National Wildlife Federation Comments on Devils Lake outlet

Corps of Engineers Draft Environmental Impact Statement

Page 6

Indeed, Congress requires that this be part of any Corps of Engineers flood damage reduction project. Section 402(c) of the Water Resources Development Act of 1986 as amended requires, as a basic condition of Federal participation in any flood control project, the development and completion of a floodplain management plan by non-Federal interests that will preserve and enhance natural floodplain values and address those measures to be taken by non-Federal interests to preserve the level of flood protection that is provided by the project and upon which it is justified. The plan is intended to be developed as part of and concurrent with the project feasibility study. In this case it appears, to the contrary, that the Corps is not involved in working with the State of North Dakota and local agencies in developing the required plans and non-Federal activities that would be necessary to preserve the level of flood protection that is intended to be accomplished by the proposed Pelican Lake 300 cfs outlet.

Inflated Values and Exaggerated Benefits

The DEIS states that:

“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 croplands. At its January 2001 stage of 1447.1, the lake covered 137,000 acres [DEIS p. 2-6 puts the figure at 132,000 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.” (DEIS p. 2-38)

However:

“Agricultural land that would be inundated by further rise of Devils Lake lies primarily in Ramsey County, with a relatively small area in Benson County and an even smaller area in Nelson County…

Agriculture in Ramsey, Benson, and Nelson Counties is profiled on the basis of information contained in the 1997 Census of Agriculture. The three counties have a similar agricultural profile. The farm sizes (in acres) of the three counties are similar: Ramsey 1,254; Benson 1,255; Nelson 1,136. The per-acre market value of land and buildings also is similar: Ramsey $391, Benson $320, Nelson $476.” (DEIS p. 5-19)

Thus, by calculating the loss of flooded non-urban land at an inflated value of $600 per acre instead of market value, the DEIS overestimates the damages by more than $19 million or by 53 percent. (In fact, as shown in the following paragraph, the average value of these non-urban lands is less than $265 per acre, so the claim that the flooding of 93,000 acres of non-urban lands since 1993 represents a loss of over $55 million actually overestimates the loss by $30 million or 120 percent.) And, of course, inflating the damages from flooding exaggerates the benefits of preventing those damages.

It also is necessary to recognize that less than half (91,323 acres) of the 184,182 acres of non-urban land around Devils Lake between elevations 1447 feet and 1463 feet is classified as cropland (DEIS Appendix C, Table C-5, p. C-16). Another 38,198 acres are grassland (DEIS Appendix C, Table C-5, p. C-16), which had an average value of $165 per acre in North Dakota in 2001 (Associated Press, 2001c). The remaining 54,661 acres are classified as woodland (9,622 acres), grass-shrub (95 acres) and wetland (44,944 acres) (DEIS Appendix C, Table C-5, p. C-16) which might be expected to have values of $100-$125 per acre. Thus, the non-urban lands that would be flooded in the unlikely event that Devils Lake would rise to 1463 feet have a value of about $49 million, or an average of less than $265 per acre.

Even if the proposed $125 million Pelican Lake 300 cfs outlet were built, the lake still would continue to rise to elevation 1457 under the “wet future scenario” (DEIS p. 5-89). As noted above in the discussion of Hidden Costs this means that some $300-$400 million still would have to be expended on infrastructure protection, including raising the dike to protect urban areas at the City of Devils Lake. And, if the lake should rise to elevation 1457 feet, approximately 64,000 additional acres of non-urban land, with an average value of $265 per acre, would be flooded. This means that, even with the outlet, under the “wet future scenario” necessary to justify it, an additional $17 million in losses would occur to non-urban land. This also means that the Corps is proposing to spend $125 million to build an outlet to reduce the chance of flooding of the remaining 62,000 acres of non-urban land between elevations 1457 and 1463 feet, which are worth approximately $17 million, from about 2 percent to 1 percent (DEIS Appendix B, Table II.ST-2, p. B-195).

Unfortunately however, even this may be overly optimistic because the soils of the bed of Devils Lake below elevation 1461 generally are not of the same quality as the upland soils upon which average land values in the area are predominantly based, so even the $17 million in losses to non-urban lands that might be prevented by the outlet likely are exaggerated.

