National Wildlife Federation Comments on Devils Lake outlet

Corps of Engineers Draft Environmental Impact Statement

Page 7

-project:

“In fact, overriding everything else, as it turns out, has been the necessity that such introduction be prevented at all costs…

…

Unlike some other adverse consequences that can be minimized by additional mitigating measures or by cessation of operation of the Project, remedial measures to control unwanted exotics are oftentimes futile and, what makes it even more difficult, is that it may be some years before the full adverse impact is apparent.

…

The Board’s conclusion was that the implementation of their proposals would virtually eliminate any direct transfer by GDU of fish, fish eggs, fish larvae and fish parasites and would reduce the risk of transfer of fish diseases to the Hudson Bay Drainage Basin. The Board rated the [double 40 mesh phosphor bronze] fish screen and the closed system together, as described in the Board’s report, as a means which would be effective and feasible in meeting the objective assigned to it.

There is no question in the Commission’s mind that the Board’s recommendations greatly reduce the risk of an unintentional transfer. There would be two lines of defense, either one of which by itself might accomplish the desired result… The Commission gives great weight to the Board’s opinion that these two lines of defense will work. At the same time, the Commission must weigh the consequences to Canada if the Board is wrong. Were the potential biological consequences to the Hudson Bay ecosystem predictable in manner and extent, the Commission might accept the Board’s approach. The Board has reduced the risk of a biological ‘time bomb’ but not eliminated it. The Commission is concerned that even with the best engineering talent available and with the best operating practices possible, the very complexity of the scheme, the immensity of the physical features, the large number of human beings involved in carrying out the responsibility, and the possible mechanical failure, what cannot happen, will happen…”
(International Joint Commission, 1977)

In the case of the Pelican Lake 300 cfs outlet, the Corps proposes to rely on a single line of defense against biota transfer—a fish screen, which if it doesn’t fail over the 50-year life of the project, would exclude 15 to 20 pound adult striped bass.

Meanwhile, the Corps cites a Biota Transfer Risk Analysis which recommended that:

“…surveys for the following invasive species (at a minimum) be carried out in Devils Lake before the outlet begins operation: rusty crayfish, spiny water flea, zebra mussel, and Chinese mystery snail and relatives.” (DEIS Appendix C, p. C-77)

but no information is provided about whether the surveys will actually be conducted, what their sampling designs will be, who will pay for them, who will conduct them, and when they might be completed. Instead, the Corps proposes to proceed with the construction of a $125 million Pelican Lake 300 cfs outlet to the Sheyenne River before knowing whether the risk of biota transfer may prevent it from ever being used.

Mythical Mitigation

According to the DEIS:

“The outlet itself would consist primarily of a buried pipeline with open channel features restricted to areas along Highway 281 north of Minnewaukan and would not require mitigation.” (DEIS Appendix C, pp. C-138-139)

However:

“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. General geographic areas of potential impact would be Devils Lake, the outlet route, the Sheyenne River, Lake Ashtabula, and the Red River. 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.” (DEIS p. 5-92-93)

but:

“Many of the effects associated with operation of an outlet cannot be readily quantified.” (DEIS p. 5-96)

and:

“Because of the inability to accurately predict project impacts associated with operation, an extensive resource monitoring program will be required. The monitoring will be necessary to quantify specific impacts and identify acceptable mitigation measures.” (DEIS p. 5-93; Appendix C, p. C-139)

In view of the fact that:

“Many of the potential effects involve long-term changes to existing ecosystems that may not be readily noticeable or quantified without extensive monitoring programs.” (DEIS p. 5-96)

how does the DEIS propose that mitigation might be accomplished for the potentially severe and long-lasting impacts of operation of the proposed Pelican Lake 300 cfs outlet? These include:

Substantial changes in the flow of the Sheyenne River resulting in up and down flows with sudden and extreme fluctuations in flow that will make it difficult for species to adapt to habitat conditions (DEIS p. 5-48),

Increased erosion and sedimentation (DEIS p. 5-52) and changes in water quality, hydrology, geomorphology and habitat that could result in substantial changes in aquatic biota in the Sheyenne River (DEIS p. 5-53),

