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Friends of Lake Sakakawea News June 13 2018

by DC Staff

News of Interest

Spillway very UNLIKELY to open
NAWS battle may be at end
Fish kill reported in upper Lake Sak
Mineral ownership challenge continues
Public invited to comment on mineral ownership

Spillway remains closed, closing unlikely
BHG Newspapers

As the level of Lake Sakakawea rose, so did the number of phone calls to the Riverdale U.S. Army Corps of Engineers' office during the past week.

“There are a lot of phone calls and rumors that we're opening the spillway,” according to Todd Lindquist, operations project manager. “That's simply not true.”

The spillway is exactly like it sounds: it is a cement slide that allows for controlled releases when the lake levels exceed capacity.

Lindquist said the snowpack in the upper basin is quickly diminishing and the dam is functioning properly under current conditions. Lake Sakakawea was at 1849.7 mean sea level Monday morning. The spillway was last opened in 2011 when the lake exceeded 1854 feet mean sea level.

“It is very unlikely that they would open the spillway,” Lindquist said. He said it was only likely if there were “significant rain events on a large portion of the basin, upstream of Garrison.”
Many of the phone calls are coming from home owners in Bismarck-Mandan who remembered the 2011 flood.

“The dam was designed in the late '40s, you built your home on an island in the 2000s,” Lindquist said he tells them. “If we didn't have the dam, you would have 100,000 cfs (cubic feet per second) going through Bismarck.”

Lake Sakakawea's rise was due to rapid melt of heavy winter snows throughout Montana and Wyoming. Mountain snowpack was 91 percent of average above Fort Peck and 88 percent of average from Fort Peck to Garrison. Mountain snowpack melt peaked on April 19. Less than 5 inches of snow water equivalent remain. In 2011, 19-21 inches of snow water equivalent remained in the Montana-Wyoming region at this time, according to the Corps.

Snowpack was melting and running into the western Lake Sakakawea tributaries at a rate of 95,000 cfs Monday morning.
Water is being released through the five turbines at a rate of 41,000 cfs. Plus beginning the end of last week, one of three regulating tunnels was opened to release another 3,000 cfs. The 26-foot diameter tunnel has not been opened since 2011, when it and the other two 22-foot diameter tunnels were opened, along with the spillway.

Lindquist said he thinks this is the seventh time since 1968 that a regulating tunnel has been used.

The latest projections from the Corps say Lake Sakakawea will peak at 1851.5 feet within the next 10 days. That would be the fifth-highest water level in the history of the reservoir, which was completed in 1953.

Releases in 2011 topped 150,000 cfs and required traffic control as thousands of area residents flocked to see the water pouring over the spillway.

The Missouri River is forecast to rise a maximum of one foot in the Bismarck area.

Fishermen on the western tailrace will be able to access the upper end. Wing walls on the upper western edge remain restricted.

Boating is prohibited upstream of the orange line, or within 200 feet of the power plant.

NAWS legal battle almost over
Columbia (MO) Daily Tribune

U.S. and Canadian officials are negotiating an end to a 16-year legal battle over a Missouri River water project in North Dakota, though the state of Missouri also has a stake and isn’t part of the discussions.

Court documents filed May 3 show the Canadian province of Manitoba proposed a settlement in the dispute over the Northwest Area Water Supply project, and the U.S. Bureau of Reclamation countered with an alternative.

“Manitoba, the Bureau and North Dakota are hopeful that within the next several weeks they will be able to agree to final settlement terms,” Manitoba attorney Scott DuBoff wrote.

NAWS aims to bring Missouri River water to tens of thousands of people in northwestern North Dakota, giving them a reliable source of quality water. Congress first authorized its construction in 1986, but it’s been tied up in the courts since Manitoba sued in 2002 over concerns about the possible transfer of harmful bacteria or other agents from the Missouri River Basin to the Hudson Bay Basin.

U.S. District Judge Rosemary Collyer in Washington, D.C., ruled last August that the project complies with federal environmental law, clearing the way for completion of the $244 million water system. Manitoba appealed.