Flooding at Devils Lake – Hardships, Handouts and False Hopes

According to the DEIS:

“At its January 2001 stage of 1447.1 feet, the lake covered 137,000 acres, an increase of about 93,000 acres (approximately 145 square miles). At an average value of $600 per acre for non-urban lands, this represents a loss of over $55 million.” (DEIS p. 2-38)

“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 waters. While some homes have been abandoned, most homes have been relocated. Some of the houses were second homes, but most were primary domiciles.” (DEIS p. 5-7)

and:

“It is likely that the physical conditions on the lake under the with- and without-project
conditions would require additional relocations of homes and commercial structures with
consequent social and local economic disruption.” (DEIS p. 5-8)

Proponents of an outlet frequently cite the “loss” of 400 homes and the flooding of 93,000 acres of “agricultural” land around Devils Lake as demonstrating the need to “do something” and, therefore, as justification for constructing an outlet from Devils Lake to the Sheyenne River. The DEIS states that:

“The perceived risk may be more damaging to community vitality than the actual risk. Although it is unlikely that the City of Devils Lake would be inundated, there is a perception propagated by media coverage of the rising lake [emphasis added] that the city proper is at risk. According to economic development officials, multiple enterprises have postponed or deferred decisions on new investment in the city. This stigma reduces the vitality of the community and its ability to reverse the trend of population loss, through perceived economic stagnation in addition to problems associated with the lake.” (DEIS p. 5-14)

Instead of addressing these misperceptions, however, the Corps proposes to build a $125 million outlet to the Sheyenne River:

“An intangible benefit of the outlet would be the initial psychological boost to the local economy that the solution to the problem is at hand and that the Devils Lake community will prosper in the future as a result.” (DEIS p. 4-9)

“An outlet from Devils Lake would promote economic development in the City of Devils Lake and stimulate business activity by reducing uncertainty and risks to commercial enterprises associated with rising lake levels. An outlet would also help restore regional shopping patterns that allowed the city to serve as the retail center for areas south of the lake. The construction of an outlet would temporarily stimulate business activity in the lake area and in the City of Devils Lake as the economic hub of the area.” (DEIS p. 5-42-42)

Unfortunately, even if the proposed Pelican Lake 300 cfs outlet were to be built, the lake would still continue to rise another 10 feet to 1457 feet under the “wet future scenario,” and it would still have a 4 percent chance of reaching elevation 1459 feet, a 2 percent chance of reaching 1461 feet and a 1 percent chance of reaching 1463 feet (DEIS Appendix B, Table II.ST-2, p. B-195). Consequently:

“… although a 300 cfs outlet would reduce peak levels under most climatic conditions, it would not prevent the lake from rising altogether if it is already on an upward trend and most of the costs and damages occurring under the without project condition would be incurred with this plan in place as well. A 300 cfs outlet may generate controversy among the local community, as the elation initially produced by the outlet is followed by the disappointment of unmet expectations regarding the outlet’s effectiveness in lowering lake levels.” (DEIS p. 4-9-10)

“It is supposed that a constrained or unconstrained outlet could also have negative impacts on lakeside communities if the lake keeps rising despite the outlet. The dashed expectations could be more detrimental to community vitality than if they had never had an outlet.” (Emphasis added) (DEIS p. 5-41)

And, as the U. S. Fish and Wildlife Service points out:

“The Service is concerned that the public’s expectation that an outlet will solve their flood problems is not met with the current alternatives. An outlet that fails to perform to the public expectation may create future pressure to operate the outlet in a way inconsistent with its original intent by increasing its pumping duration and capacity. Increasing the pumping duration or capacity will likely create additional downstream water quantity degradation, erosion and sedimentation on the Sheyenne and Red rivers, as well as other environmental problems.” (DEIS Appendix 2, p. 15-2)

As we have already seen above in the discussion of Exaggerated Benefits, the value of the 93,000 acres the non-urban lands within the bed of Devils Lake that have been “flooded” since 1993 is not $600 per acre, but less than $265 per acre, so the damages are not the $55 million claimed in the DEIS (p. 2-38), but actually less than $25 million.

The DEIS explains that:

“The Federal Emergency Management Agency (FEMA) has led this effort [to relocate houses] around most of the lake, but the Department of Housing and Urban Development (HUD) has taken responsibility for relocating many structures on the Fort Totten Indian Reservation. FEMA administers the National Flood Insurance Program (NFIP) through which the Federal Government provides flood insurance for those communities that adopt floodplain management ordinances.” (DEIS p. 5-7)

