An environmental group has gone to court to protect water rights needed to preserve a western Kansas wildlife refuge that provides sanctuary for migratory waterfowl and is recognized as one of a handful of wetlands of “international importance.”
Audubon of Kansas is asking a judge to protect the water supply for the Quivira National Wildlife Refuge, which is threatened by farmers and ranchers who are pumping upstream from the Rattlesnake Creek basin that feeds the wildlife sanctuary.
The organization initially asked the state Supreme Court to take original jurisdiction in the case and was denied. It was refiled in Shawnee County District Court.
Established in 1955, the 22,100-acre refuge in Stafford County is used by more than 300 migratory and resident bird species such as the whooping crane, snowy plovers and black-necked stilts.
In 1992, the refuge was designated as a Wetland Site of International Importance because of its location as a stopping point for migrating shore birds in the Central Flyway.
Located west of Hutchinson, the refuge’s water rights date back to 1957 and supersede 95% of all water rights within the basin.
The lawsuit contends that the refuge has chronically suffered debilitating water shortages since the 1980s as a result of groundwater pumping by farmers and ranchers who have junior water rights subordinate to the refuge.
A 2016 report by the state’s chief engineer for the Division of Water Resources at the Agriculture Department found water availability has been reduced by 30,000 to 60,000 acre-feet per year that would have otherwise flowed to the refuge.
The lawsuit is asking a judge to force the state’s chief water engineer to enforce the water rights in the basin that were given to the wildlife refuge almost 70 years ago.
The plaintiffs say the law requires the chief engineer to enforce water rights where there is an active, unresolved request to secure water submitted by a senior right holder.
Audubon wants the judge to find that the chief engineer violated his obligations under the law by not enforcing the right held for the refuge by the U.S. Fish and Wildlife Service.
“While Audubon’s ultimate interest is to preserve the integrity of the refuge, we believe that interest will be best served through preserving the integrity of Kansas’s system of water rights,” said Dylan Wheeler, one of the lawyers representing Audubon.
A spokesperson for the Department of Agriculture declined to comment on the lawsuit.
The agency said that its Division of Water Resources is “actively working on plans to address the ongoing impairment of senior water rights in the Rattlesnake Creek basin.”
The lawsuit is the latest development in a controversy spanning 30 years that escalated in 2013 when the U.S Fish and Wildlife Service – the holder of the refuge’s water rights – asked the state to investigate whether the water right was impaired.
Three years later, state water engineer’s report found that not only was the refuge adversely affected by junior groundwater pumping, but that the issue could be resolved by stopping that water from being diverted for other purposes.
The report found that the refuge’s water supply “has been regularly and substantially impacted by junior groundwater pumping.”
Audubon wants action under state law that allows a senior water rights holder who believes their water right is impaired to file a complaint, prompting the chief engineer to investigate.
If a junior rights holder pumps out of priority and impairs a senior water right, the chief engineer must suspend junior water rights and impose other penalties.
Audubon is asking the court to rule that current state water law required the chief water engineer to preserve the senior water right on request.
Two years ago, Audubon brought a lawsuit in federal court, seeking to force the federal government to ask the state to enforce its water rights for the refuge.
The case was dismissed after the Fish and Wildlife Service pursued action to enforce its state water rights, leading to the new civil action in state court.
The lawsuit potentially pits environmental against business interests that need to draw water from the Rattlesnake Creek basin that flows into the refuge.
Wheeler said the state isn’t interested in administering water rights and doesn’t want to carry out those duties because it means shutting down the water rights of agricultural interests.
“It’s a matter of government officials placing a higher priority on economic interests than the interests of wildlife and the environment,” Wheeler said.
“They consider the industry and the economics of the situation to be more important than to protect endangered species on the Quivira Wildlife Refuge,” he said.
Lawyers for Audubon argue in court documents that “political pressures” brought by Kansas governors and secretaries of agriculture have “played a significant role in intimidating the chief engineer’s office from exercising his duties as the law requires.”
Audubon said it was unlawful for the state to delay protection of the refuge’s water right after 10 years and “in the face of repeated requests to secure water, because delay enables further unlawful diversions by junior rights.”
The state “has rationalized delay on the grounds that the interests of junior water right holders, agribusinesses, and their lobbies take priority over the refuge water right.
“This rationalization is sound politics, but it is legally groundless.”
