For your information:

In case you didn't have an opportunity to look at some of the official comments submitted to the Army Corps of Engineers regarding the Devils Lake outlet, see the enclosed files submitted commenting on the Draft Environmental Impact Statement by Minnesota, Missouri, Manitoba, National Wildlife Federation, Dacotah Chapter of the Sierra Club and the People to Save the Sheyenne.

It is quite an accomplishment for the People To Save The Sheyenne to have their their viewpoints on this contentious issue shared by so many official and knowledgeable organizations and agencies. It says a lot for their credibility in this whole issue.

While this would lead one to be optimistic about the outlet scenario being dropped as the best option for dealing with excess water problems in Devils Lake and that other options would be aggressively pursued, we'll see what the politicians can do to skew the science that has been offered and examined and concluded upon.

The EPA also came out (May 8) with their comments on the Draft EIS stating there should be other alternatives explored and spoke against building an outlet. May 9, after some of ND's politicians heard about it, they are saying "now wait a minute." See "Reactions" to EPA announcement by Senators Conrad, Dorgan and Governor Hoeven..

May 10, the EPA issues another press release, now says statement opposing outlet, "was wrong". See reports here. See AP News stories here.

Comments to the Army Corps on their Draft Environmental Impact Statement reports include:

People To Save The Sheyenne

EVALUATION OF THE DRAFT ENVIRONMENTAL IMPACT STATEMENT

FOR DEVILS LAKE, NORTH DAKOTA

Prepared by

People to Save The Sheyenne


Introduction

The U.S. Army Corps of Engineers (COE) begins the analyses of alternatives for the proposed Devils Lake project following standard procedures used by the agency to evaluate water projects. These analyses result in the conclusion than an outlet into the Sheyenne River from Devils Lake is not economically feasible. In fact, the best benefit/cost ratio provides only 0.37 cents in benefits for each dollar spent. In NEPA evaluations, such a result generally results in the alternative being dropped from further consideration. However, COE in this case, citing unique circumstances at Devils Lake, took the unusual step of creating a Wet Future Scenario that led to a positive benefit/cost ratio and COE went on to select the Pelican Lake outlet as the preferred alternative.
Was the Wet Future Scenario undertaken with the full knowledge and consent of the U.S. Congress? The Wet Future Scenario approach used would seem to open the door for COE and other government agencies to use just about any excuse to justify the economic feasibility of a public works project and thus we question whether it was approved by Congress. COE stresses that Devils Lake is a unique situation with respect to flooding events justifying use of the Wet Future Scenario. However, we fail to see the uniqueness of the situation. Whenever humans establish residences or otherwise use lands that periodically flood, whether a river plain or lake plain, they do so at considerable risk knowing a significant likelihood exists that they will face flooding. At Devils Lake, unfortunately, massive wetland drainage in the Upper Basin has exacerbated the natural flooding phenomenon apparently causing inundation of land beyond the natural wetland area. In general, current national policy in such situations is to compensate victims for losses and move them out of harms way while taking steps to prevent further development on such lands. In this way, a long-term solution is achieved without harming those living below the impacted area or the local environment. What perhaps is unique at Devils Lake is that the state agency charged with ensuring responsible water management, i.e. The State Water Commission (SWC), has taken the unusual step of joining forces with wetland drainage advocates leaving the rest of the State's citizens struggling to get out of the way of recurring floods. In the 1970s, SWC saw wetland drainage as a major threat to flooding at Devils Lake. The document entitled “Agreement, Cost Participation By The North Dakota State Water Commission (SWC) for the Construction of Channel A in Ramsey County” prepared by the SWC in 1976 states “ It is not the intent of the Commission (SWC) to provide a mechanism whereby presently contributing areas will be ditched and drained. Nor is it the intent of the Commission that nonagricultural land will be converted to agricultural land because of Channel A. Rather, Channel A is to improve the drainage of existing farmland so that it can be consistently and uniformly more productive. It is the determination of the Commission that additional drainage of presently non-contributing 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 thousand of acres of littoral land.” Against this background, SWC in recent years has vehemently denied that wetland drainage is a significant cause of Devils Lake flooding and remarkably has stood by and done nothing as 22,000 wetland drains have been built in the Upper Devils Lake Basin draining an estimated 183,000 wetland acres (see FWS co-ordination report in the DEIS). By all accounts, Channel A, a massive drain that expedited wetland runoff into Devils Lake, has added to the Devils Lake flooding problem. To this day, SWC has refused to close the many illegal drains in the Upper Basin that are not in compliance with State law. How was an agency that goes by the unspoken motto “ If you have a flooding problem, we will work with you to pass it on to your downstream neighbors“ brought in as a cooperator in developing a comprehensive solution to the flooding problem at Devils Lake?

Focus of Our Review

Our review centers primarily on major deficiencies in the methods used to develop the data that forms the justification for construction of the Pelican Lake outlet. Specifically, we focus on reliability of the information used to justify the benefit/cost ratio and many of the conclusions reached under the Wet Future Scenario. Among problems we have identified is a failure of the Wet Future Scenario to take into account key information when developing the benefit to cost ratio. We describe how COE relied on a methodology that led to inflated land values when estimating costs avoided by having the outlet in place, failure of COE to recognize that major adverse environmental impacts would result from lowering Devils Lake through partial drainage under the proposed Pelican Lake outlet, treating the biota transfer issue as if it were an afterthought rather than undertaking serious scientific research to collaborate or refute concerns of biota transfer, and giving inadequate consideration to numerous major downstream impacts to the Sheyenne River ecosystem and the associated human population if the proposed Pelican Lake outlet were built.

