The Burleigh County Water Resource District wants earlier involvement in the State Water Commission's permitting process.

The water board was asked, as part of the permitting process, to comment on a permit issued to Atlas Inc. allowing a temporary water permit to take water from Apple Creek from March 28 to April 15.

Board Chairman Ken Royse pointed out that the water commission received the application for the permit in January, but the water board didn't receive notice until just recently, and by the time it returns comments, the permit will have nearly ended.

Board members are concerned that water is being taken from Apple Creek, which has been stressed by several years of drought. The resulting loss of water deprives senior appropriators (existing farmers and ranchers owning property adjacent to the stream) of necessary moisture.

District engineer Mike Gunsch said the spring runoff was a good time to allow junior appropriators, such as Atlas, to draw water from Apple Creek. He added that the water commission included conditions involving a specific time period and amount of base flow to be maintained while drawing water from the stream.

The permit mandates that a flow of 1 cubic foot per second must be maintained while water is being drawn from the stream.

Water district attorney David Bliss brought the permit issue before the board, noting that his family owns some property through which Apple Creek runs, and he's worried about the impact the commission's permits will have on the creek.

Bliss reported there has been a massive fish kill and other wildlife also have been affected by the drought.

"From my view, we've reached a crisis situation and the SWC is still granting temporary water permits," Bliss said in suggesting that no permits be granted at this time.

"Hundreds of thousands of gallons of water are being drawn off. There's hardly enough water for the cattle," Bliss added. "High water permits are a relative thing. These companies can put down a well if they need the water."

Royse said the district could put a moratorium on drawing water from Apple Creek until water levels return to normal.

Bliss also argued that taking water from Apple Creek affected more than just the surface water, it also impacted recharging of the underground aquifer.

The board's position on issues such as these will likely have a bearing when the district itself requests a permit, Gunsch said. One in particular is the district's proposal to divert Apple Creek water during spring runoff to bring up water levels at McDowell Dam.

Board member Gailen Narum, a former hydrologist, said that Apple Creek is unique in itself and is not like flowing streams. He advised the board to get more time to review and comment on permit applications made to the commission.

"Do we not have the responsibility to protect the natural resources of Burleigh County?" asked board member Terry Fleck. "We never seem to learn from droughts. We talk about conservation, but nothing is actually done until we have to conserve. Is maintaining a 1 cfs flow enough? In my book that's nothing, that's no flow."

"We always seem to have this discussion when we are in a drought," Royse said. "Perhaps we could ask the SWC to tighten the process."

It was suggested that those receiving permits be required to prepare an operational audit of the project and also provide a specific site from which the water will be drawn. Gunsch was asked to develop a letter expressing the board's concerns.

Gunsch did note that while the board was asked to comment on permits, it didn't have the authority to deny an application.

The board asked how permit violations were enforced. Gunsch and others said it would be difficult to catch violators and there are no specific penalties mentioned. Last year, Burleigh County was found in violation of its permit and the only repercussion was a cease and desist notice. Gunsch was uncertain if there was a formal penalty process or if there were any penalties.

(Reach reporter Gordon Weixel at 250-8255 or gordon.weixel@;bismarcktribune.com.)