“The final Integrated Report/EIS is scheduled for July 2002.
The Record of Decision is to be signed by September 2002. Items
to be completed include coordination with Canada and
determination of compliance with the Boundary Waters Treaty of
1909.” (DEIS Appendix C, p. C-136)
However, with the final EIS to be completed in two months and the
record of decision to be signed in four months, it is clear that
the DEIS is not an EIS on a specific action at an early stage and
that the issues of its environmental impacts are ripe for
consideration, so tiering of the DEIS is not appropriate under
section 15.28(b), either.
The DEIS states that:
“Additional data acquisition and monitoring will be required
to further define and evaluate the operational impacts of an
outlet. Based on the results of these evaluations, supplemental
National Environmental Policy Act (NEPA) documentation will be
prepared as required.” (DEIS p. 1-S-2)
Of course, it is not the impacts of construction, but the impacts
of the operation of an outlet that are the most significant and
the most important to compliance with NEPA and to the decision of
whether or not the outlet should be built. It is precisely to
assure that full information on the environmental impacts of
proposed Federal actions is available to the public, to the
Congress and to Federal agency officials before decisions are
made that Section 102(2)(C) of the National Environmental Policy
Act requires that all agencies of the Federal Government shall—
“(C) include in every recommendation or report on proposals
for legislation or other major Federal Actions significantly
affecting the quality of the human environment, a detailed
[emphasis added] statement by the responsible official on—
the environmental impact of the proposed action,
any adverse environmental effects which cannot be avoided should
the proposal be implemented,
alternatives to the proposed action,
the relationship between local short-term uses of man’s
environment and the maintenance and enhancement of long-term
productivity, and
any irreversible and irretrievable commitments of resources
should it be implemented.”
It is important to note that it is not just mitigation of the
environmental impacts of the construction of the outlet that the
Corps proposes to address in supplemental NEPA documents under
CEQ Regulation 1508.2(b), but also the impacts of the operation
of the outlet itself (DEIS pp. 5-92-94). Thus, rather than
employing “tiering” as provided under the regulation,
the Corps is instead using “tiering” as a ploy for
segmenting the analysis of the environmental impacts of the
proposed action itself, in clear violation of both CEQ Regulation
1508.2(b) and NEPA.
Until an operation plan is developed for the proposed outlet and
the impacts of the operation of the outlet are described in
detail, the Corps will be unable to make a decision regarding the
construction of the outlet that is in compliance with NEPA.
However, the Corps proposes instead to postpone the collection of
data on the impacts of the operation of the outlet while it
proceeds with completion of the Final EIS in two months and a
formal decision on construction of the outlet two months later
with no provision for information on the impacts of the operation
of the outlet being made available beforehand to the public and
other agencies for review and comment in supplemental NEPA
documents. Thus, any supplemental NEPA documents dealing with the
most significant impacts of the outlet will not become available
until after the decision has been made to build the outlet, when
it is too late to avoid those impacts or select less damaging
alternatives. The Corps’ NEPA process for the proposed
outlet, therefore, is deliberately crafted to circumvent the
fundamental purpose of NEPA.
Failure to Consider Cumulative Impacts
Red River Valley Water Supply Project
The Dakota Water Resources Act of 2000 authorizes a Red River
Valley Water Supply Project, one alternative of which to be
considered is the delivery of Missouri River water to the
Sheyenne River utilizing the U. S. Bureau of Reclamation’s
Garrison Diversion Unit. The DEIS acknowledges that utilizing the
Garrison Diversion Unit to deliver Missouri River water for
a Red River Valley water supply project is a reasonably
foreseeable action (DEIS p. 5-92), but, despite the fact that the
projects would deliver water to the Sheyenne River from different
sources, it does not discuss how operation of the proposed Devils
Lake outlet might alter the operation or impacts of the Red River
Valley Water Supply Project, or how operation of the Red River
Valley Water Supply Project might alter the operation or impacts
of the proposed outlet. With absolutely no data or analysis, the
DEIS summarily dismisses discussion of the cumulative impacts of
the two projects with the statement that they “do not result
in any additional impacts above those described in this Draft
Report/EIS” (DEIS p. 5-92).
Inlet to Deliver Missouri River Water to Devils Lake
The DEIS recognizes that:
“The purpose of an inlet from the Missouri River would be to
help stabilize the lake during drier climatic conditions.
Regionally, there is great interest in stabilizing the lake to
try to maintain the recreational and economic value of the lake.
Other States, Minnesota and Missouri, Canada, and some agencies
are concerned about water quality, water quantity, and biota
transfer issues associated with an inlet.
Many believe that an outlet is the first step toward an inlet and
oppose the outlet for that reason or feel that the report should
include a discussion of the effects of an inlet.” (DEIS p.
1-S-11)
In fact, on August 1, 1997, North Dakota Governor Edward T.
Schafer and the majority leaders of the North Dakota House and
Senate sent letters to U. S. Senate Majority Leader Trent Lott
and
U. S. House Speaker Newt Gingrich stating, in part:
“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 for 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.”
