Link to Great Lakes Commission/Kent Conrad comments on McCain Amendment, Jan. 2003.
COMMENTS ON STATEMENTS BY
NORTH DAKOTA SENATORS KENT CONRAD AND BYRON DORGAN
IN THE CONGRESSIONAL RECORD, JANUARY 23, 2003,
IN DEBATE ON AMENDMENT NO. 214 TO
THE FISCAL YEAR 2003 OMNIBUS APPROPRIATIONS BILL
DEALING WITH FUNDING FOR AN OUTLET FROM
DEVILS LAKE, NORTH DAKOTA, TO THE SHEYENNE RIVER
Prepared by
Gary L. Pearson
1305 Business Loop East
Jamestown, North Dakota 58401
February 3, 2003
Senator Kent Conrad:
“Mr. President, first of all, I thank our colleague from Arizona for taking the time to listen to our concerns, because this is a disaster of staggering proportion in our State.”
Comment:
The U. S. Army Corps of Engineers' February, 2002, draft Environmental Impact Statement (EIS) for the proposed Devils Lake outlet states:
“Rising lake levels have severely affected the rural economy around Devils Lake. Many of the farms and ranches bordering the lake have been forced to abandon operations because of the loss of pasture and cropland. At its January 2001 stage of 1447.1, the lake covered 137,000 acres, an increase of about 93,000 acres (approximately 145 square miles) since 1993. At an average land value of $600 per acre for non-urban land, this represents a loss of over $55 million.”
(U. S. Army Corps of Engineers, 2002)
However, prior to the 1988-1992 drought, Devils Lake was at an elevation of 1428.9 feet above mean sea level (msl) (North Dakota State Water Commission, et al., 1990) and covered an area of 58,000 acres. Therefore, the increase in area of the lake over the last 25 years has not been 93,000 acres, but 79,000 acres. In addition, the actual value of non-urban lands in the area is not $600 per acre, but less $265 per acre. Therefore, the increase in the area of the lake since 1988 represents a loss of approximately $20,935,000 in non-urban lands (Pearson and Conrad, 2002).
The Corps of Engineers' 2002 draft EIS also states that:
“Since 1993, there have been 11 Presidential disaster declarations for the Devils Lake region. These declarations were made for regions within North Dakota that extended well beyond the Devils Lake area to address the effects of the climatic wet cycle, including flooding of agricultural impacts. Under emergency authorities, Federal agencies have moved or bought out and abandoned homes that were flooded by the rising lake. Approximately 400 homes around Devils Lake have been moved or abandoned in response to the rising lake. While some homes have been abandoned, most homes have been relocated. Some of the houses were second homes, but most were primary domiciles.” (U. S. Army Corps of Engineers, 2002)
but it goes on to state:
“The rising lake has adversely affected many residents around the lake. However, even under the adversity produced by the rising of Devils Lake, some parties have benefited. For example, the influx of Federal emergency funds to relocate threatened homes, provide crisis counseling, and maintain local infrastructure has brought over $350,000,000 in Federal funds into the Devils Lake region. This has provided a significant boost to some elements of the economy, such as those individuals or enterprises involved in road construction or house moving, or those individuals or enterprises that support these activities (e.g., lodging, restaurants, etc.). In addition, the improvements in the Devils Lake fishery associated with lake level rises has benefited the local recreation industry.” (Emphasis added) (U. S. Army Corps of Engineers, 2002).
The current population of the entire Devils Lake Basin is less than 32,000, and only a portion of those have been affected by the rising lake. However, this $350,000,000 in Federal funds is equivalent to $11,000 for every resident of the Basin
In fact, in 2000 when local officials were seeking $70,000 in Community Development Block Grants and economic development funds, they had difficulty showing that the rise of the lake had adversely impacted the area. As Devils Lake Economic Director Jim Dahlen explained:
“The challenge we have is statistically the [flooding] impact doesn't show up real well in areas of taxable sales and services. Our unemployment rate is very low, well below the national average. And the average wage continues to rise. It's a hard thing to show what impact the flooding's had.” (Emphasis added) (Anonymous, 2000a)
It also is important to note that the Corps' draft EIS concludes that proposed Devils Lake outlet would not prevent Devils Lake from continuing to rise if high levels of precipitation should return, and it would then still be necessary to incur the additional costs of implementing infrastructure protection measures, including raising the levees protecting the City of Devils Lake, relocating homes, building temporary levees, raising selected roads and railroads, and protecting and relocating utilities (U. S. Army Corps of Engineers, 2002).
Senator Kent Conrad:
“Let me just say it is the unanimous view of every elected official in the State of North Dakota, every single one, Republican and Democrat, that we must deal with this unfolding crisis.”
Comment:
General agreement exists among both the public and elected officials in the State of North Dakota on the need to address the problems resulting from the recent rise of Devils Lake. However, Senator Conrad neglects to point out that there is not unanimous agreement on how to deal with those problems, and not every elected official in the State agrees that an outlet should be constructed from Devils Lake.
Senator Conrad Kent Conrad:
“Here is what has happened to this lake. This lake, by the way, is three times the size of the District of Columbia. This is a massive lake. It has risen dramatically, some 26 vertical feet, since 1992. It started rising then and, as you can see, it has been straight up since then.”
Comment:
The area of the District of Columbia is 67 square miles. The current area of Devils Lake is approximately 200 square miles. However, the lake has increased in area by approximately 123.4 square miles since 1987 so the increase in area of the lake is twice the area of the District of Columbia. A target level for the lake with the proposed Devils Lake outlet has not been established, but levels of 1435 to 1437 feet above mean sea level (msl) are being discussed. These levels are12-14 feet above the 1992 lake level and only about 10 feet below the current elevation of 1446.5 feet. At these elevations, the lake would have a surface area of 72,000 to 77,600 acres. Thus, at the outlet target elevation of 1435-1337 feet and an area of 113-121 square-miles, Devils Lake would still be 1.7-1.8 times the size of the District of Columbia.
In August 2001, Devils Lake was at elevation 1448.04 feet msl with a surface area of over139,000 acres (U. S. Army Corps of Engineers, 2002). However, the lake was at elevation 1428.9 feet in 1987 (North Dakota State Engineer, et al., 1990) with a surface area of 58,000 acres, so the lake actually has risen 19 feet, not 26 feet, and it has increased in area by 79,000 acres, since 1988. This is equivalent to 3 percent of the 3,814 square-mile Devils Lake Basin.
First, it should also be noted that the rise of Devils Lake has not been “straight up” since 1992. Devils Lake reached its modern high elevation of 1448.04 feet in August, 2001 (U. S. Army Corps of Engineers, 2002), and since then it has declined to its January 2003 elevation of 1446.5 feet. And second, both Senator Conrad and Senator Dorgan have said that, when the level of Devils Lake begins to drop significantly, they will seek congressional appropriations to construct an inlet to deliver Missouri River water to the lake through the stalled Garrison Diversion project (Condon, 1997; Anonymous, 1997)
Senator Kent Conrad:
“This is a flood unlike any other in our Nation's history. The reason for that is that there are only two closed basins in the entire United States”
Comment:
The high water levels at Devils Lake are not unique. Similar flooding problem occurred around the Great Salt Lake in the 1980s, and they occurred throughout much of the Upper Midwest as a result of unusually high levels of precipitation from 1993 to 2000. Unlike the catastrophic flooding throughout the Mississippi River Basin in 1993, however, flooding at Devils Lake occurred gradually over a period of 7 years, providing time to move homes and raise roads and dikes and thus avoid most damages except for the inundation of land (U. S. Army Corps of Engineers, 2002).
Senator Kent Conrad:
“The drainage basin for this lake is the size of the State of Massachusetts. The lake, if it continues uncontrolled, will reach the size of the State of Rhode Island. That is not just conjecture. That has happened two times in history. Those two times were at times when North Dakota and Minnesota were unpopulated.”
Comment:
The area of the Devils Lake Basin is 3,814 square miles (U. S. Army Corps of Engineers, 2002). The area of the State of Massachusetts is 8,257 square miles. At its natural overflow elevation of 1459 feet, Devils Lake would have an area of approximately 480 square miles. The area of the State of Rhode Island is 1,214 square miles. Therefore, contrary to Senator Conrad's statement, the Devils Lake Basin is less than half the size of the State of Massachusetts, and the area of the lake at its natural overflow elevation would be less than 40 percent of the size of the State of Rhode Island.
