Comments on Corps Outlet 6-9-2003
by People to Save the Sheyenne and National Wildlife Federation
People To Save Sheyenne comments:
To: Headquarters U.S. Army Corps of Engineers
ATTN: CECW-P (IP) 7701 Telegraph Road, Alexandria, VA 22315-3860
From: People To Save the Sheyenne, Richard Betting, Secretary 11630 39 St. SE Valley City, ND 58072
Re: Comments on the “Devils Lake, North Dakota, Integrated Planning Report and Environmental Impact Statement” (IPR/EIS), April 2003
Date: June 9, 2003; U.S. Army Corps of Engineers' hearing, Fargo, ND
People To Save the Sheyenne wishes to add these comments in opposition to the proposed Devils Lake outlet plan (the Pelican Lake preferred alternative). First, the Corps' Pelican Lake outlet plan is a political solution to an environmental problem–flooding on Devils Lake.
Second, the main cause of flooding on Devils Lake is the huge increase in inflows to Devils Lake from the 2,616 square mile upper basin watershed, where thousands of acres of wetlands have been drained over the past fifty or so years. Of the three responses to flooding on Devils Lake–infrastructure protection, upper basin storage, and an outlet from the lake to the Sheyenne River–there has been almost no attempt to store water to prevent water from the upper basin reaching Devils Lake and adding to the flooding on the lake. In fact, in 1999 about 18,000 acre/feet of water were stored in the upper basin, and this year less than ten percent of that remains. A backwards process and a failure to act to implement a necessary part of the flooding problem on Devils Lake: Restoration of upper basin wetlands..
Before an outlet is considered, upper basin storage should be implemented with at least 100,000 acre/feet being utilized. Here's a brief set of facts to support that assertion:
“The Devils Lake Basin Study” (Volume 1, October 1976), prepared in response to the forty-fourth legislature's House Bill 1587, concluded that there were approximately 471,600 original acres of wetlands in the upper basin on Devils Lake. Most studies (see the U.S. Fish and Wildlife studies and the William Pearson letter of October 21, 1999, attached) since then conclude that there are about 200,000 upper basin acres of wetlands remaining. Thus, the obvious conclusion that over 200,000 acres of upper basin wetlands have been drained. The U.S. Fish and Wildlife figure of at least 189,000 drained acres is probably conservative.
Next, in spite of claims to the contrary by the North Dakota State Water Commission and others, drainage from the upper basin contributes significantly to flooding on Devils Lake. Even “The Devils Lake Basin Study” concludes that “man's activities are a contributing factor to flooding.” Since that 1976 finding, however, North Dakota agencies have denied a significant connection between drainage and flooding on Devils Lake. Why? Perhaps responsibility for downstream damage resulting from upper basin drainage has forced this denial.
A private study by Dr. Donald Hey commissioned and paid for by the Barnes County Water Board concludes otherwise. After studying the documents on which both the State of North Dakota and the Corps of Engineers rely, Dr. Hey writes, “There is little doubt that agricultural drainage increases the yield of a watershed, and does so by reducing the opportunity for surface storage, evapotranspiration, infiltration, percolation, and groundwater recharge and storage. These modifications to and the effects on the hydrologic cycle have been observed and understood for a long time. These are well-proven hydrologic principles. Neither Devils Lake nor its watershed poses unique characteristics that would obviate these principles.”
Dr. Hey continues, “As a result, evapotranspiration, infiltration and percolation are greatly reduced. With the reduction of these processes and potential interception of the groundwater by tiles and drainage ditches, more water leaves the land and enters the surface drainage system. Runoff can be increased by two- to three-fold.”
Dr. Hey concludes, “Beyond a reasonable doubt, extensive and intensive cultivation and agricultural drainage, including the connection of internally drained sub-basin, have greatly increased the yield of the Devils Lake watershed. As a result, water levels in Devils Lake rise more rapidly during prolonged periods of wet conditions.”
