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Serving: KS
Rattlesnake Creek flowing through Quivira National Wildlife Refuge at Little Salt Marsh Photos by P.J. Griekspoor
UNIQUE GEOLOGY: Rattlesnake Creek flows through the refuge at Little Salt Marsh — one of only a few inland salt marshes in the U.S.

Dispute over water rights unfolds in central Kansas

Clash pits irrigated farmers and the businesses that support them against Quivira National Wildlife Refuge.

Editor's note: This article is first in a series examining the clash over water rights in the Rattlesnake Creek Drainage Basin.

One of the most intense clashes over water in decades is unfolding in the Rattlesnake Creek Drainage Basin in central Kansas, where farmers have been notified that the Kansas Department of Agriculture’s Division of Water Resources has a plan for administrative action to reduce irrigation pumping to satisfy an impairment complaint.

The clash pits local communities and area irrigation farmers — who feel their livelihood is at risk — against the Quivira National Wildlife Refuge, an area of 22,135 acres that is home to a rare and unique ecology of inland salt marshes, shallow wetland pools and prairie-grass-covered sand dunes — an ecology that is threatened if deprived of adequate flows of incoming water from Rattlesnake Creek.

Irrigators got a reprieve on Oct. 21 when DWR Chief Engineer David Barfield announced that U.S. Sen. Jerry Moran has obtained assurance from the U.S. Fish and Wildlife Service that the refuge will not issue a request for water in 2020 in order to provide more time to get an agreement that will avoid  administrative reductions.

The area is part of the High Plains Aquifer, which includes the endangered Ogallala Aquifer farther west. The region itself has plentiful groundwater, a good recharge rate and average annual rainfall of 20 to 25 inches. However, the sandy soil tends to dry out quickly. Irrigated agriculture has become a way of life and is the economic engine that supports rural towns, school districts and businesses that support agriculture.

Quivira is a key resting point for migratory birds in the Central Flyway and has attracted an abundance of birds and wildlife for centuries. It annually celebrates the arrival of dozens of endangered whooping cranes, along with tens of thousands of their more plentiful cousins, sandhill cranes, in the spring and fall migration seasons. It attracts hundreds of species of other wildlife and is a popular spot for bird-watchers, wildlife lovers and nature photographers.

Birds flying over the grass-covered sand dunes that make up the land of Quivira National Wildlife Refuge
GRASSLAND BIRDS: Birds fly over the grass-covered sand dunes that make up the land of Quivira National Wildlife Refuge. The refuge is home to hundreds of species of wildlife. 

The refuge was designated in 1957, well before irrigated farming was common in the region, and FWS holds Kansas Water Right File No. 7,571 — easily one of the most senior water rights in central Kansas. It is a surface water right that allows Quivira to use 14,632 acre-feet per year to maintain the refuge’s two big marshes and a labyrinth of smaller wetland pools.

The farmers are calling the current dispute a battle of their livelihood versus the rights of a bunch of cranes and other birds. The Division of Water Resources says that is not the case.

“This is actually a dispute about a senior water right versus junior water rights, and the long-standing Kansas law that says ‘first in time is first in right.’ That law does not have a mechanism to factor in economic wins or losses, or a rating of which right is most beneficial,” says Chris Beightel, DWR Water Management Services Program manager.

The Rattlesnake Basin is within the boundary of the Big Bend Groundwater Management District 5. District Manager Orrin Feril says he doesn’t like the “farmers vs. birds” argument. “I don’t think it’s a battle for who survives and who doesn’t,” he says. “My position is that we need to work to find a solution that allows both the refuge and irrigated agriculture to flourish in this region. I am convinced that we can find a solution.”

Voluntary measures haven’t worked

Water flows at the refuge were not impaired until center-pivot irrigation took hold in the 1970s and boomed in the ’80s and ’90s. Managers at the refuge noticed a drop in the amount of water flowing into the refuge, especially during dry years, and appealed for help addressing the issue.

In 1993, DWR, FWS, Big Bend Ground-water Management District 5 (GMD 5), and the Water Protection Association of Central Kansas (WaterPACK) formed the Rattlesnake Partnership to develop solutions to water resource concerns.

After several years of hydrologic study and public outreach, the partnership developed the Rattlesnake Creek Management Program in 2000. From 2000 to 2012, the partnership worked to find an answer, evaluating its progress every four years in 2004, 2008 and 2012.

Quivira aimed for more efficient use of water in its 10 main wetland areas. “We had some areas that were very deep,” says refuge manager Mike Oldham. “We did some contouring work to try to make them more shallow so they didn’t need to hold as much water.”

Farmers agreed to reduce pumping by removing pivot end guns and moving some fields to dryland production. But at the end of 2012, evaluations determined that the measures taken had accomplished very little, Oldham says. “I think we got about 10% of the reduction we needed. It just wasn’t enough. We asked DWR what we could do, and we were advised to file an impairment complaint with the chief engineer, and that’s what we did.”

Feril said GMD 5 and WaterPACK disagreed with the 12-year evaluation and declined to sign it.

After an investigation of almost three years, Barfield published his findings Dec. 2, 2015. He concluded the impairment was valid, and between 3,000 and 5,000 additional acre-feet of water needed to be made available to the refuge on an annual basis.

Proposals rejected

In 2016 and again in 2017, GMD 5 submitted proposals to FWS to settle the impairment complaint through agreement. Both were denied. A letter of explanation can be found on the KDA website.