Evidence in the geologic record indicates that Devils Lake has overflowed naturally to the Sheyenne River four times in the last 5,000 years, with the last overflow occurring approximately 1000 years ago (Murphy, et al., 1997). However, the Corps of Engineers estimates that the proposed Devils Lake outlet would reduce the chance of the lake reaching its natural overflow elevation from 9.4 percent without the outlet to 4.1 percent with the outlet (U. S. Army Corps of Engineers, 2002). The Corps estimates that the chance of Devils Lake reaching elevation 1460.6 feet where the overflow would equal the 300 cfs from the outlet would be reduced from 4 percent without the outlet to 2 percent with the outlet (U. S. Army Corps of Engineers, 2002). The Corps also estimates that the chance of the lake reaching an elevation of 1463 feet where the discharge would be 2,500 cfs is 1 percent without the outlet, and it still would be 1 percent with the outlet (U. S. Army Corps of Engineers, 2002). Thus, although the chances of the lake overflowing and discharging significant volumes of water to the Sheyenne River are low, the proposed outlet would not assure that such events would not occur.
Senator Kent Conrad:
“Already the cost to the Federal Government already of this lake rising has been over $350 million. Threatened structures have been moved. Highways have been raised. A massive dike protecting the town of Devils Lake has been increased twice already. The Federal Government is poised to raise it again. So the hard reality is that unless more is done, we face a catastrophic event.”
Comment:
The hard reality is that the Corps of Engineers has determined that the proposed Devils Lake outlet only “[m]inimally reduces flood damages around the lake” and “there is about a 75 percent chance that if the outlet were built it would not be economically beneficial” (U. S. Army Corps of Engineers, 2002). According to the Crops' analysis:
“The outlet plan that has been preliminarily selected for design is not economically justified using methods that would determine expected net benefits by producing probability-weighted benefits and costs.” (U. S. Army Corps of Engineers, 2002)
In fact:
“Under average future conditions (based on the stochastic analysis), the alternative with the greatest (and only positive) annual net benefit and the highest benefit-cost ratio is the Expanded Infrastructure Protection alternative.” (U. S. Army Corps of Engineers, 2002)
Senator Kent Conrad:
“The year before last, 50 miles outside this basin, there was an event where 18 inches of rain fell in 1 day. If that event had occurred 50 miles to the west, this lake would have gone up, according to the Corps of Engineers' calculations, by 3 feet, perhaps even more. That probably would have overwhelmed the road system, because we now have roads acting as dams, protecting homes, protecting people from catastrophic loss. If that event would have occurred in the middle of the night, its entirely likely that lives would have been lost.”
Comment:
Senator Conrad fails to mention two points. First, had those 18 inches of precipitation occurred within the Devils Lake Basin, only half of the 3-foot rise in the lake would have been the result of direct precipitation on the lake. The other 1.5 feet could have resulted from runoff from the surrounding watershed where from 189,000 to 359,000 acres of wetlands have been drained into the lake (U. S. Fish and Wildlife Service, 2002; Pearson and Conrad, 2002).
Second, if that same 18 inches of precipitation had occurred over the Sheyenne River Valley with the river flowing at maximum capacity with discharges from the proposed Devils Lake outlet, flooding there also could have been catastrophic.
Senator Kent Conrad:
“The consequences of a failure to act here are enormous. This lake, which is already three times the size of the District of Columbia, has had an uncontrolled release out of the east end twice before in is history. If that happened again, it would be devastating to the hundreds of thousands of people downstream.”
Comment:
The U. S. Army Corps of Engineers (2002) estimates that there is only a 9.4 percent chance that Devils Lake will reach the natural overflow elevation of 1459 feet and only a 4 percent chance that it will reach elevation 1460.6 feet where the discharge would equal the 300 cfs of the proposed outlet. The outlet would reduce the chance of the lake reaching 1459 feet to 4.1 percent, and it would reduce the chance of the lake reaching 1460.6 feet to 2 percent (U. S. Army Corps of Engineers, 2002). The chance that the lake would reach elevation 1463 feet where outflows would reach 2,500 cubic feet per second (cfs) is 1 percent without the outlet, and with the outlet the chance still is 1 percent (U. S. Army Corps of Engineers, 2002). Thus, the outlet would do nothing to reduce the chance of the “devastating” overflow that worries Senator Conrad. Fortunately, this could be prevented simply by raising the natural outlet of the lake, which the U. S. Army Corps of Engineers (2002) estimates would cost $1.1 million.
Senator Kent Conrad:
“I remind our colleagues, the first ones downstream are the people in North Dakota, in the towns of Valley City, Fargo and Grand Forks.”
Comment:
People along the Sheyenne River and in towns such as Valley City and Lisbon also are the first ones downstream of the proposed Devils Lake outlet, and that is the reason for their opposition to the outlet. As the U. S. Army Corps of Engineers points out:
“The probability of a continued wet future is low; therefore, the likelihood of the impacts that are identified for the natural overflow event, the erosion of a natural outlet, and the dam on Tolna Coulee to actually occur are small. In contrast, the probability of the impacts resulting from the operation of a constructed outlet to occur would be high. An outlet would reduce the likelihood of a natural overflow by about one half (from 9.4 to 4.1 percent).” (U. S. Army Corps of Engineers, 2002)
“Downstream interests would bear most of the negative impacts of this plan. Flooding may increase, primarily on agricultural lands along the Sheyenne River. High flows may exacerbate streambank erosion that may threaten farmstead structures and residences along the river. The added flow translates into stage increases, resulting in additional damage to structural property from direct flooding... The potential for bearing these adverse impacts of an outlet is a source of controversy with downstream interests and has produced conflict with their upstream neighbors.” (U. S. Army Corps of Engineers, 2002)
Senator Kent Conrad:
“We have insisted that water quality has to be met with any outlet procedure.”
Comment:
According to the Corps of Engineers:
“The present operating plan does not meet all downstream water quality standards and objectives. Any revised operating plan that attempts to reduce water quality effects would likely result in less economic feasibility.” (U. S. Army Corps of Engineers, 2002)
“Even under a constrained operation approach the levels of many water quality constituents are increased by two to three times to concentrations just below the established water quality standards.” (U. S. Army Corps of Engineers, 2002)
“The changes on the Sheyenne River in water quality, hydrology, geomorphology and habitat could result in substantial changes in aquatic biota.” (U. S. Army Corps of Engineers, 2002).
“... although water quality standards on the Sheyenne River are not violated, the percent of time any particular concentration is exceeded increases dramatically. For example, sulfate exceedences go from zero to 42 percent for the 250 mg/l sulfate level.” (U. S. Army Corps of Engineers, 2002)
“The loss of habitat due to increased flows, changes in channel geometry, loss of overbank cover and sedimentation, coupled with changes in water quality and algal growth, would all contribute to a substantial change in the aquatic community present in the Sheyenne River. Projected water quality changes associated with the outlet operation may adversely influence fish reproduction and result in lost-year classes. The cumulative result of all these changes would be a decrease in diversity and density of aquatic species in the Sheyenne River. The threshold chloride levels of some aquatic species, such as mussels, would be approached with operation of an outlet; however, no effects are anticipated.” (U. S. Army Corps of Engineers, 2002)
“Changes in the aquatic community would persist for many years after outlet operation ceased, especially on the Sheyenne River above Lake Ashtabula.” (U. S. Army Corps of Engineers, 2002)
Environment Canada, Fisheries and Oceans Canada and Manitoba Conservation stated in their May 6, 2002, comments on the draft EIS for the Devils Lake outlet that:
“Canada and Manitoba are concerned that the Corps' water quality modeling indicates that operation of an artificial outlet would cause increased (50%) frequency of exceedences of the water quality objectives that the International Joint Commission (IJC) established at the international boundary. The EIS itself acknowledges that this would likely constitute a violation of the BWT [Boundary Waters Treaty of 1909]. Elsewhere, the EIS notes that downstream of the project `many constituent levels would be dramatically increased over baseline conditions.' Of particular concern are levels of total dissolved solids (TDS) and sulphates. Furthermore, it appears that the water quality model may under estimate peak concentrations by as much as 40%, thus causing an underestimation of impacts. Lastly, a number of water quality issues, such as mercury, phosphorous, and nitrogen have not been assessed in detail.” (Environment Canada, et al., 2002)
In its May 7, 2002, comments on the draft EIS for the Devils Lake outlet, the U. S. Environmental Protection Agency stated that:
“EPA has serious concerns about the potential for water quality standards to be exceeded if an outlet is constructed and operated. The data in the DEIS indicate that the most limiting downstream numeric water quality criterion is the Minnesota TDS criterion of 500 mg/L in the Red River of the North. For example, based on modeling results in table 7 of the DEIS, the Red River TDS standard would be exceeded more frequently, under all scenarios, than the Sheyenne River sulfate standard of 450 mg/L. TDS and sulfate exceedences could impair both water supply and agricultural uses in the Red and Sheyenne Rivers, respectively...” (U. S. Environmental Protection Agency, 2002)
Operation of the outlet would violate Minnesota's antidegradation policy for the Red River, and it would be subject to the Standard of Water Quality for the State of North Dakota, Rule 33-16-02, which requires a review of new or expanded sources of pollutants that would increase pollutant loading by 15 percent or more (U. S. Army Corps of Engineers, 2002)
Senator Kent Conrad:
“The provision in this bill provides that the funds shall not become available unless the Secretary of the Army determines that an emergency exists with respect to the need for an outlet and reports that the construction is technically sound, environmentally acceptable, and in compliance with the National Environmental Policy Act;...”
