JIM FUGLIE: View From The Prairie — Of Refineries And Bridges

There is news this week on several fronts involving threats to the North Dakota Bad Lands. There are some long documents to read. Here’s a summary. More when I get done reading them.

THAT DAMN REFINERY

First, Meridian Energy’s proposed oil refinery near Theodore Roosevelt National Park. You probably read that the Dakota Resource Council and its legal ally, the Environmental Law and Policy Center, filed a complaint with the North Dakota Public Service Commission asking the PSC to assume jurisdiction over the siting of the refinery before construction can begin.

On Monday, the PSC accepted the two groups’ complaint and agreed to serve the complaint on Meridian. What that means is that Meridian will now have to respond to the request for a full site evaluation. I’m pretty sure it also means that it cannot start construction of the refinery (Meridian has its Permit to Construct for a month but have not started any work at the site yet) until the PSC hears both sides of the story. The PSC has heard the environmental group’s side in the 17-page complaint, and now it will l get to hear Meridian’s case, arguing that it is not subject to PSC review.

And then, the PSC will decide whether to accept jurisdiction over the plant and require Meridian to undergo a full site review to decide if this is a good place to put a refinery. If it does that (and I won’t be surprised if it does), expect Meridian to go to court and challenge the PSC’s ability to do that. If Meridian doesn’t, expect ELPC to go to court to try to get a judge to order it done.

ELPC’s complaint asks for a cease and desist order, keeping Meridian from going ahead. I’m not sure if Monday’s motion grants that order. I’m waiting for a call back from an attorney to answer that question, but I’m guessing it does. I’ll keep you posted.

THAT DAMN LITTLE MISSOURI BRIDGE

The second long document I have to read is the long-awaited 80-page Draft Environmental Impact Statement on Billings County’s proposed Little Missouri River Crossing north of Medora, which was released a couple of weeks ago.

I say long-awaited because public hearings on this project were held in the summer of 2012, and we’ve been waiting more than six years now to see this document. No one seems to know what the holdup was, but no one was complaining, except the Billings County Commission, which has shelled out millions of dollars to the engineering firm KLJ for it.

The EIS identifies the proposed location of the new bridge — about 12 miles north of Medora — and explains why this is the best location for a new Little Missouri River crossing. The location is on private land — the historic Short Ranch — in spite of the fact that Commission Chairman Jim Arthaud said unequivocally at the public hearings on the project in June 2012 that the bridge would be built on public land.

Apparently KLJ couldn’t find a place to put it on public land. It will be interesting to hear Arthaud try to explain what happened. It will also be interesting to hear him explain why no one has bothered to even contact the Short family to let them know what is going on. The bridge is proposed to cross the river just downstream from the Short’s home place, within eyesight of the ranch headquarters, and no one from the county or the engineering firm has even bothered to talk to them.

The release of the EIS also triggers a new round of public hearings, scheduled in Bismarck and Medora. The DOT ran some huge, 25-column-inch ads in the Bismarck and Medora papers a couple of weeks ago advertising the public meetings, scheduled for next week, in Bismarck and Medora. But then, with no public fanfare, DOT changed the dates to the following week with just a short notice buried deep on the Billings County website.

So here’s the deal. The Medora hearing is now scheduled for 5 p.m. (MDT) July 23, in the Medora Community Center. The Bismarck hearing is at the Courtyard by Marriot Hotel in North Bismarck at 5 p.m. July 26.

These hearings are to gather public input on the bridge project. If you don’t like the idea of another bridge across the Little Missouri, in the middle of no goddam place, you should go to one or both of these hearings and make your feelings known. You should probably read the EIS before you go. You can find links to it here.

THAT OTHER DAMN BRIDGE

The third thing in the news this week is a notice from Bureau of Land Management that it is “seeking public comments regarding an application to authorize an existing single-lane ranch bridge over the Little Missouri River, with an associated access road, in Dunn County.”

You read that right. An application to authorize an existing bridge.

This is the bridge I’ve written about before, built by rancher Wiley Bice, west of Killdeer, on BLM land without BLM permission. The BLM knew nothing about this bridge on its land until I told them about it last year, even though it had been there for a few years. Bice also planted alfalfa on BLM land without permission.

In February, I filed a Freedom of Information Act request to see the application Bice submitted for this bridge, but even though the government is compelled by law to give me that application, it refuses to do so. Now I’ve received a letter asking me to comment on an application I have not seen.

I’ve pretty much lost patience with the BLM. Noted author Ed Abbey called it the Bureau of Livestock and Mines. A friend of mine in Montana called it the Bureau of Leasing and Mining. Both were pretty accurate. I know the BLM has been busy with an oil boom in North Dakota, although it hasn’t been booming so much the last couple of years, but it is apparent to me that it doesn’t even go out and look at its land to see what is going on.

I’m pretty sure no one had looked at the parcel that Wiley Bice built his bridge on — and planted alfalfa on — and built a road on, for more than five years. They’re the Bureau of Land MANAGEMENT. How can it MANAGE our public lands if it never goes look at it to see who’s abusing it?

Anyway, according to this letter, if you go to this website you will find all you need to know — not really, just all they want you to know — about this project, and how to comment. You have until Aug. 13 to respond. I have no idea what will happen after that.

Well, actually, I kind of do. The BLM will conduct an Environmental Assessment (a little bit cheaper version of the document Billings County did for their bridge) on the project, and then tell Bice to go ahead and build his bridge. Oh, wait, it’s already built. Never mind.

In a separate letter I found a copy of Tuesday, North Dakota BLM manager Loren Wikstrom writes that the alternatives being considered in the EA are:

  1. Take no action (leave the bridge, road, pond, and alfalfa fields on the land as-is). This would not achieve the project purpose, but the BLM will analyze the effects to serve as a baseline;
  2. Remove the bridge, road, pond, and alfalfa fields and rehabilitate the public land to a condition similar to that of the surrounding public land.
  3. Sell or exchange the affected public land to the adjacent landowner;
  4. Authorize the bridge, road and pond through rights-of-way, and the alfalfa fields through a lease; and
  5. Authorize only the bridge and access road through a right-of-way, remove the pond and alfalfa fields and rehabilitate the public land. In the event a right-of-way for the bridge and road are granted by the BLM, the site would still remain inaccessible to the public, via road, due to the lack of public roads to the site.

Loren has already told me that No. 5 is their preferred alternative, and that they’re not looking to make Bice  tear down a bridge that cost a couple of million dollars. He’s also told me they are making Bice pay for the cost of the EA and the reclamation. No big deal to Bice. As I wrote here earlier, he sold his oilfield trucking company for about $100 million. This is small change for him.

So I wouldn’t waste time writing letters to the BLM about this. It’s a done deal. A rich guy builds a bridge on public land, gets his hands slapped and lives happily ever after. That’s how the Bureau of Land Management manages your land.