The scientific and logical conclusion is inescapable: Restore upper basin drained wetlands to their pre-drained conditions. To claim, as the EIS does, that added runoff is “not due to some corresponding sudden drainage of wetlands” ignores the cause and effect relationship between drainage, precipitation and runoff. The sudden rise in Devils Lake in the 1980's demonstrates that the 1993-99 rise was not the first result of what drained wetlands in the upper basin have done to Devils Lake.
The question of how many acres (and how many acre/feet they will hold) can be restored remains open. The Corps Final EIS relies on the West Consultants Report “Devils Lake Upper Basin Storage Evaluation” (April 30, 2001).
First, however, the West Consultants' study contains several flaws and problems. The most obvious omission in the West report is that the drained wetland figures West uses don't contain all of the data. They write, “It should be noted that the National Wetlands Inventory (NWI) wetland definition and the resulting NWI polygons do not include depressions that were completely drained prior to 1979.” Thus, no one knows how many “completely drained” acres are not included in the West report.
Still, West admits its conclusions “are conservative for two reasons”: The depressions were “selected randomly within each subwatershed.” Secondly, “Since the net total evaporation from the depressions was probably underpredicted, the annual runoff reduction with depression restoration could be underestimated.”
The West Consultants' study was based on maps and photos, and did not include photos from prior to the 1950's “when drainage activity was minimal,” so no comparison between than and now could be done with any accurate results. In addition, no field studies were done. Therefore, West concludes that to be accurate, “extensive field verification” should be done.
And then among the many recommendations the West study contains, here is one reminder: “For the restoration scenarios with less than 100 percent depression restoration, the restoration candidates were selected randomly within each subwatershed.” In reality, however, only the most optimal drained wetlands would be restored, changing the results of the study–and the actual results–significantly.
Even so, the West report concludes that about 92,429 acres can be classified as “possibly drained,” and these acres could hold approximately 132,729 acre/feet. Then the West study reduces the holding capacity of these depressions by claiming that they would hold less than a foot of water. In spite of that, if only 75% of the available acres were restored, the result would be about 94,850 acre/feet of water held back from flowing into Devils Lake each year.
Therefore, we also urge the Corps to consider (and calculate the costs of) acquiring ownership of the drained wetlands that are to be restored. That plan would reduce operating and maintenance costs in the long run and give the Corps control over when to release water from the restored wetlands or to allow agricultural use when they dry up. Even using the Corps' numbers (page 5-49) of $1,000 per acre, this would produce about 60,000 acres of restored wetlands, enough to hold back 94,850 acre/feet of runoff each year. That retention would reduce lake levels by about eight tenths of a foot each year, about as much as a 300 cfs constrained Pelican Lake outlet would remove and four times as much as the proposed State outlet would do. Using Corps figures of $1000 per acre, this plan would cost $63 million and not cause any downstream damage.
Other problems with an outlet include the downstream damage on the Sheyenne River, acknowledged in the EIS but neither adequately described nor addressed. “An outlet would have adverse effects in downstream receiving waters, including degraded water quality, increased erosion, increased sedimentation, reduced aquatic habitat value, higher river stages, minimal increased overbank flooding, extended duration of inundation, impeded river access, loss of aquatic resources, loss of riparian habitat, effects on agricultural uses, effects on water treatment facilities, social effects, cultural resource losses, effects on irrigation, and effects on Tribal resources. The mitigation features included with the project are intended to alleviate the construction and operation effects and help compensate landowners for the flow and water quality effects. Natural resource mitigation features would help the recovery of the system after the outlet has ceased operation. All of the operation effects would not be eliminated with the mitigation features. The intent is to alleviate the effects to the extent practicable.” (S-10)
The vague wording used to explain how all of these problems will be handled means there will be no recourse for unforseen damages. One of the requirements of an adequate EIS is to determine the damages, how to avoid them, and mitigate those that can be mitigated. Till that is done, the Final EIS must be considered incomplete.
