BISMARCK, N.D. _ During spring runoff on the Fort Berthold Indian Reservation, trucks have been spotted draining water from temporarily filled ditches along U.S. Bureau of Indian Affairs roads.
Their intended use for the water and their right to take it come into question. What the tribe can do about it also is questionable.
“Water is a very important area in our program,” said Edmund Baker, environmental director for Three Affiliated Tribes, during the Tribal Environmental Risk Mitigation Conference in Bismarck last week.
One oil well takes 7 million gallons of water to drill and maintain, Baker said. He added that there are between 2,500 and 3,000 wells on the reservation.
“As long as there is a frack job occurring somewhere within the boundaries here, there has been, and will continue to be, a need for water,” he said.
Baker first started receiving reports of the trucks when he started in his position about a year ago. It occurs most visibly off the BIA roads in the Mandaree area. He believes that type of activity went on long before he took up the responsibilities.
From an environmental perspective, the concern lies in the displacement of water from natural runoff, Baker said.
The problem is not being addressed at present, but may be addressed in proposed tribal water codes, Baker said. He said the boom happened so fast the tribal regulation structure is struggling to catch up.
Water codes are being developed for the tribe by a Native American law firm, Fredericks, Peebles & Morgan.
For the first couple of years of the boom, the state also was struggling to keep up, said Dan Farrell of the State Water Commission Water Appropriations Division.
“We have the same concerns,” Farrell said of the trucks.
In the state, companies are able to use natural water bodies as a source for water if they have a permit. Tribal lands are separate from state-controlled land.
Farrell said the commission does not have the staff to monitor the water pumping activity, so it coordinates with county sheriffs. He said the commission has received four to five reports this year of trucks illegally taking water.
Farrell said when they get a permit, truckers taking water are told to post their permit where they’re pumping. That gives them authority to withdraw state water. When the permit is issued, the company must work with landowners to get permission to be on their land.
If a company has no permit, it is considered trespassing, Farrell said. The State Water Commission responds with a cease-and-desist order and fines of up to $2,500 per day.
Jurisdiction is a huge issue when it comes to tribal lands.
“The communities are aware of the activity (pulling water) and since we have no regulation under the Environmental Division, we do not document this as an individual agency,” Baker said. “Our mandate is really to protect the water quality regarding surface bodies and underground sources. Displacement for alleged economic benefit, like fracking, is not within our oversight.”
Different groups own different lands on the reservation, which also complicates regulation. Baker said the easement of the roads under BIA oversight extends from the center line of the road to the fence lines that mark adjacent individual properties.
The U.S. Environmental Protection Agency steps in for the safety of wetlands.
If a water body is damaged, it becomes an EPA concern. If trucks aren’t being tracked, there is potential for a Clean Water Act violation.
Dennis Fewless, director of the North Dakota Department of Health Division of Water Quality, said he knows there’s a shortage of water and companies do use natural water bodies. He becomes more concerned if they’re disposing of saltwater in these water bodies.
Farrell agreed, saying there is no way to know what those trucks were hauling prior to pumping water.
When an oil company files for a permit to drill with the U.S. Bureau of Land Management, it must identify its water source and where it will dispose of hazardous materials.
Companies typically say that they will get water from a commercial source, but Baker said many companies use subcontractors that can be harder to track.