Anyway, those three things are a pretty good indicator that there are still plenty of threats to North Dakota’s Bad Lands. So many it’s hard to keep track. I’ll try to write about each of them as things progress. Somebody has to keep an eye on these bastards.

JIM FUGLIE: View From The Prairie — Gov. Burgum Needs To Take Responsibility For His Actions

I don’t think North Dakota Gov. Doug Burgum has a disingenuous bone in his body. But sometimes political naivete can make someone appear disingenuous (actually, my definition of disingenuous is “fake naivete”).

There’s still a bit of naivete in Burgum. The transition from the business world to government is not an easy one. He’s still learning, although he’s a pretty fast learner. And when count on your ability to learn fast, in the public eye, for all the world to see, you can make mistakes.

So I’m writing off his charge to the Little Missouri Scenic River Commission to approve an industrial water policy for the Little Missouri State Scenic River as naivete, a mistake and not disingenuousness. Let me explain what I am talking about.

As I wrote here a couple of weeks ago, the North Dakota Legislature last May approved, and Gov. Burgum signed, legislation authorizing the use of water from the Little Missouri State Scenic River for fracking oil wells.

Ever since 1975, until that day in May 2017, it had been illegal to use Little Missouri River water for industrial purposes, like fracking. That policy was part of the “Little Missouri Scenic River Act” passed by the 1975 North Dakota Legislature and signed into law by Gov. Art Link.

But the state engineer over at the Water Commission office had been illegally issuing industrial water permits from the Little Missouri for about 15 years, more than 600 of them, and the Water Commission, chaired by the governor (Govs. Hoeven and Dalrymple), had been approving them. So the change in the law served the purpose of making those permits legal.

Conservationists, having observed how little regard for the law and for the environment existed in the Capitol, opposed the change to the more-than-40-year-old law and let Burgum know about it, asking him to veto the bill. Ignoring those pleas, he signed the bill but then took a series of executive actions.

While the new law allowed free and open access to the entire Little Missouri River for industrialization, Burgum initially limited that to just the part of the river downstream from the Long-X Bridge, which is located on the east end of the North Unit of Theodore Roosevelt National Park. Essentially, he allowed industrial water use in the last 40 miles of the river before it flows into Lake Sakakawea. That stretch of the river is mostly in Dunn County, where most of the heavy oil activity near the river takes place. So he really didn’t slow down development by limiting industrial water use on the rest of the river.

In doing that, he protected all three units of the national park from industrial development. For the time being, that is. Because he said this was going to be an “interim policy,” and he told his state engineer over at the State Water Commission office to present some options for a more permanent policy.

A month later, the engineers at the Water Commission office did just that, and at a State Water Commission meeting in June, Burgum joined his fellow Water Commission members in voting to open up the entire Little Missouri State Scenic River Basin to industrial water use, backtracking from his earlier policy of protecting the national parks.

He and the Water Commission did that with no public hearings and no public input. They just listened as the Water Commission engineers presented four different possible levels of development and recommended the most destructive one, and the Water Commission adopted it. No one except the engineers and the commission members got to address the issue. I guess that’s the way Burgum did things in the business world. But it shouldn’t happen in state government. Public comment should be required when major decisions like this are made by appointed boards, chaired by the governor.

I remember the days in the 1970s, when Art Link and Myron Just were the two elected members of the Water Commission — I was actually working for Myron back then — and they’d never have done anything like that. God, I long for those days again.

So in June, just six weeks after the Legislature passed a bill allowing industrialization of the Little Missouri State Scenic River Valley (another law change that had no public hearing because it was an amendment slapped onto the end of the Water Commission budget bill with just days to go in the session), and Burgum signed it into law, Burgum had a new “interim policy” on industrial use of the Little Missouri State Scenic River — anything goes.

But that’s when he did something I view as disingenuous.

He said he wanted this “interim policy” to be in effect until it was presented to his newly reactivated Little Missouri Scenic River Commission for its approval. Once approved, which he expected, this would become permanent policy.

If you’ve been reading this blog for a while, you know that the Little Missouri Scenic River Commission was also created in 1975 by the Scenic River Act but that it had essentially been discharged of its duties by Govs. John Hoeven and Jack Dalrymple. In other words, it quit meeting.

Those duties outlined in the law were to “advise local or other units of government to afford the protection adequate to maintain the scenic, historic, and recreational qualities of the Little Missouri River and its tributary streams.”

So Burgum was asking the Scenic River Commission to give the final approval for the industrialization of the Little Missouri State Scenic River, which would seem to be in direct conflict with the commission’s charge under the law to maintain the river’s “scenic, historic and recreational qualities.”

The way he asked them was to send an engineer out to their meeting in Dickinsn in October and ask the Scenic River Commission to approve the interim policy of the Water Commission, so it could become a permanent policy. You read that right. He asked the Little Missouri Scenic River Commission to give its blessing to a permanent policy that would allow industrial use of Little Missouri River water over the entire length of the river in North Dakota.

The appearance that gave was that Burgum had assuaged the conservation community by reactivating the Scenic River Commission, and then the very first thing he asked them to do was approve an industrial water policy. It just makes no sense. That’s not the Doug Burgum I know. Or used to know.

Luckily, the Scenic River Commission demurred, saying they wanted more time to think about it. I don’t think Burgum, or the engineers who passionately presented their case to the Commission, expected that. But to the general public, and those of us paying attention to all this, it gave the appearance that the commission was doing its job, maintaining the river’s “scenic, historic and recreational qualities.”

Good for them.

I wrote in an earlier blog that the policy is likely to be revisited at the commission’s next meeting, either with a presentation by the same engineers who pitched it at the last meeting, or maybe that the Governor himself should come and pitch it. Well, I’ve changed my mind about that.

I think that is a bad spot to put the commission in. There were a lot of people in the audience at the last Scenic River Commission meeting who finally got a chance to speak against the policy. Commission members appeared to listen.

I think both the governor and the engineers should stay home from the next meeting and let the commission get on with selecting an agenda for itself that indeed involves maintaining the “scenic, historic and recreational qualities” of the river. To do anything else would be disingenuous of the governor. I hope he gets that by now.

If he wants to adopt a permanent policy to industrialize the Little Missouri, let him do that. Don’t try to pass that off to a volunteer group charged with just the opposite. That’s the definition of disingenuous. Not naivete.

I’m posting a few pictures with this story that I made by scanning the Little Missouri Scenic River Valley on Google Earth. Take a look at them. They show what’s been going on the last few years as a result of the state engineer issuing illegal water permits and the absence of oversight by the Little Missouri Scenic River Commission during the Hoeven and Dalrymple administrations.

