National Wildlife Federation Comments on Devils Lake outlet

Corps of Engineers Draft Environmental Impact Statement

Page 4

percent) would result in an overflow to the Sheyenne River even with the proposed Pelican Lake outlet operating at full capacity, thus negating much of the assumed benefit of the outlet.

Similarly, a decease of one inch (5 percent) in average precipitation from the “wet future scenario” would not result in significant overflows to the Sheyenne River even without the proposed outlet, and a decrease of two inches (10 percent) would result in virtually no overflow, again negating much of the assumed benefit of the outlet.

Paradoxically, the DEIS cites the impossibility of predicting future lake levels with certainty as the reason for employing the “wet future scenario” (DEIS Abstract) and to justify the proposed outlet (DEIS p. 1-S-8), but it ignores the fact that realization of the anticipated benefits of the proposed outlet presumes an ability to predict future lake levels with virtual absolute certainty, because any significant deviation from the “wet future scenario” would substantially diminish or negate those benefits.

The $125 Million Lottery Ticket

The DEIS attempts to rationalize a justification for the proposed outlet in the face of such climatic uncertainty (DEIS p. 1-S-4-10; Appendix A, p. A-9-18) and tenuous benefits (DEIS p. 5-71) by suggesting that:

“Given the uncertainty and controversy around the ability to forecast future lake stages, a decision to proceed with an outlet must consider risk aversion. Instead of relying on the probability analysis, one could view the construction of an outlet as an insurance policy, rather than as an investment.” (DEIS p. 1-S-3)

The analogy, however, is patently invalid. An insurance policy is not a guarantee that an adverse event will not occur, but rather provides compensation if the event should occur. The proposed Pelican Lake 300 cfs outlet does neither. It does not guarantee that the lake will not continue to rise—under the “wet future scenario” it would (DEIS p. 5-86)—or that it would not overflow to the Sheyenne River—it could (DEIS p. 5-89), nor does it provide any compensation if either of these occurs. Consequently, rather than viewing the proposed Pelican Lake 300 cfs outlet as an insurance policy as the DEIS suggests, it should more accurately be viewed as a $125 million (DEIS Table 6, p. 4-13) lottery ticket—with virtually no chance of winning (DEIS pp. 4-40, 5-71, 5-88).

Erosion of the Natural Outlet – Indulging Geologic Fiction

The DEIS states that:

“A sensitivity analysis was conducted assuming the natural outlet would erode and no actions would be taken to prevent it. The analysis is based on the materials present at the site and not on a determination if it actually eroded in the past. There is evidence and some debate if it did erode in the past or did it actually accrue sediment. Materials at about 7 feet are over 7,000 years old. Devils Lake is estimated to have spilled to the Sheyenne River within the last 1,200 years; therefore, it did not erode at that time.” (DEIS p. 5-90; Appendix C, p. 129).

Nevertheless, the DEIS then goes on to describe the impacts that would occur if the natural outlet were to erode:

“It the outlet were allowed to erode, the effects would be much more significant. It is estimated that the outlet would erode down to elevation 1450 feet with a maximum discharge of about 6,000 cfs and erosion of over 400,000 cubic yards of material…

Downstream effects resulting from the erosion of the natural outlet would be significant. There would be increased sedimentation in the Sheyenne River and Lake Ashtabula. Erosion would also increase in the Sheyenne River. There would be substantial effects to the downstream aquatic resource on the Sheyenne and Red Rivers. High flows, changed water quality, sedimentation, erosion, increased groundwater levels, and overbank flooding would result in the loss of aquatic and riparian habitats. Aquatic biota and terrestrial wildlife populations in the riparian zone would be totally modified.” (DEIS p. 5-90; Appendix C, p. 129)

However, in discussing erosion of the natural outlet, DEIS Appendix B states that:

“Based on the most recent surveys, overflow from Stump Lake occurs when the lake level reaches an elevation of 1459.1 feet. This analysis indicates that the outlet control point would slowly be eroded, with the maximum potential erosion occurring down to 1450.8.

