Duane Schrag
Special to the
Rural Messenger
A lawsuit filed in January by Audubon of Kansas that sought to ensure Quivira National Wildlife Refuge’s right to water is no longer impaired by upstream users has been dismissed.
The refuge, which is a vital habitat for many bird species, has one of the most senior water rights on Rattlesnake Creek. In the lawsuit, AOK showed that for decades upstream users with more junior rights reduced flow on the Rattlesnake to the extent that it substantially impaired the refuge’s right to 14,632 acre-feet of water annually.
Under Kansas law, the holder of a water right whose right is being impaired by a junior right holder can ask the state to enforce its water right by ordering junior holders to reduce their usage. The U.S. Fish and Wildlife Service, which manages Quivira, initiated the process of requesting enforcement but after meeting with Sen. Jerry Moran’s office decided to enter an agreement with Big Bend Groundwater Management District No. 5 instead.
Earlier solutions proposed by GMD 5 were all rejected by state water regulators as being inadequate.
The July 2020 memorandum of understanding between the district and USFWS says the district will “use reasonable efforts” to acquire and retire junior rights and develop a wellfield to supplement flow on Rattlesnake Creek. In turn USFWS agreed not to ask the state to enforce its water right in 2020 or 2021.
“The 2020 MOA did not set forth any dates by which the district had to complete the augmentation wellfield or purchase additional water rights,” noted Judge Holly Teeter in a decision filed Oct. 20.
Teeter concluded that USFWS had not yet taken final action in the matter and therefore could not be sued for failing to enforce its water right. She also noted that state officials had followed the process set out in state law for enforcing water rights.
She chided AOK for making sweeping assertions that lacked specifics.
“Little has been done to distinguish the claims asserted against federal defendants versus state defendants,” Teeter wrote. “Most claims are collectively pleaded, and it is not easy to discern what specific conduct of any specific defendant is at issue. Nor is there any clear indication of how state defendants violated federal law or what cause of action Audubon is asserting against state defendants.”