Unrealistic Future Conditions

To achieve a positive benefit to cost ratio, COE created an extremely Wet Future Scenario lacking credibility for several reasons. First, use of a scenario that would require 21 uninterrupted wet years to produce enough overflow to cause significant downstream damages under any circumstance is difficult to accept given present knowledge but particularly so with current weather information pointing toward drier conditions ahead. The El Nino currently developing in the Pacific Ocean is predicted to result in drier weather in the northern Great Plains this coming year. Beyond that, severe drought currently exists to the west in Montana and Saskatchewan and to the east of North Dakota and precipitation is below normal across much of the state. Given the direction of recent weather patterns and history, it would seem appropriate to hold off for several years on building an outlet to more clearly establish that the recent wet cycle is continuing on a course than would lead to 21 more wet years before launching into a highly controversial solution with major environmental problems. Second, creating an overflow into the Sheyenne River through the Tolna Coulee in order to increase the benefit to cost ratio is a contrived event. COE admits elsewhere that in all probability such an overflow would not be allowed to occur and given the terrain could readily be prevented. Third, COE uses the benefits gained by preventing inundation through building the Pelican Lake outlet to achieve most of the benefits that causes the benefit to cost ratio to be positive. However, as we will address in our comments, benefits have been inflated by using flawed methods. Fourth, COE has taken the position that there are no environmental impacts to Devils Lake with creation of an outlet in the face of strong evidence there will be major environmental impacts that likely will require a massive expenditure of funds for mitigation if outlet plans go forward as proposed further lowering the benefit to cost ratio. Fifth, COE on one hand recognizes that the outlet will result in major downstream impacts noting that 8,600 acres of destroyed woodland, grassland, and wetland habitat will have to be replaced, but gives little attention to what this loss means and how difficult it will be to mitigate for these losses. The problem is aggravated by a complete lack of detailed information on how the Sheyenne ecosystem functions.
COE in an attempt to rationalize use of the Wet Future Scenario states that while development of the Pelican Lake outlet cannot be justified in the current environment, it should be viewed as an insurance policy. Given the premise that a minimum of 21 years of back to back wet years are required for a damaging overflow, who would purchase an insurance policy having a 97.7 million dollar premium knowing a decision on whether to take out the policy could be put off for years until greater insight is gained as to direction of lake level? With an extremely low probability of an overflow or anything approaching an overflow, it would seem prudent to take a more cautious approach given known major environmental problems and strong opposition to building an outlet. The current proposed project as described in the DEIS does not represent sound scientific or economic policy and certainly not how The National Environmental Policy Act (NEPA) was meant to function. COE used wise judgment in relying on the stochastic approach to evaluate project alternatives at the onset and should return to that approach and select the alternative with the best benefit/cost ratio and with most environmental benefits.

Estimates of Magnitude of Upper Basin Wetland Drainage Flawed

By choosing the Pelican Lake outlet alternative under the Wet Future Scenario, COE dramatically increased the scope of environmental impacts needing to be addressed. However, COE did not follow through and make the necessary thorough evaluation of environmental impacts if the outlet were to be built. As a result, major gaps exist in information needs on environmental and economic impacts to the Sheyenne River ecosystem, and of long-term impacts of lowering lake levels on the aquatic ecosystem of Devils Lake including it's major recreational fishery if an outlet were built. Ironically, one of few areas where new information was collected and used, i.e., to estimate number of acres of drained wetlands in the Upper Devils Lake Basin, detailed data already were available from the U.S. Fish and Wildlife Service, the federal agency with recognized expertise in delineating intact and drained wetlands. FWS estimates of number of wetland acres drained (identified as 183,000-189,000 acres in the FWS coordination report which is included with this DEIS) were disregarded in favor of the WEST study where the authors candidly admit their methods likely underestimated numbers of drained depressions. WEST only identified 294,400 acres of wetlands (of which 92,400 acres were identified as drained - page 3-19) whereas Ludden, Frink, and Johnson reported, in the Journal of Soil and Water Conservation (1983) that the Devils Lake watershed once contained 405,000 acres of wetlands. Even that estimate appears to be conservative, as based on hydric soils, the U.S. Fish and Wildlife Service estimated there to have been 589,000 acres (Devils Lake Feasibility Study, 1997). Part of the reason for the exceptionally low estimate of drained wetland acreage by WEST is explained in Section 8--Upper Basin Storage Study that accompanied the DEIS. The WEST report states "It should be noted that the NWI wetland definition and the resulting NWI polygons do not include depressions that were completely drained prior to 1979." As at least two-thirds of the wetland drainage in the Upper Basin occurred before 1979 methodology used by WEST contributed to the low estimate of numbers and area of restorable wetlands and thus the potential contribution of wetland restoration in solving the problem. WEST recognizing the major gaps in their data provides numerous recommendations for improvements. Taken together, existing information clearly shows data presented is unreliable concerning extent of wetland drainage or the contribution that wetland restoration can play in solving the current problem. Given the recognized importance of wetland drainage in the Upper Basin by a wide array of interests, why were not the steps WEST recommended to improve estimates of wetland restoration potential implemented before the DEIS was sent out for review and thus available for use in the decision-making process? Moreover, why were not the drained wetland estimates of FWS, the obvious usual source of such information, used in the first place? Relying on the results of WEST, a private consulting firm with limited expertise in delineating existing or drained prairie wetlands, the number of drained wetland acres fell to less than half from FWS estimates, i.e., 79,767 vs. 183,000 acres, thereby grossly underestimating the role of wetland restoration as a solution to the problem. It is time to take wetland drainage in the Upper Basin seriously and get the necessary facts before moving forward with the DEIS review process. We strongly recommend that an in depth study be undertaken using the latest technology as recommended by WEST and FWS to identify wetland area that has been drained and also water storage potential in restored wetlands. In view of all the problems shown with the wetland data, it is clearly premature to state that wetland drainage has only added 6-12 inches to the elevation of Devils Lake over the past decade.

