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l"'1W'n 0Prepared by the North Dakota Legislative Councilstaff for the Garrison Diversion OverviewCommittee

October 1997

GARRISON DIVERSION ISSUES· BACKGROUND MEMORANDUM

The Garrison Diversion Overview Committee origi·nally was a special committee created in 1977 byHouse Concurrent Resolution No. 3032 and recreatedin 1979 by Senate Concurrent Resolution No. 4005.In 1981 the 47th Legislative Assembly enacted NorthDakota Century Code Section 54·35·02.7, whichstatutorily created the Garrison Diversion OverviewCommittee. The committee is responsible for legisla·tive overview of the Garrison Diversion Project andrelated matters and for any necessary discussionswith adjacent states on water·related topics.

Section 54·35·02.7 directs that the committeeconsist of the majority and minority leaders and theirassistants from the House and Senate, the Speaker ofthe House, the President Pro Tempore of the Senateselected at the end of the immediately precedinglegislative session, the chairmen of the House andSenate standing Committees on Natural Resources,and the chairmen of the House and Senate standingCommittees on Agriculture.

HISTORY OF THE PROJECTThe Garrison Diversion Unit is one of the principal

developments of the Pick· Sloan Missouri River Basinprogram, a multipurpose program authorized by theFlood Control Act of 1944 (Pub. L. 78·534; 57 Stat.887). The Pick·Sloan plan provided for constructionof a series of dams on the Missouri River to controlflooding, provide power generation, and maintain adependable water supply for irrigation, municipalities,industry, recreation, wildlife habitat, and navigation.Approximately 550,000 acres of land in North Dakotawere inundated by reservoirs on the Missouri Riverunder the Pick·Sloan plan. It has been estimated thatthis inundation of North Dakota land resulted in theloss of approximately 5.8 million tons of lignite, fivemillion barrels of oil, $3.5 million in forest products,over $1.5 billion in personal income, $4.5 billion ingross business volume, and 2,600 jobs representing7,500 to 10,000 people.

One feature of the Pick·Sloan plan was theMissouri·Souris Unit, which was the forerunner of theGarrison Diversion Unit. Under the plan for theMissouri·Souris Unit, water was to be diverted belowthe Fort Peck Dam in Montana and transported bycanal for irrigating 1,275,000 acres; supplyingmunicipalities in North Dakota, South Dakota, andMinnesota; restoring Devils Lake; conserving wildlife;and augmenting the Red River.

The building of Garrison Dam changed the diver·sion point of the Missouri·Souris Unit from Fort PeckDam to Garrison Reservoir (Lake Sakakawea). Withthe change in the diversion point and the selection ofsome different areas to be irrigated, the plan wasrenamed the Garrison Diversion Unit. After consider·able study and review of the Missouri·Souris Unit,Congress reauthorized the project as the initial stage,Garrison Diversion Unit, in August 1965(Pub. L. 89·108; 83 Stat. 852).

The first detailed investigations of the GarrisonDiversion Unit were completed in 1957 and involved aproposed development of 1,007,000 acres. The initialstage of the Garrison Diversion Unit, authorized in1965, provided for irrigation service to 250,000 acresin North Dakota. This plan involved the constructionof major supply works to transfer water from theMissouri River to the Souris River, James River, Shey·enne River, and the Devils Lake Basin. The plan alsoanticipated water service to 14 cities, provided forseveral recreation areas, and provided for a 146,530·acre wildlife plan to mitigate wildlife habitat lossesresulting from project construction and enhancementof other wetland and waterfowl production areas.

Under the 1965 authorization, the Snake Creekpumping plant would lift Missouri River water fromLake Sakakawea behind Garrison Dam into LakeAudubon, an impoundment adjacent to LakeSakakawea. From Lake Audubon the water would flowby gravity through the 73.6·mile McClusky Canal intoLonetree Reservoir, situated on the headwaters of theSheyenne River. The Lonetree Reservoir would becreated by construction of Lonetree Dam on the upperSheyenne River, Wintering Dam on the headwaters ofthe Wintering River, and the James River dikes on theheadwaters of the James River. Lonetree Reservoir issituated so that water can be diverted by gravity intothe Souris, Red, and James River Basins and theDevils Lake Basin.

