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Little Missouri Water Rights in Flux

by Bismarck Tribune

Little Missouri water rights still in flux
Bismarck Tribune

The Little Missouri River Commission postponed taking action Wednesday on a policy involving oilfield use of the state scenic river.

The decision followed two hours of debate from conservationists concerned about the impact of drawing water from the river for hydraulic fracturing and local landowners worried about increased traffic if water is instead trucked to oil wells.

The advisory commission that includes several landowners along the river said they want to study the issue more before making a recommendation to the State Water Commission.

In the meantime, the Water Commission will continue to operate under a temporary policy that allows one-year permits for the oil industry to access water from the Little Missouri under certain conditions.

Oil companies in the Bakken have used an average of 7.6 million gallons of water to frack each well this year, the Department of Mineral Resources said. But regulators say those volumes are increasing, with some companies experimenting with up to 20 million gallons per well.

The Little Missouri State Scenic River Act, adopted by North Dakota lawmakers in 1975, requires the river to be maintained in a free-flowing natural condition.

The State Water Commission has to balance between the requirements of the act and “the need to supply waters of the state for beneficial use,” said Jon Patch, director of water appropriations.

“The act does exist and we do recognize that we need to maintain this scenic river in a free-flowing and natural state,” Patch said. “We are not going to be issuing permits where we’re going to basically suck the river dry.”

The act as approved in 1975 did not allow water permits from the Little Missouri for uses other than agriculture and recreation. But until earlier this year, the law was unused and forgotten for many years, resulting in more than 600 industrial permits that were issued in violation of the act. Earlier this year, North Dakota lawmakers amended the law to allow temporary industrial water permits.

“We did not intentionally violate the law,” Patch said.

Gov. Doug Burgum, chairman of the State Water Commission, recently reactivated the Little Missouri River Commission, which is required by the act but had not met since 2007. Regulators then asked the river advisory commission to provide feedback on a new policy regarding industrial use of the river.

Badlands Conservation Alliance member Tracy Potter was among those in the audience who urged the advisory commission to spend more time before making a recommendation.

“The people who illegally issued permits for industrial uses are asking you to cover that by really kind of giving you the bum’s rush. They’re suggesting, 'Here’s a policy. Tell us it’s OK,' ” said Potter, a former state senator from Bismarck.

Joe Schettler, of Dunn County, who was elected chairman of the Little Missouri River Commission, responded by asking what the alternative would be to providing water for fracking oil wells in the river valley.

Schettler said there are two fracking crews who plan to work in his area this winter, and if they can’t pull water from the river, he estimates a truck would drive by every 1½ minutes.

Scott Kleemann, who ranches north of Killdeer, also expressed concern about a dangerous increase in truck traffic.

“If there is not a suitable solution or alternative, we need to keep using that water out of the river or it’s going to be terrible in Dunn County and McKenzie County,” Kleemann said.

Kleemann, who also is a water permit holder, said he pumps water from the river 300 feet from where his grandfather homesteaded.

“The last thing I want to do is wreck any of that,” he said.

Badlands Conservation Alliance Executive Director Jan Swenson said one of her concerns is that water pulled from the river and used for fracking is forever gone.

“If you irrigate, even a golf course, it comes back into the system. But when you use it for fracking, it does not come back into the system,” Swenson said. “How long can a little temperamental river handle that?”

Until the advisory group makes a recommendation, the State Water Commission will continue its current interim policy, which does not allow the oil industry to draw water from the river if the flows drop below a certain threshold.

In addition, a permit may be canceled if it’s deemed to significantly impact the free-flowing natural state of the river. Other conditions include minimizing visual and audible disruption to the scenic river valley, keeping shorelines free of debris and sheltering pumps and motors from view from the river.