In Depth Hydrological Studies Needed

Given the seriousness of flaws in the DEIS concerning wetland restoration issues, and the lack of credibility in hydrological aspects as now presented, it is time to conduct a thorough study of the water budget of the Devils Lake Basin using state-of-the art models agreed upon by all parties to the dispute. As a starting point, one might consider the following relationships. The North Dakota State Geological Survey has constructed a 4,000-year time-series of lake stages. Based on these stages, an argument was made that agricultural drainage has no effect since several times during the constructed series, lake elevations equaled or exceeded the current high water. In fact, the extreme elevations contained in the series exceeded the elevation of the Devils Lake-Sheyenne River divide. However, this is not proof that agricultural drainage has not affected lake elevation or that wetland restoration could not mitigate for the effects of agricultural drainage. If the 4,000-year series, excluding the historical period, is divided into rising limbs and falling limbs, the mean time from trough to peak is approximately 160 years and from peak to trough 130 years reflecting that under prehistoric conditions, the watershed tended to dry out faster than it filled up. Moreover, when we computed the slope of, or rate of increase of each of the rising limbs in the pre-historic time-series and then compared them with the slope of the historic event, we found the historic event has a rate of rise that is over 3 times greater than the mean rate of the pre-historic trace and two times greater than the maximum rise of the pre-historic record. In fact, the historic rate of increase in water level (since 1940) is 5 standard deviations from the mean of pre-historic rates. This clearly points toward agricultural drainage as having a major impact on the rise of Devils Lake since 1940. Current assessments that portray wetland drainage as being, at most, a minor factor contributing to rising lake levels are highly speculative. The time is long overdue for a rigorous scientific assessment of the contribution of wetland drainage to the current elevation of Devils Lake, and flooding in the Devils Lake Basin, in general.

Problems With Implementation of the Wetland Restoration Plan

Another major problem with the current wetland restoration plan relates to how the Upper Basin wetland restoration plan (page B-29 of the Appendices) would be implemented. COE stresses wetland restoration is not part of this project but has the potential for being "complementary". The “complementary plan” would involve 1-10 year water storage contracts paying landowners up to 70% of fee title value with the property owner being able to unplug the drains when lake level fell below 1440. This plan limits the value of the wetland restoration program severely while making it excessively expensive further ensuring lack of implementation. When each short-term contract ends, new contracts would have to be sought and renegotiated raising major questions as to how much long-term storage would result in light of the near total failure of short-term efforts undertaken to date. A much better alternative would be to take a long-term perspective with the Government acquiring lands in fee title as lands become available from willing sellers and/or acquire water storage rights lasting through the life of the project. The plan now being put forth may make wetland drainage even more financially lucrative with few safeguards and thus only add to the current problem. If this project is worth building, a major stipulation at the onset needs to be that wetland restoration will be funded and be of a scale to that will significantly reduce runoff from drained wetlands into the Lake by having drained wetlands either acquired in fee title or held under easement in perpetuity or at least through the life of the project and restored at the same pace that other project features are completed. Otherwise, water storage will continue as a much talked about but largely not implemented part of the project as has existed to date. This will result in continued frustration by all parties except those Upper Basin landowners that want no limitations on their ability to drain water onto their downstream neighbors.
In the DEIS, COE dances around the issue of wetland drainage without even making a commitment to link prevention of wetland drainage to building of the outlet. In a statement on page 6-19, COE states "If Upper Basin storage is pursued or a moratorium on wetland drainage implemented, the Corps concurs development of a monitoring plan should be part of these features". Is this statement suggesting that in the absence of a moratorium on wetland drainage (which apparently is a certainty with the SWC in charge of making the decision), COE will still plan to go ahead with the project without stopping Upper Basin wetland drainage? IF THIS PROJECT WARRANTS CONSIDERATION IN ANY FORM, STOPPING WETLAND DRAINAGE IN THE UPPER BASIN BY DEVELOPING AN EFFECTIVE MONITORING AND ENFORCEMENT PLAN NEEDS TO BE JOB 1 AND MADE A KEY FUNDED PART OF THIS PROJECT. Without stopping wetland drainage, this project will lack the slightest hint of credibility and the current controversy will continue to grow. In conclusion, the current analyses of Upper Basin water storage potential while given considerable lip service in the DEIS is woefully inadequate.
The DEIS frequently includes statements suggesting that only citizens downstream of Devils Lake are concerned with Upper Basin wetland drainage as a major cause of the Devils Lake flooding problem and wanting wet drainage to be stopped. However, this is clearly not the case and should be indicated each time this subject is addressed in the DEIS. Landowners in lower parts of the Devils Lake Basin recognize wetland drainage as a fundamental part of the problem facing them. This position is clearly reflected by numerous property owners around Devils Lake having joined in a lawsuit against landowners in the Upper Basin and The State Water Commission in an attempt to stop further wetland drainage and proceed with wetland restoration. Also, as recently as April 2002, the Benson County Water Board and Benson County Commissioners voted to sever ties with The Devils Lake Basin Joint Water Board because of failure of the DLBJWB to take measures to stop Upper Basin wetland drainage (Associated Press story in Grand Forks Herald). In other words, there is major controversy among landowners within the Devils Lake Basin over continuing wetland drainage and failure to restore wetlands in addition to a wide array of downstream interests viewing wetland drainage as a central issue in creating the flooding problem.

Much Wetland and Other Low Value Lands Treated as High Value Agricultural land in Benefit/Cost Analyses

Devils Lake is a natural wetland underlain by soil types that developed under moist soil conditions and these soil types have been classified by the U.S. Department of Agriculture. Soil types provide detailed information needed to interpret environmental impacts resulting from selection of an outlet alternative. The current failure to address wetland habitats in Devils Lake is a bit puzzling given that wetland habitats in the Upper Basin and along the Sheyenne River were delineated. Soil types not only provide a scientifically sound method for evaluating the scope of ecological impacts but also provide a scientific basis for assessing economic value of lands, a use for which soils information is widely applied. Economic value of lands is a key consideration here because much of the perceived benefit of the Pelican Lake Outlet alternative comes from the Government not having to purchase lands in the Wet Future Scenario that are otherwise predicted to become inundated (Appendix B, page 38). For Ramsey and Benson counties where Devils Lake is located, detailed published soil survey reports are available for use in both the environmental and economic evaluations. These soil survey reports provide a wealth of information not only on the precise distribution of soil types (and wetland habitats) in the Devils Lake area but also economic value of lands either currently inundated or could become inundated under the Wet Future Scenario. These reports show is that a large portion of the inundated area at Devils Lake, along with the area that would be inundated should the lake continue to rise, are underlain by soils types characteristic of wetlands and having economic uses recommended as primarily for wildlife habitat or pastureland. This poses a problem for the current DEIS because a major part of the benefits of the proposed Pelican Lake Outlet are based on the assumption that these are high value agricultural lands. Unless COE switches to a soil-based method of identifying economic capability of lands inundated or would be inundated under the Wet Future Scenario, and adjusts land values accordingly, estimated benefits for the proposed Pelican Lake Outlet will be grossly inflated over real value. The result will lead to land valuations being contested. Simply stated, the current approach used by COE in the DEIS has led to a large amount of swampland and other low value land being treated as high value agricultural land. As a result, a key proposed benefit of the outlet, i.e., preventing inundation of agricultural lands, is overvalued. Using soils information to determine land capability and thus valuation will eliminate this problem for the 93,000 acres inundated since 1992 (which now are classified as agricultural and given a high valuation, i.e., $600.00/acre on page 2-38). It will also provide a sound method for assessing value of the remaining lands that might become inundated with the Wet Future Scenario.

