Development of Impairment Remedy Following 2023 Request to Secure Water

Audubon of Kansas v. Lewis

Administrative Review of Chief Engineer's LEMA Decision

Development of Impairment Remedy

GMD5 Proposed Rattlesnake/Quivira LEMA

Development of Impairment Investigation Report

Statutory Provision and Impairment Procedures

K.S.A. 82a-706b of the Kansas Water Appropriation Act (Act) states: “It shall be unlawful for any person to prevent, by diversion or otherwise, any waters of this state from moving to a person having a prior right to use the same…” The Act charges the Chief Engineer with the duty to regulate use to prevent such “impairment” of senior water rights by junior water rights.

Regulations adopted pursuant to the Act provide for a five-step process for impairment investigations and actions:

1. a complaint is submitted in writing,
2. DWR investigates the complaint,
3. DWR reports on the findings of their investigation,
4. if impairment is found and action desired, the complainant files a request to secure water, and
5. action by the Chief Engineer lasts as long as is required to aid the senior file in securing a larger portion of its water right.

Impairment investigations and actions in surface water systems are fairly straightforward. Impairment investigations involving groundwater are more complex and time-consuming. In 2012, the relevant regulations were amended to provide more specific procedures for groundwater impairment investigations, including increased opportunities for groundwater management districts to comment on and assist with impairment investigations, requirements for complainants to provide information showing that their pump system and well are adequate, and increased transparency by DWR in making data available and providing affected water users with opportunity to comment.

Impairment Investigation Progress and Plan

Since receiving the Letter from the Service, DWR has done the following.

• DWR met with the GMD5 Board and reported at GMD5’s 2013 Annual Meeting regarding the Service's request and how the investigation would proceed.
• DWR met with the Service to confirm their intent for DWR to conduct an impairment investigation and to outline requirements for information DWR would need from the Service to begin its investigation.
• DWR received additional information requested from the Service to define their specific needs.
• DWR used the GMD5 groundwater model to determine the magnitude and timing of the effect of junior groundwater pumping on the Rattlesnake Creek at Quivira NWR.
• On November 4, 2014, DWR presented groundwater modeling results for nine alternative historical scenarios at a public meeting in St. John. A summary PowerPoint is available in the "Development of Impairment Investigation Report" table above.
• On December 2, 2015, DWR published its initial impairment investigation report for review and comment.
• On December 10, 2015, DWR held a public meeting in St. John to present a summary of the initial report’s findings, answer questions, and seek input.
• On January 15, 2016, DWR published entire Quivira NWR water right file in the table "Development of Impairment Investigation Report" above.
• On May 13, 2016, the review period for the initial impairment investigation report ended.
• On May 30, 2016, DWR published a second draft of the initial impairment investigation report, which can be found in the "Development of Impairment Investigation Report" table above.
• On July 1, 2016, the review period for second draft of the initial impairment investigation report began.
• On July 15, 2016, DWR published a final impairment investigation report, which can be found in the "Development of Impairment Investigation Report" table above.
• On August 15, 2016, a basin-wide plan to implement an impairment remedy was submitted to the Chief Engineer.
• On September 9, 2016, GMD5 submitted a remedy proposal to the Service.
• On December 1, 2016, the Service responded to the GMD5 proposal.
• On December 8, 2016, DWR requested that GMD5 develop a revised proposal and advised the basin that DWR did not plan to administer junior water rights during the 2017 irrigation season, but if an agreement was not reached, DWR might administer in 2018.
• On February 15, 2017, GMD5 submitted a revised proposal to the Service.
• On March 22, 2017, the Service responded to the revised proposal.
• On May 2, 2017, DWR and GMD5 discussed remedy development.
• On June 19, 2017, DWR provided copies of modeling work related to the effect of varying levels of pumping restrictions in two zones.
• On July 6, 2017, DWR presented remedy requirements beyond augmentation.
• On July 13, 2017, DWR provided "additional explanation of Quivira slides."
• On August 7, 2017, DWR provided a refined Zone A map (V3; V2 was an intermediate version which was never presented).
• On August 11, 2017, DWR met with GMD5. GMD5 presented an outline of a proposed LEMA to remedy impairment.
• On August 30, 2017, DWR received a letter from Alan and Rachel Crane.
• On September 6, 2017, DWR received letter from Audubon of Kansas.
• On September 8, 2017, DWR met with GMD5 and provided an outline of LEMA plan elements needed to address impairment.
• On September 29, 2017, DWR responded to the letter from Audubon of Kansas.
• On October 18, 2017, DWR requested data from GMD5 on end guns and model runs related to augmentation.
• On October 20, 2017, DWR provided draft options for "backstop" control provisions.
• On October 30, 2017, KDA met with the GMD5 manager and attorney to discuss LEMA development.
• On November 9, 2017, DWR provided refined modeling to define Zone A (V4).
• On November 10, 2017, DWR participated in a GMD5 Board meeting.
• On November 16, 2017, DWR followed up on questions from the 11/10/2017 meeting.
• On November 17, 2017, DWR met with the GMD5 LEMA committee.
• On December 13, 2017, DWR wrote to GMD5 regarding 2018 water administration and expectations for developing a remedy for impairment and calling for a public meeting in early 2018.

Water Resource Study