Minot Public Works Director Dan Jonasson in March indicated during a public meeting that Manitoba wants a say in the design of a plant that will treat the river water. Tim Freije, NAWS project manager for North Dakota’s State Water Commission, declined to say what’s being discussed but said “if Manitoba is just looking for assurances that we’re building the project so it won’t affect them, we don’t have any problem with that.”

The Bureau of Reclamation and Manitoba’s provincial government both declined comment, citing ongoing litigation.
Any settlement won’t resolve Missouri’s claims. The state joined the lawsuit in 2009 over fears that NAWS would deplete the Missouri River water it needs for residents and its shipping and agriculture industries. Collyer said the state had no standing to sue the federal government and did not consider Missouri’s claim. The state has appealed and has no plans to try to settle.

“The attorney general’s office will continue to fight vigorously against inappropriate drainage from the Missouri River to protect Missouri’s farmers and consumers,” spokeswoman Mary Compton said in a statement.

Freije said North Dakota isn’t worried about Missouri’s claim.
“The water rights for North Dakota are set by the state of North Dakota, and not the state of Missouri,” he said.

Collyer allowed much of the project’s infrastructure to be built while the court battle played out. She lifted all remaining injunctions on construction last fall.

A combined $129 million in federal, state and local money has been spent so far on more than 225 miles of pipeline and other infrastructure, according to Freije. The system currently serves about 25,000 people, though the water comes not from the river but from Minot’s water treatment plant, which relies on groundwater.

The project’s goal is to provide river water to about 82,000 in the coming decades, though future state and federal funding isn’t guaranteed.

“If I had unlimited funds to work with, we could have it done in six to eight years,” Freije said. “But we don’t have unlimited funds.”

Fish kill confirmed in upper Lake Sak
Forum Communications

A fish kill affecting adult rainbow smelt is ongoing in portions of the upper half of Lake Sakakawea, the North Dakota Game and Fish Department said recently.

The cause of the die-off has been documented in the state numerous times in the past, said Dave Fryda, Missouri River System fisheries supervisor for the North Dakota Game and Fish Department.

"The vast majority of the dead and dying smelt have physical signs of Columnaris bacteria," said Fryda, who mentioned dead and dying smelt have been observed from Four Bears Bridge to about the Little Missouri River Arm, including the Van Hook Arm of Lake Sakakawea. In addition, he said there likely are some in other areas.

Columnaris bacteria are present in all water bodies, and outbreaks typically occur when rapid water temperature changes occur at a time when the fish are stressed, such as after spawning.

"The smelt recently spawned in Lake Sakakawea, and were recovering from that stress when we experienced very high temperatures which boosted the water temperature in the shallow bays where the smelt spawned," Fryda said.

Smelt affected by Columnaris often develop visible skin irritations that have the appearance of fuzz or mold. Although there is no known cause for concern when in physical contact with these fish, Game and Fish suggests people leave the fish alone.

Lake Sakakawea had a similar smelt die-off in 2016, Fryda said, and in other instances in the past when the overall smelt population was very high. He said the current smelt population is the highest it's been for decades, so that is likely part of the reason the bacteria has spread over such a wide area.

The effects on the population won't be known until later this summer when fisheries crews assess the adult smelt population.

"Although the visible impression left by the dead smelt has anglers concerned, the overall impact of this year's die-off will likely be minimal," Fryda said. "With a population estimate approaching 200 million smelt in 2017, a high abundance of healthy smelt remains in the lake."

Ownership of oil, gas still challenged
Bismarck Tribune

The Board of University and School Lands voted Thursday to hire an outside lawyer to defend the board against a lawsuit that challenges a new law related to ownership of oil and gas minerals under Lake Sakakawea.

The board, along with the state, the North Dakota Industrial Commission, Gov. Doug Burgum and Attorney General Wayne Stenehjem, are defendants in the lawsuit filed by Rep. Marvin Nelson, former governor candidate Paul Sorum and others.

The lawsuit argues that recently enacted legislation is unconstitutional and claims North Dakota "gives away" nearly $2 billion in oil and gas mineral rights.

