600 Illegal Water Permits? Unacceptable Behavior by a State Agency.

The North Dakota State Water Commission has violated state law more than 600 times in recent years, by issuing permits for industrial use of water (read: fracking oil wells) from the Little Missouri State Scenic River. Employees there claim they didn’t know they weren’t supposed to do that. I believe them. But that’s no excuse. More on that in a minute. First, a little history lesson.

Let’s travel back in time 42 years. The 1975 North Dakota Legislature passed a bill that started with the words “This chapter may be cited as the Little Missouri State Scenic River Act.” And that’s how we came to have the Little Missouri State Scenic River, North Dakota’s only designated State Scenic River.

Bills become laws. Here are two chapters of this bill as it was written into the North Dakota Century Code after it was approved by a large bipartisan majority and was signed by Governor Art Link. The law remains there, untouched, 42 years later. Until now.

“The purpose of this chapter shall be to preserve the Little Missouri River as nearly as possible in its present state, which shall mean that the river will be maintained in a free-flowing natural condition, and to establish a Little Missouri River commission.”—North Dakota Century Code 61-29-02

“Management. Channelization, reservoir construction, or diversion other than for agricultural or recreational purposes and the dredging of waters within the confines of the Little Missouri scenic river and all Little Missouri River tributary streams are expressly prohibited.” North Dakota Century Code 61-29-06

That’s still the law, 42 years later. You can’t build dams on the Little Missouri River or any of its tributaries. Neither can you take any water from the river or its tributaries for any use other than irrigation or recreation.

Back in 1975, we decided the Little Missouri was special, and we decided to protect it from industrial use. And, you know, we observed that law for more than 30 years. Until someone invented fracking. Fracking takes millions of gallons of water to make an oil well operate in the Bakken. Some estimates run as high as ten million gallons per well.

And so, oil companies began looking for some serious water supplies. And they saw that pretty little river running through the Bad Lands, and thought that might be a good place to get some. So they went to the Water Appropriations Division of the State Water Commission and asked “Hey, could we have some of that water?” And the engineers at the Water Commission office said “Sure.”

They said “Sure” more than 600 times. And each time, they claim they did not know they were breaking the law. Chapter 61-29 of the North Dakota Century Code. Which specifically says they couldn’t do that.

And so those big old trucks backed up to the Little Missouri State Scenic River and sucked the water out to fill their tanks, and took it over to a well site and  mixed it with some sand and chemicals and pumped it down a well hole to break up the shale holding the black gold  below.

The engineers at the Water Commission told me this week they weren’t worried about running the river dry, because the Little Missouri has plenty of water. Uh huh. Tell that to canoeists (like me) who know they only have a 3-4 week window each year when there’s enough water to float a canoe. Or to the hikers and bicyclists who regularly ride or hike across the river on the Maah Daah Hey trail without getting their knickers wet.

I had an old Bad Lands rancher tell me not so many years ago that nine years out of ten you could canoe the Little Missouri River on Memorial Day weekend. Now it’s more like two or three out of ten. Just sayin’ . . .

Well, all this came to light last week when I was looking at the appropriations bill in the Legislature for the State Water Commission. Tucked away in that bill, down at the bottom of page 8 of a 13-page bill, is this:

“SECTION 16. AMENDMENT. Section 61-29-06 of the North Dakota Century Code is amended and reenacted as follows: 61-29-06. Management. Channelization, reservoir construction, or diversion other than for agricultural or, recreational, or temporary use purposes and the dredging of waters within the confines of the Little Missouri scenic river and all Little Missouri River tributary streams are expressly prohibited. Flood control dikes may be constructed within the flood plain of the Little Missouri River. Diking and riprapping for bank erosion control shall be permitted within the confines of the Little Missouri scenic river. The construction of impoundments for any purpose on the Little Missouri mainstream shall be prohibited. This chapter shall in no way affect or diminish the rights of owners of the land bordering the river to use the waters for domestic purposes, including livestock watering, or any other rights of riparian landowners.”

Notice those three underlined words, “or temporary use”? That caught my eye. What’s the definition of “temporary” and what the heck is going on here? They are amending the State Scenic River Act. To allow something that hasn’t been allowed before, or it wouldn’t take an amendment to the law. What’s up?

Since the language was in the Water Commission’s appropriations bill, I sent an e-mail to a couple members of the Legislature’s Appropriations Committees and to my state Senator, Erin Oban. I got almost instant replies, telling me who to contact at the Water Commission to get the story on this.

Which I did. I had a 40-minute phone conversation this morning. And here’s what I learned.

A couple of weeks ago, a young staff person in the Water Appropriations Division of the Water Commission came running up to the boss’s office with a copy of a blog post I wrote last year about the Little Missouri Scenic River Commission, in which I cited the language from Chapter 61-29 (above).

“Holy Cow! We’ve broken the law! 600 times!”

What they had done, of course, was fairly logical. If an oil company needed water, and the Little Missouri was close by, they issued permits for “diversion” of some of that water. Made sense to the Water Commission staff. If the oil company could get water close by, the oil company could save money, there would be fewer trucks hauling water from somewhere else, less dust in the air from those trucks—what’s not to like ab out that?

Except the water was coming from the LITTLE MISSOURI STATE SCENIC RIVER. AND THAT’S AGAINST THE LAW.

But nobody at the Water Commission knew about the law. In spite of the fact that the law established a Little Missouri State Scenic River Commission, and the State Engineer, who runs the Water commission staff, is a member of that Commission. I wrote a couple stories about that last year, under the headlines “Who’s Looking Out For The Little Missouri?” and “Turns Out Nobody’s Looking Out For The Little Missouri.”

I suppose, because the Scenic River Commission has been inactive for many years (also in violation of the law) and because there’s no institutional memory on the Water Commission staff, we could forgive the current staff for not knowing about it. But, as I pointed out to the staff people I talked to, ignorance of the law is no excuse. That’s something we’ve all had preached to us all our lives.

“Honest, officer, I didn’t know the speed limit was 45 here.”

“Sorry, dude, here’s your ticket. Ignorance of the law is no excuse.”

Well, anyway, the staff decided they needed to do something about that. They could have sent a letter to everyone with a current permit and told them their permit was revoked. And then obeyed the law for the rest of their lives.

Or they could try to change the law, so they could issue more permits, legally.

Which is what they did. They went running over to friendly Republican faces on the Senate Appropriations Committee and had them put an amendment on the Water Commission appropriations bill making those permits legal. And they almost slipped it through. A friend of mine happened to be in the Senate chamber one day last week when the chief clerk was reading the title of the bill on the Senate Floor and heard the words “Little Missouri Scenic River Commission” and mentioned it to me that night.

I did a little digging and now we all know the rest of the story. So far.

The bill has not passed yet. It is stuck in conference committee. The conference committee members are Representatives Jim Schmidt, Roscoe Streyle and Tracy Boe, and Senators Gary Lee, Ronald Sorvaag and Larry Robinson. If you know any of them, send them this blog, and call them and ask them to take the amendment to Chapter 61-29 out of the bill, to save what’s left of the Little Missouri River. Because if the bill passes, and the boom comes back, there are going to be 600 more water permits issued.

And send it to Governor Doug Burgum as well. Because this is an appropriations bill, I’m pretty sure he has line item veto authority under Legislative rules and state law. Tell him to strike that chapter from the bill before he signs the Water Commission budget bill, HB 1020. Seriously, do those things. Somebody has to look out for the Little Missouri, and if government won’t do it, we have to do it ourselves. Thank you. Amen.