Take a look at the well pads and water depots just yards from the state’s only officially designated State Scenic River. This is what needs to stop. I really hope the Little Missouri Scenic River Commission will step in and do what the law that created it allows them to do. Here’s that law:

61-29-05. Powers and duties of commission. The commission may advise local or other units of government to afford the protection adequate to maintain the scenic, historic, and recreational qualities of the Little Missouri River and its tributary streams. The commission shall also have the power and duties of promulgating management policies to coordinate all activities within the confines of the Little Missouri River when such action is deemed necessary.

Who’s In Charge?  

Footnote: The Little Missouri State Scenic River Act was the brainchild of an early North Dakota State Parks director, Gary Leppart. He wrote the legislation and recruited a couple of local Republican legislators — Earl Rundle from New England and Karnes Johnson from Sentinel Butte, to sponsor it. Those two were enormously popular back home, and their legislative districts encompassed most of the Little Missouri River Valley. They helped bring local support for the bill, which might have been seen as an intrusion by state government into local affairs had Leppart not had local Republicans as sponsors. Rundle, who stood about 5-foot-4 with an enormous girth and an ever-present cigar, actually got in a canoe and went for a trip down river to show his support. My friend Mike Jacobs, who was a reporter at the Dickinson Press at the time, went along. He tells a pretty good story about the trip.

Leppart told me just the other day that “There really wasn’t any entity to oversee the river, so we just assumed the State Parks Department could do it. But I thought there should be some local input, that we should get people who lived beside it, to get involved. That’s why we wrote the law the way we did. And the support of local legislators helped get it passed.”

The law provided for six Bad Lands ranchers and three state officials — the state Parks director, the state engineer and the atate health officer — to serve on the commission. The commission was staffed by the State Parks Department. The Parks director served as the official secretary of the commission, and the Parks director’s staff handled the details of setting up meetings and distributing minutes. For many years, the Parks director managed the affairs of the commission, alerting members of issues they needed to deal with, and scheduling meetings to deal with them.

Burgum changed that when he reactivated the commission, handing the administrative duties over to the state engineer’s office. That was a bad idea. The state engineer implements state water policy. Engineers need to engineer things. Generally, they aren’t concerned with “scenic, historic and recreational qualities.” That’s just their nature.

On the other hand, those are the EXACT things State Parks directors do — “maintain scenic, historic and recreational qualities” of special places set aside for the public’s enjoyment. Leppart kept a close eye on this commission, and kept it active, as did his successors, Bob Horne and Doug Eiken. But Doug Prchal and Mark Zimmerman, who succeeded them, ignored it, and the result was rampant development along the river valley, aided and abetted by 600 illegal water permits issued by their sister agency, the state engineer’s office and by an Oil and Gas Division director who never learned to say “No.”

I blame Prchal and Zimmerman for the massive development on the banks of the Little Missouri State Scenic River today as much as I do the state engineers who issued those water permits and the Oil and Gas Division directors who issued drilling permits and oil tank battery permits beside the river. Although I truly believe the real blame lies with Hoeven and Dalrymple, who were rolling over for the oil industry. The bureaucrats were likely just following orders, and to not follow them would have meant their jobs, I suspect.

But I think Burgum didn’t know a lot of that history and didn’t think through who should be managing the Scenic River Commission when he reactivated it, and so he put the state engineer in charge.

It’s time to move that back to the Parks Department. The people there care about things like scenery, and history, and recreation. And they care about the river, and the river valley, and the Bad Lands, and the environment. Good for them. Let’s put them in charge of the whole state!

LILLIAN CROOK: WildDakotaWoman — Long X Bridge: Hold Public Meetings In Central North Dakota

Jim and I maintain a lifelong love affair with the Little Missouri River. It is one of the things that most deeply bond us together. We know every mile of this river intimately.

What follows is my letter of last week to North Dakota Department of Transportation regarding the Long X Bridge project. The bridge is near to the North Unit of Theodore Roosevelt National Park.

Please consider writing a similar letter. The public deserves as robust a process as is possible. Let’s bury NDDOT with pleas to hold more meetings.

October 14, 2017

Matt Linneman

North Dakota Department of Transportation

608 East Boulevard Avenue

Bismarck, ND 58505-0700

Dear Mr. Linneman,

I’m following up my comments at this week’s public meeting of the Little Missouri Scenic River Commission to write urging that your department schedule a public meeting in Bismarck regarding the Long X Bridge project.

I would also remind you that in a letter dated December 2, 2015, Jan Swenson of Badlands Conservation Alliance said the following: “Finally, the significance of this proposal and impacts both detrimental and beneficial to state and federal resources demands that public meetings be held across the state of North Dakota. Two public meetings, both located in far western North Dakota, are not sufficient to the issues at hand.”

While I wholeheartedly agreed that there should be adequate public meetings in the Highway 85 corridor, this is a federal highway, and your department represents all North Dakotans, more than 80 percent of whom live east of Glen Ullin. It is an undue burden to expect these citizens to have to travel so far to attend any of the meetings and well worth the department’s time to provide a greater range of opportunity to seek public comment from as many North Dakotans as possible. After all, we all use this bridge and care about the natural resources of North Dakota.

Sincerely,

Lillian Crook

Red Oak House

920 Arthur Drive

Bismarck, ND 58501

cc: Gov. Doug Burgum

Jan Swenson, Badlands Conservation Alliance

And here is Jim’s blog on last week’s meeting of the Little Missouri River Commission: Maybe the Governor shouldn’t send engineers to represent him

While you are thinking about the river, here is part two of his blogs on the river: Conflicts of Interest Could Plague Scenic River Commission. You can’t make this stuff up.

The river deserves better.

JIM FUGLIE: View From The Prairie — Conflicts Of Interest Could Plague Scenic River Commission

The North Dakota Legislature approved, and Gov. Doug  Burgum signed, legislation last May authorizing the use of water from the Little Missouri State Scenic River for fracking oil wells. Now our state engineer, Garland Erbele, has issued industrial water permits authorizing more than 2.1 billion (that’s 2,142,000,000)  gallons of water to be taken from the river. So far.

The withdrawals are actually measured in acre feet, and the allocation by the state engineer, who works for the State Water Commission, is about 6,600 acre feet between now and next Oct. 30. An acre foot is enough water to cover one acre of land a foot deep in water. That takes about 325,000 gallons. I don’t know if the permittees will get as much as they’re authorized, but they could, if the technology is there, and the river cooperates.

I also don’t know how much water there is in the river, but I do know the river has been running pretty close to dry all summer and fall.

It’s a big number, but I am not really concerned about that. As the oil boys will tell you, if we don’t take it out, it just goes to New Orleans, and they have plenty of water.  There are plenty of other things I am concerned about, though. Like the impact of all this industrial activity on the integrity of the Little Missouri Scenic River Valley, North Dakota’s only State Scenic River. And conflicts of interest.

