The Background The Corps asserts that they have To provide some history on the materials are injected into oil- a right to charge for water because subject, you need to return to 1953, bearing formations of rock, under the flows through when Garrison was completed, high pressure, allowing the oil to the boundaries of the federally creating Lake Sakakawea. Lake be pumped to the surface. North FROM THE STATE WATER COMMISSION managed Lake Sakakawea, claiming Sakakawea and the other mainstem Dakota proved to have substantial that users benefit from Missouri River were built deposits of oil-bearing rock suitable storage. This action presents for the primary purpose of for hydraulic fracturing. Oil wells a serious threat to the right of reducing serious flooding in states of this type in North Dakota can North Dakota to manage its own downstream of North Dakota. require as much as three acre- CONFLICT OVER WATER: waters. The attempt to charge for Allowing to create feet of fresh water for the drilling Sakakawea water also was a harsh Lake Sakakawea resulted in the and hydraulic fracturing process, penalty to North Dakota, for it loss of approximately 300,000 necessitating access to ample water Lake Sakakawea And Challenges To State Use allowed the construction of a project acres of prime farmland in the state supplies. Thus, with needs for (Garrison Dam) within its borders (550,000 acres with ), water in the state at historically in order to provide control and 155,000 acres of that land was high levels, the Corps’ attempt to benefits for the entire Missouri from the Three Affiliated Tribes. deny North Dakota access to water River basin, and navigation for the To compensate North Dakota for from the of the mainstem lower Missouri River. The water lost land and income from a project Missouri River, which is located in supply benefits of the reservoirs that designed to benefit downstream the part of the state that most needs were envisioned for the Dakotas states, the federal government that water, could not have come at a in order to offset the impact of the originally promised over 1.2 million worse time. reservoirs have not occurred. acres of . While groundwater can be used Lake Sakakawea is the third For a variety of reasons, for hydraulic fracturing, limited largest reservoir in the U.S., built the promised benefits never availability and quality in the almost 50 years ago, and up until materialized. Over successive locations in North Dakota with oil- 2010, water users (with the exception years, the monetary benefits the bearing rock mean that the Missouri of an electrical utility) had never state was to receive were gradually River and Lake Sakakawea Lake Sakakawea in 2011 been charged for the use of water reduced and transformed, resulting represent the best available source. from the reservoir. In 2010, North in a small amount of irrigation, and With the Missouri River providing Dakota utilized approximately funding for municipal, rural, and nearly 96 percent of the annual flow A dispute that will determine for, Missouri River water flowing cost permits for water usage from 570,000 acre-feet of water from industrial water. However, through in the rivers and streams of North whether North Dakota can utilize through Lake Sakakawea. The the Missouri River and Lake the Missouri River annually (with all of the missed agricultural and Dakota, demand for its water has some of its own water has erupted Corps was also looking to regain Sakakawea in North Dakota. In 461,000 acre-feet of that being for lake development opportunities, one never been greater. in recent years. At stake, is whether costs of approximately $1 billion addition to existing water use power generation and then returned thing has always remained constant North Dakota will be able to related to the construction of the on Lake Sakakawea, the Corps to the river), compared with historic - the waters of the state belong to In 2011, in an attempt to alleviate manage the waters of the Missouri Missouri River mainstem dams, made available approximately flows of the Missouri River near the people of North Dakota, and some of the strain resulting from River and Lake Sakakawea for the eventually recouping those costs 100,000 acre-feet of water in Lake Williston of approximately 17.6 that includes the natural flows of the the Corps’ policy that was denying benefit of its citizens; a question by charging water users. In other Sakakawea for ten years, enough to million acre-feet annually; an Missouri River. North Dakotans access to their own having long-term ramifications areas of the United States, where meet current demands in the state. amount of naturally flowing water, water, the Water Commission began on municipal and industrial water reservoir storage is necessary for The Corps is expected to develop a that in the absence of the reservoir, In the mid-2000s, the high allowing for the temporary use of supply projects and uses in an water supply, a policy like this national water rate policy over the North Dakota could put to beneficial price of oil and innovations in water for industrial purposes in lieu area of the state that is seeing would make sense, but Missouri next 18 months, based upon studies use. (For comparison purposes, the technology made feasible a method of irrigation, and temporary surface unprecedented growth because of River water use by North Dakota is that will be conducted and a public average North Dakota household of oil extraction known as hydraulic water permits to divert water from the oil industry. well below what would be available comment period, and follow that uses approximately one-third of an fracturing, where water and other smaller lakes and water bodies. In without the reservoir’s storage. process with a water allocation study acre-foot of water annually.) At

It was a stunning challenge to the of the mainstem Missouri River North and South Dakota’s request, North Dakota State Water Commission state’s prosperity, when in May 2010 In May 2012, a reprieve of dams. Thus, the conflict over North the Corps initiated a study in the Todd Sando, P.E., State Engineer the U.S. Army Corps of Engineers sorts was gained, when the Corps Dakota’s right to access Missouri 1980s to quantify the natural flows 900 East Boulevard Ave. • Bismarck, ND 58505 (Corps) began denying access to, announced that they had agreed River water is far from over. of the Missouri River, but that study (701) 328-2750 • http: //swc.nd.gov and attempting to require payment to begin issuing temporary, no- was never completed. The State Water Commission does not discriminate on the basis of race, color, national origin, sex, age, or disability in employment or the provision of services.

16 North Dakota Water ■ June 2012 North Dakota Water ■ June 2012 17 addition, the Water Commission River’s natural flows. One of substantially larger, providing a has also vigorously opposed the the few benefits of the record temporary source of water for Corps’ contention that they have precipitation in 2011, was that it hydraulic fracturing. the right to charge for the Missouri caused many waterbodies to be

A comparison of the relative volumes of the Corps reservoirs in the U.S. The three mainstem Missouri River reservoirs are by far the largest in the nation.

Looking Ahead The Assistant Secretary of While the Corps’ recent fact can impede access to the states’ the Army (Civil Works) directed decision buys some time, their waters. the Corps to establish an updated overall position still conflicts with nationwide pricing policy for that held by North Dakota; that This issue will continue to be surplus water that is fair and at a minimum, the natural flows of vital importance to the long- reasonable, in accordance with of the Missouri River have and term prosperity of North Dakota. the Administrative Procedure Act. always will, belong to the state for For that reason, the state’s water After that is completed, a water the beneficial use of its citizens. managers and any concerned allocation study of the mainstem Further, as long as natural flows in stakeholders need to stay informed Missouri River dams will be the river are sufficient, the reservoirs about the Corps’ national water rate developed. (such as Lake Sakakawea) provide policy as it is developed over the no service to water users, and in course of the next 18 months.

18 North Dakota Water ■ June 2012