Adverse influence on fish reproduction and lost-year classes of fish and decreased diversity and density of aquatic species in the Sheyenne River (DEIS p. 5-53)

Water quality changes that would be devastating to unionids in the upper Sheyenne River (DEIS p. 5-102),

The elimination of flow sensitive habitats, such as riffles where shallow, fast habitats predominate, in the upper Sheyenne River where stages are projected to increase up to 3 feet (DEIS Appendix C, p. C-38),

Changes in the aquatic community in the Sheyenne River above Lake Ashtabula that would persist for many years after outlet operation ceases (DEIS Appendix C, p. D-31)

Higher flows that may exacerbate streambank erosion and threaten farmstead structures and residences along the river (DEIS p. 4-10),

Exacerbated flooding in the Sheyenne River that could damage agricultural property, including lands, equipment and structures (DEIS p. 5-12), and

The increased risk of biota transfer (DEIS p. 5-56).

According to the DEIS:

“Potential mitigation features could [emphasis added] include acquisition of key riparian blocks of lands, plantings, erosion control, fish structures, fish stocking, and vegetation management.” (DEIS Appendix C-141)

Therefore:

“A possible mitigation plan could [emphasis added] include purchase and management of strategic blocks of riparian lands along the upper and lower Sheyenne River.” (DEIS p. 5-97)

“Management measures could [emphasis added] include plantings, erosion control structures, fish structures, and vegetation management.” (DEIS p. 5-97)

except:

“This would be implemented after operation has ceased [emphasis added] in order to allow the terrestrial and aquatic ecosystems to recover.” (DEIS p. 5-97)

and:

“For most pumping alternatives, pumping begins May 1, 2005 and occurs throughout the 50-yrs. For other Pelican Lake alternatives, pumping begins May 1. 2006.” (DEIS Appendix A, p. A-40)

and:

“Changes in the aquatic community would persist for many years after outlet operation ceased, especially on the Sheyenne River above Lake Ashtabula.” (DEIS Appendix D, p. D-31)

“The flow impacts due to a Pelican Lake alternative could be dramatic, particularly in the upper Sheyenne River, which is essentially isolated from recolonization sources.” (DEIS p. 5-102)

“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.” (DEIS p. 5-97)

Therefore, this approach would delay mitigation of the impacts of the operation of the outlet for 50 years and would result in many significant impacts to the aquatic ecosystem of the Sheyenne River not being mitigated.

Consequently, the DEIS suggests that:

“Mitigation could also be implemented in other basins, which are also tributaries to the Red River. This would eliminate the problems associated with the continued operation of the outlet but would shift the burden of mitigation onto others not otherwise impacted by the project.” (DEIS p. 5-97)

The DEIS neglects to mention that none of the other tributaries to the Red River are remotely similar hydrologically, morphologically and ecologically to the 460 miles of the Sheyenne River below the proposed Pelican Lake outlet, so the impacts to the Sheyenne River cannot be mitigated in other basins.

The cost estimates for these mitigation “alternatives” are based primarily on mitigation of terrestrial impacts (DEIS p. 5-97), but:

“A similar approach for estimating mitigation costs for losses to aquatic habitat is not appropriate. Two approaches would be possible for cost estimating. Some of the aquatic losses would not be mitigated; for example, loss of invertebrates, loss of fish year classes, losses of wetted usable area due to increased channel width, and changed channel morphology.

In the absence of similar guidelines for estimating aquatic mitigation costs, one approach is to assume 5 percent of the total project cost is set aside for aquatic mitigation features… Aquatic mitigation features include streambank stabilization, in-stream structures, and fish stocking. As described above some impacts would not be mitigated.

