EPA water rule poses new potential obstacle for Red River water project

FARGO - The Red River Valley faces a new potential obstacle in its long-thwarted goal of getting water from the Missouri River to augment supplies during times of prolonged drought.

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FARGO – The Red River Valley faces a new potential obstacle in its long-thwarted goal of getting water from the Missouri River to augment supplies during times of prolonged drought.

The Environmental Protection Agency's Waters of the United States rule took effect in most of the nation Aug. 28 but was stayed in North Dakota and a dozen other states by U.S. District Judge Ralph Erickson.

Litigation to resolve the dispute is expected to take years, but if the rule ultimately takes effect in North Dakota as written, it would spike costs and delay many infrastructure projects, including water works, pipelines to serve the petroleum industry and highways, water leaders meeting here were told Thursday.

"It's undoubtedly going to cause projects to be a lot more time-consuming and a lot more expensive," Tami Norgard, a Fargo lawyer who specializes in natural resources and water law, told water officials.

Officials were gathered to discuss progress on the proposed Red River Valley Water Supply Project, which as planned would pipe water from the Missouri from near Washburn, north of Bismarck, to a creek that runs into the Sheyenne River, a tributary of the Red.


The project, spearheaded by state and local governments, carries an estimated price tag of $825 million to $1 billion, with a goal of starting construction in 2019 and completion four years later.

The project at first was to be in partnership with the federal government, as an offshoot of the now-defunct Garrison Diversion Unit, a massive water project first conceived in the 1940s. Garrison sparked intense opposition from environmental and wildlife groups.

After both the Bush and Obama administrations refused to grant final approval for federal involvement in the Red River Valley Water Supply Project, state leaders decided to pursue a project without federal support - and strive to avoid any federal permit requirements.

Avoiding federal permits, however, would be a daunting task if the Waters of the United States rule is upheld, Norgard said.

It expands federal jurisdiction to include prairie potholes - pervasive throughout 70 percent of North Dakota - and minor streams and other waters not previously subject to federal regulation, she said.

Routing a 148-mile pipeline from near Washburn to Baldhill Creek, which flows into Lake Ashtabula on the Sheyenne River north of Valley City, would have to thread an area filled with minor streams and other waters that could trigger federal oversight, Norgard said.

Opponents of the project also could use the rule as a means to try to block the pipeline from being built, she said.

"It provides another launch pad for other people to sue," Norgard said.


Although the Missouri River water would be treated to remove microorganisms, and therefore prevent transferring them to the Red River watershed, Canada and Minnesota for decades opposed Garrison because of the risk of biota transfer.

Downstream on the Missouri River, the state of Missouri also has objected to diversions of Missouri River water out of the basin because of water quantity concerns.

But Steve Burian, chief executive officer of AE2S of Fargo and a consulting engineer for the project, said the proposed pipeline would use between 122 and 180 cubic feet per second of water. Even during the severe drought of the 1930s, the Missouri in North Dakota never fell below 13,000 cubic feet per second, he said.

Studies of intake sites near Washburn and refining the pipeline route continue for the project, which, if all goes well, could start construction in 2019, said Duane DeKrey, general manager of the Garrison Diversion Conservancy District.

State officials, including the North Dakota Legislature, have been solidly behind the project, Fargo Mayor Tim Mahoney said. Lawmakers have expressed their intent to provide $600 million for the project, spread over four two-year budgets, he said.

Thirteen of the eastern-most counties in North Dakota, including Cass and Grand Forks, are part of the Lake Agassiz Water Authority, formed as local backers of the water supply project.

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