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The Western Water Law and the Missouri River

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The Western Water Law and the Missouri River The FROM THE NORTH DAKOTA STATE WATER COMMISSION Western Water Law and the Missouri River “…All other wealth falls into insignificance compared with that that which is to come from these lands from the pouring on them of the running streams of this country. Don’t let these streams get out of the possession of the people. If you fail in making a constitution in any other respect, fail not in this one. Take lessons from California and Colorado. Fix it in your constitution that no corporation – no body of men – no capital can get possessions and right to your waters. Hold the waters in the hands of the people.” Major John Wesley Powell (1889) 16 North Dakota Water n May 2013 By Steve Best “first in time – first in right” through the Missouri River. Thus, describes how this principal works. North Dakota’s Missouri River During the summer of 1889, the The first person, municipality, or water users do not rely on water first North Dakota Constitutional other entity, which applies for a stored behind the dams. Convention members were laying water use permit along a waterway the groundwork for what would for beneficial use, has priority over In spite of the fore-thought that officially become the State of North less senior water users in times the State Constitutional Convention Dakota that same year. On August when water is not as plentiful. had in 1889, the State of North 5, 1889, Major John Wesley Powell, Because North Dakota is a western Dakota is currently in conflict with Director of the US Geological water law state, it is important to the US Army Corps of Engineers Survey, delivered a speech before have the ability to appropriate water (Corps) over their proposed Surplus the Constitutional Convention from the Missouri River without Water Policy. This proposed policy regarding, foremost the importance interference. The Missouri River is is very complex, but in general, the of irrigation. the state’s most valuable and readily Corps contends they have authority available water source and is needed through the Flood Control Act of In that speech, Powell not only for a broad spectrum of beneficial 1944 to charge fees for the use set the stage for North Dakota’s uses, such as irrigation, water of “surplus” stored water in the future irrigation development, but supplies, and industry. mainstem reservoirs. The Corps also for all water management defines surplus water as water that decisions that would evolve over The State of North Dakota owns is available because of authorized the course of the state’s history. In the rights to the natural flows of the project uses that were never fully what have proven to be prophetic Missouri River into and through developed. In the case of Garrison remarks, Powell reminded the Lake Sakakawea and Oahe. Historic Dam / Lake Sakakawea, this is convention delegates of the volatile flows of the Missouri River near water not being utilized from nature of North Dakota’s climate, and stressed the importance of water in any equation for future success. Most importantly, Powell urged the convention delegates to retain ownership of the state’s water resources for the good of the people. At Powell’s urging, members of the Constitutional Convention adopted a constitutional provision for the state’s water resources, which says, “All flowing streams and natural water courses shall forever remain the property of the state for mining, irrigation, and manufacturing purposes.” To date, this provision remains in the North Lake Sakakawea near Garrison Dam in 2011 Dakota State Constitution and is the foundation for legislative decisions Williston are approximately 17.6 unfinished irrigation projects, in managing North Dakota’s water million acre-feet annually. Only including those associated with the resources. 570,000 acre-feet were permitted Garrison Diversion project. by the state for beneficial use in Additionally, in the early 2010. Approximately 81% of the The ongoing development of this 1900s, North Dakota adopted the permitted acre-feet of water is used policy has included many public fundamentals of Western Water for power generation and returned meetings between the Corps and Law, as did many other western to the river. By evaluating the North Dakota residents, yet it seems states. Western Water Law uses inflows and permitted acre-feet for that the Corps does not recognize the Prior Appropriation Doctrine beneficial use it is clear that the that the flows of the Missouri River in establishing water rights for people of North Dakota use only belong to the state. beneficial use. Basically, the phrase a small portion of water that flows North Dakota Water n May 2013 17 Water Balance In Lake Sakakawea Garrison Dam Missouri River Natural Inflow Lake Sakakawea ~17.6 Million Acre Feet Total Year To Year Storage ~22.75 Million Acre Feet Missouri River Flow Below Dam ~16.7* Million Acre Feet ND uses ~364,916 acre feet of Missouri River natural flows through Lake Sakakawea or roughly 1.6% of total reservoir storage. Consumptive Uses: Industrial, Irrigation, Municipal, Power Generation, Rural Water, Game & Fish Projects * Missouri River discharge below Garrison Dam is lower than inflows due to Corps Of Engineers managed releases, hydro-electric power generation, evaporation and to a far lesser extent, consumptive water use. Through the ND Constitution, the State of ND owns the natural flow of water in the Missouri River. ND only uses a small fraction of this water, and it should not be considered as surplus water. In February 2013, the Corps to the people of North Dakota, and Corps of Engineers property to lifted its moratorium, which had all citizens should work hard to access their water supply from the been in place since 2010 on new preserve these rights that are being Missouri River. real estate easements around Lake jeopardized in the proposed water Sakakawea, which had blocked surplus policy fees being considered If Major John Wesley Powell access to new water withdrawals by the Corps. Understanding this were here today to see this most around the lake. They have also new policy and the potential impact recent dispute over Missouri River recently announced that two on water users in North Dakota Water, he would most certainly industrial companies have entered is paramount. While fees are not advise the state and its citizens into surplus water agreements. Fees currently being charged for water to stand their ground. North are not yet being mandated on these use, if this policy passes, it has the Dakota’s water resources should agreements until a rule or national potential to increase the cost of indeed remain the property of the policy is developed. water to not only industrial users, state. This concept – since the but also municipalities and rural Constitutional Convention, is not The fathers of North Dakota’s water suppliers who have to cross new, nor is it negotiable. Constitution were prudent and had the foresight to protect the state’s North Dakota State Water Commission water resources for beneficial use by Todd Sando, P.E., State Engineer its people. Yesterday, today, and for 900 East Boulevard Ave. • Bismarck, ND 58505 years to come, the natural flows of (701) 328-2750 • http: //swc.nd.gov the Missouri River rightfully belong 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. 18 North Dakota Water n May 2013.
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