For example, the newly elected chairman of the Little Missouri Scenic River Commission, Joe Schettler of Killdeer, is a partner in a company called Streamline Water Services, and his company, which sells water to oil companies for fracking, has industrial water permits to draw 715 acre feet between now and next August.

And Scott Kleeman, Schettler’s proxy on the Commission if Joe can’t make it to the meetings, is part of a family operation that has an industrial water permit to draw 900 acre feet and sell it to oil companies between now and next April.

There’s also one more potential conflict. At last week’s meeting, neither the McKenzie County Commission member David Lee Crighton, nor his proxy, Kit James (who also has an industrial water business), was able to attend, so they sent Kaye Nelson to represent the county. Kaye is the widow of Alvin Nelson, the former commission chairman back when it used to have meetings, around the turn of the century. Apparently she attended a lot of the meetings with Alvin, so the county felt like she could represent them well.

The problem is, a company called Select Energy Services has a water depot on her ranch along the Little Missouri west of Grassy Butte, and it has an industrial water permit to take about 100 acre feet of water between now and next May.

To be fair, all of them have been in the water business a long time, and were in it when they took their seats on the commission. I’m guessing the county commissioners in their counties who appointed them knew about that. But they’ve not taken advantage of their positions on the Scenic River Commission for personal gain. So far.

Still, it would seem like there’s a pretty big potential conflict of interest there. One of the other commissioners told me this week that the fact they are in the water business threatens the integrity of the whole commission.

Right now, the industrial permits are being given out by the state engineer under an “interim” policy allowing river water to be used for fracking. “Interim” because Gov. Burgum wants the approval of the Scenic River Commission before he makes it permanent.

At last Wednesday’s commission meeting (I wrote about it earlier this week), there was a motion to approve Burgum’s “interim” policy. It was made by Gene Allen of Golden Valley County. But no one seconded the motion, so it died. And they voted to postpone consideration of the policy until their next meeting. Schettler was chairing the meeting, so he couldn’t second it. Nelson also demurred. Maybe she thought it would be inappropriate because she has a potential conflict. Or maybe it was because she really isn’t a member of the commission, and was just filling in.

In any case, it would be good if the members who are already in the industrial water business made that fact known to the rest of the commission and to the public. Well, I guess I just did that for them. If there are any other members who are in the water business, or have a potential conflict, I don’t know about it. If so, they should ‘fess up as well.

The rest of the list of industrial water users who have gotten permits since the governor signed the bill May 2 is pretty interesting, too. Erbele didn’t waste any time. On May 5, just three days after the bill became law, he signed the Kleeman family’s permit for 900 acre feet.

The second one was even more interesting. On the 9th, he granted a fellow named Wylie Bice 700 acre feet. You might remember that name. I wrote about him last summer. He’s the guy who sold his trucking company for $80 million or so, bought the ranch next door on the other side of the Little Missouri Scenic River and then built a bridge over the river to get to it.

One side of his bridge is on federal land, owned by the Bureau of Land Management, as is a road he built on federal land to access it. And then he put in an illegal water depot on BLM land beside the Little Missouri River, a big plastic-lined pit to store the water he’s taking from the river to sell to oil companies.

Wylie Bice’s illegal water depot, on BLM land.
Wylie Bice’s illegal water depot, on BLM land.

The BLM has been up to see Bice, and it’s given him an application to apply for a bridge and a road, to “get things legal.” I don’t know about the water depot.

I’m having a hard time wrapping my head around the idea that the BLM might give him a permit for a bridge and a road after he’s already built them. I’m going to go out to Dickinson to the BLM office one of these days and take a look at that application.

What I’m not going to get a look at, my friends at the BLM tell me, is what is called a “trespass file.” I’m not sure exactly what’s in there because it’s confidential right now, but I have to guess they’re considering some kind of legal action against Bice for putting stuff on federal land without permission. I’ll find out more about that when I get to Dickinson, too.

Also troubling is the creep of fracking further south into the Little Missouri River Valley. A company called NP Resources is drilling two wells near the Little Missouri Scenic River between Medora and the Elkhorn Ranch. The wells are on land owned by two pretty wealthy friends of mine who have purchased ranches along the river to protect them from development. One is directly across the river from the Elkhorn, President Theodore Roosevelt’s historic home. In both cases, the minerals under their ranches are owned by someone else, so they were powerless to stop them. Mineral owners trump surface owners.

In both cases, NP resources applied for and was granted water permits for 58 acre feet of water from the Scenic River — bout half a million gallons each — to frack the wells. It’s troubling because the industry appears to now be making serious advances deep into the heart of the Bad Lands, in the Little Missouri Scenic River valley, not so far north of Medora and Theodore Roosevelt National Park.

The rest of the permits are mostly for a couple of hundred acre feet, and ranchers are taking advantage of their location beside the river to make a little money. Maybe more than a little. Hard to begrudge them that.

But those activities are the very reason the Little Missouri Scenic River Commission exists: Our state law, Chapter 61-29 of the North Dakota Century Code, the Little Missouri Scenic River Act, says we need to “preserve the Little Missouri River as nearly as possible in its present state,” and “maintain the scenic, historic and recreational qualities of the Little Missouri River and its tributary streams.”

Let’s make sure we do that. It’s getting harder, though.

JIM FUGLIE: View From The Prairie — The Newest Bridge Across The Little Missouri State Scenic River. What The …?

For the past 50 years or so, there have been just five places where you can drive your car across a bridge over the Little Missouri State Scenic River: in Marmarth on U.S. Highway 12, on Pacific Avenue in the city of Medora, on Interstate 94 just north of Medora (two bridges, one going each way), on U.S. Highway 85 south of Watford City (the Long-X Bridge) and on state Highway 22 north of Killdeer (the Lost Bridge).

The Billings County Commissioners have made news for the past 10 years trying to build a new bridge over the Little Missouri north of Medora. Their initial idea to put it beside the Elkhorn Ranch Unit of Theodore Roosevelt National Park got shot down, and they’ve been involved in a long and costly EIS process, which has settled on a spot about 12 miles north of Medora, on the Short Ranch. The draft EIS should be released shortly, and a public comment process will follow the release.

The county has spent millions of dollars, probably enough to actually build the bridge, on the EIS process. Its still going to have to get permission from the Short family to put the bridge on their ranch. That’s unlikely to happen, so more time and money will have to be spent in a condemnation proceeding. When —  or even if —  the new bridge will be built remains to be determined by a court, and by the Commission.

They should have talked to Wylie Bice.

A couple of years ago, Bad Lands rancher Wylie Bice needed a way to get across the Little Missouri on his ranch northwest of Killdeer, so he just went ahead and built a bridge. It’s 9½ miles straight east of the Long-X Bridge, which crosses the river right on the eastern edge of the North Unit of the national park.

Here’s Wylie Bice’s story.