In addition, the Corps' EIS goes on to say that “The Sheyenne River provides spawning habitat and nursery areas for forage fish, as well as a migrational avenue for sport fish, including channel catfish, northern pike, walleye, bass, and crappie especially during high water conditions. The Sheyenne River contains more species of fish than any other North Dakota tributary, with over 50 species identified. . . . Baldhill Creek, a tributary to the Sheyenne River, contains the only known population of trout-perch in North Dakota. There are nine species of freshwater mussels inhabiting the Sheyenne River. The riparian areas along the Sheyenne River provide valuable habitat for a variety of wildlife species.” (5-12)
What will happen to the fish and mussel species when they have been exposed to Devils Lake water over a period of years? Will they be able to reproduce? Will the U.S. Fish Hatchery north of Valley City continue to operate? How much is a species worth? Without answers to these questions, the Final EIS again remains incomplete.
While they haven't determined the results of Devils Lake water on the Sheyenne River and its aquatic life, we do know that the Corps' Pelican Lake outlet plan would violate North Dakota's antidegradation policies.“The state of North Dakota has classified the Sheyenne River as a class 1A stream and the Red River as a class 1 stream, which establishes its designated use as suitable for aquatic life, boating and swimming, and municipal water supply use subject to treatment by softening to meet chemical drinking water requirements. The sulfate standard for class 1A streams is 450 mg/l. North Dakota has not established Total Dissolved Solids (TDS) standards for class 1 or 1A streams. North Dakota has also established an antidegradation implementation procedure that calls for a review process whenever a new or expanded source of pollutants would cause a significant permanent effect on the quality and beneficial uses of the affected waters. A determination of “significant effect” would occur if the ambient quality of any parameter were degraded by more than 15 percent, or the available assimilative capacity were reduced by more that 15 percent, or any pollutant load were to be increased by 15 percent.” Many of the contaminants in Pelican Lake would degrade the Sheyenne, even though no state standard has been set for them. For example, phosphorus, calcium, arsenic are more than fifteen percent higher in Pelican Lake than in the Sheyenne River.
The Corps' EIS also concludes: “The State of Minnesota's water quality rules have established 250 m/l sulfate and 500 mg/l TDS as standards for the Red River of the North. Other standards apply but are likely to be met whenever the TDS standard is met. Minnesota also has an antidegradation policy that affords protection of designated uses based on non-numeric criteria. . . . Pursuant to the 1909 Boundary Waters Treaty, the International Joint Commission (IJC) has established a set of water quality objectives (not standards) for the purpose of protecting the Red River of the North entering Canada. The numeric objectives are the same as Minnesota's numeric standards.” (5-21) Therefore, the IJC should be consulted in the process of determining the feasability of building an outlet.
The most serious flaws in the Corps' Devils Lake outlet plan are that it violates common sense and the normal constraints of economic analysis for Corps' projects and that in its planning to this point it has assumed that the Boundary Waters Treaty of 1909 will not be violated. But as assertion of no damage is not proof. One aspect of planning that would save a great deal of time and effort would be to demonstrate the truth of that assumption first.
Meanwhile, the benefit-cost conclusion is as follows: “The benefit-cost ratio of the Pelican Lake 300 cfs outlet plan incorporating probabilities of occurrence is 0.19. However, in Public Law 108-7, the Congress removed the traditional requirements regarding economic justification and provided instead that the justification for the emergency outlet shall be fully described, including the analysis of the benefits and costs.” This statement is another indication of a political solution to an environmental problem.
Of the caveats the Corps includes in its plan is this one: “The preferred outlet alternative is shown to be cost-effective under the wet future scenario, but not for the stochastic or other scenarios.” (S-5) The wet scenario has already been broken by years of normal precipitation.
More significantly an outlet won't prevent an overflow: “The risk still exists that, because of the limited effectiveness of a constrained outlet, the lake may still rise, it may still overflow, and residents may be disappointed that the outlet does not completely solve their flooding problem.” (S-5) “A controlled outlet to the Sheyenne River could avert this natural spill for most events; however, were a Standard Project Flood (SPF) event to occur during lake levels above 1454, a controlled outlet would not be able to prevent the natural overflow. Because of the limited channel capacity of the Sheyenne River and the limitations on water quality in the Sheyenne and Red Rivers, operation of a controlled outlet is required over a long period of time. Without a long period of time to operate, the controlled outlet would have a very low chance of avoiding or even significantly reducing the natural spill potential.” (5-3)
“Therefore, there is about a 93.5 percent chance that if an outlet were built it would not be economically beneficial on a national level of evaluation.” (S-6)
With those odds, the chances of spending over $200 million usefully and effectively is too small to justify the gamble.
