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The Industrialization of a State Scenic River

by Jim Fuglie

In a startling revelation which shakes my confidence in the competence -- or honesty -- of North Dakota state government, two engineers at the North Dakota State Water Commission admitted to me in April they had issued more than 600 illegal permits to take water for industrial use from the Little Missouri State Scenic River.

The reason the permits were illegal is that the State Scenic River designation is part of our state’s laws, in Chapter 61-29 of the North Dakota Century Code, which says:

“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.”

The only water that’s supposed to come out of that river is water to be used for “agricultural or recreational purposes”... generally, for irrigating hayfields along the river.

The North Dakota Legislature said, in writing this law in 1975, that the Little Missouri State Scenic River is too valuable to the state to allow industrialization of the river to take place.

The Little Missouri is special, and everyone has agreed ever since to protect it. Everyone, it seems, except the State Water Commission, which has been ignoring the law and issuing permits for industrial use. Let me give you one example. The Water Commission issued a one-year permit to a rancher alongside the river in 2012 to take about 49 million gallons of Little Missouri River water for agricultural use. The rancher then sold the water to an oil company for more than $700,000. Not a bad year’s profit for free water from the Little Missouri River.

 I wrote about the State Scenic River Act, which designated the Little Missouri as our only State Scenic River, on these pages about a year ago. 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 10 million gallons per well.

And so, around 2009, oil companies began looking for some serious water supplies. And they saw that pretty little river running through the Badlands, 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 they found these two engineers, we’ll call them “Jonathan” and “William,” (no relation to the Mitzels of similar first names) and they asked “Hey, could we have some of that water?” And Jonathan and William said “Sure.”

They said “Sure” more than 600 times. And 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 an oil well site and mixed it with some sand and nasty chemicals and pumped it down a well hole to break up the shale holding the “black gold” below.

Jonathan and William told me it wasn’t until they read that story I wrote for Dakota Country and later put on my blog that they became aware of the fact that they weren’t supposed to be doing that. Well, hooray for us!

It may seem a little strange that the two men responsible for issuing all the water permits in the state of North Dakota wouldn’t know the law, but that’s their story. I hope they’re telling the truth, and not covering up for some superior who told them to go ahead and issue the permits in violation of the law. Oil booms and the money that accompanies them can cause people to do strange things.

But at the same time, if they’re telling the truth, it’s kind of disappointing these guys wouldn’t know the law they’re charged with upholding and enforcing. These aren’t some rookies right out of college. They’ve been career employees and have risen to the positions of director and assistant director of a division of one of the most important agencies in state government. How could they not know the law?

The two engineers also told me 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 9 years out of 10 you could canoe the Little Missouri River on Memorial Day weekend. Now it’s more like one or two out of ten. Just sayin’...

Anyway, those two engineers said when they learned they were breaking the law, they decided they better do something about that. And that’s how, in the 2017 North Dakota Legislative session, a little three-word amendment to the State Scenic River Act came to be, buried deep in the North Dakota State Water Commission budget bill (HB 1020), an amendment that changed the law from “other than for agricultural or recreational” purposes to “agricultural, recreational, or temporary use” purposes.

Never mind that the amendment to the Scenic River Act had nothing to do with the Water Commission budget or anything else in HB 1020. It was just a convenient place to sneak in a little amendment to accommodate the oil industry at the end of the Legislative session. That’s how a lot of things get done over there in our state capitol -- no hearings, no publicity, no public comment or discussion. And then we wake up some morning with a whole new law. Surprise!

Well, this time, by chance, we caught them, and when I saw that amendment I called William and Jonathan over at the Water Commission and asked them what “temporary use” meant. And that’s when they told me the story. Those were industrial permits for the oil industry, and they’d been violating the law more than 600 times. So they decided to ask the Legislature to change the law to bring them into compliance.

Well, isn’t that convenient? Let’s not revoke those illegal permits. Let’s make them legal. 1975 was a long time ago. Surely that law is outdated now that we have an oil boom and the oil industry needs that water.

The Legislature, being real good friends to the oil industry, said “Sure,” and they passed the bill, and sent it to Gov. Burgum for his signature. And for good measure, they slipped an “emergency clause” on the end of the bill to make the law effective as soon as the Governor signs the bill, instead of waiting until August, when most new laws take effect.

Now we might expect Gov. Burgum to be sympathetic to protecting the Little Missouri River. After all, he has a ranch in the Badlands, alongside the Little Missouri, and a few years ago, he placed a protective “conservation easement” on that ranch, writing that the property “possesses agricultural, scenic, and historic, and cultural values... rich in history and deep in the North Dakota Badlands. The scenic Little Missouri River, he wrote, “is the only state-designated scenic river in North Dakota.”

He filed that easement in the Slope County Court House in Amidon, North Dakota, where pretty much anybody who wants a copy of it can get one -- all 27 pages of it.

The Governor was obviously concerned about the Little Missouri River, saying “the integrity of the Little Missouri River corridor is significant to the entire state, region and nation in the context of its historic and cultural role in the Native American history of the Upper Great Plains.”

Nice language.

Now, we should note that as Governor, Doug Burgum is chairman of the State Water Commission, and those engineers, Jonathan and William, work for him. Once people found out about this amendment, they started calling and writing to the Governor asking him to have Jonathan and William pull the amendment from the bill, before it passed the Legislature and came to his desk. Nope, didn’t happen. Damn!

But this story has a bit of a happy ending. On May 3, Gov. Burgum signed the bill into law, but issued what amounts to an executive order to stop issuing temporary (industrial) permits on most of the river, to do a thorough review of those 600 already issued and to write new rules for the issuance of these permits in the future, and to open the process so the public can be involved.

As for Jonathan and William, they didn’t quite get their hands slapped, but they have a bunch of work to do to make themselves accountable to the people. It’s pretty obvious no one trusts them to do their work behind closed doors any more.

And the best news of all is that the Governor has ordered the revival of the Little Missouri Scenic River Commission, which is charged with overseeing all development along the river. It’s been inactive for 10 years. If it had been active, none of this would have ever happened. Coincidence? I don’t think so. More about that in a future story. •