…

Under this analysis, a peak discharge of 1,440 cfs was expected to occur during year 17. (This compares to a peak discharge of only 206 cfs when no erosion of the Tolna Coulee is assumed.)… “ (DEIS Appendix B, p. B-25)

Whether the peak discharge would be 6,000 cfs or 1,440 cfs, because the potential impacts identified with erosion of the natural outlet nine feet (or eight feet) from its current elevation of 1459 feet to 1450 feet (or 1450.8 feet) are so dramatic, it is appropriate and instructive to consider further the likelihood of this occurring.

The DEIS states that the materials at seven feet (elevation 1452 feet) are over 7,000 years old and that the last overflow is estimated to have occurred within the last 1,200 years, so the outlet did not erode at that time. However, this overlooks a substantial portion of the geologic evidence regarding the absence of erosion of the natural outlet in past overflow events. For example, Murphy et al. (1997) report that:

“Sufficient sedimentological evidence exists from the Tolna Outlet to document at least six times [emphasis added] in the Holocene (the last 10,000 years BP [Before Present]) when water from the Devils Lake/Stump Lake system overflowed into the Sheyenne River.”

and they cite evidence of five overflow events occurring between 7,500 and 9,500 years ago and four occurring between about 700 and 5,000 years ago, including one that apparently lasted for several hundred years, for a total of nine overflow events in the past 10,000 years since Devils Lake was formed by the Wisconsin Glacier (Murphy et al., 1997). In fact, the sediments in Tolna Coulee six feet down at elevation 1,453 feet are over 5,000 years old and those eight feet down at elevation 1451 feet are over 7,400 years old (Murphy et al., 1997) Therefore, with materials at 1453 feet being over 5,000 years old and those at1451 feet being over 7,400 years old, it is clear that the outlet did not erode to elevation 1450 feet during any of at least four overflow events that have occurred in the last 5,000 years. In fact, with the sediments at 1458.5 feet—a half foot below the current overflow elevation of 1459 feet—being over 1,100 years old, it is evident that virtually no erosion of the outlet occurred during the last overflow event about 700 years ago (Murphy et al., 1997).

The geologic evidence indicates that, rather than the outlet eroding during overflow events, the trend has been the exactly the opposite, with deposition of sediment during overflow events building up the outlet. As Murphy et al. (1997) point out:

“Evidence of at least seven fluvial events has been preserved in the channel fill deposits of [Tolna Coulee] trench TT1. Fluvial events are marked by layers of coarse grained sediments presumably washed into the Coulee by water flowing from Stump Lake. These sediments were deposited at times when water levels in Devils Lake were sufficiently high to cause water to flow into the Sheyenne River through Tolna Coulee. [emphasis added] It is likely that additional flood events occurred in this Coulee, but are not recorded in the sediments at this site. The sedimentological evidence is missing either because floods were of insufficient size and duration, or because it was removed by the scouring action of subsequent flood events.”

However, Murphy et al. (1997) cite no geologic evidence, and the DEIS cites no other evidence, of sediments having been scoured from the outlet during overflow events. Therefore, if additional overflow events did occur, it is more reasonable to conclude that they were minor and did not result in either significant erosion or sedimentation of the channel. Examination of the data presented by Murphy et al. (1997) provides further support for this conclusion. For example, at a second site in the Tolna Coulee, snail and clam shell fragments were found in 3500 to 4,500 year old sediments between elevation 1455 and 1456 feet (Murphy et al., 1997). Although it is possible that these could have been deposited in a former isolated wetland at the sampling site in Tolna Coulee, it is equally possible that they were incorporated in sediments deposited during an overflow event or events. The fact that snail and clam shell fragments were found at seven different strata dating from 7,000 to 8,000 years ago at the two sampling sites (Murphy et al., 1997) would suggest that their deposition was related to events occurring on a larger scale than the appearance of isolated wetlands. In any case, the presence of these shell fragments in 3,500 to 4,000 year old sediments three to four feet below the current overflow elevation of 1459 feet provides additional evidence that significant erosion of the outlet has not occurred in any of at least three overflow events that have occurred over the last 2,500 years, and that overflows actually resulted in aggregation rather than erosion of the outlet.