“Regarding FEMA’s impacts on land use around the lake, the agency urged Ramsey and Benson counties and the City of Devils Lake to adopt permanent land use ordinances establishing conservation easements that prohibit new construction below 1460 feet msl in exchange for the NFIP waiver allowing structures to be moved before inundation. After much deliberation, Ramsey County decided not to adopt the ordinance, but Benson County and the City of Devils Lake decided to implement the ordinance with minor adjustments. There are an estimated 45 people in Benson county who qualify for the flood insurance endorsement and waiver.” (DEIS p. 5-15)

It is important to recognize that the rise of Devils Lake has not been the economic disaster that proponents of the outlet frequently portray. For example:

“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 million in Federal funds into the Devils Lake region. This has provided a significant boost to some elements of the local economy, such as those individuals and 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 improvement in the Devils Lake fishery associated with lake level rises has benefited the local recreation related industry.” (DEIS p. 5-17-18)

The population of the Devils Lake Basin in 1975 was 38,473, with 12,913 living in Ramsey County (including the City of Devils Lake), 5,776 living in Nelson County and 5,957 living in Cavalier County (TPI Consultants, Inc., 1976). The population of the basin decreased 16.5 percent from 1980 to 1996 (DEIS p. 2-15), so the current population of the basin is less than 32,000. The City of Devils Lake, which had a population of 7,742 in 1980 (U. S. Army Corps of Engineers 1992), had a population of 7,672 in 1996 (DEIS p. 2-16.). Consequently, the influx of $350 million in Federal funds into the Devils Lake region is equivalent to $11,000 per person living in the Devils Lake Basin.

In fact:

“In 1996, agriculture accounted for 48 percent of the area’s economy, followed by Federal Government outlays (38 percent) [emphasis added], tourism (10 percent) and manufacturing (3 percent). Tourism has been the fastest growing component of the area’s economic base, increasing from 3 percent in 1980 to 10 percent in 1996. Tourism is particularly important in Ramsey County, having reached nearly two-thirds the importance of agriculture in 1996. The tourism figures are understated because they account only for the expenditures of travelers from out of state.” (DEIS p. 2-16)

Consequently, 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.’” (Anonymous, 2000)

The Devils Lake Journal went on to report:

“The report could also help create an argument the cost/benefit ratio being used against building an outlet – which according to Congressman Packard is only ten cents benefit for every dollar spen[t] –is out of line. According to Dahlen the cost/benefit ratio is based only [on] lost revenue and it is not taking into consideration lost land or collateral.

‘We hope this report will put some teeth in the cost/benefit ratio,’ Dahlen says. ‘But we don’t have the expertise to do it ourselves.’

‘From what I’ve heard from out congressional delegation we’ll be dead in the water if we don’t come up with this kind of report,’ Commissioner Dick Johnson admitted.” (Anonymous, 2000)

By the fall of 1997, the National Flood Insurance Program had paid over $14 million in claims on some 300 houses around Devils Lake that had been relocated—and on which the owners had paid insurance premiums totaling only $900,000. Owners were able to repurchase their homes from FEMA by matching the highest bid, which frequently was below market value, and then move them to another location. The cost of moving a house is approximately 70 percent of market value, plus the cost of a new lot (DEIS p. 5-8).

Some home owners filed claims and received payments for moving their houses twice because they did not move them far enough from the lake the first time. In fact, the owner of a restaurant located near the lake who was interviewed buy a local television station boasted that he had been able to make major improvements in the restaurant when it was moved the first time, and that he was expecting to make additional improvements when it was moved the second time.

In the spring of 2000, FEMA spent $2.2 million and was seeking another $1.3 million to buy out the town of Church's Ferry, a small town of 113 people and 43 homes at the northwest side of Devils Lake—equivalent to $31,000 per person (Gilmour, 2000). FEMA reportedly paid “about $45,000 apiece for three 20-year-old mobile homes,” plus relocation incentives up to $22,500 and averaging $14,466 (Gilmour, 2000). In another case, the owners sold their 14 x 70 mobile home at Church's Ferry to the government and bought a 28 x 70 double-wide and located it at another small town 13 miles away (Gilmour, 2000). In fact, one Church's Ferry resident reportedly exulted:

“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. The (buyout) price we got for our house was great… wonderful and that’s all I can say about that. But we wouldn’t have been able to do this without the buyouts.” (Gilmour, 2000)

It is not surprising, therefore, that local officials are more concerned about the lake going down than they are about it continuing to go up:

“The hard numbers have been skewed by the nearly $300 million spen[t] by the government in protecting the area through infrastructure improvements, says Dahlen. ‘What happens when the construction ends?’” (Anonymous, 2000)

Of course, constructing the proposed Pelican Lake 300 cfs outlet would bring another $125 million into the Devils Lake area even if the lake continues to go down.

