What an appeals court ruling means for North Dakota water users

FARGO — Appeals judges have upheld the dismissal of a lawsuit that could have derailed a pipeline project to deliver Missouri River water to central North Dakota.

The Eighth Circuit U.S. Court of Appeals agreed with a federal trial judge’s ruling that the state of Missouri had failed to prove that the Bureau of Reclamation didn’t properly review the proposed Central North Dakota Water Supply Project.

North Dakota officials view the decision as strengthening the legal case for the associated Eastern North Dakota Water Supply Project, which will extend the pipeline to deliver Missouri River water to Red River Valley farmers and residents, including those in the Fargo area, in times of severe prolonged drought.

Missouri, which opposes any upstream diversions of Missouri River water, likely will challenge the Eastern North Dakota water project, but now courts have ruled that federal review of important approvals for the project were proper, said Duane DeKrey, general manager of the Garrison Diversion Conservancy District, an arm of state government that is overseeing the water projects.

“We thought the judge at the District Court made some very good arguments so we thought we were in a strong position,” DeKrey said of the appeals court decision, issued Monday, July 10.

“This would take us to the Continental Divide,” where the Missouri River Basin ends and the Red River Basin begins. Once the pipeline is poised to cross the divide, a legal challenge from Missouri is expected, he said.

The Central North Dakota and Eastern North Dakota water projects are associated with the Red River Water Valley Supply Project but differ in that they would be able to use the McClusky Canal, which is owned by the Bureau of Reclamation.

The Red River Valley Water Supply Project would solely use a state-owned pipeline to carry Missouri River water, avoiding the need for further federal review and making legal challenges more difficult, DeKrey said.

But using the McClusky Canal, fed by water from Lake Audubon, a sub-reservoir of Garrison Dam’s Lake Sakakawea, would have significantly lower capital and operating costs, making it an attractive alternative, he said.

The $1.1 billion pipeline project, now under construction, could be completed by 2032 under funding commitments expressed by the North Dakota Legislature.

The Central North Dakota Water Supply Project proposes to use 20 cubic feet per second of Missouri River water, equal to 14,489 acre-feet of water, or the volume of water that would cover 14,489 acres a foot deep.

The Bureau of Reclamation concluded that depletion of the Missouri River would be “negligible.”

The decision by the three-judge appeals panel upheld an earlier decision dismissing Missouri’s case by Senior U.S. District Judge Nanette Kay Laughrey of the Western District of Missouri.

Patrick Springer first joined The Forum in 1985. He covers a wide range of subjects including health care, energy and population trends. Email address: pspringer@forumcomm.com
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