Signed,
Richard Betting, Secretary
People To Save the Sheyenne
PS–I include the June 3, 2003, editorial in the Benson County Farmers Press by Richard Peterson to illustrate the perception in the Devils Lake area that an outlet will do almost no good to prevent flooding on Devils Lake.
cc: EPA and others
COMMENTS OF THE NATIONAL WILDLIFE FEDERATION [1]
ON
THE U. S. ARMY CORPS OF ENGINEERS'
SECTION 404(b)(1) EVALUATION
DEVILS LAKE OUTLET TO THE SHEYENNE RIVER
RAMSEY COUNTY, NORTH DAKOTA
June 9, 2003
The National Wildlife Federation believes that the U. S. Army Corps of Engineers' Clean Water Act Section 404(b)(1) evaluation for its proposed outlet from Devils Lake to the Sheyenne River contained in the April 2003 Final Devils Lake, North Dakota, Integrated Planning Report and Environmental Impact Statement is defective on several counts, two of which will be discussed briefly here. First, the evaluation does not adequately consider either the primary or secondary effects of the outlet. Second, it does not adequately evaluate alternatives to the outlet or identify less environmentally damaging alternatives to the outlet. In addition, we note that the Corps' Section 404(b)(1) Evaluation for the Devils Lake outlet indicates that the project is located in Ramsey County, North Dakota, but the primary construction impacts will occur in Benson County and the principal secondary and operational impacts will occur in Benson County and other counties located downstream along the Sheyenne River.
Inadequate Consideration of Environmental Impacts
The Corps states in its 404(b)(1) Evaluation that:
“This evaluation addresses the effects that would result from the placement of fill in waters of the United States in conjunction with the construction of an outlet from Devils Lake to the Sheyenne River and the construction of mitigation features on selected reaches of the Sheyenne River to address operational effects. The effects associated with the operation of the outlet are discussed in detail in the IPR/EIS.” (FEIS Appendix 1 p.1-2)
The conclusions upon which the Corps' 404(b)(1) Evaluation is based that the environmental effects associated with operation of an outlet and the effects resulting from the placement of fill in waters in conjunction with the construction of mitigation features to address operational effects of an outlet are fully discussed in the EIS clearly are unfounded, as is extensively documented in comments submitted on the Draft EIS by the U. S. Environmental Protection Agency, the U. S. Department of the Interior, Environment Canada, Fisheries and Oceans Canada and Manitoba Conservation, the Minnesota Department of Natural Resources, Pollution Control Agency and Department of Health, the Missouri Department of Natural Resources, the National Wildlife Federation, and others, found in Appendix 4 of the Final EIS.
The discussion in the Final EIS of the operational effects of the 300 cfs Pelican Lake outlet “preferred alternative” discloses a 26-page litany of adverse impacts on the Sheyenne River of stunning scope, magnitude, duration and severity (FEIS pp. 6-47 to 6-72), including (1) accelerated erosion and deposition along the Sheyenne River and damage to the riparian corridor (FEIS p. 6-47) with adverse impacts to property values (FEIS p. 6-49), (2) increased downstream municipal water treatment costs of $1.8 million to $3.3 million per year (FEIS p. 6-51), (3) sudden and extreme fluctuations in flows for much of a 50-year period of operation, making it difficult for species to adapt to habitat conditions (FEIS p. 6-56), (4) violation of water quality standards for total dissolved solids on the Red River and violation of North Dakota's antidegradation policy on the Sheyenne River, (5) changes in channel width up to 9 feet and in meander length and amplitude (FEIS p. 6-58), (6) ) weakening of the banks of the river due to vegetative loss and increased shear stress and velocities along the bed and bank contributing to increased erosion and sedimentation resulting in a wider, shorter and less sinuous river (FEIS p. 6-58), changes in species composition and abundance, lost year classes of fish, declines in invertebrate populations and loss of spawning and nursery habitat (FEIS p. 6-59), (7) permanent extirpation of mussels from the Upper Sheyenne River (FEIS p. 6-62), (8) increased risk of transfer of biota (FEIS p. 6-62), and (9) loss of the larger overstory forest trees (FEIS p. 6-64), with (10) recovery requiring decades after outlet operation is completed (FEIS p. 6-65).