Land Values Misrepresented by Thematic Mapper Data

The land valuation problem arose, in part, because COE decided to use Landsat thematic mapper data (Table C-5 Appendix C-16), to establish land use and as a basis for determining economic value. Thematic mapper data is useful only as a measure of land use, i.e., whether in cropland, pasture, or wetland, and then only at the time surveys are flown. As a result, such surveys are poorly suited for providing a true measure of lands economic worth and can result in inaccurate results. Thematic mapper methodology becomes particularly misleading when mapping is done under unusually dry conditions as was the case at Devils Lake. Landsat coverage data of the Devils Lake area described in the DEIS were obtained primarily during 1987-92, the second driest period (after the 1930s) in the 20th century in North Dakota. In the 1987-92 period, dry conditions allowed farmers to extend their tillage operations much farther into wetland soils within the affected area than is usually possible. As a result, Thematic mapping created the illusion of a higher percentage of the land being in cropland than normal, and a lower percentage being in wetland. Had soils information been used instead, economic capability would have been accurately assessed and land value estimated irrespective of a wet or dry period. Based on Thematic mapper data, COE put a $400.00/acre value on all lands that have been or would be inundated under the Future Wet Scenario. Given that mean land values for Benson and Ramsey County were estimated to be $320.00 and $390.00 per acre, respectively (page 5-19), and the Devils Lake lands contain a much higher percentage of wetland and waterlogged pastureland, valuations are grossly inflated resulting in too high a benefit being claimed for the outlet alternative.
Further questions surround the issue of claiming benefits rather than cost for partial drainage of natural wetlands as would occur with outlet development. Wetlands have high intrinsic economic value for maintaining the Devils Lake fishery, wildlife populations and water-based recreation, in general. In some cases, economic benefits may have been claimed for draining publicly owned wetland habitat that provides outstanding recreational benefits to the citizens of North Dakota. COE clearly needs to go back and recalculate the benefit to cost ratio after thoroughly examining what amount of economic loss is being claimed for agricultural lands that are part of the natural wetland area of Devils Lake as well as surrounding land claimed to be high value agricultural lands. This information is essential for developing appropriate mitigation to replace wetland habitat that will be degraded or drained due to the Pelican Lake outlet project.

Other Ways of Solving the Devils Lake Flooding Problem

Beyond the issue of the economic valuations of lands already inundated or projected for inundation in the future is a perceived need for the Government, as part of this project, to have to purchase lands and thus incur the costs that are used to justify the Pelican Lake outlet. Is it known or just assumed that purchase of lands by COE under this project is the only mechanism available for compensating landowners holding lands currently inundated or possibly inundated in the future? For example, would these lands qualify for the Wetland Reserve Program or other public or private funded efforts that would result in no cost to the Government under this project? Have landowners already enrolled inundated lands in government programs that re-imburse them for the water. If so, this should be clearly stated in the DEIS and the necessary costs of inundation adjusted accordingly. At present, it is not clear that the Federal Government working through this project offers the only alternative for compensation. Funds may be available through FEMA to green belt this area taking conservation easements and thus eliminate flood damages altogether. Another alternative would be to let certain economic uses continue on non-wetland soils even after the Government has purchased rights to let inundation occur. Economically and environmentally, one of the best solutions for the Devil Lake Region might be to have Congress establish a National Recreation Area at Devils Lake incorporating the inundated lands within the boundary. This would greatly increase tourism and the lake region economy given the boating, fishing, hunting, bird-watching opportunities, the presence of notable historic sites, a big game refuge and a native American community with much to offer. The Lake is a resource available for use in all seasons so has immense potential much of which remains unrealized. Clearly, there are many positive alternatives to the one presented in the DEIS that need further exploration. As everyone in North Dakota is keenly aware, agriculture is a struggling industry in the best environments for many reasons including some beyond its control. In the wet soils surrounding Devils Lake, agriculture faces even greater risks. Why attempt to keep agriculture going on lands that have much higher potential for recreation and tourism. Few communities in this region approach the Devils Lake area in having natural assets from which to build a self-sustaining economic future broader based than in the past. Yet, the project proposed in the DEIS is aimed at degrading the very resources that offer the region a bright future in order to continue to chase after outdated philosophies abandoned decades ago elsewhere.