Bice ran a small trucking company from his ranch in northwest Dunn County before the oil boom. When the boom came, Wylie took advantage of it, buying some trucks, hiring some drivers, contracting with a lot of truck owner-operators and making a lot of money hauling water to and from oil wells.

In 2012, he sold the company to a Florida trucking company named Quality Distribution for — you ready? — somewhere between $80 million and $100 million. By the time the dust settles, the final deal will likely be closer to the second number than the first.

The Commercial Carrier Journal, a trade publication, said at the time of the sale, Bice employed 500 drivers and trucks and was “one of the largest haulers of fresh and disposal water and oil in the Bakken shale. Bice is principally an asset light business, as the company primarily utilizes independent contractors who own their own equipment.”

Well, there’s a North Dakota success story. Kind of like that guy from Fargo who sold his software company to Microsoft.

Bice had maintained his ranching operation on the east side of the Little Missouri State Scenic River and flush with cash after selling the trucking company, he bought the adjoining Hellickson ranch on the west side of the river. Both pretty good-sized spreads.

And now he had a problem. With ranches on both sides of the river, he needed a way to get back and forth, to move cows, cut and haul hay and operate his irrigation systems.

So without really telling anyone, except the Corps of Engineers, from whom he needed a permit, he just went ahead and built himself a bridge over the Little Missouri State Scenic River.

The Corps made him jump through some hoops, but he hired an engineer familiar with the process, and by the spring of 2013 he received permission from the Corps to build the bridge and was able to start construction. He’s been driving on it for about three years now.

I drove across the bridge last month. It’s a pretty substantial bridge, 240 feet long, with two large stone/concrete abutments holding it up, much like those under the railroad bridge across the Missouri River in Bismarck-Mandan, although much smaller. It’s well-engineered, though, and when I first came over the hill on the east side of the river, my reaction was “Holy S**t, look at that.” Since then, everyone I’ve shown the photo to has said pretty much the same thing.

Not only does he have a bridge, but he has a water depot there for storing water he’s taken from the Little Missouri State Scenic River, ostensibly for irrigation. The depot consists of four large plastic-lined pits, two on each side of the river.

Setting up an irrigation operation on BLM land.
Setting up an irrigation operation on BLM land.

The day I was there in June, it appeared there were two hired men pumping water from the river to supply the irrigation system. At least that’s what they said they were doing when I stopped to visit with them.

He does have a couple of water permits, and I looked at them on the North Dakota Water Commission website. It shows that he hasn’t taken any water out of there in the past 20 years. The Water Commission’s website can be a little cumbersome, so maybe I’m not reading it right, or maybe the info is buried somewhere else on the website, or maybe someone hasn’t been reporting the water they have taken from the river. Someone named Wylie Bice. I think there are some guys over at the Water Commission who read my blog, so maybe they’ll do a little checking for me.

But what Bice doesn’t appear to have is permission from the Bureau of Land Management to put a bridge on their land, and a road to it, and two water storage pits.

See, Bice owns the land on the east side of the river, but the BLM owns the land on the west side of the river. Likely the grazing rights went along with the purchase of the Hellickson ranch, but the federal government — you and I — own the chunk of land there — about 100 acres — and likely Bice has been paying rent to run cows on it. There’s quite a bit of BLM land nearby, probably also part of Bice’s grazing permit.

The folks at the BLM office don’t seem to know anything about the bridge or the road or the water pits, but they should, since things like that would certainly need “permission slips,” and I’m guessing they’re checking on that right now as well.

The folks at the North Dakota Department of Transportation, which is responsible for inspecting bridges to make sure they are safe, doesn’t know anything about the bridge, and maybe they don’t have to, since it is a private bridge. Still, it’s on public land, and you’d like to think the DOT knows about all the bridges in the state, especially one of this size, crossing our state’s only designated State Scenic River.

The folks in the Dunn County Courthouse do know about the bridge, but weren’t involved in permitting it, since they don’t maintain the roads to it. None of them have been out to see the bridge, from what I can tell. In fact, I may be the only person other than Bice, his hired men, the engineers and the guys who built it who have actually seen the bridge. Too bad. It’s an engineering marvel out there, deep in the heart of the North Dakota Bad Lands.

The Little Missouri Scenic River Commission, had it been active when this was built, would surely have been involved in passing judgment on it, but the commission has been inactive for about 15 years under the Hoeven and Dalrymple administrations. Our new governor, Doug Burgum, has ordered it reactivated, though, and it might hold its first meeting as soon as this August. I’d hope there would be some discussion of this bridge at that meeting.

My friends and I, and my wife and I, canoe the Little Missouri State Scenic River pretty often, but since the boom we’ve avoided that stretch of the river. Too much noise, too much dust, too many flaring oil well pads. On our last trip, maybe10 years ago now, we stopped short of the bridge—  which wasn’t there yet —  at the ranch of my friend, Curly Haugland, which is about three miles west.

There might have been a canoer or two by there since it was built, but I sure hadn’t heard any reports from any of them about a new bridge. It’s not on the Forest Service map, which is the Bad Lands user’s bible, so I suspect it would be quite a shock to come around a bend in the river and see a brand-new bridge there. Maybe one of these days, if the river ever gets any water in it …

Well, that’s what I know for now. I can’t give you directions to the bridge, but I can tell you the legal address is the west half of Section 33, Township 148 North, Range 97 West. That’s it on the left, on the Forest Service map. White is private land, yellow is public land — owned by the BLM. You’ll have to get a Forest Service map and follow the winding gravel, and sometimes two-track, roads. The road from the east is a private road through private land, so you probably should go there from the west, across public land. And you probably shouldn’t cross the bridge, like I did, because you’ll be trespassing.

I’ll be checking back with state and local permitting agencies, and I’ll report back here if I learn anything new.

Y’know, with all the things I’ve learned, and all the stories I’ve heard, about the Bakken Oil Boom, this takes the cake.

LILLIAN CROOK: WildDakotaWoman — River Of My Heart

Poor little river of my heart, my Little Missouri River. In this year of drought, you are sadly diminished. Monday night’s storm was mostly lightning and thunder and just a trace of rain. This morning dawned another scorching day.

Prairie fires continue in western North Dakota.

The bison and horses and birds continue their wild lives here at Theodore Roosevelt National Park. The wind blows in the cottonwoods, and there is music in their brittle leaves.  There is almost no current in the river.

There are campers here, and folks are languid in the heat, but enjoying this peaceful place. Children play in the water.  We are drawn to the lifeforce that is water and to the shade of the great cottonwoods.

While many of the breeding birds have gone quiet now, the Western and Eastern kingbirds continue their chatter.

When we lived in Medora, it was my great privilege to work for the National Park Service, as the museum technician, and many of my friends are (or were) NPS staff. God bless them all for the work they do for our country’s treasures.

