FARGO — The effort to divert water from the Missouri River to central North Dakota won a legal victory by overcoming a lawsuit by Missouri to block the use of federal infrastructure.
A U.S. District Court judge in Missouri rejected the lawsuit by the state of Missouri to prevent the Central North Dakota Water Project from using a pumping station and canal built for the now-defunct Garrison Diversion Project.
The decision, issued Wednesday, Aug. 25, opens the door to using the McClusky Canal to deliver water to Burleigh, Sheridan, Wells, Foster, Kidder, McLean and Stutsman counties in central North Dakota.
“We won on all counts,” said Duane DeKrey, manager of the Garrison Diversion Conservancy District, which is overseeing the water supply project. “We thought we had a really strong case,” but were surprised it came quickly, without oral arguments.
The decision in the lawsuit also has positive implications for the Red River Valley Water Supply Project, which will use the same pipeline to deliver Missouri Water to the Sheyenne River, 130 miles to the east, which feeds the Red River.
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The $1.2 billion Red River Valley Water Supply Project will provide supplemental water supplies to cities including Fargo and Grand Forks during severe droughts — like the current drought, which has greatly reduced flows along the Red River.
As of Wednesday, Aug. 25, flows on the Red in Fargo were about a fifth of their average for this date.
Also, a supplemental water source that is available to Fargo is in jeopardy of drying up. The elevation of Devils Lake is about 1,447 feet. Once the water level drops another two feet, to 1,445 feet, pumps for the Devils Lake outlet can no longer operate.
“So there is some reason for alarm,” DeKrey said.
Because of the urgency posed by the current drought, Fargo Mayor Tim Mahoney is asking state officials if they can accelerate construction of the pipeline, expected to take between six and 10 years to complete, depending on the availability of pipe and funding.
The pipe will be 6 feet tall and capable of carrying 165 cubic feet per second. Twenty cubic feet per second will be for central North Dakota and the remainder for the Red River Valley.
By comparison, the Red River in Fargo was flowing at around 100 cubic feet per second on Wednesday.
Officials will appear before the State Water Commission in October to request money to build 9 miles of pipeline, estimated to cost $47 million, DeKrey said.
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Missouri has a history of appealing cases involving North Dakota’s use of Missouri River water. But the track record so far provides little basis to believe that Missouri will succeed if it appeals, DeKrey said.
North Dakota has prevailed in a lawsuit to divert Missouri River water for the Northwest Area Water Supply Project, two lawsuits to allow pumping Devils Lake water into the Sheyenne, and Missouri’s lawsuit to block use of federal infrastructure for the central North Dakota project, he said.
Also, North Dakota has the ability to divert water with or without the ability to use the McClusky Canal, although use of the canal would significantly reduce operating costs by decreasing pumping.
The ability to use the canal will save the state and local users more than $200 million in construction costs and millions more annually in operating costs, said Tami Norgard, a Fargo lawyer representing the water project.
“The state project is going no matter what, and we have the permits for that,” DeKrey said. Either way, “It’s the same water.”
So far, the portion of the project to divert water out of the Missouri River Basin to the Red River Basin has yet to draw a legal challenge.
Officials including Sen. John Hoeven, R-N.D., are working to negotiate a water service contract with the U.S. Bureau of Reclamation for the central North Dakota water project.
“This federal court decision is welcome news, as it helps reduce legal uncertainty for the Central North Dakota Water Supply Project and will enable our state to make good use of water from the McClusky Canal,” Hoeven said. “Moving forward, we will continue working with Garrison Diversion and the administration to help ensure a fair price for this contract, allowing for an affordable and more reliable water supply for communities across these seven counties.”
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So far, only 3% of the capacity of McClusky Canal is being used, DeKrey said. It would benefit both the federal government and North Dakota to allow the state to use the canal and pumping station, he said.