Failure To Consider Impacts to Devils Lake Ecosystem

The DEIS needs color-coded maps of Devils Lake identifying: (1) the natural boundaries of the lake based on wet soil types that support wetland vegetation, (2) how much and what parts of the lake are publicly owned, (3) specific fish and wildlife resources associated with various parts of Devils Lake, (4) how much and what parts of Devils Lake will be drained when the outlet is constructed and the lake is drawn down to 1441.7. The current map showing only the extent of inundation at various elevations provides little insight into most of the environmental issues needing to be addressed in the document. With the minimal information presented, the entire lake up to 1459 could be on wetland soils and thus a natural wetland based on the limited information presented.
COE on page 5-93 makes the statement "The operation of an outlet would have limited effects on the aquatic life of Devils Lake." COE, by taking the position that the Devils Lake ecosystem will not be damaged if an outlet is built appears not aware of the inadequacy of the DEIS in meeting NEPA requirements. How can such a statement be made when considering that the present plan is to bring the lake down from 1447.1 (current lake elevation) to 1441.7 or 5.4 feet. This drop in lake elevation would eliminate 40,000 acres of shallow highly productive aquatic habitat that currently serves a key role in maintaining one of the most productive freshwater fisheries in the United States along with supporting nationally and internationally important migratory waterbird populations. A major part of the 40,000 acres is on natural wetland soils and presumably drainage will require replacement through mitigation that presumably will be accomplished through wetland restoration in the Upper Devils Lake Basin. Were the major impacts the outlet would have on the Devils Lake ecosystem ignored due to lack of COE expertise in such aquatic habitats or because identifying such impacts would lead to COE having to develop costly mitigation which further reduces benefits of the Pelican Lake outlet putting the project in jeopardy? Should the entire 40,000 acres of wetland habitat that would be drained under current plans have to be replaced in the Upper Basin, using the COE wetland restoration cost of $1000.00/acre as followed in the DEIS, mitigation costs for Devils Lake alone would be about $40,0000,000, significantly reducing the cost benefit ratio.

Cumulative Impacts on the Devils Lake Fishery

Why are cumulative impacts of the Pelican Lake Outlet alternative ignored? If the lake is pulled down 5-6 feet to reach 1441.7 as currently sought by draining the lake through the Pelican Lake outlet, it will markedly hasten the date when salt concentrations in the lake increase to where fish production and fish growth are seriously impacted which will lead to major economic losses to the recreational fishery. The relation between partial drainage of Devils Lake through the outlet and the temporal pattern of change in lake volume, increased salt concentrations, and thus fish status can be predicted for the life of the project through modeling by taking into account key parameters involved. Modeling should provide a basis for estimating over the 50-year life of the project how many fewer years the Lake will sustain an economically viable recreational fishery as a result of having lake waters drained down through the outlet. This cost needs to be added as part of the economic cost to the benefit to cost ratio of the proposed Pelican Lake outlet. NEPA requires a full and accurate accounting of environmental costs and the DEIS currently lacks any accounting of some of the most basic impacts of the proposed Pelican Lake outlet on the Devils Lake ecosystem. Again, we emphasize that not defining the lake beyond lake elevation is biologically meaningless. Productivity of soils within Devils Lake vary widely so knowing the planned outlet water regime plan provides a basis for determining water coverage over particular soil types and thus availability of that soil type within the Devils Lake ecosystem at various lake elevations which has implications concerning amount of fish and wildlife that can be produced. Once soils are defined, it will be possible at any lake elevation to assess effect of the outlet on extent of loss of productive soils to fish populations and waterbirds. Many species rely on natural water fluctuations to create productive foraging conditions. As soils are more productive at the upper elevations of Devils Lake, detailed insight is needed on soils available with and without the outlet. Lake levels will average lower with the outlet and a detailed assessment is needed on how this will impact the food chain that sustains fish populations and migratory water birds. With the Devils Lake ecosystem defined, the evaluation will be on a sound scientific footing setting the stage for developing the appropriate mitigation measures to offset impacts resulting from the outlet. It should also be noted that mitigation will be needed to compensate for impacts associated with the outlet preventing the lake from rising to its full potential within wetland soils as this constitutes a form of wetland drainage.
Why are not impacts to the drawing down the lake through the outlet and related ramifications given greater coverage in the DEIS benefit/cost evaluation? In a semi-arid environment of North Dakota, removing freshwater at Pelican Lake through the outlet hastens considerably the day when the recreational fishery will be adversely affected or lost due to declining water levels. This issue is now only superficially addressed but a model using a stochastic approach needs to be developed taking into account long-term precipitation rates to estimate the additional number of years over the life of the project Devils Lake will not support a recreational fishery or a reduced fishery due to the presence of the outlet and how this will impact on the economy of the Devils Lake area.

Who Owns the Inundated Lands?

Land ownership within the natural wetland boundary of Devils Lake as determined by extent of soils supporting wetland vegetation is not given in the DEIS and is needed as ownership has a key bearing on predicting long-term impacts following construction of the outlet. On privately owned land, encroachment can be expected into lands drained by the outlet and insight is needed concerning whether and how far such impacts can be expected into the Devils Lake ecosystem. Who owns the 93,400 acres of land that have been inundated since 1992 (how much is in public ownership and under what agencies? How much Devils Lake bottomland officially classified with wetland soils was cultivated during the 1988-92 drought based on Thematic mapper data? How much of the Devils Lake wetland area that was in public ownership in 1987-92 was cultivated based on Landsat thematic mapper data? This information will provide insight into land use as water levels in the lake recede with an outlet. What is the policy of public agencies on allowing farming of public lands lying within Devils Lake if the outlet draws water down to where these can be farmed? The Spirit Lake Nation currently is in court attempting to reclaim ownership of the entire bed of Devils Lake. How would a successful lawsuit by the tribe affect the benefit/cost analyses of this project? Would this action negate benefits associated with assuming maintaining agricultural production will be maintained by preventing inundation? Do any of the 93,000 acres inundated since 1992 belong to the Federal Government as a result of having rights transferred as part of the State of North Dakota's contribution to the Federal Government for partial completion of the Garrison Diversion Project (GDU)? How were GDU and other public lands treated in the benefit/cost analyses? How is land being managed for which rights have been transferred to the Federal Government? How much of the 93,000 acres of land inundated since 1993 are in federal or other land retirement programs that provide annual payments to landowners offsetting costs from inundation?