A revised DEIS should expand its discussion of the probability of the natural outlet at Tolna Coulee eroding if Devils Lake should overflow by pointing out that there is no evidence in the geologic record to indicate that significant erosion of the outlet has occurred during any of at least four overflow events that have occurred in the past 5,000 years, or in any of the nine overflow events that have occurred since Devils Lake was formed 10,000 years ago. The DEIS should also point out that the evidence from the geologic record shows that, instead of resulting in erosion of the outlet, overflow events tend to deposit sediment in the outlet, causing the overflow elevation to increase. A revised DEIS should make it absolutely clear that there is no evidence in the geologic record to support speculation that an overflow would cause the outlet to erode nine feet to elevation 1450 and result in the discharge of up to 6,000 cfs of water to the Sheyenne River with the erosion of over 400,000 cubic yards of material.

Not only is there no evidence in the geologic record that significant erosion of the outlet would result if an overflow occurred, but the probability of an overflow occurring is, itself, very small.
The probability that Devils Lake will reach elevation 1459 feet is 9 percent and the probability that it will reach elevation 1460 is 7 percent (DEIS Appendix B, Table II.ST-2, p. B-195). However:

“…Devils Lake would have to rise to 1460.6 before there would be a significant flow (at least 300 cfs) to the Sheyenne River… Computer simulations of possible future lake levels assumed no erosion of the natural divide and suggest a probable maximum lake level of about 1463, with a corresponding outflow exceeding 2,500 cfs…” (DEIS p. 2-9)

Elsewhere, the DEIS states that the peak discharge with no erosion of the outlet would be only 550 cfs (DEIS p. 4-34), and the Fish And Wildlife Service points out in Appendix 2 that analysis of Corps data for a 6-year flood event and a Standard Project Flood (SPF) event revealed that:

“The 6-year outflow showed that the maximum outflow out of the basin within the first 24 months was in month 18, with a maximum outflow of 80 cfs, with a 24 month average of 61 cfs. The SPF outflow showed a maximum of 1196 cfs in month 6, with a 24 month average of 463 cfs.” (DEIS Appendix 2, p. 14-6)

The probability that Devils Lake will rise to 1463 feet is only 1 percent and the probability that it will rise to 1460.6 is about 5 percent (DEIS Appendix B, Table II.ST-2, p. B-195). Consequently, the probability that Devils Lake will rise to a level where significant overflows would occur is extremely low, and construction of the proposed Pelican Lake 300 cfs outlet would reduce that probability by half but would not eliminate it—and it would not reduce the 1 percent chance the lake will reach 1463 feet at all (DEIS Appendix B, Table II.ST-2, p. B-195). As the DEIS points out:

“The probability of a natural overflow is small and therefore effects described under the scenario future without project conditions for downstream effects of a natural overflow do not have a high probability of occurring.” (DEIS p. 5-88)

“Since the probability of a natural overflow to the Sheyenne River is relatively low (less than 10 percent), a natural overflow is not assumed to be part of the most likely future.” (DEIS p. 4-12)

Finally, in the unlikely event that Devils Lake would rise to elevation 1459:

“…measures at the location of a natural overflow to minimize erosion were also considered as potential features of the most likely future without the proposed project.” (DEIS p. 3-9)

and:

“One of the assumptions for the base condition upon which alternatives were compared was that measures would be taken at the location of a natural overflow to minimize erosion… The structure envisioned with that alternative included a 380-foot-wide concrete drop structure, with a cost for the structural portion of $1.1 million.” (DEIS p. 4-33)

Thus, (1) the probability that Devils Lake will overflow is very low, (2) if Devils Lake were to approach the overflow elevation, measures would be implemented to prevent erosion of the natural outlet and (3) even if Devils Lake were to overflow and no measures were taken to protect the natural outlet, there is no evidence in the geologic record to indicate that significant erosion of the outlet would occur. Consequently, the discussion of erosion of the natural outlet in the DEIS is entirely speculative and has little relevance, and a revised DEIS should make that clear.

