The fight over water rights in North Dakota may be headed to court as state and tribal leaders battle the federal government for control of surplus water in the Missouri River and Lake Sakakawea.
It’s an age-old conflict, but the stakes have risen considerably since the oil boom began.
Gone is the era when availability of water was only a concern for agriculture producers. Likewise, the days of slow population growth have faded like a distant memory for residents of communities west of the Missouri River.
Nowadays, demand for water is increasing dramatically due to rapid economic and population growth tied to the oil industry. Fresh water is needed for everything from hydraulic fracturing to road construction projects and drinking water for droves of people moving to the western part of the state.
But just as North Dakota began to need more water, the federal government turned off the spigot at the state’s largest and most strategically located body of water.
Nearly three years ago, the U.S. Army Corps of Engineers stopped granting easements for water withdrawals from Lake Sakakawea. At the same time, Corps of Engineers officials declared that they will create a new policy for surplus water allocation that will require cities and businesses to pay for water from the reservoir and the Missouri River.
Now, with the Corps unwilling to budge, North Dakota leaders, backed by Sens. John Hoeven and Kent Conrad, are publicly threatening legal action to determine what rights the state has to the water.
“After nearly 60 years since the Garrison Dam was completed, and 50 years after Oahe, the Corps should not arbitrarily start charging the citizens of North Dakota for their water, the very same water that has always flowed through the state and on occasion flooded our lands,” Hoeven said. “That is wrong on legal as well as ethical grounds. Municipal, rural and industrial uses are authorized under the Dakota Water Resources Act of 2000, and I will encourage the state to sue in the courts if the Corps refuses to withdraw its plan.”
The North Dakota State Water Commission maintains that the state owns the rights to the flowing waters of the Missouri River, including a portion of what is stored at Lake Sakakawea.
Other states along the Missouri River that are home to reservoirs created by dams have made similar arguments since the Corps of Engineers announced that the surplus-water rules would change. States farther south along the river – those without dams – have not been affected by the Corps’ restrictions.
Recently, a bipartisan group of senators from South Dakota, North Dakota and Montana sent a letter to Senate Environment and Public Works Committee Chairwoman Barbara Boxer, a Democrat from California, and Sen. James Inhofe, a Republican from Oklahoma, urging them to schedule an oversight hearing regarding the Corps’ policy.
Native American tribes also have entered the fray, arguing that their rights to the water predate all claims.
NO NEW WITHDRAWALS
Despite the increased demand for water, the Corps of Engineers insists several studies must be completed before determining who can withdraw water from Lake Sakakawea and the Missouri River – and at what price.
Without a policy in place, North Dakota and the businesses operating here are scrambling to find other ways to fulfill their need for water.
Robert Shaver, director of the State Water Commission’s Water Appropriations Division, said requests to withdraw even small amounts of water have been denied, including a contractor completing roadwork on a state highway who needed water for dust control. The contractor received a state permit, but the Corps refused to grant authorization despite historically high reservoir levels.
“We gave the permit, but the Corps wouldn’t because of this moratorium. And that was during the 2011 flood,” Shaver said. “That’s how stupid the federal government can be.”
Monique Farmer, a spokeswoman for the Corps of Engineers, said it’s incorrect to say there is a moratorium in place. Instead, she said, the Corps has standardized the process for withdrawing water from reservoirs across the country. Rather than granting easements, the Corps wants users to sign water-supply contracts.
“There is a national policy in place,” she said. “Everyone has to be in compliance.”
No contracts have been awarded to water users from Lake Sakakawea since May of 2010, however, because the draft contracts are awaiting review by the assistant secretary of the Army for civil works, Jo-Ellen Darcy.
In addition, the fee for using the water has not been determined. It’s a part of the rulemaking study that may require payment retroactively for those who had existing agreements to withdraw water. It’s unclear when the study will be completed.
