,

Examining The Fresh Water Availability 

And Permitting Of Source 

Water In The Bakken Region 

Of North Dakota 

Jon Patch, Director of Water Appropriations 
Discussion Points 

• Current and future projections of water resource 

availability, permitting, and sustainability.

• Industrial water sales policy and levels of enforcement 

and monitoring

• Dealing with water permit violation and water theft 

through civil penalties.

• Real-time (telemetry) water-use monitoring initiative 

using SOAP protocol.
Water USE 

Industrial (14%)

Irrigation (42%)

Multiple Uses (0.4%)

Municipal (27%)

Power Generation (12%)

Rural Water (5%) Industrial (10%)

Irrigation (55%) Multiple Uses (0.3%)

Municipal (21%)

Power Generation (9%)

Rural Water (4%)

2011 Acre-Feet 2012 Acre Feet

Industrial

Irrigation

Multiple Uses

Municipal

Power Generation

Rural Water

Total Acre-Feet = 242,337 Total Acre-Feet = 357,137

Reported Consumptive Water Use for North Dakota

33.9K ac-ft

35.7K ac-ft

65.4K ac-ft

75K ac-ft

101.8K ac-ft

208K acres 196.4K ac-ft

260K acres
Industrial Water Use in 

the Bakken Region 

JUST oil industry water needs!

2012 

Industrial 

Water Use 

Current 

Allocation 

Pending 

Applications 

Acre-Feet 

totals 16,991 77,328 126,779 
Water USE 
“new” demand Sources 

!Surface Water 

Lake Sakakawea 

WAWS pipeline 

Missouri River 

Yellowstone River 

Smaller Creeks and Streams 

Water in ponds and sloughs 

!Ground Water 

Aquifers 

Glacial origin 

Bedrock aquifer 

Not From Fox Hills aquifer - off limits to 

 industrial 
North Dakota Century Code 

Title 61, Chapter 01, Section 01 

“All waters within the limits of the state from the 

following sources of water supply belong to the public 

and are subject to appropriation for beneficial use and 

the right to use of these water for such use must be 

acquired pursuant to chapter 61-04.” 

• Surface waters 

• Residual waters from 

beneficial use and 

artificial drainage 

• Groundwater 

• Non-contributing 

drainage areas 
North Dakota Century Code 

Title 61, Chapter 04, Section 02 

“Any person, before commencing any construction for 

the purpose of appropriating waters of the state or 

before taking water of the state from any constructed 

works, shall first secure a water permit from the state 

engineer!” 

Exceptions: 

• Domestic and livestock uses (less than 12.5 acre-feet/year) 

• Fish, wildlife, and recreation uses (that store less than 12.5 

acre-feet) 

• Irrigation of less than 5 acres (domestic) 
Types of Permits 

1. Conditional (establishes permanent water right) 

2. Temporary 

• No water right accrues 

• Maximum One year in length 

• Only for excess surface water 

• Temporary Industrial In-Lieu-Of Irrigation 

• Existing irrigation permit – forgo irrigation for 

the calendar year to use for industrial 
Applying 

For A 

Conditional 

Water 

Permit 
North 

Dakota’s 

Water 

Permit 

Process 
Recommended Decision 

• Expected effect of the 

proposed project on prior 

appropriators 

• Application of criteria for 

issuance of a permit 

Hydrologist Or Engineer Reviews: 

• Physical setting (hydrology, geology, climate, 

water quality) 

• Existing water use and its effects 

• Letters of concern 
Criteria For Issuance Of A 

Permit 

N.D.C.C. § 61-04-06 - State Engineer must 

grant permit if: 

1. Senior water rights not unduly affected 

2. Means of diversion/construction are adequate 

3. Use of the water is beneficial 

4. Proposed appropriation is in the public interest: 

• Benefit to applicant 

• Effect on economic activity 

• Effect on fish and game resources, and recreation 

• Effect of loss of alternative uses of water 

• Harm to other persons 

• Intent and ability of applicant to complete the appropriation 
State Engineer’s Decision 

If granted, State Engineer applies conditions to the 

permit. Once the water is put to beneficial use or 

the beneficial use date has passed, the permit can 

be inspected and perfected. 

1. Determine if hearing is 

needed 

2. Grant conditional permit 

(as applied for or reduced) 

3. Deny or defer the application 
Temporary Permits 

• Surface water only; issued for groundwater 

for emergencies only 

• Valid for up to one year 

• Can be reissued but not guaranteed 

• No water right accrues 

Example: 

Selling water from ponds or 

sloughs to the oil industry 

for hydraulic fracturing 
Increased Demand For Water 

For Oil Industry 

" About 100 Water Depot-related Conditional Water 

Permits Have Been Granted In The Past 6 Years 

" Over 100 Conditional Permit Applications Pending 

" About 25 Depots Use Water ‘In Lieu Of Irrigating’ 

" Temporary Water Permits – About 200 Per Year 

For Oil-Related Water Sales 
• Over 600 applications have been received 

Issued about 475 thus far 

• Oil Industry Sales – 198 (42%) 

• Road Work - 148 (31%) 

• Irrigation - 19 (4%) 

• Gravel Washing - 13 (3%) 

• Other – 97 (20%) 

2013 Temporary Water 

Permits 
• Over 119 applications have been received 

Issued about 55 thus far 

• Industrial – 32 (58%) 

• Irrigation – 21 (38%) 

• Municipal - 2 (4%) 

2013 Conditional Water 

Permits 
• In 2005, We Had ONLY One 

Groundwater & One Surface Water 

Hydrologist Assigned To All of 

Western North Dakota 

• 3 Staff Positions Added 

• 1-Water Resource Manager 

• 2-Water Resource Engineers 

• Shifted 5 Eastern ND Hydrologists To 

Western ND 

Staffing 
Water Needs Of 

A Growing Population 

• Water Permit Required For Municipal And Rural 

Water Use 

• Water Permit Not Required For Domestic Water 

Use Of Less Than 12.5 Acre-feet Annually 

• If Residential Development Uses More Than 

12.5 Acre-feet Annually, A Permit (Municipal) Is 

Needed 

• Potable Water For Use In An Office Or Shop Is 

Considered A Domestic Type Of Water Use 
Municipal Or Domestic? 

