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Minnesota Concerns: North Dakota Pollutant Discharge Elimination System (NDPDES) permit for a Devils Lake outlet authorizing 100cfs discharge to the Sheyenne River. "Our comments fall into two categories: opposition to construction of a Devils Lake outlet and content of the draft NDPDES permit. "
May 21, 2003
Mr. L. David Glatt, Chief
Environmental Health Section
1200 Missouri Avenue
Room 203
P.O. Box 5520
Bismarck, North Dakota 58506-5520
RE: Draft North Dakota Pollutant Discharge Elimination System Permit
ND 0026247 Devils Lake Outlet
Dear Mr. Glatt:
On behalf of the State of Minnesota, the Minnesota Pollution Control Agency (MPCA) and the Minnesota Department of Natural Resources (MDNR) appreciate the opportunity to comment on the draft North Dakota Pollutant Discharge Elimination System (NDPDES) permit for a Devils Lake outlet authorizing 100cfs discharge to the Sheyenne River. Our comments fall into two categories: opposition to construction of a Devils Lake outlet and content of the draft NDPDES permit.
Opposition to construction of a Devils Lake outlet
Minnesota has fundamental concerns about the purpose and need of an outlet to Devil's Lake. Our concerns include the climatological and hydrologic forecasting, the economic analysis of the alternatives, water quality issues, risk of biota transfer, and the outlet's overall utility. These concerns apply to both the federal and state outlet proposals.
One of our principal concerns is that the Devils Lake outlet, as currently proposed in the draft permit, would have minimal impact on removing water from Devils Lake. Under wet conditions, removal of only 1.7 inches of water per year is expected. This is in contrast to normal evaporation of about 44 inches per year off Devils Lake. While the proposed discharge is unlikely to result in any water quality violations in Minnesota's Red River, it does have a negative impact on water quality in the Red River. Total dissolved solids and sulfate concentrations as well as nutrient loading will increase with this discharge.
A comprehensive approach that addresses the need for infrastructure protection and upper basin storage is, in Minnesota's view, a preferable way to address the wet weather issues for Devils Lake. This approach is the least environmentally damaging. It would provide expanded infrastructure protection around the lake, additional water management and storage in the upper parts of the watershed and additional flood protection. It would also provide more reduction in the Devils Lake water levels than the minimal 1.7 inch per year reduction proposed under the NDPDES permit.
Mr. L. David Glatt
May 21, 2003
Page 2
Content of the draft NDPDES permit
1. Biota Transfer
The draft permit does not address potential biota transfer from Devils Lake to the Sheyenne and Red Rivers. “Pollutant”, as defined in the Clean Water Act, 33 U.S.C. 1362(6), includes “biological materials.” North Dakota state law, N.D. admin. Code 33-16-01-01(3)(t), also includes the term “biological materials.” Minnesota's position is that the introduction of any exotic species not naturally occurring in the waters comes within the definition of pollutant. One federal court has held that “Fish that do not naturally occur in the water,...fall within the term `biological material' and are therefore pollutants under the [Clean Water] Act.” U.S. Public Interest Research Group v. Atlantic Salmon of Maine, LLC, 215 F.Supp.2d 239, 247 (2002).
The state outlet to Devils Lake will result in biota transfer of exotic species from Devils Lake to the Red River. While both are located within the Red River Basin, Devils Lake is land locked and has not discharged to the Red River Basin for thousands of years. According to the U.S. Army Corps of Engineers' (COE) Final Integrated Planning Report/Environmental Impact Statement, Devils Lake, ND Study (COE Final EIS):
“The increased use of Devils Lake for recreational purposes, combined with the natural dispersal mechanisms of invasive species, results in an extremely high risk that biota of concern could already be present or have a high risk of being introduced into the Devils Lake watershed at any time in the future. If biota of concern are present or invade Devils Lake, the risk is also extremely high that these biota would be transferred. . .into the Sheyenne River if a preventative filtering system were not in place.” (P. 6-69, Final EIS.)
The COE Final EIS goes on to conclude that a sand filter is necessary to prevent the spread of exotic species. Furthermore, COE states the sand filter and long-term monitoring for exotic species is necessary to be in compliance with Federal Executive Order 13112 on Invasive Species.
The draft permit for the state outlet does not address the impact of introducing exotic species to Minnesota waters, measures to prevent such introductions, or long-term monitoring, in spite of COE's findings. Although COE's federal proposal for an outlet is designed to accommodate a larger discharge from Devil's Lake, the need to address the potential impacts of exotic species for the state outlet remains. The potential release of exotic species into another watershed is unrelated to the amount of discharge and is a major concern to the State of Minnesota.
2. Water Quality
As noted earlier, the proposed state outlet to Devils Lake will add pollutants to the Red River Basin, including increases in total dissolved solids, sulfates and nutrients. Although these increases will not result in water quality violations it will have an overall impact on water quality in the Red River.
Therefore, a major concern with this draft permit is future modifications of the permit that would result in an increased discharge or a modified effluent limit. The lack of public notice and comment regarding future modifications to the effluent limits as prescribed on permit page 4, item number 9, is of concern.
Mr. L. David Glatt
May 21, 2003
Page 3
Minnesota requests that this permit condition be modified to clarify that modifications resulting in an increased discharge or a modified effluent limit will be subject to the public notice and comment requirements consistent with North Dakota law and federal law relating to the National Pollutant Discharge Elimination System (NPDES) program. Minnesota agrees that minor modifications such as changes to monitoring requirements could be made without public participation. Nevertheless, the permit should clearly specify the type of minor modifications that will be conducted without public participation. While some changes to monitoring requirements could proceed without the public notice process, changes to effluent limitations would be a major modification requiring a public notice process.
Thank you of the opportunity to comment on the proposed Devils Lake outlet NDPDES permit. If you have any questions on these comments please contact Jeff Lewis at the MPCA (218-846-0730) or Larry Kramka at the MDNR (218-755-3637).
Sincerely,
Lisa J. Thorvig Kent M. Lokkesmoe
Assistant Commissioner Waters Division Director
Minnesota Pollution Control Agency Minnesota Department of Natural Resources
cc: Jo Lynn Traub, Water Director, U.S. Environmental Protection Agency Region 5
Max Dodson, Assistant Regional Administrator, U.S. Environmental Protection Agency Region 8
Eldon Kaul, Assistant Attorney General
Karen Olson, Assistant Attorney General