I’ve hiked every trail in the three units of TRNP, many times, and all of the Maah Daah Hey. But truth be told, my favorite trail is any I’ve bushwacked, either alone or with Jim, or a few close friends. I’ve biked the loop road and cross-country skied and worked on trail maintenance and other projects, and there is no doubt I love this park.

Today while I enjoy the park, my husband (who’d rather be here with me wading and taking in the solace of the Bad Lands) is in Medora giving a speech to the Association of Rural Telephone Cooperatives about why the park is important. He is a warrior.

If we inspire you to show your love of the Bad Lands, please join us and other like-minded citizens who are members of Friends of TRNP and Badlands Conservation Alliance.

Happy trails.

LILLIAN CROOK: WildDakotaWoman — Burning Coal Vein And Other Little Missouri National Grasslands Environs

We spent the weekend in the Little Missouri National Grasslands, camping in Slope County, at the Burning Coal Vein U.S. Forest Service campground, attending the Badlands Conservation Alliance outing, gathering with old friends and making new friends.

While Saturday was cool and windy, Sunday was a perfect 75 degrees and sunny. We also got a brief, but enjoyable, visit with our old friends, John and Jennifer Hanson of the Logging Camp Ranch, just before we departed for Medora. (Note: It appears that the USFS is now officially calling the LMNG the Dakota Prairie Grasslands. I think I’m too old to make an adjustment to this nomenclature.)

My pictures tell the story better than my words possibly could.  I hope you like these. If you go, be sure to do your research in advance and buy yourself a map.  And take water.

Back in Medora, the annual Car Show had just wrapped up, so we only got to see this sweetie when we stopped for ice cream.

Then, hoping for more juneberries, we headed down Scairt Woman Road to the Ice Caves in McKenzie County. No luck there but another pleasant hike before turning our car toward Bismarck and home.

I am in love with sandstone. With what water and wind does to sandstone.

Happy trails to you, gentle reader. Pray for rain.Maah Daah Hey trail

DAVE BRUNER: Photo Gallery — Badlands Beauty

Grand Forks photographer Dave Bruner and his wife, Sheila, recently returned from a weeklong vacation, which started with a stay in Medora, N.D., and a visit to Theodore Roosevelt National Park. Here are a few shots of what Dave has tilted “North Dakota Badlands Scenic Images.”

JIM FUGLIE: View From The Prairie — Who’s Looking Out For The Little Missouri State Scenic River — Redux

I’ve given some more thought to the issue of Little Missouri River water permits since I last wrote about it May 3.

I reported then that Gov. Doug  Burgum had signed into law an amendment to the Little Missouri State Scenic River Act, making industrial use of Little Missouri water legal for the first time since the act was passed in 1975. But at the same time he sent word over to the State Water Commission, which issues water permits in our state, not to issue any of those permits in the upstream reaches of the river — between the North Dakota-South Dakota border and the Long-X Bridge at the north Unit of Theodore Roosevelt National Park.

Quick geography lesson for those not familiar with the Little Missouri: It rises in the hills north of Devils Tower in Wyoming and flows north through Montana and South Dakota, entering North Dakota in the extreme southwest part of the state, and flows north and east into Lake Sakakawea east of Killdeer. Carving the North Dakota Bad Lands, home to Theodore Roosevelt National Park, along the way.

It’s that stretch between the North Unit of the National Park and the big lake that Burgum has left open for industrial development. It’s no coincidence that the focus of oil development along the river is along that stretch.

That’s his concession to the oil industry. In fact, his own Water Commission staff admitted to a reporter for The Dickinson Press the other day that “That’s where most of the oil industry activity has been.” Commission engineer Jon Patch said “They’ve been using local supplies that then pipe the water to nearby wells that are ready to be fracked.”

Using that water illegally, until now, it should be pointed out. There’s still the issue of those 600 permits that were granted by Patch and his staff, illegally, over the past 10 years or so. It appears that nothing is going to be done about that. As far as the state is concerned, that’s water under the bridge, so to speak.

I asked the governor’s spokesman, Mike Nowatzki, if there were going to be any repercussions for the noncompliance with state law by the Water Commission staff. You’ll recall from an earlier story I wrote the staff said they were “unaware” of the law that prohibited them from issuing industrial water permits from the State Scenic River. I pointed out to Nowatzki that, generally, ignorance of the law is no excuse.

Nowatzki wrote back, “As for the “noncompliance” issue, I’m not aware of any related legal actions/proceedings and I’m unable to provide any legal opinions.”

Well, he’s right, but there is someone who can provide legal opinions — the attorney general. So I fired off an e-mail to Liz Brocker, Wayne Stenehjem’s spokesperson: What is going to be done about the “noncompliance” with the law by the State Water Commission staff for the past 10 years?”

Liz answered politely: “With regard to the questions … whether there is a criminal violation of a statute would be under the jurisdiction of the county state’s attorney who would make a determination based on the evidence following an investigation. The Water Commission is a state agency headed by the governor, so any determination on whether further action is necessary or appropriate would properly need to be addressed there.”

Well, I thought her response was pretty nifty, in tossing the ball in two different directions: It’s the governor’s job to determine if he wants to fire someone, and it’s the local state’s attorney who would have to investigate and file any charges for violating the law.

Nowatzki had sort of already indicated that the governor was not interested in punishing the Water Commission staff. I thought about contacting the Burleigh County State’s Attorney and asking him if he was going to pursue this, but we’ve been in the middle of crime wave here since the oil boom began, and he has enough stuff on his plate right now without chasing after some doofus state employee who claims he didn’t know about the law that regulates his job.

I asked a former Water Commission staff member this week whether it was really possible that the engineers didn’t know they were breaking the law. The response was, yes, it’s possible. But it was also possible that they were operating under orders from above to help out the oil industry regardless of the law. Not much happened at the Water Commission during the Dalrymple years without clearance from the governor’s office. One of the most important things the governor could do to enable the oil boom was to make sure they had water for fracking. Without water, there’s no fracking. Without fracking, there’s no oil boom.

So that’s where things stand for now, at least as long as Burgum is governor. He has shown some concern for the Little Missouri State Scenic River but has also accommodated the oil industry. We’ll keep an eye on the process. We’ll see how many industrial water permits get issued. And we’ll certainly ask anyone who decides to run for governor in the future whether they’ll keep Burgum’s restrictions in place.

THE GOOD NEWS

Now, then I want to also revisit a piece of good news about the Little Missouri. Last December, just as the governor was taking office, I took advantage of an old friendship with his new chief of staff (I think he calls her the CEO), Jodi Uecker, and urged her to ask her boss to please revive what I have always considered an important board, the Little Missouri Scenic River Commission. I had written a couple of blog pieces about it earlier last year and placed articles in a couple of other publications I write for, and I shared those with her. You can read them here and here.

