Regulations adopted on behalf of GMD 1 and GMD 5

A public hearing regarding proposed regulations being adopted by the Chief Engineer on behalf of GMD1 and GMD5 was held on October 10, 2019. With no significant comments, the Chief Engineer had adopted the regulations, which will be effective 14 days after publication in the Kansas Register, approximately mid-November. 

At the request of Western Kansas GMD No. 1, K.A.R. 5-21-7, which has governed applications for a change in use made of water from irrigation to any other type of beneficial use based on past use, is being repealed. With the repeal, requirements for such changes will default to state-wide rules of K.A.R. 5-5-9, which were amended in 2017.

Based on discussions between KDA-DWR and Big Bend Groundwater Management District No. 5 (GMD5), three regulations were developed to assist GMD5 and the water users located therein, in finding a solution to the impairment complaint filed by the United State Fish and Wildlife Service regarding the senior surface water right for Quivira National Wildlife Refuge located at the bottom of Rattlesnake Creek. These regulations will assist in developing an augmentation project pursuant to K.S.A. 82a-706b and in moving water out of a high impact zone near the stream and refuge.

A complete set of laws and regulations related to KDA-DWR’s responsibilities can be found at: https://agriculture.ks.gov/divisions-programs/dwr/laws-and-responsibilities.  

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Quivira public meetings and current status

KDA notice – During the week of September 30, the Chief Engineer sent all affected water users notice of the KDA-DWR plan to regulate water rights as part of the remedy of the impairment to the water right held by the U.S. Fish and Wildlife Service for its Quivira National Wildlife Refuge in south central Kansas on Rattlesnake Creek. The letters included summaries of water use for those water rights and a preview of what to expect from the anticipated administrative orders. The notice was sent to help water users prepare for the expected issuance of orders.

Public meetings – On Monday, October 21, 2019, KDA hosted two public meetings in St. John related to the proposed administrative orders (which are now NOT moving forward, see below). The two-hour meetings included informational presentations from KDA staff and a significant period of questions and answers. To access links to the slides and archives of the live stream videos of each session, see: https://www.agriculture.ks.gov/Quivira.

Current status – Just prior to the meeting, on Friday, October 18, 2019, the Kansas Department of Agriculture Division of Water Resources (KDA-DWR) was informed that the United States Department of the Interior, which oversees the U.S. Fish and Wildlife Service (Service), wishes to work with the local leadership of the Rattlesnake Creek region to renew efforts to find a locally-driven solution to the impairment of the Quivira National Wildlife Refuge operated by the Service before requesting action by KDA-DWR to protect their water right.

In Kansas, an impaired water right must file an annual request to secure water before administrative action will be taken to reduce water use by the junior water rights impacting the senior water right. The Service had previously filed a request to secure water for 2018 and 2019, but KDA-DWR had not taken any action on those requests as efforts to solve the impairment through voluntary efforts were ongoing.  Since 2016, KDA-DWR worked with the Big Bend Groundwater Management District No. 5 (GMD 5) to develop a remedy to the impairment. Despite many efforts, a solution has not yet been reached and negotiations to voluntarily solve the impairment broke down over the past year.

As the Dept. of Interior on behalf of the Service has stated their intention not to file a request to secure water at this time, the administrative orders will NOT be sent.

It is important to note that this does not change the science or the law regarding the water issues in the region. The Quivira water right is still being impaired, and any locally-driven solution will likely still need to involve an augmentation project and pumping reductions.

KDA-DWR encourages all water users to be actively involved with local leadership as they work together with the Service to find a solution to the impairment. KDA-DWR is hopeful a solution that fulfills the needs of the Quivira National Wildlife Refuge will be found. However, if a solution is not found and the Service files a request to secure water in the future, state law requires that KDA-DWR take the appropriate action.

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Gove County District Court finds GMD 4 LEMA constitutional

A district court in western Kansas has ruled that the chief engineer of the Kansas Department of Agriculture Division of Water Resources acted properly in approving a water management tool proposed by the Northwest Kansas Groundwater Management District No. 4 (GMD 4) to aid in local conservation efforts to extend the life of the Ogallala Aquifer.

A district court in western Kansas has ruled that the chief engineer of the Kansas Department of Agriculture Division of Water Resources acted properly in approving a water management tool proposed by the Northwest Kansas Groundwater Management District No. 4 (GMD 4) to aid in local conservation efforts to extend the life of the Ogallala Aquifer. On October 15, 2019, the Gove County District Court upheld the adoption of a Local Enhanced Management Area (LEMA) in much of the district.

The case, Friesen v. Barfield, was filed under the Kansas Judicial Review Act after two public hearings were held by Chief Engineer David Barfield who then approved adoption of the LEMA. The case was brought by multiple petitioners who are required under the LEMA plan to reduce the amount of groundwater withdrawn over the next five years. Petitioners challenged whether the reductions in water use can be made without those cuts being based on priority (date the water right was approved) and generally challenged the lawfulness of any cuts or use of a LEMA.

In 2012, Groundwater Management Districts were granted the authority to recommend the adoption of a LEMA in order to implement local water conservation goals through the adoption of control measures recommended in their plan when conditions demonstrate a threat to groundwater levels, rate of withdrawal, or water quality. The LEMA process involves meeting specific statutory requirements and holding public hearings before approval by the chief engineer. A LEMA management plan typically requires reductions in water use to achieve the water conservation goal, aimed at extending the life of the local aquifer.