In order to facilitate more efficient distribution of water for the oil industry, since Lake Sakakawea water was unavailable, the State Water Commission developed a new policy granting temporary authorization for farmers who had existing irrigation water permits to sell the water for industrial purposes. The Commission also began granting temporary permits to obtain surface water from ponds, sloughs and other areas.
The two state programs have provided about 6 billion gallons of water to industrial users, but the permits are granted on a temporary basis, one year at a time. Much of the surface water on agricultural land has dried up since last year, magnifying the need to find another source.
“The Missouri River and Lake Sakakawea are perfect,” Shaver said. “They are strategically located and a very reliable quality and quantity supply of water.”
A LEGAL QUANDARY
The entire conflict centers on one question: Who owns the water in the Missouri River and its reservoirs?
The Corps of Engineers claims the federal government controls the water in the reservoirs because they were created when the dams were built and because the federal government owns the land surrounding the reservoirs.
The Corps stands behind the Flood Control Act of 1944, which authorized the agency to make contracts with states, municipalities or individuals at prices deemed reasonable for domestic and industrial uses of surplus water.
“If a water supply user is withdrawing water from the reservoir, they are benefiting from the use of storage within the reservoir,” said Larry Janis, the Corps of Engineers’ project manager for the surplus-water study.
Meanwhile, North Dakota officials argue that the state has always owned water that naturally flows through the state. The North Dakota Constitution, ratified in 1889, stipulates “All flowing streams and natural watercourses shall forever remain the property of the state for mining, irrigating and manufacturing purposes.”
Michelle Klose, an engineer at the State Water Commission, said the Corps is trying to expand its authority at the expense of the state.
“The Corps needs to recognize that there were natural flows in the river prior to the construction of the dam,” she said. “Our understanding is that they are not recognizing natural flows at all. That is such a major flaw that that needs to be fixed before it moves forward.”
North Dakota leaders also argue that the state bore substantial burdens when the reservoirs were built, flooding hundreds of thousands of acres of land, and that they were promised the use of water as compensation.
“Our state’s residents, tribes and businesses were promised compensation for the disruptions they faced when the Garrison Dam was created,” Hoeven said. “It’s unfair and illogical to renege on this promise and turn around and charge them for access to water stored on our land.”
Tribal leaders also oppose the Corps’ new approach to water withdrawals.
Charles Murphy, chairman of the Standing Rock Sioux Tribe, argued that the Corps lacks authority to determine the amount of water that Standing Rock may withdraw from the Missouri River because the Flood Control Act does not include Indian Tribes on the list of water users that may be subject to surplus-water agreements.
Murphy noted the U.S. Supreme Court has ruled that Native American tribes reserved rights to water when they reserved their land. Therefore, the 1868 Fort Laramie Treaty, which established the Sioux Nation and predates both the North Dakota Constitution and the federal Flood Control Act, included water rights for the tribe’s present and future needs.
“We believe the tribe possesses very strong water rights, senior to any other water user, because the tribes were here before any white settlers,” says Chris Lindblad, an attorney who works for the Standing Rock Sioux Tribe.
NOT THE FIRST TIME
The Corps of Engineers tried and failed in the past to force North Dakota to pay for water extracted from Lake Sakakawea.
In the mid-1980s when the Southwest Pipeline Project conceived to draw water from Lake Sakakawea and distribute it to tens of thousands of users in the southwest corner of the state, the Corps attempted to charge surplus water fees to help recover the costs of the Garrison Dam.
Then-Sen. Quentin Burdick argued that it was unclear whether the pipeline diversion relied upon the storage pool at Lake Sakakawea or the natural flows of the Missouri River.
The Corps backed down.
Robert Dawson, then-acting assistant secretary of the Army, wrote a letter to Burdick on Aug. 2, 1985 indicating the Corps had embarked on a study which would help determine which withdrawals from the reservoirs were benefiting from the presence of the dam and storage water and, therefore, should be charged a fee.
The study was to be finished by the middle of 1987, but it was never completed.
-Christi Stonecipher is a freelance writer for the Great Plains Examiner.