Previously, the Industrial Commission elected to hire Grand Forks attorney Daniel Gaustad while the state, the Land Board, Burgum and Stenehjem have been represented by the Attorney General’s Office.

Now the Land Board will be represented by attorney Mark Hanson of Fargo who will be appointed to be a special assistant attorney general.

After a closed-door executive session, Superintendent of Public Instruction Kirsten Baesler read a motion that said the board decided after considerable discussion to retain Hanson.

She cited concerns about potential conflicts of interest arising from the governor and attorney general serving on both the Land Board and the Industrial Commission.

Burgum, chairman of the Land Board, State Treasurer Kelly Schmidt and Secretary of State Al Jaeger joined Baesler in supporting the motion. Stenehjem was out of the country Thursday and participated in a portion of the meeting by phone, but was not connected when members voted.

Burgum said after the meeting that the Industrial Commission and the Land Board each has its separate responsibilities and Land Board members felt it was important for each group to have its own representation.

Land Board members spent a large portion of their meeting Thursday in executive session, also discussing a consultant’s survey of the ordinary high water mark of the Missouri River that was required by the new legislation. The board plans to make public comments to the Industrial Commission on the survey, Land Commissioner Jodi Smith said.

Land Board members also met behind closed doors to discuss a draft report from the State Auditor’s Office regarding progress made since a 2016 performance audit. That report is expected to be made public in June.

Public invited to comment June 26 on ownership
Bismarck Tribune

North Dakota's top oil regulator says a recent court ruling won't affect the public's ability to comment on a Missouri River survey required by a new law that aims to resolve disputes over mineral ownership.

Director of Mineral Resources Lynn Helms said his office has received several inquiries from people confused about the impact of a lawsuit that challenges a state law approved last year.

The law required the North Dakota Industrial Commission to hire a consultant to review the historical channel of the Missouri River as it existed before the construction of Garrison Dam, which created Lake Sakakawea.

A lawsuit against the state challenges the constitutionality of the law, known as Senate Bill 2134.

Helms said he wants to emphasize to the public that the lawsuit has not changed the public's ability to comment on the consultant's report through June 20 or a public hearing set for June 26 in Bismarck.

"We didn't want people to get confused and not get their comments in," Helms said. "We want to hear from everybody."
The lawsuit filed by Rep. Marvin Nelson, D-Rolla, former Republican governor candidate Paul Sorum and others argues the state attempts to "give away" nearly $2 billion in state-owned mineral rights beneath Lake Sakakawea.

East Central Judicial District Judge John Irby heard arguments on May 21 in Fargo related to the plaintiffs' motion for preliminary injunction.

According to a transcript from the hearing, Irby granted a narrow portion of the motion, preventing the state from distributing oil and gas bonus and rent payments and royalties that the state collected or escrowed prior to April 21, 2017, while the case continues.

A written ruling from the judge was not filed in court as of Tuesday.

During the hearing, Irby said he was not convinced the lawsuit against the state of North Dakota would be successful "given the tough sledding you have for a constitutional challenge."

"But what seems to me pretty reasonable is the amount of funds that the state has already collected. They didn't steal it. They had a right to it and they put it in the bank, or various funds, and said this is ours," Irby said. "And to go back to 2006 and give that up seems to me to be pretty violative of the anti-gift clause in the constitution."

Irby denied other portions of the request for a preliminary injunction, which allows the Industrial Commission's review process to move forward. The next hearing in the lawsuit is scheduled for Aug. 27.

The public can view the survey of the ordinary high water mark of the Missouri River by consultant Wenck Associates at Written comments can be emailed to Comments will be posted to the website after June 20 to allow people to respond during the public hearing.

The commission has received three sets of public comments so far, Helms said.

The Industrial Commission will then review the public input and make a decision about whether to adopt the consultant's survey or modify the findings. Commissioners could take action as early as August, Helms said.

The hearing is set for 9 a.m. June 26 in the Heritage Center Auditorium and is expected to last all day. Audio from the hearing will be streamed online at