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Precious resource: Western states coalition opposes federal water fee

Press Photo by Dustin Monke An oil rig is seen east of New Town near the Van Hook Arm portion of Lake Sakakawea on June 6.

FARGO -- North Dakota is now backed by the collective voice of a coalition of Western states in denouncing a federal proposal to charge for commercial use of water drawn from Lake Sakakawea.

The Western States Water Council, which represents 18 Western states on water policy, has written the Army Corps of Engineers to urge that a proposal to charge a so-called "storage" fee be scrapped.

A group of 30 members of Congress, including Reps. Kevin Cramer, R-N.D., and Kristi Noem, R-S.D., also recently wrote the corps to urge rejection of the fee.

The possible fee, first proposed in 2010, comes as North Dakota's Bakken oil boom requires large volumes of water -- most drawn from underground aquifers -- to supply water to drill and hydraulically fracture wells.

North Dakota and South Dakota, both of which belong to the council, have argued that the states have a right to the water that flows naturally along the Missouri River, which runs through the Lake Sakakawea and Lake Oahe reservoirs.

"Water belongs to the states which have exclusive authority over the allocation and administration of rights to the use of surface water within their borders," the Western States Council wrote Jo-Ellen Darcy, assistant secretary of the Army for civil works.

The letter, dated Aug. 6, says the corps is misinterpreting the meaning of "surplus water" under the Flood Control Act of 1944, which authorized the Missouri River dams, including Garrison and Oahe.

The corps' proposal to charge for water in the reservoirs relies on an interpretation that surplus water is any water that is not required for federally authorized purposes.

"This interpretation ignores the distinction between storage capacity and stored water by improperly viewing the Missouri River as a series of reservoirs connected by free-flowing rivers," said the council letter, signed by Chairman Phillip Ward.

"The more correct view is that there are reservoirs sitting on top of portions of the River," the letter continued.

Michelle Klose, assistant state engineer, welcomed the support from the Western States Water Council, which she said should help sway the corps.

"It is a very large deal because you have this large group across the Western states," she said. "The Western States Council is actually fairly influential."

So far, just one firm has secured a temporary permit to use Lake Sakakawea water.

International Western, which seeks permission to use 4,950 acre-feet of water from Lake Sakakawea, has a surplus water agreement from the corps, but still must get an easement to access the water.

So far, 11 permit applications seek 33,418 acre-feet from Lake Sakakawea. By comparison, industrial water use last year by the oil companies in western North Dakota totaled almost 17,000 acre-feet.

One acre-foot, the amount of water that would cover one acre of land to a depth of one foot, equals 325,851 gallons.

North Dakota officials, and oil industry representatives, have said access to Lake Sakakawea water, off limits since 2010, would alleviate the pressure on groundwater sources and help take water trucks off roads.

A spokeswoman for the corps at its offices in Omaha, Neb., said the proposed storage fee remains under review, and a response to the letters by members of Congress and Western States Water Council is being prepared.