The Velva Canal would convey project water fromthe Lonetree Reservoir to irrigate two areas totalingapproximately 116,000 acres. The New RockfordCanal would convey project water for irrigation ofapproximately 21,000 acres near New Rockford anddeliver water into the James River Feeder Canal foruse in the Oakes·LaMoure area. The Warwick Canal.an extension of the New Rockford Canal. wouldprovide water for irrigation in the Warwick· McVillearea and provide water for the restoration of theDevils Lake chain.

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The United States Bureau of Reclamation hadoverall responsibility for operation and maintenanceof the Garrison Diversion Unit and would operate andmaintain all project works during the initial periodfollowing completion of construction.

A number of concerns have halted construction onthe project in recent years. including:

1. Legal suits brought by groups. such as theNational Audubon Society. seeking to haltconstruction of the Garrison Diversion Unitclaiming that the project violates the NationalEnvironmental Policy Act and to enforce astipulation between the United States andAudubon to suspend construction untilCongress reauthorizes the Garrison DiversionUnit.

2. Numerous problems concerning wildlife miti·gation and enhancement lands.

3. Canadian concerns that the Garrison Diver·sion Project would allow transfer of foreignspecies of fish and other biota to the detri·ment of Canadian waters in violation of theBoundary Waters Treaty of 1909.

CANADIAN CONCERNSCanadian interest in the Garrison Diversion Unit

has centered on concerns that because the GarrisonDiversion Unit involves a transfer of water from theMissouri River to the drainage basins of the Sourisand Red Rivers. the return flows entering Canadathrough the Souris and Red Rivers would cause prob·lems with regard to water quality and quantity.

In 1973 the Canadian government requested amoratorium on all further construction of the GarrisonDiversion Unit until a mutually acceptable solution forthe protection of the Canadian interests. under theBoundary Waters Treaty of 1909, was achieved. TheUnited States government responded by formallystating its recognition of its obligation under theBoundary Waters Treaty and adopting a policy that noconstruction affecting Canada would be undertakenuntil it was clear that this obligation would be met.

During 1974 several binational meetings of officialswere held to discuss and clarify the Canadianconcerns over potential degradation of water quality.An agreement was reached in 1975 between thegovernments of Canada and the United States to referto the International Joint Commission the matter ofpotential pollution of boundary waters by the GarrisonDiversion Unit.

The International Joint Commission created theInternational Garrison Diversion Study Board. Theboard concluded that the Garrison Diversion Unitwould have adverse impacts on water uses in Canada.including adverse effects on flooding and waterquality. The board specifically recommended that any

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direct transfer by the Garrison Diversion Unit of fish,fish eggs. fish larvae. and fish parasites be eliminatedby adopting a closed system concept and the installa·tion and use of a fish screen structure.

In August 1984 a press line. approved by represen·tatives of Canada and the United States. was issuedannouncing a general agreement between the twogovernments that Phase I of the initial stage of theGarrison Diversion Unit could be constructed.Canada, however. remained firmly opposed to theconstruction of any features that could affect watersflowing into Canada.

GARRISON DIVERSION UNIT COMMISSIONFor fiscal year 1985 the water and energy appro·

priations bill. signed by the President on July 16.1984, contained an agreement to establish a commis·sion to review the Garrison Diversion Unit.

The Garrison Diversion Unit Commission was a12·member panel appointed by the Secretary of theInterior to reexamine plans for the Garrison DiversionUnit in North Dakota. The commission was directedto examine. review. evaluate. and make recommenda·tions regarding the existing water needs of NorthDakota and to propose modifications to the GarrisonDiversion Unit before December 31. 1984. Construe·tion on the project was suspended from October 1through December 31.1984.

The commission worked under the restriction thatany recommendation of the commission must beapproved by at least eight of the 12 members andthat should the commission fail to make recommen·dations as required by law, the Secretary of the Inte·rior was authorized to proceed with construction ofthe Garrison Diversion Unit as currently designed.

Congress directed the commission to consider 11specific areas:

1. The costs and benefits to North Dakota as aresult of the Pick·Sloan Missouri River Basinprogram.

2. The possibility for North Dakota to useMissouri River water.

3. The need to construct additional facilities touse Missouri River water.

4. Municipal and industrial water needs and thepossibility for development, including qualityof water and related problems.