South Of Watford City: 
• Each Bakken/Three-Forks Well 

• Expected To Require 10-15 Barrels 

Of Water/Day 

• 2,000 new wells per year 

• 900 to 1,400 acre-feet per year 

• 40,000 new wells will need 18,000 

to 30,000 ac-ft/yr 

Another “New” Demand 

Maintenance Water 
Challenges Over Missouri 

River Use 

• Conflict With Corps Over Water Behind Garrison 

Dam – Contributes To Water Reuse Options 

• Missouri River Represents 96% Of North Dakota’s 

Surface Water 

• Current And Future Oil Development Will Depend 

On Access To Missouri River Water 
Water Reuse In Oil 

Production 

• Dramatic Increase In Oil Production 

• Approximately 7 Acre-Feet Being Used In Fracking 

Process 

• Estimates That Maintenance Water Use Will Match 

and Exceed Water Use In Fracking Process Annually 

• Gray Water Is Becoming A Source 

• Technologies Being Developed To Recycle Flowback 

and Produced Water 

• Obstacles And Challenges Exist But We’re Seeing 

Innovation To Help Drive Down Costs 
Re-Use Case Study: 

Dickinson 

• Original Source: Missouri River via SWP 

• Original Use Type: Municipal 

• New Source: City Of Dickinson WTP 

• New Use Type: Industrial (Oil Field Use) 

• Volume: 10,080 acre-feet 

• Application Status: Withheld/Deferred 
Re-Use Case Study: 

Enviro Waste Solutions 

• Original Source: Little Knife River 

• Original Use Type: Municipal 

• New Source: City Of Stanley Wastewater Lagoons 

• New Use Type: Industrial (Oil Field Use) 

• Volume: 179.3 acre-feet 

• Status: Application In Processing 
The Future 

• Cost Incentives For Water Reuse 

• Increased Oil Production Drives Need For Water 

Reuse 

• Technologies Continually Improving 

• Water Access Challenges In Western North Dakota 
Industrial water 

sales Policy 

• Due to the increase in demand and potential overuse 

because of profit potential for industrial water sales, 

we have implemented monthly reporting requirements

on all permits (temporary and conditional). 

• We are doing spot meter inspections by our 

technicians and hydrologists when in the area. 

• Monthly reporting and spot meter inspections are our 

first level of additional enforcement. This has been 

implemented on all industrial water sales permits. 
Most Permitted Water 

Use Self-Limiting 

For: Irrigation, Municipal, Industrial 

• Enough water will be granted to meet 

the annual requirement 

• No incentive to use more than allocated 

• No need to keep track of water use 

through the year 
Water Sales Not SelfLimiting 

• Sales Not Related To A Process 

• When Applying For A Permit, There Is Not A 

Formula To Determine Annual Water 

Requirement 

• There Is A Need To Keep Track Of Sales Vs. 

Permit Allocation Through The Year 

• It Is Common For A Depot’s Annual Allocation 

To Be Used Up Before The End Of The Year 
Violations

water “Stealing”

• Pumping more than allowed under the 

permit 

• Pumping without a permit 

Penalties For Violating 

Rules Of The State 

Engineer 

A. Civil Penalties 

NDCC 61-03-23 . 

B. Criminal Penalty 

NDCC 61-04-30. 
A. Civil Penalties 

NDCC 61-03-23. 

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Enforcement 

Philosophy 

1. Stop the illegal activity. 

2. Financial penalty suited to the severity. 

3. There should be a net zero impact on the 

managed resource
Cease and Desist Order 

• When enough evidence exists to justify 

• Can be processed quickly 
1. Establish a fine that is at least equal to the value 

of the water sold to take the profit out of illegal 

water sales. 

2. For those with water rights (conditional or 

perfected water permits), the quantity of water 

pumped in excess of that permitted is subtracted 

from the following year(s) allowed use, to result in 

no net impact to the water resource. 

3. Criminal penalties are “taken off the table” 

4. Fines in 2012-2013 have totaled over a $1.6M. 

Consent Agreements 
Consent Agreements 
A. Request assistance from the public, landowners, law 

enforcement 

B. Report violation to the Office of the State Engineer through 

local law enforcement or directly via phone, email, mail. 

C. Provide documentation of illegal activity, 

# Who – the names of the people or companies involved, 

# When – date and time when the activity took place, 

# Where – details of the location, including latitudelongitude, if possible, 

# How much – quantity of water, pumping rate, if known, 

# Photograph – orientation, description (USE YOUR SMART 

PHONE WITH GPS AND DATESTAMP), 

# Witnesses – names, signed affidavit, if possible, 

# Summary of investigation conducted. 

Limited Resources in The 

Field 
Take-Away Points 

• Water is not private property 

• Taking water for any purpose other than for household use, 

stock and small irrigation (under 5 acres) requires a permit 

from the State Engineers office 

• Document and report potential violations to our office 
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http://swc.nd.gov