Mo. River Water Diversion Wins in Court

LINCOLN, Neb. (DTN) -- A water diversion project in central North Dakota can move forward after a federal court this week tossed out a lawsuit filed by the state of Missouri challenging an expected diversion from the Missouri River to seven counties in North Dakota.

The decision handed down by the U.S. District Court for the District of Western Missouri allows the U.S. Bureau of Reclamation to move on a water-service contract for the project to receive up to 20 cubic feet per second of water from the McClusky Canal in central North Dakota. That project will provide water supply for Burleigh, Sheridan, Wells, Foster, Kidder, McLean and Stutsman counties.

The state of Missouri filed a lawsuit in February 2020, claiming federal agencies violated the National Environmental Policy Act and asked the court to stop the project "unless and until defendants have properly evaluated the impacts upon Missouri's human environment."

For decades the Missouri River basin has been the center of disputes between landowners, communities, environmental and recreational interests who have battled for water from the river.

Drought conditions in the basin in 2021 have led to some of the lowest flows in years.

Most of North Dakota is in the middle of extreme drought and large chunks of the state are in exceptional drought, according to the latest U.S. Drought Monitor, https://droughtmonitor.unl.edu/….

The state of Missouri pointed to low river flows as a reason for the court to stop the project.

"The Missouri River already is substantially depleted," the state argued.

"It is estimated that, on average, 5.05 million acre-feet per year of Missouri River water, or approximately one-third of the annual average volume for the Missouri River at Bismarck, North Dakota, is consumed or evaporated by the time it reaches Garrison Dam from the Missouri River headwaters. Diverting additional water from the Missouri River prior to the Garrison Dam will inevitably lead to reduced storage and less water released from the reservoir system for downstream beneficial use."

The Bureau of Reclamation issued a finding of "no significant impact" on the project in September 2018.

In its ruling in favor of the Bureau of Reclamation, the court pointed to an analysis that found the project would have small effects on basin water supplies.

"Reclamation concluded that, although some projects -- including the state-sponsored Red River Project -- had changed in scope since the 2015 SEIS analysis, the net change in the volume of reasonably foreseeable future action depletions was nearly zero," the court said.

"The Central ND Project would constitute an additional withdrawal of, at most, 14,483 acre-feet -- an additional annual depletion of only 0.2%, representing only 0.06% of Lake Sakakawea's storage capacity. The record shows that Reclamation has taken steps to ensure that no more than 20 cfs of Missouri River water theoretically earmarked for use within the Missouri River basin -- and supposedly not more than will be needed by users in the Missouri River Basin -- will be channeled through the Central ND Project."

Sen. John Hoeven, R-N.D., said the ruling was important to the communities.

"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," he said in a statement.

"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."

Sen. Kevin Cramer, R-N.D., said the court was right to reject the lawsuit.

"Missouri's lawsuit was without merit and would have significantly and unnecessarily interrupted North Dakota's water supply efforts in the middle of a serious drought," he said in a statement.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

(c) Copyright 2021 DTN, LLC. All rights reserved.