Wetlands, Wetland Drainage and Wetland Restoration

A fundamental deficiency of the DEIS is its narrow focus on engineering solutions to the problems resulting from the rising level of Devils Lake, to the total exclusion of any consideration of the cause. For example, the DEIS fails to relate those problems to Devils Lake’s long and consistent history of wide fluctuations in levels, ranging from completely dry at 1394 feet to overflowing at 1459 feet (DEIS p. 2-2). The DEIS does not address the fact that, despite widespread recognition that the lake was at its current level as recently as 1830 and was officially recorded at elevation 1438.4 feet in 1867, development was permitted to encroach on the bed of the lake as the level continued to decline to its modern day low of 1400 feet in 1940; development was permitted to continue on the bed of the lake as the level began to rise again after 1940; it was permitted to continue even after 1983 when the lake had reached 1427 feet with a surface area of 54,000 acres and the State was seeking disaster assistance from the Corps for “flooding problems” around the lake; and it even has been permitted since the lake began its recent dramatic rise in 1993. The DEIS does not recognize the simple fact that the “flooding problem” at Devils Lake is the direct result of people moving onto the bed of the lake which has been higher than its current level in the past.

Although increased levels of precipitation from 1993 to 1999 (average of 21 inches per year, compared with an average of 16.5 inches per year from 1980 to 1992 [WEST Consultants, Inc., 2001]) obviously were the force driving the recent dramatic rise of the lake, the DEIS does not make any attempt to identify the contribution of other factors, such as land use changes and wetland drainage in the Devils Lake Basin, in exacerbating the rise of the lake.

Water Resource Management in the Devils Lake Basin

In his Final Biennial Report for 1911-1912, the North Dakota State Engineer reported to the Governor that:

“The water level of any lake possessing no outlet depends on the amount of evaporation, seepage, rainfall and run-off into the Lake from the drainage area tributary to it. The drainage area of Devils Lake is nearly two thousand 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.” (State Engineer, 1912)

Unfortunately, management of water resources in the Devils Lake Basin since that time has been characterized by decades of rampant and unregulated private wetland drainage and ill-considered public agricultural drainage projects (Pearson, 1985). For example, in the mid-1950s when wetland drainage began causing problems for landowners lower in the watershed, the NDSWC placed a moratorium on private drainage in the Devils Lake Basin, but the State Engineer made no attempt to enforce the moratorium and the chairman of a local water board even declared publicly that farmers would continue to drain wetlands regardless of State laws and the NDSWC’s moratorium (Pearson, 1985).

With agricultural flooding problems north of Devils Lake intensified by wetland drainage in the upper basin, the U. S. Soil Conservation Service was authorized in 1967 to begin detailed planning of a 246,477-acre Starkweather Watershed Project, involving the construction of more than 60 miles of channels and the drainage of some 60,000 additional acres of prairie wetlands and lakes, with the 2000 cfs main channel (Channel “A”) discharging directly into Six-Mile Bay of Devils Lake (Pearson, 1985). However, the Soil Conservation Service abandoned the project in 1973 after environmental impact analyses mandated by NEPA disclosed the project’s severe adverse impacts on wetlands and water quality in Devils Lake (Pearson, 1985).

An Associated Press story in 1975 already was reporting flooding problems at Devils Lake:

“… But today too much water plagues the lake and nearby residents.

…

Between 1972 and 1975, the lake rose six feet [to 1425 feet], becoming a threat to low-lying roads and private property along the shore.

…

In the dry period, roads were built across narrow parts of the lake bed; farmers planted and harvested below the old high water mark; and the city of Devils Lake expanded into part of the old lake bed.

Now the city is planning to build a dike between the lake and the town and the Army Corps of Engineers is working with local officials to plan for a possible flood during spring runoff.

A heavy runoff could raise the water level one or two feet and flood businesses and private property, city and state authorities said.