Well, Jodi listened. And her boss listened to her. And a couple of weeks ago, he instructed the state engineer, who heads the Water Commission staff, to do just that. It might take a while to get going. It has met only once since 2001 (only coincidentally, the year Ed Schafer, the last North Dakota governor to give a rat’s ass about the Bad Lands and the Little Missouri, left office and turned the governor’s office over to the Hoeven/Dalrymple administration).

The way it works is, as outlined in the Little Missouri Scenic River Act of 1975, Section 61-29 of the North Dakota Century Code, each county commission in the six Bad Lands counties appoints one member, who must be a rancher who owns property adjacent to the Little Missouri River, and those six serve with the state engineer, the State Parks and Recreation director and the director of the State Health Department on the nine-member commission. The six ranchers elect a chairman from among their ranks, and the Parks director serves as the recording secretary for the commission.

Officially, it is the duty of the chairman to call meetings, but unofficially, it has been the Parks director who really gets it done (the current chairman, Alvin Nelson of Grassy Butte, has been dead for several years). I went on a search for meeting minutes about a year ago, and what I learned is that the only meeting held since 2001 was actually called in response to a request from the KLJ Engineering firm, to seek the commission’s blessing for a proposed new river crossing in Billings County. That was August 29, 2007. Nearly 10 years ago.

At that meeting, KLJ, working for the Billings County Commission (Medora is the county seat, in case you’re wondering where Billings County is) said as soon as it had prepared the Environmental Impact Statement for the project, it would get back in touch with the commission to present its findings and seek permission to go ahead with the project.

Here are a couple of excerpts from the meeting minutes:

“The specific purpose of requesting the meeting, KLJ noted, is to seek guidance from the Little Missouri Scenic River Commission, if the river crossing structure alternatives comply with the Little Missouri State Scenic River Act … KLJ concluded their presentation and asked whether any of these types of river crossings (low water crossings or bridges) would be in violation of the Little Missouri River Act.”

“The Commission noted as this project progresses and specific alternatives are recommended for both structure type and location, the commission will need to be presented with detailed information fully addressing the scope and impact of this project to the Little Missouri River. Only then will the commission consider the project for compliance with NDCC 61-29.”

Well, how about that. Now, 10 years later, after numerous delays, KLJ is just weeks, maybe days, away from releasing that EIS. And it is pretty obvious, from those minutes, that both the engineering firm and the state of North Dakota took the responsibility of the commission pretty seriously back in 2007. I hope they still do.

KLJ will be coming looking for the Little Missouri Scenic River Commission to present it to. I hope the state engineer, who has been tasked with reviving it, can get it done in time to weigh in on the project because it has the potential to be the worst environmental disaster ever to hit the Bad Lands.

You see, there was no oil boom — not even a hint of an oil boom to come — back in 2007, so this was a pretty routine request. A new bridge for the ranchers and tourists to use. No one envisioned a miles-long caravan of trucks kicking up thousands of tons of dust a day and scaring off every type of wildlife within eyesight and earshot, while using this crossing of the Little Missouri River to move their water, sand and oil.

So while Gov. Burgum is willing to sell off the northernmost portion of the river, which makes me nervous because it contains Little Missouri State Park, arguably the state’s most fragile and scenic park, which means we’re going to have to keep a close eye on water permit requests for that stretch of the river, he seems committed to offer some protection for the upstream parts of the river.

I hope he kicks the state engineer in the ass and has him get this done right damn now. The oil industry, the Billings County Commission and the bridges they want, wait for no man. The Little Missouri State Scenic River needs all the oversight it can get. That was the intent of the 1975 Legislature. I’ll report back when the EIS is released.

JIM FUGLIE: View From The Prairie — No Veto, But No More Industrial Permits, Either — At Least For A While; A Partial Victory For The Little Missouri River

North Dakota Gov. Doug Burgum may not have been in politics very long, but he has learned the No. 1 rule already: Politics is the art of compromise.

To that end, the governor DID NOT veto the section of North Dakota House Bill 1020, which now that it is law, legalizes the issuance of industrial water permits from the Little Missouri River, a practice which had been going on illegally for many years If you’re not familiar with that, read this).

But in signing the bill into law Tuesday, he issued what Donald Trump might wave in the air as an “executive order,” declaring that no new permits will be issued for nonagricultural use of water (fracking) until new rules are written governing those permits. Those new rules are likely to address use by counties to draw water to keep the dust down on gravel roads but hopefully will ban water for fracking. That’s probably OK. We’ll see what they say.

Generally, this is an acceptable compromise, I think, with those of us concerned about the industrialization of the Little Missouri River — with one exception — and it might turn out to be a pretty big one. The governor’s order applies to the Little Missouri between the South Dakota border and the Long X Bridge over the river at U.S. Highway 85, on the east end of the North Unit of Theodore Roosevelt National Park south of Watford City. That’s about 85 percent of the river’s 275-mile length in North Dakota.

But it doesn’t apply to the section of the river between the Long X Bridge and where it flows into Lake Sakakawea, a distance of about 40 miles, mostly in Dunn County, and that last 15 percent is in an area that has been the hot spot of oil activity in the Little Missouri Bad Lands.

My friends who keep their eyes on oil activity in threatened areas tell me there are a number of large applications in process or pending just east of the Long X Bridge, and there’s a lot of Forest Service and BLM land that could be affected if industrial activity is allowed, including some incredible landscapes and wildlife habitat, as well as multigenerational ranches.

So, we will need to keep a close eye on this process, which the governor is going to make easier for us because he has ordered the Water Commission staff to make “the process and requirements for future issuance of temporary use permits for nonagricultural uses” transparent. Believe me, we’ll be taking advantage of that order. Looking at every permit.

Further, he ordered the Water Commission staff to make public all available data on the temporary use permits issued since 1990 and to do a preliminary report on that within 60 days. By July 1. Maybe we’ll read in that about the rancher along the river who sold the water from his temporary use permit to an oil company for more than $700,000 back in 2012 and 2013.

And as for those 600-plus illegal water permits issued by the Water Commission the last few years, the governor explained it this way:

“Recently, a State Water Commission hydrologist uncovered the 1975 law. A decades-long lapse in awareness and in practice has brought us to today.”

Well, OK. It just seems a little strange that the people who are 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 are telling the truth and not covering up for some superior (prior to Burgum, maybe named John or Jack), who told them to go ahead and issue the permits in violation of the law — oil booms and all the money that accompanies them can cause people to do strange things.

But at the same time, if they are telling the truth, it’s kind of disappointing that they wouldn’t know the law they are charged with upholding and enforcing. The engineers responsible 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? Well, anyway …

The best news of all from the governor this morning is that he has decided to revive the Little Missouri Scenic River Commission, the board created by the State Scenic River Act in 1975 to monitor development along the river. Some of us have been urging the governor to do that since we discovered a couple of years ago that it hasn’t met since 2007. You can read more about that here. If that board had been active the past 10 years, none of those illegal industrial permits would have been issued.