5. The possibility of recharging ground watersystems for cities and industries. as well asfor irrigation.

6. The current North Dakota water plan to see ifparts of the plan should be recommended forfederal funding.

7. Whether the Garrison Diversion Unit can beredesigned and reformulated.

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8. The institutional and tax equity issues as theyrelate to the authorized project and alterna·tive proposals.

9. The financial and economic impacts of theGarrison Diversion Unit, when compared withalternative proposals for irrigation andmunicipal and industrial water supply.

10. The environmental impacts of water develop·ment alternatives. compared with those of theGarrison Diversion Unit.

11. The international impacts of the water devel·opment alternatives. compared with those ofthe Garrison Diversion Unit.

The commission released its final report andrecommendations on December 20. 1984. Thecommission affirmed the existence of a federal obliga·tion to the state of North Dakota for its contribution tothe Pick· Sloan Missouri River Basin program butrecommended that an alternative plan be imple·mented in place of the 250,OOO·acre initial stage ofthe Garrison Diversion Unit as authorized in 1965 andthe original project authorization in 1944. Thecommission recommended that Lonetree Dam not becompleted at this time and that the Sykeston Canalbe constructed as the functional replacement. Thecommission specifically said while the Lonetree Damand Reservoir should remain an authorized feature ofthe plan, the construction should be deferred pendinga determination by the Secretary of the Interiorconsisting of a demonstration of satisfactory conclu·sion of consultations with Canada and after appropria·tion of funds by Congress. The commission recom·mended that the Garrison Diversion Unit be config·ured to provide irrigation service to 130,940 acres inthe Missouri River and James River Basins instead ofthe first stage 250,OOO·acre project. The commissionalso recommended that the first phase of the GloverReservoir be included as a feature of the plan in lieuof Taayer Reservoir for regulation of flows in theJames River.

The commission further recommended the estab·lishment of a municipal. rural. and industrial systemfor treatment and delivery of quality water to approxi·mately 130 communities in North Dakota. Amunicipal and industrial water treatment plant with acapacity of 130 cubic feet per second was recom·mended to provide filtration and disinfection of waterreleases to the Sheyenne River for use in the Fargoand Grand Forks areas.

An alternate state plan for municipal water devel·opment was submitted to the Garrison Diversion UnitCommission by Governor Allen I. Olson and Governor·elect George Sinner. proposing that the state woulddesign and construct the water systems and pay25 percent of their costs. In return. the federalgovernment would provide up to $200 million formunicipal water development projects. but the funds

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would be nonreimbursable. The federal governmentunder the alternate state plan would pay 75 percentof the construction costs of the systems with only theoperation and maintenance costs borne by the bene·fiting cities.

AUTHORIZATION LEGISLATIONFollowing the issuance of the commission's final

report, the Garrison Diversion Unit Reformulation Actof 1986. H.R.1l16. was enacted into law. This legis·lation was approved by representatives of the state ofNorth Dakota. Garrison Diversion ConservancyDistrict, National Audubon Society, and National Wild·life Federation.

The legislation addressed the James River bydictating a comprehensive study of effects over thenext two years during which time construction ofcertain features could not be undertaken. Thesefeatures were the James River Feeder Canal, the Syke·ston Canal, and any James River improvements. Ofthe 32,000·acre New Rockford extension, included inthe Garrison Diversion Unit Commission final report,4,000 acres were transferred to the West Oakes areaand 28,000 acres were authorized for developmentwithin the Missouri River Basin.

The legislation also contained provisions for:1. 130,940 acres of irrigation.2. Deauthorization of the 1944 Flood Control Act

and the 1965 Garrison authorization.3. Preservation of North Dakota's water rights

claims to the Missouri River.4. Nonreimbursement of features constructed

prior to enactment which would no longer beemployed to full capacity, to the extent of theunused capacity.

5. Acre·for·acre mitigation based on ecologicalequivalency rather than the 1982 mitigationplan.

6. Deauthorization of the Taayer Reservoir andpurchase of the Kraft Slough for waterfowlhabitat.

7. Continued authorization. but no construction.of the Lonetree Reservoir. Sykeston Canalwas mandated for construction followingrequired engineering. operational, biological,and economic studies.

8. Irrigation acreage other than on the Indianreservations or the 5,OOO·acre Oakes TestArea could not be constructed until afterSeptember 30, 1990.

9. A $200 million grant for construction ofmunicipal and industrial water deliverysystems. A $40.5 million nonreimbursablewater treatment facility to deliver 100 cubicfeet per second to Fargo and Grand Forks wasauthorized. All water entering the Hudson

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Bay drainage system would have to be treatedand comply with the Boundary Waters Treatyof 1909.