Comment:
The language in the bill regarding the Secretary of the Army's determination that an emergency exists refers to section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122). Under this Act, the Secretary of the Army's determination of an “emergency” relates to the emergency exemption of expenditures of funds from congressional budgetary restrictions, rather than to the actual existence of an emergency situation. It should be noted in this context that the level of Devils Lake dropped 0.9 foot in 2000, rose 1.7 feet in 2001, and has dropped 1.5 feet since then.
“EPA, as part of its review process, normally provides a rating of the recommended alternative that summarizes EPA's concerns over potential environmental impacts. In this DEIS, the Corps has not yet selected a recommended plan. Consequently, EPA has rated each alternative analyzed in the DEIS. We have rated the `Preliminarily Selected Outlet Plan' alternative as `environmentally unsatisfactory' (`EU'). The basis of our rating is the significant, long-term, adverse environmental impacts from the construction of the proposed outlet and its subsequent operations.” (Roberts, 2002)
It should also be noted that, because the outlet only “minimally reduces flood damages around the lake” (U. S. Army Corps of Engineers, 2002), it is not technically sound. In addition, the National Environmental Policy Act mandates a full consideration of alternatives to the proposed action, but the State of North Dakota, the Governor of North Dakota's staff, and the North Dakota Congressional Delegation screened the alternatives considered in the draft EIS for the Devils Lake Outlet (U. S. Army Corps of Engineers, 2002). This resulted in alternatives such as restoration of wetlands in the Upper Devils Lake Basin to reduce inflows to the lake being given inadequate consideration in the draft EIS (Minnesota Department of Natural Resources, 2002; Pearson and Conrad, 2002).
Senator Kent Conrad:
“... provided further that the justification for the emergency outlet shall be fully described, including the analysis of benefits and costs to which the Senator from Arizona referred. There will be a requirement that a cost-benefit analysis is done.”
Comment:
The language of the Senate Energy and Water Development Appropriations Bills dealing with appropriations for the Devils Lake outlet for Fiscal Years 1998 through 2002 required that, before funds could be expended on construction of the outlet, the Secretary of the Army first had to report to the Congress that the outlet was “economically justified,” and it specified that:
“The economic justification for the emergency outlet shall be prepared in accordance with the principles and guidelines for economic evaluation as required by regulations and procedures of the Army Corps of Engineers for all flood control projects, and that the economic justification be fully described, including the analysis of benefits and costs, in the project plan document.”
In the Fiscal Year 2003 Omnibus Appropriations Bill, the requirement that the Secretary of the Army must first report to the Congress that the outlet is “economically feasible” has been deleted, and the language regarding the economic justification has been changed simply to:
“Provided further, That the justification for the emergency outlet shall be fully described, including an analysis of the benefits and costs, in the project plan document.”
Thus, the Fiscal Year 2003 Omnibus Appropriations Bill exempts the Devils Lake outlet from a determination that it is economically justified, and it simply requires that an analysis of the benefits and costs be fully described in the project plan documents.
In this context, it is instructive to note that the Corps of Engineers has calculated the benefit-cost ratio of the proposed Devils Lake outlet under likely future conditions to be 0.37 (U. S. Army Corps of Engineers, 2002). However, before the benefits and costs have been described in the project plan documents, the Fiscal Year 2003 Omnibus Appropriations Bill authorizes $5,000,000 for “construction of an emergency outlet from Devils Lake, North Dakota, to the Sheyenne River, at an estimated cost of $100,000,000.” Thus, the Omnibus Appropriations Bill seeks to bypass the established congressional authorization process for such projects by authorizing the $100,000,000 outlet through the appropriations process.
Senator Kent Conrad:
“Provided further that the plans for the emergency outlet shall be reviewed, and to be effective, shall contain assurances provided by the Secretary of State that the project will not violate the treaty between the United States and Great Britain relating to the boundary waters between the United States and Canada.”
Comment:
As the March 8, 2000, letter from the Canadian Embassy in Washington, D. C., to the Chairman of the House Appropriations Committee, which Senator McCain included in the record of the debate on the Omnibus Appropriations Bill (Congressional Record, January 23, 2002) documents, the impacts of the proposed Devils Lake outlet on the Red River of the North and Lake Winnipeg are of great concern to the Province of Manitoba and the Government of Canada. The language of the Senate Energy and Water Appropriations Bills for Fiscal Years 1998-2002 specified:
“The plans for the emergency outlet shall be reviewed and, to be effective, shall contain assurances provided by the Secretary of State, after consultation with the International Joint Commission, that the project will not violate the requirements or the terms of the... `Boundary Waters Treaty of 1909.'” (Emphasis added)
This language is changed in the Fiscal Year 2003 Omnibus Appropriations Bill, by eliminating “after consultations with the International Joint Commission,” to:
“That the plans for the emergency outlet shall be reviewed and, to be effective, shall contain assurances provided by the Secretary of State, that the project will not violate the... `Boundary Waters Treaty of 1909.'”
Thus, under the language of the Fiscal Year 2003 Omnibus Appropriations Bill, compliance of the outlet with the Boundary Waters Treaty of 1909 will be determined solely and unilaterally by the Secretary of State, with no provision for consultation with the Government of Canada or the International Joint Commission.
Senator Kent Conrad:
“We have attempted to be environmentally sensitive and cost-friendly to American taxpayers, but also to respond to this burgeoning crisis in the Devils Lake Basin, a crisis that already has cost the taxpayers of the United States $350 million. If the growth of this lake continues, it has the prospect of costing the American taxpayers hundreds and hundreds of millions of dollars.”
Comment:
Devils Lake rose a total of 19 feet and increased 79,000 acres in area from 1987 to 2001. Since 2001, the lake has dropped 1.5 feet. This is not a “burgeoning crisis.” As discussed above, the proposed outlet only “minimally reduces flood damages around the lake” (U. S. Army Corps of Engineers, 2002), it would have significant adverse environmental impacts on the Sheyenne River, some persisting for many years after outlet operation ceases (U. S. Army Crops of Engineers, 2002), and its benefit-cost ratio under most likely conditions is 0.37 (U. S. Army Corps of Engineers, 2002), not including the additional $300-400 million costs for continued infrastructure protection that would be needed (Pearson and Conrad, 2002) because the outlet would not prevent the lake from rising further if high levels of precipitation were to return (U. S. Army Corps of Engineers, 2002).
Senator Kent Conrad:
“We have already had to buy out an entire town. We have already had to buy out the town of Church's Ferry.”
Comment:
Church's Ferry was a town with a population of 113 people, 43 occupied residences and five commercial establishments (Gilmour, 2000; Anonymous, 2000b). According to The Forum:
“Checks written to the first 12 homeowners range from about $45,000 apiece for three 20-year-old mobile homes to $95,000 to $98,000 apiece for four ranch-style homes built between 1960 and 1985.” (Gilmour, 2000)
In addition:
“Incentives up to $22,500 per homeowner are available.” (Gilmour, 2000).
The Forum reported:
“'This is a new adventure for me,' said Connie Biby, packing boxes 10 days ago. `I'm getting into a gorgeous house... a step up. There's lots of excitement... I've always dreamed of having a house like this,' she said. `The (buyout) price we got for our house was great... wonderful and that's all I can say about it. But we wouldn't have been able to do this without the buyouts.'”
Devils Lake was at elevation 1446.3 feet in 2000; today it is at elevation 1446.5 feet.
Senator Kent Conrad:
“The next town on the list is Minnewaukan. There is the lake. It has already eaten up the playing field of the high school there. That is all under water. The entire town is now threatened.”
Comment:
Minnewaukan is a town of 400 residents at the west side of Devils Lake. The level of Devils Lake has dropped 1.5 feet since August 2001.