I consider the governor’s order a major victory for the Little Missouri State Scenic River. I’m going to the first meeting. Where hopefully they’ll be talking about the two proposed new bridges across the Little Missouri River. But that’s a story for another day.

So. The hundreds of people who contacted the governor and asked him to veto the law got half a loaf — maybe more. Now we will all know what has been going on, and we will have a chance for input and reaction to what goes on in the future (I just caught myself before I said “going forward” there, a phrase I hate). Constant vigilance will be necessary now. I think we’re up to it.

Gov. Burgum expressed concern for the Little Missouri River. Rightfully so. He owns ranchland on the river.

Gov. Doug Burgum expressed concern for the Little Missouri River. Rightfully so. He owns ranchland on the river.

Here’s the letter I got from the governor this morning, as did the others who contacted him about this:

Thank you for your input on House Bill 1020. I appreciate your concerns and would like to take this opportunity to explain why I have signed the bill into law.

As governor, a North Dakota resident and a property owner on the Little Missouri River, protecting our environment and being responsible stewards of our natural resources is a priority for me personally and for our administration.

The Legislature enacted a chapter of law called the Little Missouri State Scenic River Act (LMSSRA) in 1975 to preserve the Little Missouri River as nearly as possible in a free-flowing natural condition, and to establish the Little Missouri River (LMR) commission.

Records pertaining to LMSSRA indicate that it was enacted primarily because of concerns over several energy projects having interest in dams and diversions for purposes of coal gasification or electricity generation.

The legislation allowed for agricultural water permits but not for industrial uses. However, more than 600 temporary use permits have been issued for non-agricultural uses since 1990.

Recently, a State Water Commission (SWC) hydrologist uncovered the 1975 law. A decades-long lapse in awareness and in practice has brought us to today.

Currently, there are 35 temporary use water permits issued in the Little Missouri River basin. Of these, only two have been issued in the area from the North Unit of Theodore Roosevelt National Park (TRNP) to the South Dakota border, and neither of these is on the Little Missouri River proper (http://www.swc.nd.gov/pdfs/littlemo_temp_permits.pdf).

Given the importance of our Little Missouri River to our state, and as a course of action in response to the recent discovery of the SWC’s noncompliance with the 1975 law, I have:

1. Been assured by the State Engineer that no conditionalwater permits have ever been, or will be issued establishing industrial water rights from surface water in the Little Missouri River basin.

2. Asked the State Engineer to immediately suspend the issuance of any new temporary nonagricultural use permits in the Little Missouri River basin upstream from the Highway 85 bridge(known as the Long X Bridge), at the east end of the North Unit of TRNP. This area of new permit suspension stretches from the North Unit of TRNP, south along the river, through Medora, past Marmarth, N.D., all the way to the South Dakota border, and includes the entirety of the Maah Daah Hey Trail and both units of TRNP.

3. Initiated the reinstatement of the Little Missouri River Commission. We have searched archives and the last recorded meeting of this commission was held in Dickinson in 2007. Commission membership, by law, includes the Director of the North Dakota Parks and Recreation Department, the State Health Officer, and the Chief Engineer of the State Water Commission, or their designated representatives; and one member from each of the following counties, appointed by their respective county commission: McKenzie, Billings, Slope, Golden Valley, Dunn and Bowman. The county representatives must be resident landowners who live adjacent to the Little Missouri River, with the exception of the Golden Valley County representative. The governor’s office will work with the State Water Commission and the respective county commissions to re-establish an active Little Missouri River Commission.

4. Asked the State Engineer to immediately reviewmodify and make transparent the process and requirements for any future issuance of temporary use permits for non-agricultural uses, and to make public all the available data on the temporary permits that have been issued since 1990. The State Engineer will deliver a preliminary report within 60 days. Also, this report and its findings will be presented to the Little Missouri River Commission and the State Water Commission. No new temporary use permits will be issued upstream of the Long X Bridge until the new system for application and approval is created.

5. Asked the State Engineer to evaluate the future need for additional Little Missouri River stream gauges. Presently, the SWC continuously monitors stream gauge flows in the Little Missouri River at three locations: Marmarth, Medora and the Highway 85 bridge. Many letters expressed concerns about water depletion in the LMR due to the industrial permits. The initial review of the river flows indicates this is a false hypothesis.  In a typical year, there is over 300,000 acre-feet of LMR water flowing past the Long X bridge. The peak year was the big flood year of 2011, when it reached a modern record of 1.1 million acre-feet of flowage. The low year of flowage since electronic recordkeeping began at the SWC in 1990 was 49,000 acre-feet (1992). In 2012, the peak year for industrial use between the TRNP North Unit and the South Dakota border, total reported use was 47 acre-feet, and it accounted for less than one-tenth of 1 percent (0.1%) of the total stream gauge flow.  For comparison, agricultural use that year was 1,024 acre-feet, while the Bully Pulpit golf course at Medora typically draws 155 acre-feet from its conditional use permit.

In addition to the above action steps, I thought you might find the following information useful:

Most temporary use permits are issued for periods of three to six months with a maximum of 12 months. All temporary permits are subject to cancellation by the State Engineer at any time, including for any violations in use, or when necessitated by drought conditions.

Temporary use permits cannot be renewed. A new application is required upon the term ending for the temporary use.

Many of temporary use permits (265 of 600) issued between 1990 and today were to support construction projects, including using water for dust control or as part of road/highway construction.

“Temporary use permits are strictly regulated by the State Engineer. Sample conditions can be found  at http://www.swc.nd.gov/pdfs/temp_permits_sample_conditions.pdf

Temporary use permits provide many benefits, including:

  • Limiting the impact on depletable water sources such as aquifers and artesian springs, a real concern in the area of the Fox Hills aquifer.
  • Avoiding the need to haul water across long distances, thereby reducing truck traffic and dust that impact wildlife, livestock, vegetation and human health. Eliminating temporary use permits would directly and substantially increase truck traffic within the LMR basin.
  • Reducing the risk of human injury from truck-vehicle collisions that may result from increased traffic congestion, as well as reducing the risk to wildlife. Truck vehicle miles traveled in North Dakota increased 88 percent from 2007 to 2015, and traffic crash fatalities increased from 104 in 2008 to 170 in 2012.
  • Reducing costs associated with building and maintaining roads due to increased heavy truck traffic.

If you desire additional technical information, or information on river flow, please contact Garland Erbele, State Engineer for the Office of the State Engineer at (701) 328-4940 or swc@nd.gov.

Our rivers, streams, lakes, aquifers and artesian springs provide a resource that supports our diverse economy, including the tourism/recreation, agriculture and energy sectors.

Thank you for your passion, concern and engagement in the public discourse about our conservation heritage and legacy.

Regards,

Doug Burgum
Governor