Water Commission Grants Oilfield Use of Little Missouri River

Gov. Doug Burgum, right, and Tom Bodine, deputy agriculture commissioner, left, listen to Water Commissioner Harley Swenson pose a question about one of the ongoing water projects across North Dakota at the State Water Commission meeting in Bismarck on Thursday.

The oil industry will be able to draw water from the Little Missouri State Scenic River for hydraulic fracturing after North Dakota officials lifted an eight-week-old moratorium on industrial water permits, raising concerns from some conservationists about the impact to the Badlands.

The issue of allowing the oil industry to access water from the scenic river came up for discussion this spring after a State Water Commission hydrologist discovered the state had been granting water permits for fracking and other uses in violation of a long-forgotten state law.

State legislators voted during the recent session to change the law, but Gov. Doug Burgum issued a moratorium on May 3 that suspended temporary water permits along much of the Little Missouri while the matter was studied.

On Thursday, Burgum and other members of the State Water Commission voted to lift that moratorium, adopting a new policy that allows temporary water permits on the scenic river for oilfield and other industrial uses.

The policy is effective immediately, but drought conditions in western North Dakota may prevent new permits from being issued this season.

“It’s questionable whether there’s even sufficient water supply left in the river to provide water for new permits,” said State Engineer Garland Erbele.

Some in attendance at the meeting, which stretched into the evening Thursday, said afterward they were disappointed with the commission’s action and the lack of opportunity for public input on the new policy.

“We really did have high hopes for this governor and that he would be a friend of our land and water,” said Laura Anhalt, of Bismarck, a board member for the Badlands Conservation Alliance. “We need somebody in a very, very high place to stand up for the land and water. There’s nobody out there doing that.”

But last week’s meeting was not the final word for the Little Missouri, which flows through the rugged Badlands terrain in the north and south units of Theodore Roosevelt National Park.

Burgum also is reinstating the Little Missouri River Commission, an advisory group that is required by law but hasn’t met in a decade. Burgum, who is chairman of the State Water Commission, said he wants to revisit the matter after the group, which will include local landowners, has weighed in.

“Because of the scenic nature of the Little Missouri River, there’s a lot of people in the state that have an interest, rightfully so, about the nature and the preservation of this river,” Burgum said.

Concerns about energy development in 1975 prompted North Dakota lawmakers to pass the Little Missouri State Scenic River Act, allowing agricultural water permits for the river but prohibiting industrial use.

At the time, the concerns related to a proposed coal gasification plant, Erbele said. But by 1990, the commission began issuing industrial water permits for the Little Missouri, unaware of the 1975 law, he said.

“The law basically lay unused and over time was forgotten,” Erbele said.

Since 1990, more than 600 temporary water permits were issued for the Little Missouri River for industrial uses in violation of the law. About half were for oilfield use and the other half were for uses such as road construction and dust control on roads, said Jon Patch, director of water appropriations.

This spring, a hydrologist discovered the 1975 law while reviewing a permit application, Patch said.

Burgum said during the meeting it’s “unfortunate” the state had a practice that went on for decades that was against the law. But he credited staff for promptly bringing it to the attention of policymakers.

After lawmakers voted last session to add temporary water permits to the 1975 law, Burgum signed the bill but immediately suspended all industrial water permits upstream of the Long X Bridge near Watford City. The moratorium included the area that stretches from the North Unit of Theodore Roosevelt National Park to the South Dakota border. Industrial permits downstream of the Long X Bridge, which is where most of the oilfield permits have been granted, were not suspended.

– Grant temporary water permits only for minor industrial uses, such as road construction and dust control.

Staff recommended the fourth option, and the Water Commission voted 7-1 in favor of it.

One company with an application pending anticipates needing 11,000 truckloads through the back roads of the Badlands if the permit is denied, Patch said.

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