It is important to note, however, that this discussion is not based on an actual analysis of the impacts of the operation of the proposed 300 cfs Pelican Lake outlet, but is simply “interpreted” from the operation of 300 cfs and 480 cfs West Bay outlets under “moderate” future scenario conditions (FEIS p. 6-53) which the Corps believes might “possib[ly] ... approximate” the effects of its 300 cfs Pelican Lake outlet “preferred alternative” (FEIS Appendix C p. C-45). However, the Final EIS contains no substantive discussion of the even more severe impacts of the operation of the 300 cfs Pelican Lake outlet under the hypothetical “wet future scenario,” which are the only conditions under which the project might be economically justified (FEIS pp. 5-115, 5-117, 5-158 Table 5-27).
In fact, the Final EIS itself admits to an “inability to accurately quantify all of the project impacts associated with operation” of the outlet (FEIS p. 6-76), and it acknowledges a “high level of uncertainty with respect to the actual occurrence, location, and timing of potential effects” (FEIS p. 6-84). Consequently, it is patently untenable for the Corps to claim in its 404(b)(1) Evaluation that the environmental impacts of the operation of the outlet are “fully discussed in the EIS.”
The 404(b)(1) Evaluation proposes “advance bank stabilization measures” at 76 sites involving 9.9 miles of the Sheyenne River to reduce erosion, the construction of “several” high flow cutoff channels with control structures, and the placement of riprap below 10 low-head dams on the river (FEIS Appendix 1 pp. 1-3, 1-4, 1-5). However, these are simply “advance” measures, and because of the “high level of uncertainty with respect to actual occurrence, location and timing of potential effects” and the continuing occurrence of effects throughout and beyond the 50-year operation of the outlet under the “wet future scenario,” it is obvious that additional stabilization measures, requiring additional 404(b)(1) evaluations, will be required repeatedly for decades. In addition, the proposed bank stabilization measures themselves will simply divert the hydrologic forces to new areas of the channel, resulting in a domino-effect cascade of erosion and sedimentation necessitating further bank stabilization measures and more and more Section 404(b)(1) evaluations over the decades ahead.
Inadequate Analysis of Alternatives
The fundamental purpose and goal of the 404(b)(1) evaluation is not simply to devise mitigation measures for a project involving the deposition of fill into waters of the United States, but to assure a thorough analysis of alternatives and the determination of the least environmentally damaging practicable alternative. However, instead of providing an analysis of alternatives and the identification of the least environmentally damaging alternative, the only mention of alternatives in the Corps' 404(b)(1) Evaluation of its 300 cfs Pelican Lake outlet is the statement that:
In fact, the evaluation states explicitly that:
“COE efforts have been for the purpose of a plan being designed and ready to implement should decision makers decide to proceed with construction of an outlet. This evaluation has been prepared in the event that decision makers determine that an outlet should be constructed.” (Emphasis added) (FEIS Appendix 1 p. 1-2)
Consequently, instead of providing decision makers with the required analysis of alternatives to an outlet and a determination of the least environmentally damaging practicable alternative, the evaluation simply proceeds from the assumption that an outlet is the only alternative to be considered.