The State Highway Department says North Dakota 57, at the narrows between the main lake and East Bay, has been damaged by high water…

County and township roads also have been damaged by high water…” (Zaleski, 1975)

With flooding problems in the watershed and around Devils Lake unresolved and the Starkweather Watershed Project stalled, the 1975 North Dakota Legislative Assembly established a Devils Lake Basin Advisory Committee, dominated by drainage interests and supported by the NDSWC, to study water management problems in the Devils Lake Basin and to recommend solutions (Pearson, 1985). However, at the same time, the Legislative Assembly appropriated $600,000 for the construction of the 2,000 cfs Channel “A” of the Starkweather Project, thereby precluding any possibility of the committee’s not including this feature in its recommendations (Pearson, 1985). Although the cost participation agreement for Channel “A” between the NDSWC and the Ramsey County Water Management District explicitly stated that:

“It is the determination of the Commission that additional drainage of presently noncontributing areas will significantly contribute to increased lake levels in the Devils Lake chain, thereby increasing the flood hazard potential to the City of Devils Lake and to thousands of acres of littoral land.”

and required the Ramsey County Water Management Board to enforce all applicable drainage laws, noting:

“Specifically, this includes the establishment of an effective drainage permit program to implement Section 61-01-22 of the North Dakota Century Code (or any other similar statutory permit program hereafter enacted) and any supplementary regulations adopted by the Commission. Further, this includes the establishment of a procedure for closure of unauthorized drains, lateral drains, or ditches as required by Section 61-16-50 (or any similar statute hereafter enacted). An effective drainage regulatory mechanism is essential to preserve the integrity of Channel ‘A’ and the investment of the State.”

The State drainage laws required a permit for the drainage of watersheds 80 acres or larger and a permit was not to be issued unless an investigation determined that the quantity of water drained would not flood or adversely affect downstream landowners. However, county water boards typically take the position that it is not their job to be policemen and will take action on violations only if formal complaints are filed (Pearson, 1985). Consequently, both the county water boards and those who want to drain wetlands routinely ignore the permit requirement. Because landowners generally are reluctant to file complaints against neighbors (Associated Press, 1991), only the most egregious violations are reported (Pearson, 1985). When complaints are filed, they are then routinely dismissed (1) as being ‘clean-outs’ of existing drains, a claim that is difficult to disprove after the fact, (2) as involving watersheds of less than 80 acres, either by arbitrary decision of the board or the expedient of two or more drains being used to drain the watershed, (3) by simply denying that drainage has occurred, or (4) ordering perfunctory closures while permits are issued after the fact (Pearson, 1985). If the complaint cannot be dismissed readily through these ploys, the boards frequently will repeatedly delay action until the complainant finally gives up in frustration. Consequently, little effort was made by either the Ramsey County Water Management Board or the NDSWC to enforce the agreement, and, in fact, between 1977 and 1982, the State Engineer himself approved a dozen drainage permits in the Starkweather and Edmore Watersheds, both of which drain through Channel “A” (Pearson, 1985).

Despite mounting concern over the rising levels of Devils Lake in the mid-1970s (Zaleski, 1975), the State Engineer approved a permit in 1976 for the partial drainage of Hurricane Lake, an area heavily used by migrating snow geese, adding another 7,000 acre-feet of water to Devils Lake (Pearson, 1985). Then during the spring and summer of 1979 when Devils Lake was rising from
elevation 1422 feet to 1427 feet, 74,000 acre-feet of water were discharged into the lake from Channel “A” (U. S. Army Corps of Engineers, 1980). These flows were equal to nearly half of the 159,000 acre-feet flowing into West Bay from Mauvais Coulee (U. S. Army Corps of Engineers, 1980), which historically had been the primary route of inflows into the Devils Lake Chain (U. S. Army Corps of Engineers, 1983). In fact, on May 4, 1979, with Devils Lake at 1424.6 feet, the 1,560 cfs discharge from Channel “A” exceeded the 1,350 cfs natural flows at Mauvais Coulee (U. S. Army Corps of Engineers, 1980).

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