Another approach, which was used for the analysis in this report, is to assume that some aquatic mitigation could be accomplished through the management of riparian lands. Controlling erosion and providing a stable and vegetated streambank could [emphasis added] mitigate some [emphasis added] aquatic impacts. By maintaining a healthy riparian zone, aquatic resources impacts could [emphasis added] be minimized or populations could reestablish themselves after the outlet has ceased operation [emphasis added]. The acquisition of key riparian areas could [emphasis added] provide both terrestrial and aquatic benefits…” (DEIS p. 5-98)

It is evident, therefore, that the Corps (1) does not know what the impacts of operation of the proposed Pelican Lake 300 cfs outlet will be, (2) it has no plan for mitigating those impacts, (3) it does not know if the impacts can be mitigated, and (4) it already has written off the mitigation of impacts to aquatic resources. Faced with the daunting task of developing an effective plan to mitigate the impacts of the project, the DEIS finally dismisses the matter with the cursory statement that:

“Monitoring to determine the actual magnitude of effect is perhaps the best mitigation. Further mitigation can then be designed to address actual impacts.” (DEIS p. 5-102)

According to the DEIS:

“Areas that would require monitoring include, but may not be limited to, groundwater, erosion, sedimentation, aquatic habitat, biota transfer, water quality, riparian vegetation, cultural resources, soil salinity, surface water users, and endangered species. Monitoring is a major component of the proposed mitigation package [emphasis added].” (DEIS p. 5-94)

“Extensive monitoring programs for Devils Lake and along the Sheyenne and Red Rivers are being designed and will be proposed [emphasis added] for implementation prior to operation of the outlet. Potential [emphasis added] monitoring programs include groundwater monitoring, water quality monitoring, soil salinity monitoring, establishment of long-term survey stations to assess aquatic ecosystem changes, including channel morphology, fish surveys, benthic/nektonic surveys and mussel surveys, and the establishment of vegetation survey transects along the Sheyenne River riparian corridor to monitor vegetation changes, monitoring downstream water users to determine changes in treatment procedures and costs.” (DEIS p. 5-96)

Of course:

“Monitoring would require a long-term commitment of time and funds. It is assumed that monitoring would be required for the life of the project or until agency coordination determines it is no longer necessary.” (DEIS p. 5.94)

The DEIS states that:

“Monitoring costs should be considered as part of the mitigation cost of the project.” (DEIS p. 5-96)

but it does not suggest any mechanism for assuring that funds will continue to be appropriated to cover the costs of monitoring environmental impacts over the 50-year life of the project, or to cover the costs of mitigating the impacts that are identified. Once the outlet is built and operating in 2005, the North Dakota congressional delegation certainly will have little incentive to seek appropriations to identify and mitigate adverse impacts of the project.

So, who will conduct the monitoring and implement the mitigation plan for the proposed outlet from Devils Lake?

“Coordination with Federal, State, and local agencies and interest groups will be required to implement the monitoring and mitigation program.” (DEIS p. 5-93)

What local agencies and interest groups? Certainly not the Devils Lake Joint Water Resource Board or the Devils Lake Emergency Management Committee, both of whom deny that any significant adverse downstream impacts would occur from operation of the outlet and lack the technical expertise to identify them when the do. State agencies? Certainly not the North Dakota State Water Commission which, under a directive of the Governor, is proposing to build a 300 cfs West Bay outlet and operate it with only the most perfunctory monitoring of impacts. What Federal agencies? The U. S. Fish and Wildlife Service? It is not the Service’s responsibility to monitor and mitigate the environmental impacts of other Federal agencies’ projects.

Responsibility for monitoring and mitigation of the environmental impacts of the Corps’ proposed Pelican Lake 300 cfs outlet rests squarely the Corps, and a revised DEIS should recognize that and deal with that responsibility in a substantive and straightforward manner.

But, what about mitigating the impacts of biota transfer?

“No mitigation feature can be said to be 100 percent effective in eliminating the risk of biota transfer."” (DEIS p. 5-56)

So, what does the DEIS propose?

“To minimize the risks of transfer of undesirable biota into waters downstream from the outlet, monitoring and outreach programs could [emphasis added] be implemented. These could include monitoring water chemistry at the outlet, at Lake Ashtabula, and at the Sheyenne River’s mouth at a minimum.” (DEIS p. 5-100)

But, of course, monitoring water chemistry will do nothing to detect undesirable biota or mitigate the impacts of their introduction to the Hudson Bay Basin. Anything else?