Sheyenne River Impacts

The COE proposed outlet would drain waters into the Sheyenne River, even though not economically justified. Using a Wet Future Scenario to validate an outlet would not prevent Devils Lake from overflowing, but would only slow the rise. In the meantime, the wet scenario would increase the amount of water in the Sheyenne River and the Red River, exacerbating any high water problems already being experienced in those watersheds. Has the wet scenario modeling used for determining the downstream impacts of running an outlet also taken into account that flows would already be high in these rivers? How can COE not take action to prevent more inflows into Devils Lake, especially since a wet scenario means there will be high water downstream even without an outlet that will only make the problem grow worse. Upper basin storage appears essential to any scenario yet is held out as a possibly a complementary feature.
COE data shows a 9% chance of a natural overflow to the Sheyenne River, and a 100% chance of impacts to the River with an outlet (1-S-5). It is our determination from reading the reports and research data, discussions with scientists and attending meetings that there is not enough of a threat to warrant the outlet path at this time, nor has enough information been validated and quantified to adequately assess and inventory the Sheyenne river ecosystem to ascertain impacts from this proposed outlet. COE clearly does not know enough about the Sheyenne ecosystem to adequately assess the impact of the outlet and thus accurately measure costs for inclusion in the benefit/cost ratio.

Inadequacy of Biota Transfer Information

According to the Biota Transfer Study commissioned by COE, the report’s comments state huge data gaps exist and it is not possible to assess the risk without more information. The DEIS presents conflicting remarks on this issue, citing a conclusion of very little biota risk (1-S-10) and “studies are adequate,” yet in Unresolved Issues (1-S-12) stating water studies are not complete, effects are unknown and won’t be known until the project is under way. This is not an adequate accounting of risks. As an example of inadequacy of the Biota Transfer Study, which was a literature search only, is that most information comes from 1924 documents discovered by the Peterson Environmental Consulting, Inc. firm. The COE did not attempt to gather any water samples until AFTER a report was filed by Peterson’s firm’s Biota Transfer report at a Tech Rep meeting in August 2001. In September 2001, COE ordered a sampling to check the organisms and waters of Devils Lake for pathogens. COE plans are to take another sampling in the Spring 2002. The results will not be available for public comment, as their results will not be available until the comment period is closed. This is unacceptable. We want to know why there wasn’t more sampling done - in the Sheyenne and Devils Lake - to determine baseline populations of the flora and fauna of both systems? Why are definitive conclusions being made by COE in the absence of information?
It is likely that Devils Lake has species that have not been evaluated. As a major fishing destination, Devils Lake hosts tournaments that attract fishers from a wide area and well beyond the borders of North Dakota. As a result, the potential exists for introduced organisms present in bait and fishing equipment, boats and trailers that have not been found nor searched for at this point. Zebra mussels, for example, can easily be transported with boating equipment and become established in areas too saline for freshwater mussels. The saline waters of Devils Lake areas area provide habitat well suited for zebra mussels. Without more testing, no conclusions should be reached concerning the potential for interbasin transfer of organisms.

The Riprap Issue

Riprap is a huge concern to those living downstream along the Sheyenne River. Riprapping of the Sheyenne, which currently is among the most beautiful rivers in the north-central United States, will eliminate the very values that have caused the river to be designated as a Scenic Byway. Removing or killing a narrow gallery forest along many miles of the Sheyenne is a dramatic and unacceptable alternative. What cost has COE placed on severely degrading a riparian forest and Scenic Byway that attracts people from throughout the region? Many references are made to how outlet impacts to the Sheyenne River will be mitigated, when these impacts could be avoided if funds were expended on preventive measures such as Upper Basin storage, infrastructure improvement, and greenbelting of low lying areas. Until COE undertakes the thorough assessment of Upper Basin storage potential called for earlier in our comments, it will be unclear whether any type of outlet is needed. Plans for riprap to reduce erosion, acquisition and management of riparian zones, protecting cultural sites, improving roads and bridges, upgrading water facilities and long-term monitoring are effects and expenditures that could be avoided. The COE does not even have a detailed inventory of the lower Sheyenne riparian zone? Major studies are needed to document how the Sheyenne ecosystem functions before any work is done so that appropriate steps are taken to mitigate for adverse impacts.
Channel capacity in lower parts of the Sheyenne River is limited. The extra flows from an outlet would increase erosion, sedimentation and groundwater stages (3-7) adjacent to the river to up to 3/4 of a mile away. The shallow, sandy water tables of the Sheyenne Grasslands, adjacent landowners and livestock watering sources would be affected. Increased flooding from localized storms could not be predicted in order to adjust flows from the outlet in time to prevent damage downstream. The frequency of high rainfall events are impossible to predict, increasing the likelihood the outlet will result in needless damages. Increased impacts from salinization can be expected by the water users of the Sheyenne and Red Rivers as higher water levels freeze up for winter, then thaw in the spring, bringing more salts from the groundwater storage areas that had been held under pressure of the winter ice. (See study by Environment Canada.)

Lake Ashtabula/ Mercury Concentration

Increased flows into and out of Lake Ashtabula have the potential for a number of negative impacts including introducing more sediment that will shorten the life of Baldhill Dam (have these costs been included in the 50 year projections of cost?). What contaminants will be in the sediments introduced from outlet waters? Mercury concentration is high in Devils Lake. How much mercury will accumulate in Lake Ashtabula over the project life span and what will be the effects on the fish and fishery? The ND Game & Fish Department in a recent report stated the fishery at Lake Ashtabula is worth $3 million dollars to the local economy so is an important financial asset to Barnes County and Valley City. (See EPA Environmental Justice report). The outlet will likely have a negative impact on the economic value of the recreational fishery due to increased concern of fish becoming contaminated with mercury. How will changes in the sediment dynamics brought about by increased water flows affect the fishery?
Another consideration for Lake Ashtabula, as determined by the ND Game and Fish report, is that increased flows tend to flush out more of the desirable walleye sport fish as has been indicated in their recent 3 year study. Despite stocking more walleyes, they conclude more fish are washing out with the extra water being released from the dam to maintain COE’s optimal water level. More water moving into Lake Ashtabula through a Devils Lake outlet will mean more water going out through Baldhill Dam, and more fish with it. Has this economic impact been considered by the COE impact analysis?
The other obvious concern is for water quality. What will increased sedimentation, salinization and extra flows do to the water quality of the river, and how will this affect the lower Sheyenne River system? The COE DEIS statements conclude it will cause damage to the lower Sheyenne.