Biota Transfer – Confusing Absence of Proof with Proof of Absence

The DEIS states that:

“All of the biota in the Devils Lake basin are either known or considered likely to be present in the Red River basin. One possible exception is the striped bass, which has not been recorded in Devils Lake in many years. Many species have not been reported in the Red River basin, but were found to have sufficient means of overland or airborne dispersal that they could invade the Red River basin in the future. Other species were confirmed as being in the Red River basin on the basis of published scientific literature or from unpublished information provided by experts.

The biota of the Devils Lake basin and the Red River basin are similar, and Devils Lake does not harbor any species that are not already present in the Red River basin. Additionally, there is risk of biota transfer from natural causes and recreational users.”
(DEIS p. 5-27-28)

Proponents of an outlet frequently cite such statements as proof of the absence of any risk of transfer of foreign biota to the Hudson Bay basin as a result of operation of an outlet from Devils Lake to the Sheyenne River.

However:

“The potential for an outlet to transfer biota from Devils Lake to the Red River basin was evaluated. This assessment was based primarily on existing information.

The conclusions of the study were that: (1) on the basis of all available information, it appears highly unlikely that downstream habitats would suffer substantially as a result of biota transfer caused by the Devils Lake outlet project, and (2) available information is inadequate to allow conclusive statements to be made regarding all species of biota transfer [emphasis added].

However, three concerns were worth noting.

Though unlikely to occur, transfer of significant concentrations of toxic algae could cause substantial problems downstream.
Salinity and nutrient changes to the Sheyenne River and Lake Ashtabula could cause community composition changes in these waters.
It is not certain whether any known exotic, invasive species are now present in Devils Lake.” (Emphasis added) (DEIS p. 5-61)

“Although fish and algae communities have been fairly well documented, data sources on other biota were relatively few and incomplete. Regional experts had little knowledge of Devils Lake biota, and most agreed that the biota of the Devils Lake and Red River basins had not been particularly well studied.” (DEIS Appendix C, p. C-73)

“There are substantial data gaps in a number of taxonomic groups. Because of these gaps, it is impossible to state definitively that all species currently in Devils Lake have been accounted for. To the contrary, it is likely that Devils Lake does harbor species that have not been analyzed. Accordingly, there may be additional species that are currently unknown at this time. It is more likely, however, that many species not documented in either the Devils Lake or Red River basin actually present in both.

…The recent water level rise has created much new favorable habitat in Devils Lake for many species and has attracted increasing numbers of fishermen and recreational boaters. These anthropogenic factors are among the most important vectors of several harmful species in areas that they have invaded (e.g., Eurasian water milfoil and zebra mussels). Any of these species could possibly find very favorable habitat in Devils Lake. The zebra mussel, in particular, could exploit the newly freshened habitats that have traditionally been too saline for mussels. ” (DEIS p. 5-28)

In fact:

“Out-of-state boaters from zebra mussel areas used Devils Lake almost exclusively during 1999. Devils Lake also served as a major source of movements, i.e., a potential ‘transportation hub,’ for boats going on to other parts of ND and other states not currently infested with zebra mussels and other ANS [aquatic nuisance species].” (Grier and Sell, 1999)

Thus, even if Devils Lake does not currently harbor species foreign to the Hudson Bay Basin, it has the potential to be a major point of introduction and source of dissemination of such species in the future. As the DEIS points out:

“There is increased risk of the 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 many centuries. The operation of the outlet would be considered such a feature. Based on available information, there do not appear to be any organisms in Devils Lake that are not already present in the Red River or the North basin. However, it cannot be said with certainty that some may not be identified or introduced in the future. In addition, the operation of an outlet or a natural overflow may improve the conditions necessary for the dispersal of organisms currently found in the Sheyenne or Red River. No mitigation feature can be said to be 100 percent effective in eliminating the risk of biota transfer. The actual effects are unknown and cannot be predicted at this time” (DEIS Appendix C, p. C-66)

Despite the paucity of information on the biota of Devils Lake and the potentially catastrophic impacts that could result to the Hudson Bay ecosystem from the introduction of damaging foreign species, the DEIS concludes that:

“All of the biota in the Devils Lake basin are either known or considered likely to be present in the Red River basin.” (DEIS p. 5-27)

Well, maybe not quite “all” species:

“The one possible exception is the striped bass, which has not been recorded in the lake in many years… However, experts have indicated that the one possible exception, striped bass, has not become established as a reproducing [emphasis added] population in Devils Lake and no further stocking is planned. If any of the originally stocked individuals remain in the lake, they would now be large and would easily be excluded from outlet pipelines and machinery by fish screens already planned to cover the intake openings.” (DEIS p. 5-62)

When 13,000 “advanced” fry striped bass arrived in North Dakota in 1977, they were found to be in such poor condition that, instead of being taken to hatchery rearing ponds, they were released directly into Devils Lake. At least three have been caught since then, one by the North Dakota Game and Fish Department in netting operations and two by anglers, and all three were large fish in the 15 to 20 pound range. In fact, the North Dakota state record striped bass was a 20.75 pound fish caught at Devils Lake in 1993—just 9 years ago and 16 years after striped bass were first stocked in the lake. Therefore, even if striped bass had not become established as a reproducing population in Devils Lake, it is clear that they became established as a surviving population.

Since 1993, ecological conditions in Devils Lake have changed dramatically, with rapidly improving water quality in the lake and high volumes and long durations of inflows from tributaries such as Mauvais Coulee. The DEIS does not consider the possibility that conditions may now have developed that are suitable for reproduction of striped bass, and if they have, what the likelihood is that they would have been detected. It is instructive to consider examples from another lake in the area where exotic fish were stocked during that same time period.

Spiritwood Lake is an approximately 600-acre lake in a “closed” basin about 60 miles south of Devils Lake. In 1971, the North Dakota Game and Fish Department stocked 4,000 white amur, or grass carp, in the lake. Although no formal monitoring has been conducted, a few grass carp were periodically reported from 1975 to 1977, and grass carp are still being reported in Spiritwood Lake two decades after they were stocked.

In the summer of 1989, the North Dakota Game and Fish Department stocked 20,000 European zanders in Spiritwood Lake (Kraus, 1989a), and another 185,000 in the adjacent East Spiritwood Lake, which now is connected with Spriitwood Lake. However, when North Dakota Game and Fish Department traps in the lake failed to capture any zander, they were thought not to have survived . Then in 1989, a fisherman caught an 8.5 inch zander in the lake (Lohman, 1990), but intensive netting by the North Dakota Game and Fish Department from 1990 through 1993 failed to turn up any more zander.

“‘We never caught even one,’ [North Dakota Game and Fish Department Chief of Fisheries Terry Steinwand] said. ‘After that third year, we thought that there weren’t any zander left in the lake. But I gave the disclaimer that we weren’t 100 percent sure, based on our netting techniques.’” (Wilson, 2001)

In August 1999, a fisherman caught and photographed a fish from the lake that appeared to be a zander, but extensive netting operations by the Game and Fish Department again failed to produce any more zander (Wilson, 2001). A fisherman caught and photographed another zander in 2000, and in June of 2000, the Department’s netting operations finally captured a 2-year-old , 3 pound, 18.5 inch zander in Spiritwood Lake.

“The DNA-tested zander taken from Spiritwood lake is a 2-year-old fish and, scientists are ‘fairly confident’, is a product of natural reproduction. Meaning: There is a chance more zander remain in the lake, or at least did a few years back.

‘For natural reproduction to occur, we know that there were at least two in Spiritwood at one time,’ Steinwand said. ‘And logic would tell you that there were more than that. But based on our inability to catch them with nets, and no reports coming in from anglers, the population is very low.’

When the zander were stocked, Steinwand said Spiritwood was a closed basin lake.

‘The only possible escape for these fish was by anglers,’ he said. ‘But things changed in 1997 when we started to see some overflow out of Spiritwood Lake’” [to the James River]. (Wilson, 2001)

If reproducing zander escaped detection in the 600-acre Spiritwood Lake for eight years despite intensive sampling efforts, and if white amur have survived in the lake in low numbers for two decades, what would be the likelihood of detecting low numbers of reproducing striped bass in the 132,000-acre Devils Lake?

The DEIS dismisses the possibility of striped bass escaping through the proposed outlet by assuming that “any of the originally stocked fish” would be excluded by fish screen already planned to cover the intake openings. Of course, the DEIS ignores the possibility that conditions in the lake might be or might become suitable for reproduction of striped bass, and it does not consider the possibility of damage to or other failure of the screens. Because the Energy and Water Development Appropriations Acts for Fiscal Years 1998 through 2001 require consultation with the International Joint Commission before construction begins on an outlet, it is instructive to consider what the International Joint Commission had to say about relying on engineering features to prevent biota transfer under the Garrison Diversion

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