This same pro-outlet bias is reflected in the Final EIS, where the North Dakota Congressional Delegation and Governor were given sole authority for the “Screening of alternatives” to be considered (FEIS p. 14-1). Of course, the Congressional Delegation and the Governor all are avowed advocates of the construction of an outlet from Devils Lake, they have routinely discounted wetland restoration to reduce inflows to Devils Lake, and the Governor has publicly expressed his concern that continued investments in infrastructure protection measures will diminish the need for and economic feasibility of an outlet. Because of this fundamental and pervasive pro-outlet bias, the Final EIS does not provide an adequate or objective analysis of alternatives to an outlet, and the 404(b)(1) Evaluation provides no further evaluation of alternatives. Furthermore, not only does the 404(b)(1) Evaluation make no attempt to determine the least environmentally damaging practicable alternative, it disregards less environmentally damaging alternatives identified in the Final EIS.
Failure to Consider Continued Infrastructure Protection as an Alternative
The Corps' 300 cfs Pelican Lake outlet “preferred alternative” is not economically justified under a standard stochastic analysis or under the 1450 feet or 1455 feet lake level “moderate” future scenarios, and it would be economically justified only under a hypothetical “wet future scenario” (FEIS pp. 5-115, 5-117, 5-148 Table 5-27). However, under the “wet future scenario,” the lake would still continue to rise another 10 feet from its current elevation, to 1457.5 feet, even if the $202,228,000 Pelican Lake outlet is built (FEIS p. 5-147; Appendix A p. A-137 Table A5-4), resulting in an additional $577,000,000 in infrastructure protection costs (FEIS pp. 5-133, 6-107), for total combined outlet and continued infrastructure protection costs of $779,228,000. According to the Final EIS, under the hypothetical “wet future scenario,” if the outlet were not built and Devils Lake were to overflow to the Sheyenne River, the total continued infrastructure protection costs at Devils Lake and downstream would be $917,000,000 (FEIS pp. 5-133, 6-107), or only $137,882,000 more than the combined project and infrastructure protection costs if the outlet were built. However, there is only a 6.5 percent chance that the lake will reach an elevation of 1458 feet where the outlet would be economically justified (FEIS p. 6-106), but there still is a 4.6 percent chance that the lake will overflow with the outlet in operation (FEIS p. 2-5), thus negating some $340,000,000 of the project's presumed benefits (FEIS p. 6-107) and leaving only a 1.9 percent chance that the outlet would be economically justified. Consequently, the selection of the 300 cfs Pelican Lake outlet as the “preferred alternative” actually amounts to gambling the $202,238,000 cost of the outlet against less than a 1 in 50 chance of saving $137,882,000 in continued infrastructure protection costs.
This is why the Final EIS itself concludes that:
“The Continued Infrastructure Protection plan (which is implementation of the most likely future) shows a benefit cost ratio of 1.88. In comparison of alternatives to a `No Action' base condition, the `Continued Infrastructure Protection' alternative has a positive annual net benefit for both the stochastic and wet future scenario approach. This signifies that the implementation of the Continued Infrastructure Protection within the basin is economically justified, and may in fact represent the most economically defensible approach to flood damage management at the lake.” (Emphasis added) (FEIS p. 5-71)
and:
“Within the context of this evaluation, the preferred action in the near term would be the continuation of infrastructure protection.” (Emphasis added) (FEIS p. 5-117)
Paradoxically, however:
“The Continued Infrastructure Protection `alternative' is not an alternative in the sense that it is a potential project, but is intended to analyze the cost-effectiveness of carrying out incremental infrastructure protection measures as the lake continues to rise...” (FEIS p. 5-56)
Consequently, the Final EIS does not seriously consider the very alternative that it has identified as “the most economically defensible approach to flood damage management at the lake” and the “preferred action in the near term.”
