NARF helps Kickapoo Tribe of Kansas draft water settlement agreement
Categories: Water Rights
For more than four decades, the Kickapoo Tribe in Kansas has worked tirelessly to make sure that its reservation has the water that it needs to serve its people and ensure their livelihood. It has worked diligently with a variety of interested parties, including the State of Kansas, private landowners, and others, to reach a viable arrangement. The Tribe is committed to continuing this work and ensuring that its members and facilities have the water that they need. Recently, they drafted a water settlement agreement to quantify the Tribe’s water right. According to NARF Staff Attorney Steve Moore, “[T]his Agreement is one step in a long process to secure a viable water supply for the Kickapoo people for many generations to come…. This Agreement with the State of Kansas recognizes and quantifies the Tribe’s water right…. The Tribe and the State worked together the past 2 1/2 years to put the details of this Agreement in place. Both sides are to be congratulated.” Read further to learn more about this essential and ongoing work.
KICKAPOO TRIBAL WATER RIGHTS SETTLEMENT
Since the 1970s the Kickapoo Tribe in Kansas has worked to achieve water security for its livelihood and that of its members. After construction of a small dam and water intake and treatment system in the 1970s, the Tribe embarked on a larger scale water development project, in partnership with local water and conservation districts, the State of Kansas, and the United States Soil Conservation Service (“SCS” now “NRCS”). Under the SCS Small Watershed Program, also known as the PL 83-566 Program, the Tribe and its state and federal partners began in 1983 a decade long effort to design, plan and seek congressional approval of a water storage project known as the Plum Creek Project. Plum Creek is a tributary to the Upper Delaware River which flows through the Reservation; its long been considered the most viable site on the Reservation to build water storage. A federal Watershed Agreement was executed by all the parties in 1994, with a contemporaneously issued federal Environmental Impact Statement and final Record of Decision by NRCS, and congressional approval was secured in 1996 (Senate side) and 1998 (House side).
The effort stalled due to the Tribe’s inability to persuade all landowners in the proposed Plum Creek Project area to agree to sell their land to the Tribe. A dispute arose between the Tribe and the local watershed district over the use of the watershed district’s authority under Kansas law to condemn the land. Condemnation of land is almost always required for the siting of reservoir and watershed projects. The Tribe asked the federal court to resolve that dispute in a lawsuit filed in 2006. In 2013 the federal court ruled in favor of the watershed district. The Tribe did not appeal that issue, and the matter was laid to rest. In the intervening years the Tribe has acquired from willing sellers a substantial portion of the remaining land in the project area.
The Tribe is committed to continuing to work with the landowners in the Plum Creek drainage to secure the remaining lands necessary for the project. The Tribe also intends to work with NRCS and the Congress to re-evaluate the proper size and purposes for the Plum Creek Project.
In order to construct a storage project on Plum Creek or anywhere else on the Kickapoo Reservation, the Tribe must first have its water rights quantified. In the years since the filing of the lawsuit in 2006, the Tribe, the State of Kansas, and the United States (Interior and Justice Departments), with the assistance of technical staff and consultants, have negotiated a water right for the Tribe, and its constituent elements and associated details that will enable the State to administer State law based water rights in the Delaware River watershed respecting the Tribal water right as the senior right.
Legal counsel for the Tribe, the State and the United States over the past two and a half years negotiated a comprehensive settlement agreement for submission to the federal court in Kansas for preliminary review.
OVERVIEW OF GLOBAL KICKAPOO WATER SETTLEMENT AGREEMENT
This briefing document is intended to provide interested persons with an overview of the Kickapoo Tribe’s campaign for water security, with the support and assistance of its federal and state counterparts. The water settlement agreement will require congressional approval. The Interior Department also needs Congress to approve it and to direct Interior to carry out the obligations of the United States.
- Current Kickapoo Tribe characteristics:
- Reservation is 30 square miles (5 mi. x 6 mi. near intersection of Hwy 75 / Hwy 20 in Brown County, KS);
- 822 members living on reservation; 61 non-members – many served currently by Tribal water system;
- No Tribal reservoirs; low-head dam for municipal water plant; casino & housing.
- Tribe has a federal water right linked to establishment of its reservation in 1832: Federal reserved water rights were recognized by the U.S. Supreme Court in Winters v. United States (1908).
- Delaware Watershed Characteristics:
- Delaware River and several tributaries flow through Reservation;
- precipitation is 35 in/yr, and land is 85% agricultural;
- Little to no groundwater available on Reservation; susceptible to drought; surface water storage essential to tribal water needs;
- Drainage: above Perry Reservoir = 1141 sq. miles.
- Main Components of the Settlement Agreement:
- Delaware River Basin has sufficient water supplies to satisfy the rights of the Kickapoo Tribe without reducing the established water rights of Kansas water right holders.
- Tribal water right: annual direct use amount + max. amount in storage.
- direct use – 4,705 acre feet for all present and future uses:
- Annual indirect use – defined as evaporate and seepage values; level of reservoir seepage a site-specific figure.
- Metering of Tribal consumption and annual water use reporting by Tribe to Kansas Division of Water Resources (DWR).
- Agreement specifies who may use the TWR, where and under what conditions.
- KDWR protects Tribal Water Right in times of shortage, when non-domestic junior water users are impairing the Tribal Water Right.
- First in time, first in right: Tribe has senior right in the Basin;
- State review of any state water rights application that could affect the Tribal Water Right, including notice provisions to Tribe and U.S.;
- Tribe asks for impairment investigation;
- If DWR finds impairment, it curtails junior upstream rights to protect tribal usage.
- Tribe, State [and eventually the United States] enter into a Memorandum of Agreement setting out the specific administrative details for the Tribal water right and junior State water rights. MOA is patterned after similar MOAs that the Kansas DWR enters into with water right holders on river systems elsewhere in the State.
- Reporting, Cooperation and Communication between State and Tribe for access to Tribal property where/when necessary;
- Tribe will adopt a Tribal Water Code to govern tribal members’ water use.
- Judicial enforcement in case of disputes concerning the interpretation and implementation of the Settlement Agreement and the MOA.