Opponent of Devils Lake outlet plans.
Testimony and Historical Information Testimony: For House Bill Number 1151
Regarding Construction of a Devils Lake outlet
From: Peterson Coulee Outlet Association, Thelma Paulson, Chairperson
Date: January 19, 2001
Hello, my name is Thelma Paulson and I represent the Peterson Coulee Outlet Association. Our association is a non-profit corporation that was formed because of concerns about the impacts from the proposed Peterson Coulee Outlet Project. Our members are farmers along the route of the proposed Peterson Coulee Outlet Project, and other members are concerned citizens from Benson and Ramsey Counties.
In 1998, we first learned about some proposed outlet projects that would drain water from Devils Lake. At that time there was very little information available about the project. So we formed our association to obtain more information, relating to our concerns about the impacts from the project.
The state had an ambitious goal to construct the outlet project in a very short time. By simply “declaring” that there was an emergency, they thought they could proceed with minimal investigation of alternatives and consideration of impacts, and minimal compliance with the requirements of the National Environmental Policy Act (NEPA).
Because of the very short timetable for the project, we reasoned that were better able to deal with the project as a group rather than as individuals. But even as a group, it was very difficult to obtain information and respond to project activities in a timely manner. We did the best we could by giving up large amounts of time in between farm work and other activities.
Initially our members were open minded and willing to consider an outlet project. But as they learned more about the proposed project, and the politics involved in the whole process, their viewpoints changed considerably. The learned not just about the proposed outlet, but about the entire Devils Lake flooding situation.
The feasibility study for the project was being carried out by the US Army Corps Of Engineers (USACOE), with the ND State Water Commission (NDSWC) as the project sponsor. This was the first experience for most of us in dealing with state and federal agencies. In our dealings with the USACOE we were always treated with respect, and obtained the information we requested, although not always in a timely manner.
However, we do not have many kind words to say about our dealings with the NDSWC. We were seldom treated with respect and dignity. When we talked to them over the phone or in person, we got the impression that they thought that we did not know anything because we were farmers. In their news stories to the media, they would not even acknowledge that we had an organized association, and would not use the name of the association. Instead, we were just referred to as some farmers along the route of the proposed outlet project. They frequently distorted information that they had obtained from us when reporting it to the media.
In one instance, as chairperson I had agreed to set up a meeting with the NDSWC to discuss Right Of Entry Agreements. After spending 2 days calling all of the members to set up the meeting, I was informed by the NDSWC that they had already selected a time and place!!! How disrespectful can an agency get? They obviously didn’t care if they communicated with us at all, it was just another checklist item to complete. And there were numerous other instances like this. Before dealing with this project, we as farmers would never have believed that a state agency could treat the public so arrogantly and disrespectfully, unless we had experienced it firsthand! And I think it is this same arrogance that is reflected in the content and wording of this bill that we are discussing today. We include this in our testimony here today because we want to inform the legislature about how their state agencies actually conduct business.
GOOD PUBLIC PROJECTS
In 1998, our association was pleased to see that the initial funding appropriation for the outlet feasibility study from Congress had a requirement regarding the outcome of the study. To be eligible to be funded as a project, the study needed to show that the outlet was technically sound, economically feasible, and environmentally acceptable. These are the requirements that any large scale public project must meet. A project is a good project if it meets these three tests, and this proves that it is worthy of taxpayer funding. A project that is approved by following the NEPA project development process will pass these three tests.
So before full funding for an outlet project will be authorized, Congress will require that the outlet project passes these three tests, based on the information in the feasibility study, in conjunction with following the NEPA process. At this point in time, neither the USACOE nor the NDSWC has been able to show that any proposed outlet would pass these three tests. In fact, it is doubtful that an outlet project could pass even one of these three tests.
The House Bill 1151 that is before us today seeks to bypass all of these good project requirements, simply by declaring the Devils Lake flooding to be an emergency. Our association believes that is very reckless and an abuse of their authority for the NDSWC to even propose such legislation.
As an association, we have spent a great deal of time collecting and studying information about the entire Devils Lake flooding situation. Stated below are some of our observations relating to whether an outlet project could meet these three tests.
The issue of whether or not the outlet is technically sound (in other words, will it work?) has been questioned by many because of the existence of the Spiritwood Aquifer. According to the ND State Geologist, the lake bed may be in contact with the aquifer. What this means is that any water pumped out of the lake may be replaced by water from the aquifer in a short time.
The issue of economic feasibility is in question because feasibility studies show a very low return (about 35 cents) in benefits for each dollar that is spent. (Obviously, the State Of North Dakota should not spend $ 100 million dollars to save $ 35 million dollars in reduced flooding impacts).
The issue of environmental acceptability is in question because of biota transfer, downstream impacts, and many other issues.
NOT AN EMERGENCY
What is an emergency? One of the definitions of emergency is that it is an unforeseen event. Another definition is that it is an event that threatens to cause a loss of life.
No one in the congressional delegation or state government has been able to show that this is an emergency based on the above definitions. We acknowledge that the rapid rise of the lake has caused a lot of suffering, and our sympathy goes out to these people. We especially feel for those farmers who have lost farmland from flooding.
It is true that the lake will probably overflow into Stump Lake this coming spring. But does that constitute an emergency? Our association believes that the emphasis at this time then needs to placed on moving people and property in the Stump Lakes area out of harm’s way. They have already known for years that this might happen, so much of this preparation should already have been done. This type of work is the proper role of local, county, or state government. When the overflow occurs, the lakes may rise rapidly, but it is an event that can be monitored to prevent any loss of life or property.