Next, the district attempted to form a local enhanced management area (LEMA), where irrigators would voluntarily reduce usage. The district also proposed the development of augmentation wells to pump additional water into Rattlesnake Creek to increase flows into the refuge.

“We have strong research that suggests that we could develop wells in the area south of the refuge where the groundwater has the same salinity as the water in the creek as it nears the refuge,” Feril says. Adding surface water from the groundwater, especially in dry years, “would actually make the chemistry of the water entering the salt marsh more consistent.”

He says augmentation is a part of the LEMA plan developed by the district, and he believes it holds the most promise to resolving the impairment.

District officials and irrigators alike expected the LEMA to be approved, but on July 30, Barfield rejected it, saying it did not contain sufficient enforcement measures. Citing the failure of previous voluntary efforts to bring about the use reduction needed, he determined an administrative remedy was necessary to resolve the impairment and protect the basin from possibly more severe court action.

 Grasses surrounding a pool of water in the Quivira refuge
SALTY ENVIRONMENT: Grasses surround a pool of water in the Quivira refuge. Such salt marshes and pools are often only found in coastal areas. The unique geology of the region comes from underground deposits of minerals that are picked up as water percolates to the surface and is carried into the refuge by Rattlesnake Creek, where seven diversion points allow the refuge to keep ponds filled. 

An appeal to Secretary of Agriculture Mike Beam was immediately filed, asking to stay the administrative order and review the LEMA rejection. That appeal was denied because the orders had not yet been issued and there was legally nothing to stay. The review of the LEMA rejection is still in progress.

At the October meeting, Barfield urged GMD 5 to move quickly to implement the augmentation plan. He said he can’t promise there won’t be a need for mandatory reductions, but hopes augmentation could make those reductions smaller.

Beightel says DWR has not closed the door to allowing a LEMA to be implemented to end the administration, but the GMD 5 will have to show it can fully satisfy the impairment and will have to have mandatory, measurable reductions in use with a robust enforcement framework.

“We want to be as flexible as we can. We don’t want to hurt anyone,” he says. “We are being as creative as we can possibly be within the law to help farmers adjust. And that is the key thing. It is going to get done; the only question is how do we adjust to it to have the least possible economic impact.”

Beightel says the complaint filed by the refuge and its handling has been done in the same manner as any other Kansas water right — according to Kansas Water Law, which specifies that the senior water right “first in time” is “first in right.” Junior users can be reduced and even curtailed if they impair a senior right.

Feril says the district is not willing to see mandatory pumping reductions without first trying augmentation because it has peer-reviewed, scientific studies that indicate it would be a sustainable and satisfactory remedy to the impairment.

“I think it unreasonable to take an action that will certainly cause economic harm without at least trying something that holds significant promise,” he says. “We believe that one reason prior reductions in pumping haven’t worked is because the problem is not caused by a drop in the water table. The Kansas Geological Survey has determined that the basin is within 2% of being stable for 250 years. And the area most impacted in Stafford County is within 0.5% to 1% of that 250-year mark. The water table is full and quickly recharges, and that’s why reducing pumping hasn’t worked. We need to address the streamflow, and we can do that.”

cattle with irrigation system in backgound
ECONOMIC ENGINE: Irrigation is the economic engine that supports families, livestock, towns, schools and businesses in central Kansas. Irrigators fear the economic repercussions if their allowable pumping rights are reduced. They are fighting to find an alternative to direct administration of rights. 

 

Water dispute affects refuge-community relations

Mike Oldham, director of Quivira National Wildlife Refuge, says the dispute over water rights has changed the relationship between the refuge and local residents.

“We’ve had school districts cancel field trips for students,” he says. “Our rangers aren’t invited to do presentations. We still buy our supplies locally, but when we go into town, we no longer feel welcome. It’s not entirely the business owners who don’t want our business, but their other customers are hostile. When we go out in the community, we know right away who likes us and who doesn’t.”

It’s a hard position to be in for the wildlife biologists, conservation specialists and park rangers who once enjoyed a warm welcome in local communities and saw school buses regularly pull into the Visitor’s Center loaded with schoolkids eager to learn about the unique ecology of the wetlands and the birds who rely on them.

“Our kind of habitat is usually found in coastal areas, where you find the same kind of mixture of salt and fresh water. We have the kind of unique groups of plants and invertebrates that bring in shorebirds such as killdeer, black-necked stilts and American avocets. We are one of only three inland salt marshes in the United States, and if we don’t do something, at the rate we’re going in 70 years, there won’t be any wetlands here.”

The salt marshes are created by a unique geology where waters from the aquifer percolate up to the surface into Rattlesnake Creek, picking up the minerals that result in the wetland’s saline water.

GMD 5 Manager Orrin Feril says the tensions between the local communities and the refuge are heartbreaking.“I believe that the refuge is a great resource and an asset to our region.

“But this dispute has caused very strong feelings. I’ve even heard that the Stafford County commissioners have advised the fire department not to respond to a request for firefighting help. That’s horrifying. That puts lives at risk.”

He says he is also disappointed that schools have cut Quivira from field trips, even though he understands the reasoning behind their decision. Fortunately, the area schools still request visits from his office to present a water conservation program.

“I think it’s important for those students to experience the unique environment that is Quivira. It is something that has always been, and should always be, a point of pride for the region.”

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