​Fracking and the Little Missouri River

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.”—NorthDakota 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. Then 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 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 specifically says they can’t do that.

So those big old trucks backed up to the Little Missouri State Scenic River and sucked the water out to fill their tanks. Then they took it over to a well site, 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 Badlands 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, 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 floodplain 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 email 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 did, 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 about 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 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, after realizing what they had done, the Water Commission 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 some friendly 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.

As the Legislature reaches its conclusion (I’m writing this on April 18), one of several things could happen:

• The Legislature could take that amendment out of the bill. The Water Commission staff told me they had already stopped issuing permits until they see the outcome of this amendment. If it dies, no more industrial water permits from the Little Missouri.
• The Legislature could pass the bill with the amendment in it. But because this is an appropriations bill, Governor Doug Burgum could exercise his line-item veto authority and strike it from the bill before he signs it.
• Or both the Legislature and the Governor decide the Little Missouri River is not worth saving and the State Scenic River Act will be changed to allow industrial uses for Little Missouri River water.

Likely, by the time you read this, one of those three things will have happened. We can only hope for the best—that somebody cares. Amen.