Senator Kent Conrad:
“American taxpayers have already had to buy out Church's Ferry. Next is Minnewaukan, and if this continues, Devils Lake, a town of 10,000, would potentially fall into the requirement of having to be bought out. The cost of that to American taxpayers would be billions of dollars. That is the hard reality.”
Comment:
As of April 2000, the Federal Emergency Management Agency had allocated $2.2 million and was requesting another $1.3 million, for a total of $3.5 million for the relocation of homes from Church's Ferry (Gilmour, 2000). The annual operation and maintenance costs of the proposed outlet are estimated to be $633,000 to $1,145,000 (U. S. Army Corps of Engineers, 2002).
Devils Lake, which has a population of about 7,600, is protected by a dike built to elevation 1457 feet which will protect the town to a lake elevation of 1450 feet, and, if necessary, the dike could be raised to protect the town to the natural overflow elevation of the lake (U. S. Army Corps of Engineers, 2002).
Senator Kent Conrad:
“Let me close with this photo. We like to say this is the luckiest fellow in North Dakota because he just escaped the advancing flood.”
Comment:
The most that Devils Lake has risen in a year since 1993 was in 1994 when it rose 6.8 feet, in 1995 when it rose 5.1 feet and in 1997 when it rose 5.2 feet. However, these rises were primarily the result of winter snowfall, they were predicted months ahead, and they occurred gradually over periods of several months in during the spring and summer. Consequently, plenty of time was available to move homes, raise roads and dikes and “escape the advancing flood.” The only excuse for not escaping was not heeding the predictions.
Senator Kent Conrad:
“This is a lake that, as one Federal official came out and said: My God, this looks like an ocean. Indeed, it is huge, three times the size of the District of Columbia.”
Comment:
Devils Lake has a surface area of approximately 200 square miles, but it is far smaller than other lakes in the Upper Midwest, such as Red Lake, Leech Lake and Mille Lacs Lake in Minnesota. However, the increased levels of the lake have produced an outstanding sport fishery that attracts anglers from throughout the Upper Midwest—including Minnesota, adding millions of dollars to the economy of the Devils Lake region every year.
The paradox of the outlet is that it proposes to drain this lake “which looks like an ocean” into the Sheyenne River, a small, meandering prairie stream with a maximum channel capacity of 600 cfs, without causing any adverse impacts.
Senator Kent Conrad:
“If it continues to grow, we will see complete devastation for hundreds of thousands of aces and for hundreds of thousands of people.”
Comment:
The entire population of the Devils Lake Basin is less than 32,000 people and 7,600 of those live in the City of Devils Lake, which is protected from the lake by a dike (U. S. Army Corps of Engineers, 2002). Another 400 live in Minnewaukan at the west side of the lake, but most of the rest live at elevations above the natural overflow elevation of the lake. There are an additional 184,182 acres of non-urban land around Devils Lake between elevation 1447 feet and elevation 1463 feet. There is a 1 percent chance that Devils Lake will reach an elevation of 1463 feet without the outlet, and there also still is a 1 percent chance that it will reach elevation 1463 feet with the outlet (U. S. Army Corps of Engineers, 2002).
Senator Kent Conrad:
“This is a picture of a home having to be burned because it was in line with the floodwaters before it could be moved. Of course it would have created a serious health hazard had it been allowed to go into the water. So homes all across this area had to be burned and hundreds have had to be moved.”
Comment:
“Approximately 400 homes around Devils Lake have been moved or abandoned in response to the rising lake. While some homes have been abandoned, most homes have been relocated.” (U. S. Army Corps of Engineers, 2002).
The only homes that had to be burned were those that were not worth moving or the construction of which (e.g., concrete block) were not amenable to moving, and very few occupied homes fit these categories.
By the fall of 1997, when the lake had reached an elevation of about 1443 feet, the National Flood Insurance Program had paid over $14 million in claims on some 300 houses around Devils Lake that had to relocated. The owners of those homes had paid insurance premiums totaling only $900,000. Owners were able to repurchase their homes from the Federal Emergency Management Agency by matching the highest bid, which frequently was well below market value, and then move them to another location. The cost of moving a house is approximately 70 percent of the market value, plus the cost of a new lot (U. S. Army Corps of Engineers, 2002).
Senator Kent Conrad:
“This project needs to go forward to protect human life and to prevent a disaster of stunning proportions. If this lake escapers uncontrolled out of the east end, as it has twice in our history, we expect the downstream people would have a very serious adverse health effect.”
Comment:
The level of Devils Lake has dropped 1.5 feet since August 2001, the outlet only “minimally reduces flood damages around the lake,” it would reduce the 4 percent chance of the lake rising to an elevation of 1460.6 feet where significant outflows would occur by 2 percent, and it would not reduce the 1 percent chance that the lake will rise to elevation 1463 where flows of 2,500 cfs could occur (U. S. Army Corps of Engineers, 2002).
At elevation 1447 feet, Devils Lake overflows eastward to West Stump Lake and East Stump Lake, and at elevation 1459, West Stump Lake overflows to the Sheyenne River through the Tolna Coulee (U. S. Army Corps of Engineers, 2002). Should Devils Lake rise to elevation 1459 feet, the levels of West Stump Lake and East Stump Lake would rise some 40 feet from their current levels. The resulting dilution of the highly saline waters of the Stump Lakes would substantially reduce their adverse health effects.
Of course, an uncontrolled overflow from the east end (West Stump Lake) could be prevented by raising the level of the natural outlet at a cost of $1.1 million (U. S. Army Corps of Engineers, 2002). The annual operating costs of the outlet would be $633,000 to $1,145,000 (U. S. Army Corps of Engineers, 2002).
Senator Kent Conrad:
“I asked one time, when I heard repeatedly the Crops of Engineers talk about the health effects that would occur, the illnesses that would be the result of an uncontrolled release of water out of the east end, what kind of health problems would occur? They explained the water systems downstream cannot handle the dissolved salts that are in this lake. If it went out the east end of the lake uncontrolled, thousands of people downstream would be made ill.”
Comment:
In discussing the “Effects of Uncontrolled Overflow from Stump Lake,” the Corp of Engineers' February 2002, draft EIS on the Devils Lake outlet does not mention any health effects or state that thousands of people downstream would be made ill (U. S. Army Corps of Engineers, 2002).
Existing water treatment systems downstream on the Sheyenne River would not be able to handle the degraded quality of the water resulting from the outlet, either, and the Corps of Engineers estimates that operation of the outlet would result in increased annual water treatments costs of $50,600 (U. S. Army Corps of Engineers, 2002).
An uncontrolled overflow from the east end of Devils Lake could be prevented by raising the elevation of the natural outlet at an estimated cost of $1.1 million (U. S. Army Corps of Engineers, 2002).
Senator Kent Conrad:
“There are many things that need to be done. Additional storage in the upper basin, millions of dollars have been spent on that. Moving threatened structures, raising roads, millions of dollars have been spent on that. Raising the dike protecting Devils Lake, tens of millions of dollars have been spent on that.”
Comment:
Senator Conrad does not say how many million dollars have been spent on additional storage in the Upper Devils Lake Basin, but the Corps of Engineers' 1996 “Devils Lake North Dakota, Contingency Plan” discussed the State of North Dakota's $5,800,000 plan to retain 75,000 acre-feet of water on private and public lands. This included $2.6 million to develop 14,900 acre-feet of storage on U. S. Fish and Wildlife Service lands, $50,000 to acquire rights to 3,000 acre-feet of storage on lands enrolled in the Conservation Reserve Program, $800,000 to raise the outlet sills on lakes that had previously been drained to Devils Lake, and $2.45 million to store 18,000 acre-feet of water on small private tracts (U. S. Army Corps of Engineers, 1996).
To put this $5.8 million Upper Devils Lake Basin storage program into perspective, it needs to be compared with the 189,000-358,000 acres of wetlands that have been drained in the Upper Devils Lake Basin (U. S. Fish and Wildlife Service, 2002; Pearson and Conrad, 2002), the $350 million that have been spent on moving structures and raising roads and dikes, the $125 million cost of the proposed outlet, and the $633,000-$1,145,000 annual operation and maintenance costs of the outlet (U. S. Army Corps of Engineers, 2002)
Senator Kent Conrad:
“But one part of an overall strategy to deal with this is to provide for an outlet. As the Senator from Arizona correctly states, there is no assurance that will solve the problem, but it is our best hope to prevent a catastrophe of truly stunning proportion, one that would not only adversely affect the people of North Dakota but the people of Minnesota and the people of Canada as well.”
