the mid-20th century, when water rights in the area were first being allocated — overallocated, some believe.
In Kansas, water law is founded on a principle of “first in time, first in right.” That means that a farmer, group or even a state or federal agency with a more senior water right has priority in situations where water might be scarce.
In recent years, Quivira has been hit by drought — a blow to the thousands of birds, including numerous endangered species, that pass through its territory each year as part of seasonal migration patterns.
The water table in the area has declined slightly in recent years, though the drop has not been as noticeable as in other parts of the Ogallala Aquifer, such as southwest Kansas. But conservation groups argue Quivira has still been the victim of junior water rights holders diverting water for irrigation further up Rattlesnake Creek.
In 2016, the state official charged with overseeing water law administration, dubbed the chief engineer, agreed. After being asked to investigate the matter by the U.S. Fish and Wildlife Service, which oversees Quivira, then-Chief Engineer David Barfield found that pumping upstream “has significantly reduced streamflow available to the Refuge over the years.”
“Since there have been no substantial long-term changes to pumping levels or precipitation trends in the region of the basin closest to the Refuge, it is reasonable to conclude that the impacts to streamflow caused by pumping will continue into the foreseeable future,” Barfield’s report said.
Under state law, once a water right has been deemed impaired, the affected person — in this case, the federal government — could ask the chief engineer to shut off or reduce access for other area landowners in a bid to restore their own water right.
But despite requests by the U.S. Fish and Wildlife Service, this didn’t happen. Once Barfield developed a plan to eventually shut off junior water rights holders, U.S. Sen. Jerry Moran, R-Kan., intervened to spur on negotiations in an attempt to find a solution.
In the view of Orrin Feril, manager of Big Bend Groundwater Management District 5, conversations between stakeholders are where the ultimate solution should come from — not a courtroom.
“My concern is that we’ve been working at this for a while,” Feril said. “We’re nearing resolution of that process, and now we see litigation starting prior to that process concluding. So, the one thing I don’t want to have happen is a distraction from getting to the goal of a durable remedy and being distracted by a court case that, hopefully, would be pointless in the future because the issue has been resolved.”
Advocates seek immediate action from state of Kansas in lawsuit
After years of back-and-forth, however, a solution remained elusive and conservationists argued the problem was only getting worse.
In 2021, the Audubon of Kansas sued in U.S. District Court over the matter. In May, a federal appeals court ultimately ruled that, because an agreement between the wildlife refuge and other entities had expired, it could not weigh in.
All the while, the U.S. Fish and Wildlife Service in February once again filed paperwork with the state to assert its water right.
But the state didn’t take immediate action.
In an April letter to area landowners, chief engineer Earl Lewis said he had informed the federal government that there needed to be updates to the 2016 investigation before proceeding and that a “durable remedy” would be rolled out in early 2024 to address the issue.
To Griggs, the Washburn professor and attorney, this is flouting the law, which he believes requires more immediate action to cut off water access for junior rights holders.
“If he (the chief engineer) can decide which property rights to protect and which property rights not to protect, then our water law is effectively impotent,” Griggs said. “And that’s not the way the law is built.”
Now, in a state lawsuit, the Audubon of Kansas is asking a Shawnee County judge to order the state to deal with junior water rights holders so that Quivira can get the water it needs.
Filed in July, the lawsuit argues “there is no language allowing for delays or postponements in priority administration, because such delay would condone the illegal diversion of water by junior rights holders.”
In a statement, Heather Lansdowne, a spokesperson for the Kansas Department of Agriculture, said the agency couldn’t comment on the lawsuit as it is a pending legal matter. She said the agency is “actively working on plans to address the ongoing impairment of senior water rights in the Rattlesnake Creek basin.”
“At this time, the lawsuit doesn’t have a bearing on our ability to implement a durable solution by 2024,” Lansdowne said. “Water administration action is very complex and it does take time to implement a solution of this magnitude.”
Can a Quivira solution balance local economic interests?
There is one exception in statute to the requirement that the chief engineer must take action to turn off access for those holding junior water rights — and it was developed with the Quivira standoff in mind.
In 2015, lawmakers amended Kansas’ water law to allow junior water right holders to maintain their access if “augmentation,” or securing additional water supply for all landowners, can be achieved is readily available. This option is only available in the Rattlesnake Creek Basin.
Audubon believes this option cannot be quickly or easily arranged, though it has been an idea that has garnered support from local stakeholders.
Feril, the District 5 manager, said all options remained on the table for addressing the issue. That includes augmentation, or drilling wells to pump water into Rattlesnake Creek, but also measures such as retiring water rights in the area.
But simply turning off the water for junior right holders, he noted, would have little immediate effect on the health of Quivira, based off state research.
And such a move could have a major impact on the region’s economy. Stafford County, which includes much of Quivira, would be most impacted by any across-the-board water reduction and has some of the most agricultural land in the state.
“Shutting off the water rights, you immediately inhibit the economic return to the region for minimal gain, if any,” Feril said. “It causes me some concern because in this region, Stafford County specifically, it is a highly rural, ag-centered economy. So, inhibiting the (agricultural economy) causes a really large ripple effect.”
Jackie Augustine, executive director of Audubon of Kansas, said running out of water did pose an existential threat to much of Kansas — requiring preventative action now, rather than later.
“If we talk about rural culture and sustaining rural communities, this is a real threat for the next generation,” she said. “And I don’t want to be the one sitting by and saying, ‘Well, I could have done more.'”
As reported in the Topeka Capital Journal.
