U.S. Sen. Jerry Moran, R-Kan., is calling on a federal agency to back off an effort to enforce its water right at Quivira National Wildlife Refuge, a move that has triggered a state response and, most recently, a lawsuit.
For years, Quivira 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 the state’s water law.
In February, the U.S. Fish and Wildlife Service, which manages Quivira, filed paperwork in an attempt to secure its water right, a move that could possibly culminate in shutting off the water for other area landowners.
Kansas’ water law is tied into a concept where the oldest water right holders take preference over newer users and the Quivira right trumps many area landowners by virtue of its age.
But Moran said this could disrupt years of groundwork and jeopardize the future of the region’s agriculture and, by extension, the viability of local communities in the area.
“If the filing of the demand for water is just to move things along, that’s one thing,” Moran said in an interview Friday. “But if it doesn’t go away, there’s a real economic damage to a dozen or more counties in central Kansas.”
Quivira National Wildlife Refuge advocates point to water diversion
Conservation groups have long argued Quivira has still been the victim of junior water rights holders diverting water for irrigation further up Rattlesnake Creek. In 2016, the chief engineer, the top water administrator in the state, agreed after being asked by USFWS to investigate the issue.
Negotiations with area landowners and the local governmental entity charged with overseeing water policy, Big Bend Groundwater Management District 5, have been ongoing for years, encouraged by state and federal lawmakers, including Moran.
“I would encourage our state legislators, the governor and the administration to see if they can’t get the U.S. Fish and Wildlife Service to get back on the page of working our way through the agreement that was struck with the previous director (of USFWS),” Moran said.
In an April letter to landowners, chief engineer Earl Lewis said he had informed the federal government that there needed to be updates to the 2016 investigation before proceeding with their request and that a “durable remedy” would be rolled out in early 2024 to address the issue.
This prompted a lawsuit in Shawnee County District, with Audubon of Kansas seeking to require the state to move more quickly and, possibly, shut off water access for area landowners.
Burke Griggs, a professor of water law at Washburn University School of Law who is one of the attorneys representing Audubon of Kansas in the case, said there was nothing in state law allowing a chief engineer to delay a response in this manner.
“If he can decide which property rights to protect and which property rights not to protect, then our water law is effectively impotent,” Griggs said in an interview last month. “And that’s not the way the law is built.”
Case to involve more than 1,300 water rights holders
Lewis told lawmakers on Tuesday that a supplement to the earlier investigation had been completed, with stakeholders currently able to comment on the proposal. Despite changes to the original calculations, he said the refuge was still being impaired.
In a motion to dismiss the case, Lewis and the Kansas Department of Agriculture argued that Audubon did not have the standing to bring the lawsuit in the first place and that its demands for immediate action were unreasonable.
The case, Lewis said, was the largest of its kind in Kansas history and would involve over 1,300 water rights holders, five times the number in Kansas’ next largest impairment case.
“(Audubon of Kansas’) suggestion that administration should just happen ‘immediately’ by the turn of a spigot at a moment’s notice is ludicrous,” the motion said. “The scope and scale of this water right administration is unlike anything that has previously occurred in Kansas.”
Read More: Jerry Moran calls for federal government to back off on Quivira refuge