In the case of Friesen v. Barfield, plaintiffs challenged both the specifics of this management plan and the constitutionality of the LEMA statue in general. The court ruling this week found that the “GMD 4 District Wide LEMA should be upheld. The LEMA Plan restrictions do not appear to be unconstitutional on their face or as applied. There is substantial evidence backing the agency’s decision and therefore it is not arbitrary or capricious.”

The first LEMA in Kansas, known as the Sheridan 6 LEMA, was approved in 2012 in the Sheridan County area. It was extended in 2017 for the years 2018-2022 after data from the Sheridan 6 LEMA strongly indicated that the water use goals in the area were met, and that significant indicators showed the conservation efforts had slowed the decline of the water table in the region. “The LEMA has been a very successful tool for our district and we plan to utilize them to extend the life of the aquifer,” said Shannon Kenyon, GMD 4 district manager. For more information about LEMAs in Kansas, including more detail about the GMD 4 LEMA, visit agriculture.ks.gov/LEMA or call KDA-DWR at 785-564-6640.

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Chief Engineer responds to Ag Organizations’ request to delay Quivira administrative orders

On Friday, September 20, 2019, Chief Engineer David Barfield replied to a letter from 10 agricultural and related organizations asking him to delay his plans to issue administrative orders related to Quivira for 2020 this fall as a first step in resolving the impairment. In his letter, he explained why he is moving ahead with the administrative orders, outlined steps being taken to provide water users with significant flexibility to use the allocations provided in the orders, and announced his decision to phase in orders over three years. 

The administrative orders will implement the first part of a three-part solution to the Quivira impairment consisting of: 1) limiting withdrawals across the basin to slow the ongoing growth of stream depletions, 2) the retirement or relocation of 4,400 acre-feet of use from the highest impact area near the stream to slow the growth of depletions in the shorter term, and 3) an augmentation project proposed by GMD 5. The second and third parts of the solution need to be developed by the basin over the next three years.

The letter announced a significant change in the Chief Engineer’s plan for the administrative orders, namely to phase in the orders over three years beginning in 2020 with junior water rights in Zone C (the area with a greater than 30% impact to the stream), then Zone B (greater than 20% impact) in 2021, and finally Zone A (greater than 10% impact) in 2022. See map attached to his letter.

KDA-DWR is working with local stakeholders to develop a Water Conservation Area (WCA) to allow for annual allocations in the orders to be pooled into multi-year allocations, moved between water rights, and with limited restrictions, transferred between water right owners enrolled in the WCA.

Notice of the specific allocations for each water right under the water administration plan will be provided to all water right owners and water use correspondence in the near future, with a public meeting in the effected within two weeks of the notices.

The Chief Engineer’s letter and a map showing the implementation areas is available https://www.agriculture.ks.gov/Quivira.

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Republican River Compact Administration to Meet August 22

MANHATTAN, Kan. — The Republican River Compact Administration (RRCA) will hold its annual meeting at 9:30 a.m. CDT on Thursday, Aug. 22, 2019 at the Pioneer Memorial Library, 375 W. 4th Street in Colby, Kansas.

The RRCA meeting will focus on water-related issues and activities, including compact compliance, within the Republican River basin in Kansas, Colorado and Nebraska.

In addition, RRCA will hold a work session to prepare for the annual meeting at 3:30 p.m. on August 21, 2019, also at the Pioneer Memorial Library. Both the work session and the annual meeting are open to the public.

Kansas, Colorado and Nebraska entered into the Republican River Compact in 1943 to provide for the equitable division of the basin’s waters, remove causes of potential controversy, and promote interstate cooperation and joint action by the states and the U.S. in the efficient use of water and the control of destructive floods. The RRCA is composed of three commissioners representing Kansas, Colorado and Nebraska: Kansas Department of Agriculture, Division of Water Resources Chief Engineer David Barfield; Colorado State Engineer Kevin Rein; and Nebraska Department of Natural Resources Director Jeff Fassett.

Individuals who have questions regarding the meeting should contact Chris Beightel, KDA water management services program manager, at Chris.Beightel@ks.gov or 785-564-6659 for more information.

For additional information about the Republican River compact and this year’s annual meeting, please visit agriculture.ks.gov/RRCA.

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Chief Engineer’s action on GMD 5 LEMA plan and path forward on Quivira Impairment

On July 30, 2019, Chief Engineer David Barfield provided a formal response to GMD No. 5’s Local Enhanced Management Area (LEMA) plan aimed to resolve the Quivira impairment, stating he was unable to move forward with their request to initiate proceedings to consider the plan as it failed to include measures sufficient to meet its stated goal and other statutory requirements. After nearly two years of work on the LEMA concept, KDA and GMD5 have been unable to agree on a LEMA plan that resolves the impairment. The Chief Engineer’s letter can be found here.

In his letter, Chief Engineer Barfield also announced his intention to develop administrative orders by approx. September 1, 2019, to be effective January 1, 2020, to implement water use reductions in the basin to begin addressing the Quivira impairment, and in particular, the ongoing declines in streamflows (see below) into the Refuge with its reductions in water quantity and water quality.  These orders are the first of a three-pronged solution to the impairment, providing initial action to remedy the impairment, while providing time for the Basin to develop the other two components:

  • A proposed augmentation project.
  • The retirement of 4400 acre-feet of use in the high-impact area (Zone D).

To maximize flexibility in use, DWR will work with local water users to develop a Water Conservation Area (WCA) to create multi-year allocations and allow movement of allocations between water rights.

While required water use reductions will vary among water users based on the seniority of their water rights (with older rights getting larger allocations) and their historic use, the reductions will average under 15% from long-term use.

A public meeting is anticipated during mid-September.

A map of the affected area is shown below.

More information related to this matter can be found on the following websites:

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