Inadequate Analysis of Wetland Restoration as an Alternative
Both the Draft EIS and the Final EIS estimate the potential for wetland restoration in the Upper Devils Lake Basin at 39,000 acres of drained wetlands, 63,000 acre-feet of increased available storage volume, and annual inflow reductions to the lake ranging from 13,000 to 16,000 acre-feet (DEIS pp. 4-43, 5-29 to 5-34; FEIS p. 5-48, 6-34 to 6-39). However, in its comments, the Federation cited data from the State of North Dakota showing that from 569,000 to 589,000 acres of wetlands originally existed in the Devils Basin, and that a minimum of 189,000 acres, and as many as 378,000 acres, of those wetlands have been drained, with the water ultimately reaching Devils Lake. The Federation calculated that the drainage of these wetlands resulted in a minimum of 265,458 acre-feet of additional water reaching Devils Lake when the 1988-1992 drought was succeeded by unusually high levels of precipitation in 1993—equivalent to 2 feet of water at the lake's current elevation. The Federation also calculated that if those wetlands had not been drained, they could reduce runoff into the lake under high precipitation conditions by an average of 207,000 acre-feet per year. This is 1.6 feet at the lake's current elevation, or 1.65 times the volume that could be removed by a 300 cfs outlet operating at maximum capacity for seven months of the year. Unlike the outlet, however, Upper Basin wetland restoration would have no downstream impacts on the Sheyenne and Red rivers.
The Final EIS makes no substantive attempt to refute the Federation's data (FEIS Appendix 5 p. 5-26, 5-27) or to address the inadequacies of the Final EIS's analysis of the Upper Basin wetland restoration alternative (FEIS pp. 6-34 to 6-39), but instead simply dismisses the matter with the diversionary and unresponsive assertion that:
“It is not pertinent to discuss the number and acreages of the different types of wetlands originally in the Devils Lake basin, nor the numbers, acreages, and types of wetlands that have been drained and their flood capacity. This is not an inventory type of study. What is pertinent is what exists now and what can be restored as a viable alternative that will ultimately benefit flood damage reduction in the Devils Lake basin. It is reasonable to conclude that the sudden rise in lake levels from 1992 to the present was not due to some corresponding sudden drainage of wetlands.” (FEIS Appendix 5 p. 5-26)
In fact, when the Federation pointed out that, before expending further public revenues on an outlet or other flood protection structures, the Corps has a fiduciary duty to implement and enforce an effective program to prevent further wetland drainage in the Devils Lake Basin in order to protect the Federal Government's investment in those measures, the Corps' dismissed that, as well, by simply stating that:
“Whether the sponsor is to maintain the level of protection that is provided by the project to include a moratorium on any new drainage permits will be determined during development of the [Project Cooperation Agreement].” (FEIS Appendix 5 p 5-48)
Thus, the Corps not only is unwilling to consider seriously wetland restoration as an alternative to a 300 cfs Pelican Lake outlet, but it even is unwilling to consider seriously requiring a prohibition on further wetland drainage in order to protect the public's $202,238,000 investment in the project.
Conclusions
The National Wildlife Federation strongly disagrees with the Corps' interpretation of the scope of its Section 404(b)(1) analysis regarding secondary effects set fourth in Appendix 1 pages 1-9 to 1-10 of the Final EIS. The Corps' argument that the “proper interpretation” of C.F.R. 230.11(h)(1) is that the Section 404(b)(1) Guidelines do not require operational, secondary, downstream impacts of the outlet to be considered in the 404(b)(1) analysis itself is a gross misreading of the Guidelines, a dramatic and, we believe, unlawful deviation from long-standing U. S. Army Corps of Engineers and U. S. Environmental Protection Agency interpretations of the Guidelines, and a self-serving and unfair deviation from the standards the Crops applies to other 404 permit applicants for similar activities. The Section 404(b)(1) Guidelines require the Corps to consider these secondary effects in its 404(b)(1) analysis and, therefore, must accept and consider public testimony on these secondary effects in that analysis.
The U. S. Army Corps of Engineers' Clean Water Act Section 404(b)(1) Evaluation of its proposed outlet to the Sheyenne River fails to provide an adequate evaluation of the primary and secondary effects that would result form the placement of fill in waters of the United States in conjunction with the construction of an outlet from Devils lake to the Sheyenne River and the construction of mitigation features on the Sheyenne River to address operational effects, it fails to provide an adequate evaluation of alternatives to the proposed action, and it fails to identify a least environmentally damaging practicable alternative. Consequently, the evaluation fails to meet the requirements of Section 404(b)(1) of the Clean Water Act.
[1] Submitted for the National Wildlife Federation by Gary L. Pearson, 1305 Business Loop East, Jamestown, North Dakota 58401