“Biotic monitoring programs could [emphasis added] also be enacted to create an alert system that would be triggered if exotic species are found in Devils Lake or in the Sheyenne River. These programs could [emphasis added] include public education regarding boat and trailer cleaning and identification of exotic fish species (e.g., zander, grass carp), and surveillance of boats and trailers by government officials at public launch sites.” (DEIS p. 5-100)

Of course, the absurdity of suggesting that a monitoring program would be effective in detecting even large exotic species such as zander and grass carp in the 132,000-acre Devils Lake in time to prevent their being transferred by the outlet to the Hudson Bay Basin is demonstrated by the fact, pointed out above, that zander were undetected in the 600-acre Spiritwood Lake for 8 years despite intensive sampling by the North Dakota Game and Fish Department, and grass carp have survived in the lake in very low numbers for two decades.

Furthermore, monitoring simply may detect the presence of undesirable biota, but it does nothing to prevent their transfer—particularly if they already have reached the Sheyenne River—or to mitigate the impacts of such a transfer. As the International Joint Commission pointed out:

“… remedial measures to control unwanted exotics are oftentimes futile and, what makes it even more difficult, is that it may be some years before the full adverse impact is apparent.” (International Joint Commission, 1977)

It is abundantly clear from the DEIS that the Corps not only does not have a mitigation plan for the proposed Pelican Lake 300 cfs outlet, but it then claims that monitoring is a major component of the project’s mitigation “package” when it does not have a monitoring program, either, or know how it would be funded or who would conduct it—or even if it would be effective in identifying impacts.

There could not be a more clear or blatant violation of the mandate of the National Environmental Policy Act for Federal agencies to known the impacts of their actions before taking them.

U. S. Army Corps of Engineers Environmental Operating Principles

On March 26, 2002, Chief of Engineers Lt. General Robert Flowers announced new Corps of Engineers Environmental Operating Principles to guide the Corps in all of its works:

“The Principles:

Strive to achieve environmental sustainability. An environment maintained in a healthy, diverse and sustainable condition is necessary to support life.

Recognize the interdependence of life and the physical environment.

Proactively consider environmental consequences of Corps programs and act accordingly in all appropriate circumstances.

Seek balance and synergy among human development activities and natural systems by designing economic and environmental solutions that support and reinforce one another.

Continue to accept corporate responsibility under the law for activities and decisions under our control that impact human health and welfare and the continued viability of natural systems. [Emphasis added]

Seek ways and means to assess and mitigate cumulative impacts to the environment; bring systems approaches to the full cycle of our processes and work.

Build and share an integrated scientific, economic, and social knowledge base that supports a greater understanding of the environmental impacts of our work.

Respect the views of individuals and groups interested in Corps activities, listen to them actively, and learn from their perspective in the search to find innovative win-win solutions to the nation’s problems that also protect and enhance the environment.”

As the preceding comments document, the DEIS repeatedly violates every one of these principles. Therefore, a revised DEIS should discuss, substantively and specifically, how it has been modified to comply with these principles in each of the areas outlined in these comments.

Conclusions

The DEIS is based on a flawed scoping process that discouraged and frustrated public participation.

The DEIS inappropriately employs tiering of the analysis of the environmental impacts of the proposed Pelican Lake 300 cfs outlet in order to segment the analysis of those impacts and avoid their disclosure until after the decision has been made as whether to build the project.

The DEIS fails to consider the cumulative impacts of other related and reasonably foreseeable projects, including the Red River Valley Water Supply Project, an inlet to deliver Missouri River water to Devils Lake, and the State of North Dakota’s “temporary” emergency outlet from Devils Lake to the Sheyenne River.

The Corps lacks congressional authorization to complete and operate an outlet from Devils Lake to the Sheyenne River.

The proposed Pelican Lake 300 cfs outlet would have severe and long-lasting adverse impacts on the Sheyenne River under moderate future conditions. Although, the DEIS does not describe the environmental impacts of the proposed Pelican Lake 300 cfs outlet under the “wet future scenario,” they would be substantially more severe.