And in the longer term, the lake would need to approximately double in volume before it would overflow into the Sheyenne River. If this were an uncontrolled flow, it would be an emergency situation. But it would not need to be an uncontrolled flow, because the state could build a discharge structure to control the flow. And if this event happens, it will be many years or even decades in the future.
As stated in the recent US Geological Survey publication entitled “Climatology and Potential Effects of an Emergency Outlet” (June 2000), an outlet would only reduce the probability of overflow from the lake into the Sheyenne River from 2% (without the outlet) to 1% (with the outlet). This is assuming wet weather conditions continue until 2015. That is a very insignificant probability reduction, even assuming the outlet could lower the lake over that period of time. (The outlet would have to operate at 300 CFS, and there are many who believe that the Sheyenne River could not accept that much water without excessive erosion of the stream banks and other effects).
So our association believes that the very premise of this bill is flawed, in declaring the Devils Lake flooding to be an emergency situation. By declaring this an emergency, the NDSWC is implying that this is supposed to justify:
- Not following the NEPA process for the project
- Not following normal procedures to acquire land, and
- Not following the competitive bidding process
- Under the flawed argument that an emergency exists simply by declaring it, this bill would:
- 1.) Remove the full protection normally given by the NEPA process to those citizens affected by the project,
- 2) Eliminate the rights of the property owners along the route of the outlet, and
- 3) Cost the taxpayers additional money because of the elimination of the competitive bidding process.
Our association would like to make some comments now about the land acquisition issues now, because as farmers this is of great concern to us. The provisions in this bill are totally unacceptable to landowners because:
- They do not define what constitutes proper notice
- They do not provide for meaningful negotiation
- The offer as described is not related to market value
Basically, the way the bill reads, it deprives the landowner of their constitutional right of due process of law. This is an issue of great concern to all farmers, because for most of them, the value of their land represents their life savings. This would also set a very dangerous precedent for the state.
In the past, our association has had some discussions with the NDSWC about compensation for the pipelines associated with an outlet project. We did not agree with their method of evaluation and compensation, and believe that there would be a major devaluation of our land if an outlet were ever constructed.
CAUSES OF FLOODING DAMAGES
According to the State Geologist, the natural condition of Devils Lake is to be rising and falling, because it is the low point in a closed drainage basin.
Our association, and others, believe that this effect has been amplified by farming and draining of wetlands in the upper basin. And the State Geologist has stated that the lake may be interacting with the Spiritwood Aquifer. This interaction with the aquifer may also account for some of the flooding damages.
Our association also believes that over the Devil Lake region, much of the damage and harm in this situation has been caused by poor decisions and improper actions by local and state government. For example, in the past, why did the government set the flood plain elevations too low and allow people to build structures in the area? Most of the houses that have been moved were constructed in areas that were in the natural flood plain.
In the city of Devils Lake alone, over $50 million dollars has been spent to build a massive dike south and west of the city. This entire amount of taxpayer funds could have been saved if local and state governments had done their jobs properly, by preventing construction in this area. This includes the ND Department Of Transportation, which should have constructed US Highway 2 northeast of the city rather than southwest of the city. Why weren’t these agencies acting in the best interests of the people, by using available information and long term planning? Why was the ND Geological Survey not supplying accurate information to the local, state, and federal officials? And concerning the upper basin, why has the NDSWC approved thousands of legal drains in the past, and allowed many other illegal drains to stay in place?
Where is the accountability of government to its citizens? And why has the media generally not questioned these poor decisions in the coverage of the whole Devils Lake flooding situation? So are we proposing to build an outlet to correct decades of poor planning and poor decisions by government?
These are some questions for the ND legislators to try to answer for themselves as they consider this legislation.
SOLUTIONS TO FLOODING
So government has been raising roads, building dikes, paying farmers to store water on their land in the upper basin, and moving houses, businesses, and farmsteads to move people out of harm’s way. Most people would agree that these actions by government have been appropriate, as long as they are cost effective.
Our association believes that the items mentioned above are all necessary and should continue to be carried out. In addition, we believe that the government should spend other available funds to:
- 1) close all legal and illegal drains in the upper basin
- 2) provide additional storage of water in the upper basin, where appropriate
- 3) purchase flooded farmland and farmsteads to allow farmers to farm elsewhere
- 4) Purchase flooded businesses to allow those people to relocate their business elsewhere
- 5) Prohibit any future construction in the flood plain
- 6) Investigate and implement other measures to reduce flooding and flooding impacts
- 7) Create plans for a control discharge structure to be used at East Stump Lake, to control the flow of water into the Sheyenne River
We believe that upper basin storage is a key element in dealing with the Devils Lake flooding situation. But we do not believe that an outlet is a feasible or prudent solution. Also, the state cannot legally build any outlet without first obtaining approval from the Spirit Lake Nation, Minnesota, and Canada. This approval has not yet been obtained.
We believe that the ND State Water Commission, in proposing this legislation, is an agency that is abusing its authority and is out of control. Its very purpose and function needs to be re-examined by the legislature in the near future.
In conclusion, the landowners and citizens in the Peterson Coulee Outlet Association STRONGLY OPPOSE House Bill Number 1151, and recommend that it be defeated in the legislature.
Thelma Paulson, Chairperson
Peterson Coulee Outlet Association