North Dakota’s Little Missouri State Scenic River lost most of its scenic protection this week when Gov. Doug Burgum reversed course and joined the members of his State Water Commission in opening the entire river to industrial water development.

Last month, Burgum declared upstream areas of the state’s only official State Scenic River — the areas surrounding the three units of Theodore Roosevelt National Park — off-limits to industrial water use and told State Engineer Garland Erbele to “immediately review, modify and make transparent the process and requirements for any future issuance of temporary use permits for nonagricultural uses.” Read: Permits for fracking water.

That came after it was revealed that the Water Commission staff had issued more than 600 illegal industrial water permits and then had state law changed in the waning days of the 2017 Legislature to make such permits legal. The Little Missouri State Scenic River Act, passed by the 1975 Legislature, prohibited the use of Little Missouri water for industrial purposes. The bill passed this year changed that.

Friends of the river urged Burgum to veto the legislation, but he declined, instead issuing his policy of only allowing those permits downstream of the National Park.

In issuing that policy, Burgum said in a letter to me and others:

“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.”

Well, so much for “being responsible stewards.” Thursday’s action by the Water Commission took care of that.

Erbele did his “review” and came up with a recommendation 180 degrees from Burgum’s policy, opening up the entire Little Missouri State Scenic River basin to industrial use.

And in a puzzling move, the governor then took that recommendation to the Water Commission this week, instead of acting on it himself, as he had done in declaring his earlier policy.

Even more puzzling, the governor did not question the policy recommendation, and voted to implement it, opening up the entire river to industrial development and leaving friends of the river shaking their heads in wonder — and anger — at his inconsistency.

Now, I suspect that the governor, if questioned, would say he wanted broader input on the policy — input from his State Water Commission members. But the Water Commission only heard one side of the story — the oil industry’s side — at Thursday’s meeting. Opponents of the policy, who wanted to keep industrial development away from our State Scenic River and from the National Park, were not given a chance to speak to the issue.

Several of those opponents sat through Thursday’s marathon session for five hours, waiting for a discussion of the Little Missouri State Scenic River Act, as promised on the Commission’s agenda. But they were caught off guard when a Water Commission staff member presented a recommendation from a list of four options — the three that were not adopted offered some protection for the river — and the Commission adopted the one opening up the river for development after a brief discussion. Only Agriculture Commissioner Douglas Goehring voted against the recommendation, citing concerns over industrial use trumping the needs of farmers and ranchers for irrigation.

I was among those who thought it unusual for a major new state policy to be adopted by an important state agency without any public discussion or any chance for making a case against the policy before a vote was taken. But then, if we can adopt a national health care policy written behind closed doors, I suppose nothing surprises any more.

There was some discussion among Commission members before the vote. Commissioner Harley Swenson of Bismarck questioned the urgency of adopting the policy, given low water levels in the Little Missouri this year and pointing out that there were another 1,000 wells awaiting fracking right now, and perhaps wells along the river could wait until there is more water available and the list of wells awaiting fracking shrinks.

But Commissioner Larry Hanson, also of Bismarck, jumped in on behalf of the oil industry, saying that if they don’t get the water out of the Little Missouri, it’s a “long haul” to have it brought in from somewhere else. Old, white –haired, mostly bald heads around the table nodded in assent, and a vote was taken quickly then to approve the policy.

I point out the white-haired, mostly bald heads because the Water Commission is — or should be — an embarrassment to North Dakota government. All seven appointees to the board are old white males, many well into their 70s, at least one 80. To be fair, all were appointed by governors other than Burgum, and Burgum let four of them go after Thursday’s meeting, opening up their spots to new members he will appoint later this summer. Maybe some women? Maybe some under 70?

In another disappointing moment in the meeting, Burgum made a lame argument about the sequence of events leading up to the change in the law and Thursday’s adoption of a new policy. The illegal permits issued for industrial use had been going on “for decades,” Burgum said, and when a staff member discovered it, they quickly stopped doing it.

“There was no cover-up,” Burgum said. They admitted what they did was wrong, he went on, and brought it to the attention of the Legislature, which fixed the law to make those permits legal now.

Yeah, well, the governor was blowing smoke. Here’s what really happened. More than a year ago, I wrote an article for my blog and for Dakota Country magazine about the Little Missouri Scenic River Commission. During this year’s Legislative Session, a friend of mine, who had read the blog, told me he had heard a mention of the Scenic River Commission on the floor of the Legislature. I went looking, and sure enough, there was an amendment to the State Water Commission budget bill changing the law to allow industrial use of water from the Little Missouri State Scenic River, which had been prohibited since 1975.

I called the Water Commission, got a couple of the staff responsible for issuing water permits on the phone and asked what they were up to. They told me that they never knew about the law, in spite of working there for decades, and that one of their staff had read my story and brought the law to their attention, so they were getting it changed. I asked if they had issued any industrial permits to take water for the oil industry from the river, and one of them blurted out, “Yeah, more than 600.”  I’m guessing those two wished they had been a little more circumspect — I doubt they had told the Legislature that, when they asked to change the law — but it was too late. The cat was out of the bag.

So I wrote a story about it, and, when the bill passed the Legislature, a whole lot of people put heat on the governor to veto it. He didn’t, but he wrote the policy I mentioned earlier about keeping the industrial permits away from the section of the river near the National Park, the policy which was overturned Thursday with the governor’s blessing.

So what’s next?

Right now, the Water Commission staff said Thursday, there are four industrial water permit applications pending, asking for water for oil well fracking from the Little Missouri. I looked them up on the Water Commission’s website. All are between the North and South Units of the National Park, one just a couple of miles from the Elkhorn Ranch. One has asked to start pumping water immediately, one Sept. 1, and two Nov. 1. The permits, once approved, are good for only 12 months, so I’d guess they will be pretty eager to get going.

The oil companies have negotiated what I suspect is a pretty sizeable fee with the ranchers for access to the river on their land and building some kind of water depot into which they’ll pump the water. And then the water trucks — as many as a thousand trucks for each well — will thunder down the hill to the depot and load up and take their water to the well that needs fracking. At least I think that is how it works. I asked the Water Commission today what their intentions are for those four permit applications. Here’s the response:

“They all are in pending status. Based on the decision of the State Water Commission yesterday, they are eligible to be reviewed for approval. If approved conditions will be applied similar to the temporary industrial permits that have been issued downstream of the Long-X bridge. A threshold and maximum pumping rate will be developed for this reach of the river based on the Medora gage.” 

Well, I don’t suppose they’ll be pumping much water from the river right now if they are approved — which they could be. Right now, about noon on June 23, 2017, the river gauge at Medora shows there are just over 3 cubic feet per second (cfs) flowing through Medora. According to the U.S. Geological Survey, which maintains the gauges and keeps the records, that’s the lowest flow for this date in the 60 year history of keeping records on the river. The previous low was just under 8 feet in 2004, and the mean flow is 1150 cfs. In other words, the river is just about dead in its tracks. A severe drought, like the one we’re in right now, will do that. But if it rains …

I’m going to send this article to the governor to let him know how unhappy I am with him. He’s the only one who can protect the Little Missouri State Scenic River valley right now. It wouldn’t hurt if he heard from a few more people, too. It’s pretty easy. Just click here.