Comment:
The proposed outlet “minimally reduces the flood damage around the lake,” it reduces the 4 percent chance that Devils Lake will reach an elevation 1460.6 feet where significant flows (e.g., 300 cfs) to the Sheyenne River would occur to 2 percent, and it does not reduce the 1 percent chance that Devils Lake will reach an elevation of 1463 feet where flows to the Sheyenne River could reach 2,500 cfs (U. S. Army Corps of Engineers, 2002). An overflow to the Sheyenne River could be prevented by raising the level of the natural outlet at an estimated cost of $1.1 million (U. S. Army Corps of Engineers.
The Corps of Engineers concludes that:
“Studies have shown that infrastructure protection measures are the most cost effective strategy and are the most effective in the long run. They are the best investment because it is not known what the lake will do.” (U. S. Army Corps of Engineers, 2002.)
Senator Kent Conrad:
“No. 1, on this notion that we are asking for a different standard of measuring the cost-benefit test, that is true. And the reason is that the standard that applies in the law has no relevance to what is happening in North Dakota. The standard that applies in the law is designed to deal with river flooding, where the water comes and the water goes, and once the damage has been done you can rebuild.
That is not the circumstance here. That is why everyone who has examined this circumstance has said the standard cost model is irrelevant.
What is required here is to understand this is a cumulative damage as this lake continues to rise. That is why we have had to raise this dike twice, and the Federal Government is poised to raise it a third time. That is why the roads have had to be raised twice. That is why hundreds of threatened structures have had to have been moved. More will have to be done. And the cumulative cost continues to grow.”
Comment:
Senator Conrad is not only advocating that a different standard be employed to account for the cumulative damage from the rising level of the lake, but he also is advocating the use of a manufactured “wet future scenario” which employs the artificial repetition of the high precipitation levels of the period form 1993 to 1999 two more times in order to bring the lake to a level where it would overflow without the outlet but would not overflow with the outlet (U. S. Army Corps of Engineers, 2002). However,
“The probability of the scenario occurring is practically zero because it is an artificial scenario.” (U. S. Army Corps of Engineers, 2002).
Consequently, the standard for economic analysis of the outlet advocated by Senator Conrad has no relationship to reality.
In addition, Senator Conrad is advocating that the damages associated with this artificially contrived natural overflow be included in the economic analysis (U.S. Army Corps of Engineers and North Dakota State Water Commission, 2001), despite the facts that the chance of a significant natural overflow (e.g., 300 cfs) occurring without the outlet are only 4 percent, still are 2 percent with the outlet, and could be prevented simply by raising the level of the natural outlet for a cost of $1.1 million (U. S. Army Corps of Engineers, 2002).
Senator Kent Conrad:
“Second, on the question of flooding in Minnesota, we share the border with Minnesota. We are not going to do anything that will make the flooding worse for own people. We share the border with Minnesota. We will do nothing to hurt Minnesota because that would not be in our constituency interest.”
Comment:
It should be noted that adverse impacts in Minnesota are not limited to flooding. In its May 2, 2002, comments on the Crops of Engineers 2002 draft EIS for the outlet, the Minnesota Department of Natural Resources pointed out that:
“The DEIS does not adequately identify key environmental impacts in sufficient detail to fully enumerate the magnitude of downstream impacts from an outlet. For example, it contains conclusions downplaying important adverse impacts from exotic species and downstream water quality impacts (e.g., pages 5-92-94) that are not supported by the sections of the DEIS analyzing those topics in detail. Furthermore, pages 1-S-12 and 5-93 of the DEIS state that details of these impacts will be left to supplemental EISs or determined by `extensive resource monitoring...to quantify specific impacts and identify acceptable mitigation measures.' We believe that deferring such important analyses and decisions until after the Final EIS is issued does not comply with NEPA and its regulations.” (Morse, 2002)
and:
“The Preliminarily Selected Plan (300 cfs Pelican Lake outlet) forecasts a violation of Minnesota water quality standards and the Clean Water Act. The report to Congress should include an explanation of international treaty and legal constraints regarding water quality and how constraining they are on a project implementation decision.” (Minnesota Department of Natural Resources, 2002)
Senator Kent Conrad:
“Finally, we have to meet NEPA. That is what our amendment provides. That is what is in this law. We have to meet the National Environmental Policy Act. We have to meet the Boundary Waters Treaty with Canada. But we should not be blocked by either, by Canada refusing to make a joint referral to the I[J]C, which they have done for more than a year.”
Comment:
“EPA, as part of its review process, normally provides a rating of the recommended alternative that summarizes EPA's concerns over potential environmental impacts. In this DEIS, the Corps has not yet selected a recommended plan. Consequently, EPA has rated each alternative analyzed in the DEIS. We have rated the `Preliminarily Selected Outlet Plan' alternative as `environmentally unsatisfactory' (`EU'). The basis of our rating is the significant, long-term, adverse environmental impacts from the construction of the proposed outlet and its subsequent operations.” (Roberts, 2002)
Significant issues regarding compliance with the National Environmental Policy Act are raised by the questionable “tiering” of environmental impact analysis being employed by the Corps of Engineers in the EIS for the Devils Lake outlet which describes the environmental impacts of the construction of the outlet, but delays detailed analysis of the environmental impacts of the operation of the outlet—which will by far be the greatest—until after the decision on whether or not to build the outlet has been made (U. S. Army Corps of Engineers, 2002; Morse, 2002; Pearson and Conrad, 2002). This violates the very purpose and clear intent of the National Environmental Policy Act. For example, according to the Corps of Engineers:
“Construction and operation of an outlet from Devils Lake would require the development and implementation of a mitigation plan to compensate for unavoidable adverse effects... Investigations to date indicate the greatest potential for significant adverse impacts to natural resources, cultural resources, and downstream water users is associated with increased flows and water quality changes in the Sheyenne River.” (U. S. Army Corps of Engineers, 2002)
but:
“Many of the effects associated with operation of an outlet cannot be readily quantified.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
and:
“Because of the inability to accurately predict project impacts associated with operation,
an extensive resource monitoring program will be required.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“Many of the potential effects involve long-term changes to existing ecosystems that may not be readily noticeable or quantified without extensive monitoring.” (U. S. Army Corps of Engineers, 2002)
In fact:
“Some of the aquatic losses would not be mitigated; for example, loss of invertebrates, loss of fish year classes, loss of wetted usable area due to increased channel width, and changed channel morphology.” (U. S. Army Corps of Engineers)
The adverse environmental impacts of the operation of the proposed outlet, and whether they could have been avoided or can be mitigated, may not be fully known for decades. Nevertheless, even before the Corps' final EIS on the construction of the outlet is available, the Fiscal Year 2003 Omnibus Appropriations Bill authorizes the appropriation of $100 million to build the outlet.
In addition, the screening of alternatives considered in the EIS for the outlet by the State of North Dakota, the Governor of North Dakota's staff, and the North Dakota Congressional Delegation (U. S. Army Corps of Engineers, 2002) has resulted in an incomplete and inadequate consideration of alternatives to the proposed outlet (Pearson and Conrad, 2002).
The Energy and Water Development Appropriations Bills for Fiscal Years 1998 through 2002 all contained the provision:
“That the plans for the emergency outlet shall be reviewed and, to be effective, shall contain assurances provided by the Secretary of State, after consultations with the International Joint Commission, that the project will not violate the requirements of the... `Boundary Waters Treaty of 1909.'” (Emphasis added)
In an undated letter responding to a March 10, 1998, letter from the Acting Assistant Secretary of the Army for Civil Works regarding consultations with Canada on the Devils Lake outlet, the Acting Assistant Secretary of State for European and Canadian Affairs stated, in part:
“We fully intend to carry out the consultations specified in the legislation [the Fiscal Year 1998 Energy and Water Development Appropriations Bill]. As you know, the Boundary Waters Treaty provides the principles and mechanisms to help prevent and resolve disputes, primarily those concerning water quantity and water quality along the border between Canada and the United States. As we have discussed with your staff, in order to determine the applicability of the Treaty's provisions, we will need to provide the IJC the details of the Corps of Engineers' plans, and the results of the Corps' environmental assessment, now in progress. When the Corps has completed its requirement under NEPA and has forwarded those results to the Department of State, we will be in a position to approach the IJC to undertake the necessary consultations.” (Emphasis added)
The Corps of Engineers released its Draft Devils Lake, North Dakota Integrated Planning Report and Environmental Impact Statement in February 2002. The Government of Canada and the Province of Manitoba submitted extensive comments on the draft Environmental Impact Statement in May 2002. The Corps of Engineers had not yet released its final Environmental Impact Statement on the Devils Lake outlet by February 1, 2003.