Natural Resource Impacts to Lower Sheyenne

The delta of the Sheyenne River is predominantly woodland, one of the few heavily forested areas of the state. These forested areas harbor a number of listed Species of Concern due to unique, rare plant, animal, bird species or habitat types. The 1999 US Fish & Wildlife Service PAL report states that long-term low-lying flooding will adversely affect the trees and water tables. In other words, increased flows will kill the trees and seep into the groundwater. What is the COE plan to prevent this? You can’t replace the 100-year old oak savanna forest and wildlife that go with it in the 50-year projected life of this outlet project. In North Dakota, the Sheyenne River provides habitat for more fish species than any other North Dakota tributary. There are 9 species of freshwater mussels (2-18), depending on fish as intermediate hosts to complete their life cycle. What will be done to protect the unique habitat type of the Sheyenne Delta? This would be an irreparable loss. There are 857 natural heritage sites listed in the Sheyenne basin. The cost of protecting or moving these sites has been estimated at $11 million. These are losses we feel can be prevented and are unnecessary.

Water Use from the Sheyenne

The City of Fargo will use Lake Ashtabula as an emergency water source, which will add to sediment transport in low water periods. If the lake has been loaded up with more sediments from increased flows into the lake and then drought comes, what will happen to the accumulated sediments, and how will sediment transport affect water users all along the Sheyenne? Communities of Fargo, Grand Forks, Grafton, Pembina, Drayton and associated businesses (2-23) might want to know what to expect in the 50-year projection of the project. There is an increased likelihood of dry weather instead of the 21 years projected in the wet scenario by the COE. What will the accumulated sediments do when water levels are low, concentrating them and their effects?

Water Quality

The Sheyenne River is a Class IA stream as is the Red River. The sulfate standard is 450 mg/l. However, the State of North Dakota anti degradation policy calls for a review process whenever new or expanded pollutants would cause a significant permanent effect on the quality and beneficial uses of the affected waters. In a ten year modeling of the Pelican Lake outlet in the Wet Future Scenario, the increase in chloride concentrations would range from 100% to 600% increases in the river baseline - without exceeding the 100 mg/l standard. However, this would be a 600% increase in chloride and would be considered a significant effect by the ND State Health department who would then rule on whether to allow this magnitude of increase. What would be the effect on the flora and fauna in the aquatic ecosystem of a 600% increase in degraded water? Does COE know? What dollar amount does COE use in their benefit/cost analyses to reflect loss of diversity and species inhabiting the area?
With Pelican Lake operations at 300 cfs, 250 mg/l sulfate or above would be occurring 13% of the time, and with a 480 cfs unconstrained, 34% of the time. (4-18). Operation of the outlet would exceed the state’s anti-degradation policy. What will be the effects of elevated concentrations of sulfates over the life of this project?
Other permitted water users, such as the Fish & Wildlife Service with 10 permits are only noted as having 2 in this DEIS report. Why? The only 2 recognized are the National Fish Hatchery at Valley City and Bald Hill Dam. The TDS concentration at this reach of the river could affect the hatchery’s function: hatching and raising fish, at their most susceptible life cycle stage. The hatchery has no other water source that can be used, and well waters come from river waters. Loss of this river function could cost millions to the recreational fishing industry in the State of North Dakota. (5-44)