On September 26, 1997, the Governor and the North Dakota Senate
and House majority leaders then sent letters to the North Dakota
congressional delegation stating, in part:
“A ban on the 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 region, and is a
significant component of the 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 a legislative history that should emphasize
the state’s interest in revisiting an inlet when the
circumstances dictate.”
That same day, North Dakota Senator Byron Dorgan was quoted in
The Forum (Fargo, North Dakota) as stating that he would bring
back the inlet debate in future sessions of the Congress, but for
now, the outlet is what is needed (Condon, 1997).
Although the construction of an inlet to deliver Missouri River
water to Devils Lake could have profound consequences for the
operation and impacts of the proposed outlet, particularly by
escalating the risk of transfer of foreign biota to the Hudson
Bay Basin, the DEIS arbitrarily dismisses consideration of the
cumulative impacts of an inlet with the statement that:
“Public Law 105-62 prohibits the Corps from using any funds
to study any inlet involving the transfer of water from the
Missouri Basin. Therefore, an inlet is not part of the analysis.”
(DEIS p. 1-S-1)
However, the Corps misinterprets the language of the 1997 Energy
and Water Development Appropriations Act (P. L. 105-62). The Act
states:
“Provided further, That no funds made available under this
Act or any other Act for any fiscal year may be used by the
Secretary to carry out the portion of the feasibility study of
the Devils Lake Basin, North Dakota, authorized under the Energy
and Water Development Appropriations Act of 1993 (Public Law
102-377), that addresses the needs of the area for stabilized
lake levels through inlet controls [emphasis added] or carry out
any activity that would permit the transfer of water from the
Missouri River Basin into Devils Lake.”
Thus, Public Law 105-62 prohibits the Corps only from carrying
out a feasibility study for an inlet to Devils Lake, and it does
not prohibit the Corps from addressing the cumulative
environmental impacts of an inlet in association with an outlet
from Devils Lake that is required under NEPA.
North Dakota’s 300 cfs “Temporary” Emergency
Outlet
The DEIS acknowledges that a temporary outlet from Devils Lake to
the Sheyenne River constructed by the State of North Dakota along
Peterson Coulee is a reasonably foreseeable action (DEIS p.
5-92). However, despite the facts that (1) the North Dakota
Legislative Assembly has authorized, and appropriated $15,000,000
for, construction of the temporary outlet, (2) former State
Engineer David Sprynczynatyk stated at a public meeting in Valley
City, North Dakota, on August 23, 2000, that the State’s 300
cfs temporary outlet will be operated indefinitely if the Corps
does not build a permanent outlet, (3) the NDSWC has requested
engineering design proposals and has retained the firm of
Bartlett, West and Boyle to design the outlet, (4 ) the NDSWC’s
“Request for Proposal” for the temporary outlet states
that the outlet could operate for 10 to 15 years if the current
wet cycle continues, and (5) the Governor and the NDSWC continue
to reiterate their decision to construct the outlet, the Corps
declines to include the temporary outlet in the discussion of
without project future conditions (DEIS p. 1-S-10) and again
dismisses consideration of its cumulative effects in conjunction
with the proposed Pelican Lake 300 cubic feet per second (cfs)
outlet (DEIS p. 5-92).
Clearly, the construction and operation by the State of a 300 cfs
West Bay outlet would have profound impacts on the justification
for and feasibility of the Corps’ proposed Pelican Lake 300
cfs outlet, as well as on the cumulative impacts to the Sheyenne
River if the Corps’s proposed outlet were to be built.
However, the Corps summarily dismisses consideration of the State’s
proposed 300 cfs West Bay outlet with the statement that:
“The design and detailed operation plan for a temporary
outlet have not been completed at this time, and there is a high
probability for delays or suspension of the plan due to possible
litigation and permitting issues. Therefore, the construction and
operation of a temporary outlet is not considered to be a
reasonably foreseeable action at this time, and the Corps is not
including this outlet in the future without project conditions.
If the State actually begins construction, a decision would have
to be made on whether the future without project conditions
should be reevaluated, which would result in the extension of the
schedule to complete project design and the preparation of a
revised NEPA document.” (DEIS p. 1-S-10)
Of course, a detailed operation plan has not been completed for
the Corps’ proposed Pelican Lake 300 cfs outlet, either
(DEIS p. 6-16), yet the Corps is proceeding on the premise that
it is a reasonably foreseeable action subject to the requirements
of NEPA. Meanwhile, the State also has indicated that it intends
to build and operate its 300 cfs temporary outlet without
completing a detailed operation plan (Associated Press, 2001b),
but the Corps claims that exempts the State’s project from
consideration of cumulative impacts under NEPA
The DEIS purports to conduct a sensitivity analysis “[t]o
address the uncertainty of the implementation of a temporary
outlet” (DEIS p. 1-S-10), and it states that:
“The analysis includes a discussion of the potential effect
of the temporary outlet on lake levels, and how it would affect
the economic feasibility of the Pelican Lake outlet alternative.”