All Devils Lake outlet alternatives discussed in the DEIS would either be ineffective in preventing the continued rise of the lake or they would cause unacceptable downstream impacts, and none of the outlet alternatives have positive benefit/cost ratios under standard economic analyses. Therefore, the outlet alternatives are neither technically sound nor economically justified.

The proposed Pelican Lake 300 cfs outlet is estimated to cost $125 million, but because the lake would continue to rise another 10 feet under the “wet future scenario” even with the outlet, an additional $300-400 million would still have to be invested in infrastructure protection measures, bringing the total cost of this alternative to $425-$525 million.

The “wet future scenario” upon which the proposed Pelican Lake 300 cfs outlet is justified is a manufactured set of conditions created to result in just enough precipitation to cause Devils Lake to overflow without the outlet, but not overflow with the outlet. This artificial scenario has no basis in reality and has a zero probability of occurring.

The DEIS suggests that because of the low probability that the conditions will occur that are necessary to justify the proposed Pelican Lake 300 cfs outlet, the outlet should be viewed as an insurance policy rather than as an investment. However, the outlet neither guarantees that the lake will not continue to rise and overflow nor provides compensation if it does. Therefore, it should be more accurately viewed as a $125 million lottery ticket with virtually no chance of winning.

There is no evidence in the geologic record to support speculation that an overflow of Devils Lake would result in the natural outlet eroding down 9 feet and releasing 6,000 cfs of water and 400,000 cubic yards of sediment into the Sheyenne River. Moreover, if the level of Devils Lake were to approach the overflow elevation, measures would be implemented to prevent erosion of the outlet.

The DEIS fails to address wetland drainage in the Devils Lake Basin and its contribution to the rise of the lake, it significantly underestimates the potential for wetland restoration in the upper Devils Lake Basin to reduce flooding problems at the lake, and it disregards the effects of continuing wetland drainage in reducing the efficacy of the proposed Pelican Lake 300 cfs outlet and other publicly funded measures to deal with flooding problems at Devils Lake.

The DEIS significantly inflates the value of non-urban lands around Devils Lake that already have been flooded and, by implication, those that would be flooded if the lake continues to rise with or without the outlet. The result is exaggeration of the benefits of preventing those losses.

Although flooding at Devils Lake has resulted in personal hardships for those residents living adjacent to the lake, the influx of some $350 million in Federal funds and the thriving tourist industry based on the outstanding sport fishery that has developed at Devils Lake, combined with generous compensation of affected homeowners by Federal agencies, have substantially blunted the economic impacts of the rise of the lake.

The potential for transfer of foreign biota from Devils Lake to the Hudson Bay Basin by an outlet from Devils Lake is a major issue, and its resolution is complicated by the paucity of information on the biota of Devils Lake, the potential for introduction of new damaging species into Devils Lake, and the absence of effective measures to mitigate the impacts of biota transfer if it should occur.

The DEIS fails to provide a detailed discussion of the environmental impacts of the operation of the proposed Pelican Lake 300 cfs outlet, it acknowledges that it may not be possible to mitigate some impacts to aquatic resources, it does not include a plan to mitigate impacts that already have been identified, and it does not include a plan to monitor the impacts of the project and implement mitigation measures for those that are identified in the future.

The DEIS violates each of the Corps of Engineers’ recently released “Environmental Operating Principles.”

The DEIS is procedurally faulty, conceptually flawed, technically deficient and legally defective. The inadequacies are so fundamental and the deficiencies are so pervasive that the Corps has no recourse under the law except to withdraw the DEIS and begin the NEPA process anew to produce an environmental impact statement that complies with both the letter and the sprit of the National Environmental Policy Act.

Despite its profound shortcomings, the DEIS is forced to acknowledge the inescapable conclusions that:

“The outlet plan that has been preliminarily selected for design is not economically justified using methods that would determine the expected benefits by producing probability-weighted benefits and costs.” (DEIS p. 1-S-7)

“…implementation of the Continued Infrastructure Protection within the basin is economically justified, and may in fact represent the most economically defensible approach to flood damage management at the lake.” (DEIS p. 4-14)














REFERENCES


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