10. Municipal and industrial water deliverysystems for the Fort Berthold, Fort Totten,and Standing Rock Reservations.

11. Substitution of the Sykeston Canal for Lone·tree, but Lonetree could be built if:a. The Secretary of the Interior determines a

need for the dam and reservoir.b. Consultations with Canada are satisfacto·

rily completed.c. The Secretaries of State and the Interior

certify determinations to Congress and90 days have elapsed.

12. Irrigation soil surveys that must include inves·tigations for toxic or hazardous elements.

13. Federal participation in a wetlands trust topreserve, enhance, restore, and managewetland habitat in North Dakota.

GARRISON MUNICIPAL, RURAL, ANDINDUSTRIAL WATER SUPPLY PROGRAMAs indicated above, included within the Garrison

Diversion Unit Reformulation Act of 1986(Pub. L. 99·294; 100 Stat. 433) is an authorizationenabling Congress to appropriate $200 million for theGarrison municipal, rural, and industrial water supplyprogram. These federal funds are to be utilized forthe planning and construction of water supply facili·ties for municipal, rural, and industrial usethroughout the state of North Dakota.

On July 18, 1986, the Garrison Diversion Conser·vancy District and the State Water Commissionentered an agreement for the joint exercise of govern·mental powers. This agreement allows the GarrisonDiversion Conservancy District to use the expertise ofthe State Water Commission in developing and imple·menting the Garrison municipal, rural, and industrialwater supply program. In addition, the agreementdirects the conservancy district to enter into a coop·erative agreement with the Secretary of the Interiorand designates the conservancy district as the fiscalagent for the state of North Dakota concerning moneyreceived and payments made to the United States forthe Garrison municipal, rural, and industrial watersupply program.

On November 19, 1986, the United States and theGarrison Diversion Conservancy District entered anagreement that designates the Garrison DiversionConservancy District to act on behalf of the state ofNorth Dakota in the planning and construction, aswell as the operation and maintenance, of the watersystems constructed pursuant to the Garrison Diver·sion Unit Reformulation Act of 1986. This agreementcontains a definition of the responsibilities of the

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United States and the Garrison Diversion ConservancyDistrict under the agreement, provisions concerningthe work to be undertaken by the conservancy district,stipulations concerning the transfer of funds, and theprocedure for reporting, accounting, and reviewingthe planning and construction programs. It should benoted that the agreement also provides that theSouthwest Pipeline Project is eligible to receivefunding under this program.

APPROPRIATIONSSince 1966, Congress has appropriated

$594,847,000 for the Garrison Diversion Unit Project.Of this amount, $570,020,408 has been expended.Since 1986, $347,407,000 has been spent on theGarrison Diversion Unit. This includes $97,155,000for state municipal, rural, and industrial water supplyprojects; $89,771,000 on water supply and operation,maintenance, and research; $36,744,000 on fish andwildlife projects; $22,501,000 for irrigation;$20,100,000 for Indian municipal and industrialwater supply projects; $13,001,000 on the LonetreeGame Management Area; $10,288,000 for thewetlands trust; $3,622,000 on recreation facilities;$1,665,000 in miscellaneous expenses; and$40,796,000 in nonfederal funds. Expenditures in1996 totaled $25,011,500 in federal funds and$3,495,000 in nonfederal funds. Of this amount,$8,130,000 was for the state municipal, rural, andindustrial water supply program; $6,390,000 was forfish and wildlife facilities;' $2,950,000 was for watersupply systems and operation, maintenance, andresearch; $2,531,000 was for Indian municipal, rural,and industrial water supply programs; $1,121,000was for the Oakes Test Area; $869,000 was for Jame·stown Reservoir modification; $675,000 was forIndian irrigation projects; $671,000 was for collabora·tive studies; $312,500 was for the wetlands trust;$110,000 was for recreation facilities; and$1,252,000 was in underfinancing.