The Fiscal Year 2003 Omnibus Appropriations Bill changes the language of the Fiscal Year 1998-2002 Water and Energy Development Appropriations Bills by deleting the requirement for “consultations with the International Joint Commission,” so the determination regarding compliance of the outlet with the Boundary Waters Treaty will be made solely and unilaterally by the Secretary of State, with no provision for consultation with either the Government of Canada or the International Joint Commission.
Statements by Senator Byron Dorgan
Senator Byron Dorgan:
“Let me say to my colleague from Arizona that I understand he raised some concerns to which I think Senator Conrad has responded. I appreciate the manner in which Senator McCain has raised the issue. This is not an issue that is irrelevant to others. It is very important to others. It is important to our neighbors. It is important to the State of Minnesota. It is important to the American taxpayers. It is, obviously important to my colleague from Arizona. I do not dismiss concerns people have raised about these issues.”
Comment:
See the above comments on Senator Conrad's responses to the concerns raised by Senator McCain.
Senator Byron Dorgan:
“I want to say—as my colleague, Senator Conrad, said—that it is not our intention to build an outlet from the lake itself in a manner that injures anyone. We don't come to this project saying we would like to have a project for our State. That is not something we are anxious to do because we believe this project would be something that would be a feather in our cap. We come to this because we have a lake that has been chronically flooding for a long time.”
Comment:
After four years of drought that brought proposals from the State of North Dakota and the Garrison Diversion Conservancy District for constructing an inlet to deliver Missouri River water to Devils Lake through the stalled Garrison Diversion project (North Dakota State Water Commission, et al., 1990), Devils Lake began its recent accelerated rise in 1993. The lake reached the proposed target elevation of 1435 feet for the outlet in 1995. The lake continued to rise to an elevation of 1448 feet in 2001, and since then has dropped to its current elevation of 1446.5 feet. The proposed outlet “[m]inimally reduces flood damages around the lake” (U. S. Army Corps of Engineers, 2002).
When an amendment was introduced to the Senate Fiscal Year 1998 Energy and Water Development Appropriations Bill prohibiting the Secretary of the Army from using any of the funds appropriated for the Devils Lake outlet to study the feasibility of stabilizing the lake through an inlet to transfer Missouri River water to the lake, North Dakota Governor Edward T. Schafer and the North Dakota House and Senate majority leaders sent letters on August 1, 1997, to Speaker of the U. S. House Newt Gingrich and to U. S. Senate Majority Leader Trent Lott stating, in part:
“The amendment permanently gives up all claim to federal dollars for construction of an inlet to Devils Lake. Abandoning for all time the possibility of an inlet runs contrary to the statewide water development plan, which envisions stabilization of Devils Lake. It represents a significant statewide policy shift, made suddenly at the Congressional level with minimal input from North Dakota.
In negotiations with North Dakota's Congressional delegation, state leaders and the conservation community, we agreed to separate the issue of an emergency outlet from the long-term question of an inlet. The amendment seems to recombine the two issues.
There are no immediate plans to build an inlet to bring Missouri River water into Devils Lake. The conditions do not require it. Five years ago Devils Lake was a shrinking body of water in danger of losing its multimillion dollar fishery. That situation may occur again. Stabilization of Devils Lake is essential for the long-term economic health of the region and our state.
...
We ask that you consider alternative language that provides funding for an emergency outlet while not shutting the door permanently on an inlet...
The Devils Lake region desperately needs construction of an emergency outlet. At the same time, North Dakota cannot afford to abandon the possibility of an inlet some time in the future.” (Emphasis added)
A September 11, 1997, story in The Bismarck Tribune headlined “N.D. senators push for emergency inlet” reported that:
“Sens. Byron Dorgan and Kent Conrad wrote a letter to Sen,. Christopher Bond, R. Mo., in an effort to muster support for an outlet to the lake and to change a bill to allow an inlet if the lake level falls too low...
...
Their letter to Bond suggested an emergency inlet `if conditions warrant' could be allowed in the future...
`It's clear the inlet without restrictions is not going to sail,' Conrad said. `There is great resistance to it.'
An `emergency inlet' option is the only one opponents may buy, Conrad said.
...
Conrad and Dorgan said Congress could revisit the issue in the future and approve funding for an inlet...” (Emphasis added)
On September 26, 1997, the Governor and the North Dakota House and Senate majority leaders sent letters to North Dakota Senators Dorgan and Conrad and Congressman Pomeroy stating, in part:
“A ban on an inlet is an extremely high price to pay for the outlet language. An inlet is important to ensure the long-term economic stability of the Devils lake [sic] region, and is a significant component of our state's water-development plan. Strong support still exists for an inlet in the region...
...
Everything possible must be done to keep the inlet viable in Congress as a long-term option. We ask that this letter be included as part of the legislative history that should emphasize the state's interest in revisiting an inlet when the circumstances dictate...”
(Emphasis added)
On the same day, a September 26, 1997, story in The Forum (Fargo, N. D.) headlined “Panel approves $5 million for Devils Lake outlet reported that:
“One casualty of Wednesday's decision, though is a Devils Lake inlet, which was not funded. State and local officials have long argued that an inlet is as badly needed as an outlet, for the inevitable day when Devils Lake returns to its drought-stricken stage of the early 1900s.
`We know the day will come when dry weather returns to the region and the lake level will drop dramatically,' Gov. Ed Schafer, a Republican, said Thursday.
Dorgan said he will being back the inlet in future sessions, bur for now, he said, the outlet is needed.”
Consequently, if the outlet only “minimally reduces flood damages around the lake” (U. S. Army Corps of Engineers, 2002), then the rationale for building it would appear to be simply that it is part of the State's water development plan for economic development.
Senator Byron Dorgan:
“As was mentioned earlier, there are only two closed basins in this country. One is the Great Salt Lake and the other is Devils Lake.”
Comment:
When the Great Salt Lake was flooding in the 1980s, tens of millions of dollars were spent for pumps to pump water from the lake onto the surrounding desert. However, by the time the pumps were installed, the lake was beginning to decline and they no longer were needed.
Senator Byron Dorgan:
“The upper basin of Devils Lake is the size of the State of Massachusetts.”
Comment:
The Devils Lake Basin is 3,814 square miles in area (U. S. Army Corps of Engineers, 2002). The State of Massachusetts is 8,257 square miles in area. Therefore, the Devils Lake Basin is less than half the size of the State of Massachusetts.
Senator Byron Dorgan:
“Water funnels down from that basin into Devils Lake. This picture doesn't do justice to the lake. But it does show what is happening here. What used to be a road and commerce and opportunity in this area of our State that is very important to us is now flooded—inundated—with water. This extends to an Indian reservation called the Spirit Lake Nation.”
Comment:
In his Fifth Biennial Report to the Governor of North Dakota for 1911-1912, the North Dakota State Engineer noted that:
“The drainage area of Devils Lake is nearly two thousand square miles [subsequently determined to be 3,814 square miles], but the land lies so nearly level and there are so many marshes, meadows, small ponds and lakes which arrest the flow of the water and from which it evaporates, that it is not likely that the run-off from more than seven hundred to eight hundred square miles of the total area ever reaches the lake.” (North Dakota State Engineer, 1912)
The 1976 Devils Lake Basin Advisory Committee Study Report shows the extent of wetland drainage in the various watersheds of the Devils Lake Basin 25 years ago. The Study reported that 40 percent of the wetlands in the Chain Lakes Watershed had been drained, 41 percent of the wetlands in the Edmore Watershed had been drained, and 73 percent of the wetlands in the Starkweather Watershed had been drained (Devils Lake Basin Advisory Committee, 1976). The Advisory Committee estimated that originally over 569,000 acres of wetlands existed in the Devils Lake Basin, that 98,000 acres of wetlands had been drained in the Basin at that time, and that 160,000 acres of wetlands would be drained in the Basin by 1990 (Devils Lake Basin Advisory Committee, 1976). The U. S. Fish and Wildlife Service estimates that 189,000 acres of wetlands had been drained by 1997 (U. S. Fish and Wildlife Service, 2002). However, the Fish and Wildlife Service notes that National Wetlands Inventory data show that the Devils Lake Basin has only 210,000 acres of intact wetlands remaining (U. S. Fish and Wildlife Service, 2002), so the actual wetland loss in the Basin may be on the order of (569,000 acres originally minus 210,000 acres remaining) 359,000 acres.
