Marty Riske: Western Area Water Supply Project Must Respect Property Rights


Gov. Jack Dalrymple, right, tours the expanded Williston Water Treatment Plant on Wednesday, June 17, 2014, in Williston, N.D., with Jaret Wirtz, executive director of the Western Area Water Supply Authority. Amy Dalrymple/Forum News Service

Like many I have watched from afar as a certain project created by the State of North Dakota has been allowed to use the power of government to push local landowners around. As someone who has not been deeply involved with the controversy surrounding the Western Area Water Supply Authority (WAWSA) which has now existed for over five years, it seems to me there are two core issues that must be addressed immediately: eminent domain abuse and unfair competition by government.

First, eminent domain should be used sparingly in general – and always with a justified market-based compensation approach. In the case of basic services like domestic water for homes and farms, the process should be something everyone agrees is fair and equitable.

When it comes to the Western Area Water Supply Authority, eminent domain is not quite that simple due to the unique way the state legislature set up the funding mechanism of selling water to the oil industry for fracking. WAWSA has pretended that all of its activities should be treated as if the project is 100% for domestic water needs. It’s not. The lack of separation of the two roles has led to landowners being short-changed or even extorted with the use of eminent domain as a threat.

Take the case of LaVerne C. Mikkelson of Minot, who owns land in MacKenzie County:

In 2013, he paid the required $1,000.00 deposit to WAWSA so that they could begin to plan to bring water to his property in McKenzie County, Township/Range 152-100. He received updates over the years that they were working their way towards bringing that water to our property.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]The notion that a state-funded and regulated entity can deprive a landowner of their own property rights and then compete with that landowner in business is not the sort of thing we should tolerate.[/mks_pullquote]

In February 2016, he was asked by WAWSA to sign documents for Right-of-Way/Easement so they could bring pipeline to his MacKenzie County home. When WAWSA presented the papers to him, he added the requirement that they could not sell industrial water on his land as he had already contracted with companies to supply industrial water.

Their response was: “we won’t bring you residential water if you don’t let us sell our government subsidized water on your land!”

While it may be common practice for water districts to withhold domestic water from a property that refuses an easement, such a policy should not apply to industrial water sales. The notion that a state-funded and regulated entity can deprive a landowner of their own property rights and then compete with that landowner in business is not the sort of thing we should tolerate. The use of force by government in this way simply is not appropriate.

The second major issue with regard to WAWSA is the fact that the legislature has created an entity that simply has too much influence both in using the power of government to threaten landowners, and to compete with private enterprise.

The Western Area Water Supply Authority is the government. It competes with private businesses by selling industrial water to oil companies for fracking, and it seems to be getting a little too big for its britches as they say.

Private businesses must pay a market-based price to place pipelines on private property. Because it can use the threat of eminent domain, WAWSA pays a much lower price for accessing private property. If it were a typical water project solely designed to bring water to farms and homes, that would be reasonable. But because it seems the for-profit industrial water sales are the primary motivation of WAWSA, and domestic water supply is the convenient excuse, the case of WAWSA must be treated different than all other public water projects.

There have long been discussions of WAWSA in the legislature and in the media, including Rob Port’s SayAnything blog. Congressman Kevin Cramer, while on the ND Public Service Commission, spoke out against the approach the legislature took to create WAWSA.

There is no arguing the need for state support when it comes to supplying water to North Dakota residents in areas where reliable water has historically been a problem. However, there is no need for a state-subsidized and managed entity to even exist that competes with private water providers who are doing the job the oil industry needs to have done. Nor should an entity such as this should be allowed to use the weight and power of state and local government to push its weight around.

The term “socialism” gets thrown around generically a lot these days, but the way WAWSA operates and is protected by the state legislature most certainly fits the textbook definition of socialism.

Whether you want to talk about the lack of oversight by the state, the unfair pricing practices approved by the North Dakota Industrial Commission, or the way landowners are treated the message is very clear: The Western Area Water Supply has quickly become a symbol of out-of-control socialistic policies put in place by Republicans in North Dakota.