Congress appropriated $23 million for fiscal year1997. Approximately $12 million was designated formunicipal, rural, and industrial water supplyprograms and $3 million for operation and mainte·nance of project features with the remainder allocatedfor fish and wildlife and mitigation activities.According to press reports, the Garrison DiversionUnit Project is slated to receive $28.9 million in fiscalyear 1998. The bill contains $2.5 million in floodcontrol money for Grand Forks and East Grand Forks;$2 million for the United States Army Corps of Engi·neers to begin buying land in the Buford·Trenton Irri·gation District near Williston; and $750,000 to protectthe water intake system of the Buford·Trenton irriga·tion pumping plant.

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Of the $200 million authorized for the Garrisonmunicipal, rural, and industrial water supply program,approximately $120 million has been received since1986. The committee learned during the 1995·96interim, however, that the $200 million will not meetNorth Dakota's future water needs and thus the statemust reallocate how this money is spent before it isexhausted.

The State Water Commission has developed anallocation and schedule of remaining Garrison munici·pal, rural, and industrial water supply grant fundingbased on a September 29, 1995, Water Coalitionfunding report. This includes $29.96 million forPhase 2 of the Northwest Area Water Supply Project;$14.71 million for the Ransom·Sargent Rural WaterProject; $9.56 million for the Southwest PipelineProject; $6.33 million for the Burleigh water system;$5.36 million for Grand Forks water treatment plantmodifications; $5.17 million for the Missouri WestWater Project; $5.05 million for the North Valley RuralWater Project; $2.92 million for the Pierce RuralWater Project; $2.60 million for Phase 1 of the North­west Area Water Supply Project; $3.27 million forother projects; and $1 million in administrationexpenses.

The Southwest Pipeline has supplied water to Dick­inson since October 15, 1991. The pipeline iscurrently servicing 15 communities and 11 ruralhookups in North Dakota.

Construction on the Northwest Area Water SupplyProject is scheduled to commence in 1998 and theproject is now in its final design stage. It is antici­pated that water will be delivered in 2000. Thisproject is being financed from Garrison municipal,rural, and industrial water supply funds and throughbonding. The project is designed to supply water to15 communities north and west of Lake Sakakaweaand five rural water systems with the distributionsystem being centered in Minot.

During the 1995·96 interim, representatives of theBureau of Reclamation reported that the bureau IS

negotiating a cooperative agreement with the NorthDakota Game and Fish Department for the depart·ment to assume operation and maintenance of theLonetree Wildlife Management Area. The bureauspent $6.1 million on wildlife activities in fiscal year1996. The bureau is negotiating the terms of thewater supply agreement for the Oakes Test Area withthe Garrison Diversion Conservancy District. Fiscal

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year 1996 was the final year of studies at the OakesTest Area. The bureau expended $1.1 million on theOakes Test Area in fiscal year 1996. Also, the Bureauof Reclamation spent $471,000 in fiscal year 1996 onstudies as a result of the collaborative process.

1997 LEGISLATION RELATING TO THEGARRISON DIVERSION UNIT PROJECTHouse Bill No. 1073 declared a water supply for

eastern North Dakota as a critical priority. This billwas reviewed by the 1995·96 Garrison Diversion Over­view Committee and forwarded to the 1995·96interim Water Resources Committee for its considera·tion. This bill declared that effective development andutilization of the land and water resources of thisstate; the opportunity for greater economic security;the protection of health, property, enterprise, and thepreservation of the benefits from the land and waterresources of this state; and the promotion of the pros­perity and general welfare of all the people of NorthDakota involve, necessitate, and require the exerciseof the sovereign powers of the state. Therefore, it wasdeclared necessary that a means to supply anddistribute water to eastern North Dakota for purposesincluding domestic, rural water, municipal, livestock,light industrial, mining, agriculture, and other usesmust be developed. In furtherance of this publicpurpose, the bill established the supply and deliveryof water to eastern North Dakota as a critical priorityand the State Water Commission was directed tocontinue to cooperate with the Garrison DiversionConservancy District in addressing this criticalpriority.

RESPONSIBILITIES OF COMMITTEETo fulfill its responsibility of legislative overview of

the Garrison Diversion Unit Project, the committeemay wish to continue receiving periodic reports fromag~ncies and officials responsible for various aspectsof the project. These agencies and officials wouldinclude representatives of the Garrison DiversionConservancy District, the state's Congressional Dele­gation, the Governor's office, the Attorney General'soffice, the State Engineer, the State Water Commis­sion and the Bureau of Reclamation. The committeemay' also wish to receive input from interested partiessuch as the North Dakota Water Users Associationand the North Dakota Water Coalition.