(DEIS p. 1-S-10)
However, despite the facts that (1) the NDSWC’s “Request
for Proposal” for the temporary outlet calls for a capacity
of “at least 300 cfs” and indicates that it could be
operated for 10 to 15 years until the current wet cycle ends
(North Dakota State Water Commission, 2001), and (2) the DEIS
acknowledges that the ultimate capacity of the outlet would be
“up to 300 cfs” (DEIS p. 3-25), the sensitivity
analysis is based on the assumption that the temporary outlet
would simply be an interim measure until a permanent outlet is
operable, and it is limited to only the first 100 cfs initial
phase of the State’s project (DEIS p. 3-25-26).
Consequently, despite acknowledging that:
“The inclusion of the State’s [assumed 100 cfs]
temporary outlet as part of the future without project conditions
could reduce the impacts of a Pelican Lake outlet and mitigation
measures.” (DEIS p. 47-37)
the DEIS concludes that:
“These changes would not affect conclusions reached through
the alternatives evaluation.” (DEIS p. 4-36)
Clearly, compliance with NEPA requires that the Corps address the
State’s authorized 300 cfs West Bay outlet as a reasonably
foreseeable permanent feature of the without project future
conditions, and that it address substantively the cumulative
impacts of (1) the authorized Red River Valley Water Supply
Project delivering Missouri River water to the Sheyenne River,
(2) an inlet to deliver Missouri River water to Devils Lake as
part of the State’s official water development plan, and (3)
the State’s authorized 300 cfs outlet from West Bay to the
Sheyenne River.
Absence of Authorization to Construct and Operate an Outlet
The DEIS cites the 1997 Emergency Supplemental Appropriations Act
as its authority to undertake preconstruction engineering and
design and the associated EIS for an emergency outlet from Devils
Lake to the Sheyenne River (DEIS p. 1-2), and it cites the Energy
and Water Development Appropriations Acts for Fiscal Years 1998,
1999, 2000, and 2001 as “providing funding for the
construction of an emergency outlet from Devils Lake to the
Sheyenne River” (DEIS p. 1-2), but it does not cite any
congressional authorization act language that specifically
authorizes the construction and operation of an outlet from
Devils Lake to the Sheyenne River.
The 1998 Energy and Water Development Appropriations Act cited by
the DEIS states, for example, that:
“The Secretary of the Army acting through the Chief of
Engineers, may use up to $5,000,000 of the funding appropriated
herein to initiate [emphasis added] construction of an emergency
outlet from Devils Lake, North Dakota, to the Sheyenne River…”
subject to a determination by the Secretary of the Army that the
construction:
“is technically sound, economically justified, and
environmentally acceptable and in compliance with the National
Environmental Policy Act of 1969.”
Provided further:
“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 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 terms of the… ‘Boundary Waters Treaty
of 1909.’”
Not only have none of these necessary conditions been met before
construction may be initiated on an outlet from Devils Lake to
the Sheyenne River (DEIS p. 6-28), but the Corps cites no
congressional authorization to complete and operate an outlet
from Devils Lake to the Sheyenne River. The language of the 1998
Energy and Water Development Appropriations Act clearly indicates
that it was the intent of the Congress that the Corps, after
meeting the conditions specified, was authorized only to “initiate
construction of an emergency outlet” from Devils lake to the
Sheyenne River. The language demonstrates that, in the event the
Corps should meet the conditions specified in the Act and
initiate construction of an outlet, the Congress retained the
authority to review the status of the “emergency”
before authorizing further construction and operation of the
outlet and the appropriation of additional funds for its
construction. That authorization would properly be in the form of
a specific congressional authorization act, rather than simply
through the appropriation of funds in a continued piecemeal
fashion.
Inadequate Description of Environmental Impacts of the Proposed
Action
Not only does the DEIS fail to describe adequately the
environmental impacts of the operation of the proposed Pelican
Lake 300 cfs outlet, but the discussion that is provided is
designed to minimize and obscure the impacts that are identified.
The downstream impacts of the operation of the proposed Pelican
Lake 300 cfs outlet under a “wet future scenario” where
those impacts would be most severe have not been modeled, so they
have simply been interpolated from the impacts of West Bay 300
cfs and 480 cfs alternatives modeled under two “moderate”
(1450 and 1455 feet) lake future scenarios. For example:
“Impacts to aquatic resources were evaluated for a 300 cfs
constrained and a 480 cfs unconstrained outlet from West Bay…
The effects of outlets from other locations, such as Pelican
Lake, would have to be interpreted from these findings. It is
possible [emphasis added] that a Pelican Lake outlet would
approximate the water quality effects of a 300 cfs West Bay
outlet and the flow effects of a 480 cfs West Bay outlet.”
(DEIS Appendix C, p. C-38)
“The determination of the effects of operating an outlet
from Devils Lake is dependent on the conditions assumed to
persist into the future and the location of the outlet. These two
conditions affect the quality of the water to be discharged into
the Sheyenne River and flows that are in the Sheyenne River,
which in turn affects the assumptions concerning the operation of
an outlet… Because of the uncertainty as to which outlet
operation plan would be proposed for design, 300 cfs or 480 cfs
– constrained or unconstrained, the analysis of natural
resources effects was designed to-
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