The 1976 Devils Lake Basin Advisory Committee Study Report also shows the “Primary Flood-Prone Areas: Devils Lake Basin.” This, of course, was before the recent flooding problem developed around Devils Lake proper, and it shows that the most severe flooding was occurring in the lower portions of the Chain Lakes, Edmore and Starkweather watersheds—the same watersheds having the most extensive wetland drainage (Devils Lake Basin Advisory Committee, 1976). The Devils Lake Basin Advisory Committee Study Report also shows an extensive network of existing and proposed drainage channels (most of which had been completed prior to 1993) from the Chain Lakes, Starkweather and Edmore watersheds, as well as the Mauvais Coulee and Hurricane Lake watersheds, designed to convey water directly into Devils Lake from the 189,000-359,000 acres of drained wetlands in the Upper Devils Lake Basin.
The drainage of 189,000 acres of wetlands in the Devils Lake Basin—the minimum supportable estimate—resulted in 265,458 to 924,100 acre-feet of additional water initially reaching Devils Lake when the 1988-1992 drought was succeeded by unusually high levels of precipitation beginning in 1993 (Pearson and Conrad, 2002). This is equivalent to an additional 2 to 7 feet at the January 2002 lake elevation of 1447.1 feet and surface area of 132,000 acres (Pearson and Conrad, 2002). This figure does not include the subsequent 207,600 acre-feet reduction in annual inflows—equivalent to 1.6 feet at the lake's January 2002 elevation—that potentially could have occurred if those wetlands had not been drained (Pearson and Conrad, 2002).
Senator Byron Dorgan:
“I recall one day driving around with the tribal chairman of the Spirit Lake Nation with a man named Elmer White. Elmer is dead now. Elmer passed away a couple years ago. He said: Our elders told us the water was coming. He said: All of these roads that are no longer passable and all of these roads that are now inundated with water, our elders told us this was going to happen.
What happened is we stranded part of this Indian reservation. We have had to make a substantial investment in roads in order to get people to hospitals. We have to move around and meander in strange ways on backroads.”
Comment:
Although the Spirit Lake Nation did not comment formally on the U. S. Army Corps of Engineers' draft EIS for the Devils Lake outlet, a May 6, 2002, letter to the Corps from 39 members of the Spirit Lake Nation began with the statement that:
“We enclose supporting documentation on the opposition of an outlet within the jurisdictional boundaries of the Spirit Lake Nation.”
And it concluded with the statement that:
“Given the controversial nature of the proposed alternatives and recommendations in the EIS reported by the Canadian Government, downstream States, and downstream river communities, the proposed outlet will continue to be strongly opposed until all Indigenous concerns and issues are fairly addressed in the summary findings.”
Senator Byron Dorgan:
“This flooding has been chronic and very difficult. Frankly, I don't expect anybody to understand lake flooding until they have seen it. My notion of a flood is almost always the notion of the Red River Valley flood or some other flood that I have seen on television someplace. There is a coursing and a gushing river—a virtual torrent and wall of water. It sweeps houses and trees and cattle downstream in a rush of water and in a roar of noise. Then, 12 hours later, or 24 hours later, the river is back in its banks and all is calm. That is what river flooding is. That is what we think of with flooding.
This lake has increased 26 feet in height in the last 9 years. It has gobbled up more and more land.”
Comment:
Prior to the severe drought of 1988-1992, Devils Lake was at an elevation of 1428.9 feet (North Dakota State Water Commission, et al., 1990), and it dropped to 1423.3 feet by 1992. In August 2001, the lake was at 1448.04 feet (U. S. Army Corps of Engineers, 2002), 19 feet above its 1987 level and 11 to 13 feet above the proposed target level for the outlet. Since then, the lake has dropped to a current level of 1446.5 feet.
The greatest rise of the lake in single years was 6.8 feet in 1994, 5.1 feet in 1995 and 5.2 feet in 1997. In other years between 1993 and 1999, the rise ranged from 0.6 feet to 2.5 feet. The rises in the lake level resulted primarily from winter snowfall and they were predicted months ahead of time and occurred over periods of several months in the spring and summer. Consequently, unlike typical river floods, time was available to move threatened homes and raise roads and dikes, thus minimizing the damage.
Senator Byron Dorgan:
“One of the things we have to do to respond—not because we want to but because we must in order to protect others—is to try to take some pressure off that lake and do it without hurting anyone else. If we don't take pressure off that lake with a measured outlet, what is going to happen is, if that water continues to rise, it goes over the divide naturally in an uncontrolled way and you have people living downstream—yes, in North Dakota our big population centers, but also up in Canada—and the worst quality water is going to make literally hundreds of thousands of people sick—North Dakotans, Minnesotans, and Canadians. That is what will happen in an uncontrolled release of water over the divide if we don't do something to reduce the risk.”
That is what this proposed outlet is about.”
Comment:
The U. S. Army Corps of Engineers (2002) has concluded that the proposed outlet only “minimally reduces flood damages around the lake and it moderately reduces the potential for a natural overflow event.” The Corps of Engineers estimates that there is only a 9.4 percent chance that Devils Lake will reach the natural overflow elevation of 1459 feet and only a 4 percent chance that it will reach elevation 1460.6 feet where the discharge would equal the 300 cfs of the proposed outlet. The outlet would reduce the chance of the lake reaching 1459 feet to 4.1 percent, and it would reduce the chance of it reaching 1460.6 feet to 2 percent (U. S. Army Corps of Engineers, 2002). The chance that the lake would reach elevation 1463 feet where outflows would reach 2,500 cfs is 1 percent without the outlet, and it would still be 1 percent with the outlet (U. S. Army Corps of Engineers, 2002). Fortunately, such an overflow could be prevented simply by raising the level of the natural outlet at an estimated cost of $1.1 million (U. S. Army Corps of Engineers, 2002).
In discussing the “Effects of Uncontrolled Overflow from Stump Lake,” the Corps of Engineers' February 2002 draft EIS on the Devils Lake outlet does not mention any health effects or indicate that hundreds of thousands of people in North Dakota, Minnesota and Canada would become sick as a result of such an overflow (U. S. Army Corps of Engineers, 2002).
Senator Byron Dorgan:
“I have a couple final points. This outlet cannot be built unless it meets all environmental standards. Under the NEPA Act, the studies are ongoing. The Studies must be done.”
Comment:
“We [U. S. Environmental Protection Agency] have rated the `Preliminarily Selected Outlet Plan' alternative as `environmentally unsatisfactory' (`EU'). The basis of our rating is the significant, long-term, adverse environmental impacts from the construction of the proposed outlet and its subsequent operations.” (Roberts, 2002)
In preparing the environmental impact analysis for the Devils Lake outlet, the Corps of Engineers is employing a “tiering” process in which the initial EIS describes the environmental impacts of the construction of the outlet, but delays detailed analysis of the environmental impacts of the operation of the outlet—which will by far be the greatest—until after the decision of whether or not to build the outlet has been made (U. S. Army Corps of Engineers, 2002; Morse, 2002; Pearson and Conrad, 2002). This violates the very purpose and clear intent of the National Environmental Policy Act. For example, according to the Corps of Engineers:
“Construction and operation of an outlet from Devils Lake would require the development and implementation of a mitigation plan to compensate for unavoidable adverse effects... Investigations to date indicate the greatest potential for significant adverse impacts to natural resources, cultural resources, and downstream water users is associated with increased flows and water quality changes in the Sheyenne River.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
but:
“Many of the effects associated with operation of an outlet cannot be readily quantified.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
and:
“Because of the inability to accurately predict project impacts associated with operation, an extensive resource monitoring program will be required.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“Many of the potential effects involve long-term changes to existing ecosystems that may not be readily noticeable or quantified without extensive monitoring.” (U. S. Army Corps of Engineers, 2002).
In fact:
“Some of the aquatic losses would not be mitigated; for example, loss of invertebrates, loss of fish year classes, loss of wetted usable area due to increased channel width, and changed channel morphology.” (U. S. Army Corps of Engineers, 2002)
The adverse environmental impacts of the operation of the proposed outlet, and whether they could have been avoided or can be mitigated, may not be fully known for decades. Nevertheless, even before the Corps' final EIS on the construction of the outlet is available, the Fiscal Year 2003 Omnibus Appropriations Bill authorizes the appropriation of $100 million to build the outlet.
In addition, the screening of alternatives considered in the EIS for the outlet by the State of North Dakota, the Governor of North Dakota's staff and the North Dakota Congressional Delegation (U. S. Army Corps of Engineers, 2002) has resulted in an incomplete and inadequate consideration of alternatives to the proposed outlet (Morse, 2002; Pearson and Conrad, 2002).
Senator Byron Dorgan:
“This is a project that is critically needed to reduce risks.