Summary and Conclusions

The treatment given environmental and economic consequences of an outlet on the Devils lake ecosystem are grossly inadequate and need much greater consideration in a revised draft of the DEIS given the importance of the Devils Lake ecosystem to the Nation, the recreational fishery to North Dakota and to the economy of the Devils Lake Region. As our comments allude, many questions with important implications to the future of the Devils Lake ecosystem that could be affected by the construction of an outlet have not been addressed nor mitigation measures considered. We recommend that detailed studies be undertaken before any plan is approved to gain a better understanding of the Devils Lake ecosystem and how the ecosystem currently functions. Major interstate and international concerns dictate that a state-of-the art model be developed including accurate information on soil capability of all impacted lands, land ownership, and land use to assess how changes in hydrology will affect the Devils Lake ecosystem and will impact key fish populations and wildlife species with results provided for each alternatives presented in the DEIS. Updated information on wetland restoration potential should be integrated into the model and evaluated. Currently, without standards for assessing environmental impacts of the selected outlet on the Devils Lake ecosystem, no adverse impacts were found. With stats on extent of wetland drainage and wetland restoration potential in the Upper Basin being highly questionable, evidence that much wetland was passed off as high quality agricultural land, and evidence that the Wet Future Scenario is a contrived assessment, it is clear that COE either needs to reconsider proposing an outlet alternative, or conduct a much more thorough assessment of impacts and benefit/cost analyses than is presented in the current DEIS. The DEIS started with a credible assessment based on the stochastic analyses approach and should continue on that path.
Biota transfer risk is not adequately assessed, baseline inventories are nonexistent, and there is substantial cause for concern due to lack of information. Therefore, if after this review process is completed, an outlet plan is still under consideration, a major scientific study will be needed to address this issue.
The Sheyenne River is among North Dakota’s most valuable natural assets. The high aesthetic value of the Sheyenne Valley is reflected in the river valley being one of few rural areas in North Dakota where population is rising. The beautiful natural setting that is bringing many to the Valley is now at risk. Developing the meandering tree-lined Sheyenne into a riprapped ditch so wetland drainage in the Upper Basin can be allowed to continue is an abomination. How attractive will a river be with the trees along its shores dying as now described in the DEIS, and it’s gentle slopes lined with riprap? How much cost did COE attribute in the benefit/cost ratio for diminished property values as porches that now look over a placid tree-lined meandering river face the skeletons of trees dead from a rising water table? It is not so simple for the people involved as the brief statement presented in the DEIS that 6,032 acres of trees will be lost and need to be replaced (Page 6-32). How does one replace 100-year old trees lining the banks of the Sheyenne with seedlings that will at best take another century to rise to such heights. Worse yet, the 6,032 acres of trees cannot be replaced where present stands die along the shores as these trees would also die out due to the higher water table. Thus, the many tree lined miles of low forest would have to be replaced at higher elevations where trees grow less well leaving the many homes and other locations graced by these stands with dead trees falling into the river later to be replaced by treeless rock lined banks. True mitigation means replacement “in kind” of that which was lost. The current plan would not begin to accomplish that task. Moreover, mitigation needs are only partially addressed due to lack of understanding of how the riverine system functions. Riprap leads to more problems, and operation of the outlet will destroy an oak savanna forest that is rare in North Dakota. Negative impacts to the Sheyenne River and associated landowners and water users have not been adequately assessed for a project that is to have a 50-year life of impacts. The current proposed project using a contrived Wet Future Scenario creates a remote chance of an overflow that will not be allowed to happen in the first place. Yet, the impacts from developing the outlet are certain to severely degrade one of North Dakota’s most valuable natural assets with huge long-term negative environmental and economic implications. Even though spending millions to try to mitigate for downstream environmental impacts, the DEIS falls far short of providing a full accounting of the impacts of the project to either the Sheyenne River ecosystem or the human inhabitants of the region that depend on the river for their livelihood, or for recreational and aesthetic values. Take, for example, the major problems downstream landowners face from more water being run through their lands tearing out fences, killing the trees that provided shade for their livestock, and watching their lands erode into the river.
Many of the shortcomings of the DEIS result from limitations imposed by Congress for how appropriated funds could be spent along with laying down unrealistic deadlines for dates by which the DEIS had to be completed. As a result, many thoughtful questions raised in scoping meetings received minimal consideration leading to the many problems outlined here. Initially, a major attempt was made to circumvent the NEPA process entirely under the guise of an immediate crisis and when that failed, the current review process followed. Even at this late stage, with no "crisis" looming and serious concerns of an impending drought, ample time would be available to thoroughly consider potential alternatives and conduct the science-based studies that could lead to an environmentally and economically sound project. The DEIS while listing pages of so-called studies is mostly tidbits of information gleaned from libraries or obtained through use of models that frequently lacked that necessary input data to produce credible results or appropriate conclusions. Given the scope of the action proposed, it is irresponsible to give minimal consideration to the complex and far reaching implications to the natural resources involved and the human populations that rely on these resources for their livelihood and for recreation.
It is no small matter that 350+ million federal dollars have already been spent to take care of the Devils Lake flooding problem with more funds already on the way to assist those needing help. This circumstance begs the question of why promoters of the project have put so much effort into rushing through an outlet alternative when steps already taken or planned have gone a major step toward solving the problem. In trying to understand the logic for the current proposed alternative, we are troubled by the fact that the Garrison Conservancy District and State Water Commission are each paying $15,000.00 a year to a Devils Lake outlet lobbyist who travels about the region attempting to sell the outlet plan. We, as farmers and business owners, are having to use our own funds and time to try to get a full accounting of the impacts of this project while a tax supported state agency (SWC) and water development group is using our tax dollars to lobby against the citizens of the Sheyenne Valley.
Why is the State of North Dakota indicating it will build it's own outlet from West Bay if the COE does not complete the Pelican Lake outlet? Given all the State's posturing, much of which makes little sense within the context of what is described in the DEIS, one might reasonably ask what is the State's goal? It is widely assumed that part of the reason the State has been trying to rush the Devils Lake outlet to completion is to assure Upper Basin landowners that their "right' to drain wetlands into Devils Lake will not be infringed upon by whatever alternative is selected. The second most frequently suggested reason the State is intent on an outlet is the desire to turn the outlet into an inlet into Devils Lake which the State has sought for decades. The inlet was a planned feature of the GDU but has been stalled for years by strong national and international opposition. The inlet would function by having water pumped from the Sheyenne River into the West Bay of Devils Lake by tapping Missouri River water and releasing it through the already completed McClusky Canal. The State's plan to create an "outlet" from West Bay to the Sheyenne River only makes sense if the "outlet" is reconfigured into an inlet. All parties (including COE in this DEIS) and the State recognize discharging West Bay water into the Sheyenne River is a non-starter as this action would clearly violate Clean Water Act standards and promptly result in a shut down of the outlet. However, if the intent of the State is to reconfigure their West Bay outlet into a West Bay inlet, the plan makes perfect sense from the State's perspective. Simply stated, the State's current outlet plan appears to be a modern day version of the Trojan horse. We provide these details so decision makers recognize the context in which this project is being promoted and designed.
In closing, an opportunity exists for much good to come out of a well thought out solution to the current situation at Devils Lake. In fact, the plan could serve as a centerpiece for building a bright future for a part of North Dakota rich in natural resources. This can be accomplished in a variety of ways that will not require major damages and downstream controversy as would an outlet. We encourage COE to move forward by stepping back to following up on results gained from the stochastic approach which indicated an outlet was not economically feasible, drop the highly speculative and environmentally damaging outlet alternatives, and focus on a combination of alternatives including wetland restoration, green belting, infrastructure protection to reduce flooding impacts. Beyond these measures, the Federal Government could play an important role in helping finance development of a broader-based economy in the Devils Lake area by helping the region capitalize on its unique natural resources rather than taking steps that will degrade them as the current proposed project would do. However, such a change would require state and local leaders to embrace a new vision for the region and put aside the notion that maximizing the amount of land in agricultural production in the Devils Lake Basin best assures a bright future. Agriculture has been and always will be a major part of the State's economy but technology has made it possible for this industry to continue with few people involved and lands poorly suited for intensive agriculture should be put in other uses. If North Dakota is to have a vibrant future, it must embrace change and Devils Lake is well poised for capitalizing on the resources of the lake and surrounding lands in building it's economy. Being optimists, we hope that a thorough airing of the flooding problem at Devil Lake and proposed solutions might help bring recognition that instead of spending time, money, and talent to undo nature's well thought out plans, the State embrace the unique resources we were given using their qualities to build the state's economy.

We appreciate the opportunity to comment on this DEIS. A hard copy will be sent by mail.


Thank you.


James Stevens, President
People to Save the Sheyenne
Valley City, ND 58072

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