While local news media have focused upon the potential economic impact upon irrigators within the Rattlesnake Creek Drainage Basin, related to the impairment of Quivira National Wildlife Refuge's senior water rights, one important issue that has been overlooked is the role that water conservation will play in resolving this issue. Rattlesnake Creek has its headwaters […]
While local news media have focused upon the potential economic impact upon irrigators within the Rattlesnake Creek Drainage Basin, related to the impairment of Quivira National Wildlife Refuge's senior water rights, one important issue that has been overlooked is the role that water conservation will play in resolving this issue.
Rattlesnake Creek has its headwaters in three tributary forks that originate southeastern Ford, northwestern Kiowa, and north-central Kiowa counties. The creek then meanders through the Kansas counties of Kiowa, Edwards, Pratt (in the extreme northwest corner), Stafford, and, finally, Rice, where it converges with the Arkansas River. The Rattlesnake Creek Drainage Basin, which is only 22 miles wide at its greatest width, also includes small areas of Barton, Clark, Pawnee, and Reno counties.
Along an approximately 92 mile journey to the Arkansas River, the Rattlesnake flows through Quivira National Wildlife Refuge.
Quivira National Wildlife Refuge was established in 1955, following the purchase of lands by the US Fish and Wildlife Service (USFWS) that included two historic salt marshes and salt flats: the Little Salt Marsh and the Big Salt Marsh.
Quivira provides important habitat for migrating waterfowl, shorebirds, and many other species. These birds depend upon the water from Rattlesnake Creek, and the habitat this flow creates, during their journeys south in the fall and north in the spring.
On August 15, 1957, the USFWS filed its initial application to develop a water right on Rattlesnake Creek. This application 'was approved with the issuance of a permit to develop a water right on May 9, 1963' (see 'Quivira National Wildlife Refuge and Water Rights Concerns.')
According to an article, 'Quivira National Wildlife Refuge and Water Rights Concerns,' in the March 2016 issue of The Kansas Lifeline, 'Kansas water right law is based on the doctrine of prior appropriation A water right's priority date is set by the receipt of that water right application's acceptance in the office of the Chief Engineer When all of the water rights of the Rattlesnake Creek Drainage Basin are compared in regards to priority, the water right for Quivira National Wildlife Refuge is senior to approximately 95% of the total.'
Between 1995 and 2000, the USFWS partnered with Rattlesnake Creek Sub-basin water users, including Kansas Department of Water Resources (KDWR), Groundwater Management District 5 (GMD5), and the Water Protection Association of Central Kansas (WaterPACK), to develop an incentive-based, management plan to resolve water resource concerns. This plan was implemented in 2000 when the USFWS, KDWR, WaterPACK, and GMD 5 signed a 12-year agreement that called for water savings of 27,346 acre-feet, with reviews and reports every four years. Unfortunately, the agreement did not yield the hoped for results. A final report concluded that water-use reduction goals were not met due to non-participation in voluntary water-use reduction efforts. In fact, the total amount of water saved during this 12-year period amounted to just 2,804 acre-feet, which is a little more than 10% of the intended goal (see both 'Quivira National Wildlife Refuge and Water Rights Concerns' and Addendum section of 'Resolving the Quivira Impairment.')
Subsequently, on April 8, 2013, the USFWS filed a formal complaint with the Chief Engineer for the State of Kansas, Department of Agriculture, Division of Water Resources (KDA-DWR), which basically said that Quivira's senior water rights on Rattlesnake Creek were being impaired. In December 2015, following a lengthy investigation of the Quivira impairment complaint, the Chief Engineer 'concluded that 3,000 to 5,000 acre-feet of water need to be made available to the wildlife refuge on a regular, annual basis [and that] the remedy to the impairment will include significant reductions of annual pumping limits, augmentation, or both' (see 'Quivira National Wildlife Refuge and Water Rights Concerns.')
In January 2019, KDA-DWR published a report, 'Resolving the Quivira Impairment.' This report noted that for decades the USFWS has 'expressed concern that its senior water right on Rattlesnake Creek in the Quivira National Wildlife Refuge was being impaired by junior appropriators.'
As noted already, the Chief Engineer has determined that Quivira's water rights are impaired. 'Resolving the Quivira Impairment' specifies what needs to happen so that the impairment is resolved: 'KDA believes that an augmentation project, along with modest reductions in groundwater use, averaging approximately 13"15 percent, and 4,400 acre-feet of targeted reductions, will resolve the impairment and protect the region's economy for at least a generation.'
The big issue now is how to get there, as the various parties involved have been unable to settle upon a common course of action.
Thus far, the Chief Engineer and GMD5 have not been able to resolve the impairment issue through a Local Enhanced Management Area (LEMA). A LEMA solution would have to be approved by KDA-DWR, and, according to the KDA report, 'after nearly 18 months of work on the LEMA concept, KDA and GMD5 have been unable to agree on a LEMA plan that resolves the impairment.'
Another option would be what is known as an Intensive Groundwater Control Area (IGUCA). In this case, the Chief Engineer would 'develop an order that will resolve the impairment' based upon 'public hearings and evidence.'
A third solution to the impairment issue is one that would allow little flexibility and likely result in unsatisfactory outcomes for GMD5 irrigators. The KDA report puts it this way:
'With a nearly three-year-old final report from KDA"DWR finding impairment and a clear system of water right priority " 'first in time is first in right' " the court system will likely have very little trouble deciding that a significant number of junior water rights should be shut off to ensure that the senior water right is satisfied. The courts do not have access to the LEMA or IGUCA tools to help soften the effects of priority administration, and may not be inclined to trust that a future augmentation project would relieve some of the impairment. KDA"DWR believes that all parties should work very hard to avoid the court system.'
In the long run, it will be in the best interest of all parties involved to work with the Chief Engineer to create and abide by a plan that will increase surface flow in Rattlesnake Creek. The Chief Engineer is charged with following Kansas water right law and must ensure that Quivira National Wildlife Refuge receive the water due it as a senior water right holder.
Without compromise on the matter, the only alternative may be a more drastic, court-ordered solution in which many junior water rights holders will likely be left high and dry.
For more information about this issue, see the article, 'Quivira National Wildlife Refuge and Water Rights Concerns,' by Douglas S. Helmke in the March 2016 issue of The Kansas Lifeline at https://www.krwa.net/portals/krwa/lifeline/1603/076.pdf. The Kansas Lifeline is a publication of the Kansas Rural Water Association. Also, the January 2019 report, 'Resolving the Quivira Impairment,' may be found at https://agriculture.ks.gov/docs/default-source/dwr-water-appropriation-documents/resolvingthequiviraimpairmentinfopage.pdf?sfvrsn=2d3485c1_0. Other information on the Quivira impairment issue may be found by searching the website of the Kansas Department of Agriculture at https://agriculture.ks.gov/.