I understand my colleague from Arizona and the questions he has raised. We had a long meeting this morning. I hope we will be able to resolve all of these issues. But I believe this project is critically important to a whole lot of folks who have been victimized by chronic floods that came and stayed—by lake flooding that has been devastating to this region of the country. We must find a way to reduce the risk for the people who live in this region, for the American taxpayer—especially for people who live downstream who would be the recipients and victims of an uncontrolled release of water if we don't do something to take the pressure off this lake.”
Comment:
The proposed outlet from Devils Lake “[m]inimally reduces flood damages around the lake,” it reduces the 9.4 percent chance that Devils Lake will reach its natural overflow elevation of 1459 feet to 4.1 percent, and it reduces the 4 percent chance that Devils Lake would rise to 1460.6 feet where the flow would equal the 300 cfs of the outlet to 2 percent, but it does not reduce the 1 percent chance that the lake would rise to 1463 feet where flows would reach 2,500 cfs (U. S. Army Corps of Engineers, 2002). An overflow to the Sheyenne River could be prevented by raising the level of the natural outlet at an estimated cost of $1.1 million (U. S. Army Corps of Engineers, 2002). The annual operation and maintenance costs for the proposed outlet would be $1,145,000 (U. S. Army Corps of Engineers, 2002).
“Under some climatic futures, the lake would continue to go up and overflow even if an outlet is constructed.” (U. S. Army Corps of Engineers, 2002)
“The outlet plan that has been preliminarily selected for design is not economically justified using methods that would determine expected net benefits by producing probability-weighted benefits and costs.” (U. S. Army Corps of Engineers, 2002)
“Therefore, there is about a 75 percent chance that if an outlet were built it would not be economically beneficial.” (U. S. Army Corps of Engineers, 2002)
“Under average future conditions (based on the stochastic analysis), the alternative with the greatest (and only positive) annual net benefit and the highest benefit-cost ratio is the Expanded Infrastructure Protection alternative.” (U. S. Army Corps of Engineers, 2002)
The level of Devils Lake rose 1.7 feet in 1998, 2.5 feet in 1999, dropped 0.9 foot in 2000, rose 1.5 feet in 2001 and dropped 1.5 feet 2002. The proposed outlet, operating at maximum capacity and unconstrained by downstream flooding or water quality impacts, would remove about a foot of water from the lake per year. Evaporation removes an average of 2.5 feet of water from the lake every year.
Senator Byron Dorgan:
“I just point out, if this were to injure downstream citizens in your State or ours, I would not support it. We do not intend to foist a problem that exists in this basin on any other constituency anywhere.”
Comment:
“We [U. S. Environmental Protection Agency] have rated the `Preliminarily Selected Outlet Plan' alternative as `environmentally unsatisfactory' (`EU'). The basis of our rating is the significant, long-term, adverse environmental impacts from the construction of the proposed outlet and its subsequent operations.” (Emphasis added) (Roberts, 2002)
“EPA has serious concerns about the potential for water quality standards to be exceeded if an outlet is constructed and operated. The data in the DEIS indicate that the most limiting downstream numeric water quality criterion is the Minnesota TDS criterion of 500 mg/L in the Red River of the North. For example, based on modeling results in table 7 of the DEIS, the Red River TDS standard would be exceeded more frequently, under all scenarios, than the Sheyenne River sulfate standard of 450 mg/L. TDS and sulfate exceedences could impair both water supply and agricultural uses in the Red and Sheyenne Rivers, respectively...” (Emphasis added) (U. S. Environmental Protection Agency, 2002)
“Canada and Manitoba are concerned that the Corps' water quality modeling indicates that operation of an artificial outlet would cause an increased (50%) frequency of exceedences of the water quality objectives that the International Joint Commission (IJC) established at the international boundary. The EIS itself acknowledges that this would likely constitute a violation of the BWT [Boundary Waters Treaty of 1909]. Elsewhere, the EIS notes that downstream of the project `many constituent levels would be dramatically increased over baseline conditions.' Of particular concern are levels of total dissolved solids (TDS) and sulphates. Furthermore, it appears that the water quality model may under estimate peak concentrations by as much as 40%, thus causing an underestimation of impacts. Lastly, a number of major water quality issues, such as mercury, phosphorus, and nitrogen, have not been assessed in sufficient detail.” (Emphasis added) (Environment Canada, et al., 2002)
“Downstream interests would bear the most negative impacts of this [480 cfs] plan [which reflect the water quantity impacts of a Pelican Lake 300 cfs outlet]. Flooding may increase, primarily on agricultural lands along the Sheyenne River. Higher flows may exacerbate streambank erosion that may threaten farmstead structures and residences along the river. The added flow translates into stage increases, resulting in additional damage to structural property from direct flooding. Under these circumstances, flood easements would be purchased to compensate landowners for future expected losses to their properties. The potential for bearing these adverse impacts of an outlet is a source of controversy with downstream interests and has produced conflict with their upstream neighbors.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“As in the case of an overflow, farms that withdraw water from the Sheyenne River or the Red River for irrigation could suffer reduced crop yields from the lower river water quality associated with an outlet. Exacerbated flooding in the Sheyenne River could damage agricultural property, including lands, equipment and structures. Also, higher flows in the river could affect some farms that straddle the river... These river crossings may be impeded or prohibited by additional flow associated an outlet.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“In rare instances, there could be overbank flooding due to unforecasted rainstorms and the inability to turn the outlet off in time.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“Using a _ mile area of influence, groundwater changes could potentially affect 112,000 acres of riparian lands along the Sheyenne River and 76,000 acres along the Red River.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“Although the Sheyenne River channel appears currently stable, channel instability may be onset if the flows are increase[d] due to operation of an outlet... The process of channel adjustment may take 50 to 100 years or more.” (U. S. Army Corps of Engineers, 2002)
“There is an increased risk of transfer of biota or the increase in the distribution of existing organisms associated with any feature that improves the connectivity between systems that have been segregated for centuries.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“The present operating plan does not meet all downstream water quality standards and objectives. Any revised operating plan that attempts to reduce water quality effects would likely result in less economic feasibility.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“Even under a constrained operation approach the levels of many water quality constituents are increased by two to three times to concentrations just below the established water quality standards.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“Operation of the Pelican Lake outlet would result in a substantial change in the flow regime of the Sheyenne River. Discharges of up to 300 cfs over a major portion of the summer would represent a 5- to 10-fold increase in summer/fall flows along the Sheyenne River.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“... the outlet could result in up and down flows with sudden and extreme fluctuations in flow. These are the types of situations that make it difficult for species to adapt to habitat conditions.” (U. S. Army Crops of Engineers, 2002)
“The changes in flow duration, stage and frequency could result in increase in erosion and sedimentation on the Sheyenne River.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“The changes on the Sheyenne River in water quality, hydrology, geomorphology and habitat could result in substantial changes in aquatic biota.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“...although water quality standards on the Sheyenne River are not violated, the percent of time any particular concentration is exceeded increases dramatically. For example, sulfate exceedences go from zero to 42 percent for the 250 mg/l sulfate level.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“The loss of habitat to increased flows, changes in channel geometry, loss of overbank cover and sedimentation, coupled with changes in water quality and algal growth, would all contribute to a substantial change in the aquatic community present in the Sheyenne River. Projected water quality changes associated with outlet operation may adversely influence fish reproduction and result in lost-year classes. The cumulative result of all these changes would be a decrease in diversity and density of aquatic species in the Sheyenne River. The threshold chloride levels of some aquatic species, such as mussels, would be approached with operation of an outlet; however no effects are anticipated.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“Many of the effects associated with the operation of an outlet cannot be readily be quantified.” (U. S. Army Corps of Engineers, 2002)
“Some of the aquatic losses would not be mitigated...” (U. S. Army Corps of Engineers, 2002)
“Changes in the aquatic community would persist for many years after outlet operation ceased, especially on the Sheyenne River above Lake Ashtabula.” (U. S. Army Corps of Engineers, 2002)
“The flow impacts due to a Pelican Lake alternative would be dramatic, particularly in the upper Sheyenne, which is essentially isolated from recolonization. Water quality changes would be devastating to unionids.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
“Substantial to significant adverse impacts on aquatic habitat availability and suitability can be expected under most if not all of the Devils Lake outlet options.... The largest adverse impacts on habitat would likely occur in the Sheyenne River above Lake Ashtabula, where stages are projected to increase up to 3 feet.” (Emphasis added) (U. S. Army Corps of Engineers, 2002)
REFERENCES
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Anonymous, 2000b. Church's Ferry homes go on the auction block Tuesday. Devils Lake
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