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ENVIRONMENTAL
PROTECTION AGENCY COMMENTS
DRAFT DEVILS LAKE, NORTH DAKOTA INTEGRATED PLANNING REPORT
AND ENVIRONMENTAL IMPACT STATEMENT
Water Quality Standards and Water Quality Analysis
EPA has significant concerns about the effects on water quality
from operation of a Devils
Lake outlet. Because the water quality of Devils Lake is
relatively poor for a number of key
water quality parameters, removing water from Devils Lake and
placing it in the Sheyenne River
will adversely affect water quality in the Sheyenne and
downstream in the Red River. The
extent of adverse water quality effects is dependent on several
factors including the duration,
frequency, and timing of outlet operations. Comments in this
section are organized into four
categories: (1) exceedences of water quality standards, (2)
National Pollutant Discharge
Elimination System (NPDES) permitting, (3) water quality
certification, and (4) data/information
gaps.
Exceedences of Water Quality Standards
EPA has serious concerns about the potential for water quality
standards to be exceeded if
an outlet is constructed and operated. The data in the DEIS
indicate that the most limiting
downstream numeric water quality criterion is the Minnesota TDS
criterion of 500 mg/L in the
Red River of the North. For example, based on modeling results in
Table 7 of the DEIS, the Red
River TDS standard would be exceeded more frequently, under all
scenarios, than the Sheyenne
River sulfate standard of 450 mg/L. TDS and sulfates exceedences
could impair both water
supply and agricultural uses in the Red and Sheyenne Rivers,
respectively. This could result in
inclusion of the Red River (for TDS) and Sheyenne River (for
sulfate) on the Section 303(d) list
of impaired waters. Also, increased water treatment costs could
be incurred due to these
exceedences until a Total Maximum Daily Load is implemented. The
precise, tangible nature of
the use impacts is not well described, and therefore not
disclosed, in the DEIS. A summary of
the applicable water quality criteria and the water quality
effects of the Preliminarily Selected
Outlet Alternative are summarized in Table 1 of our comments
(below).
The Corps should revise the DEIS to include an outlet operating
plan that will assure
attainment of all downstream standards. This effort would need to
consider factors affecting the
fate and transport of the parameters of concern (e.g., the
presence of Lake Ashtabula and
variable background concentrations and flows in the Red River).
Additional water quality
parameters are discussed below that should be considered in the
DEIS, to ensure that other
potentially limiting water quality criteria are identified and
evaluated.
EPA is concerned about potential water quality degradation and
exceedences of water
quality standards related to increased erosion/sedimentation and,
to a lesser degree, nutrient
loading to the Sheyenne River. Specific numeric criteria have not
yet been established for these
parameters. We are concerned that there could be significant
effects on designated uses and
exceedences of narrative water quality criteria. We are
especially concerned regarding the
effects of increased flows in the Sheyenne River on channel
shape, bank stability, sediment
transport, and
Group v. Atlantic Salmon of Maine, LLC, 2002 WL 242466 (D. Me.
2002) [recommendation of
U.S. Magistrate].
Water Quality Certification
The Corps should initiate discussions with the State of
Minnesota, as the water quality
certification provisions of CWA Section 401(a)(2) allows for a
State to request a public hearing
if it determines that a discharge may violate any water quality
requirements in that State.
Data/Information Gaps
Long-term effects on water quality need to be explained in a
revised DEIS. We are
concerned, for example, that the water quality effects of outlet
operation would be greater
beginning in the decade of the 2020’s because Pelican Lake
water quality is likely to be further
degraded over time because of a lack of fresh inflow. The Corps
needs to better address long-term
effects and fully explain them. Currently, there are some data
presented in the appendices,
but overall the DEIS does not include a clear and prominent
discussion regarding how the
outlet would affect water quality over time.
The water quality analysis included in the DEIS is focused on TDS
and sulfate and
projected water quality levels for other key water quality
parameters/criteria have not been
included (e.g., chlorides, total salinity, sodium, and specific
conductance). The DEIS should
evaluate these other parameters. Even if exceedences are most
likely for the TDS criterion
applicable to the Red River of the North, fully documenting the
expected effects of the action
requires that other water quality criteria (even those expected
to be exceeded less frequently)
should be discussed in the DEIS.
Evaluation of the potential effects to aquatic life uses would be
strengthened considerably
by including predicted chloride concentrations, to compare to the
aquatic life criteria for chloride
adopted by Minnesota. The predicted levels also could be compared
to North Dakota’s total
chlorides criterion of 175 mg/L, applicable to the Sheyenne River
(Class 1a water), and 100
mg/L, applicable to the Red River of the North (Class 1 water).
This information helps to
determine whether the downstream numeric criteria for chloride
would constrain outlet
operations.
Additional information is needed to understand how exceedences of
water-quality standards
would affect drinking water, irrigation, and aquatic life uses.
The tangible effects to drinking
water, irrigation, and other uses are not well explained. In
particular, it would be useful to
review studies that investigated the effects of the pertinent
water quality parameters on
designated uses. Emphasis should be on those parameters most
likely to exceed water quality
standards.
Wetlands
The fill material to be discharged under the DEIS’s
Preliminarily Selected Outlet Plan
(Plan) will affect “150 acres, of which 135 acres would be
in Devils Lake.” (Page 404-3,
Preliminary Section 404(b)(1) Evaluation, also referred to as the
“Evaluation.”) An
approximately 6.1-mile-long open channel, a pump station, and
approximately 16 miles of
pipeline leading to the Sheyenne River would also be built. (Page
404-1, Evaluation.) The
indirect impacts of this Plan, according to information provided
in the DEIS (though this
information was not used in the Section 404(b)(1) Guidelines
Evaluation), are estimated to be an
additional 6,000 acres of habitat, 2,100 acres of which are
wetlands. The wetland areas directly
impacted by fill activities range from 5 to 20 acres in size and
1 to 5 feet in depth and are
described as a mix of seasonally flooded and semi-permanent
wetlands, most fairly well
vegetated. (Page 404-3, Evaluation.) The fill material to be
discharged into Devils Lake in
depths ranging from 2 to 20 feet (page 404-3, Evaluation),
suggesting that there will be
additional impacts to wetlands from this activity. The wetlands
in the area of Devils Lake tend
to be relatively shallow and flat. However, impacts to wetlands,
and associated functions and
values of these resources, were not fully analyzed in the DEIS or
in the Section 404(b)(1)
Evaluation, and thus little is known as to the potential full
effects of the discharge of fill
materials into these waters and what mitigation would be required
to offset these impacts.
Clean Water Act Section 404(b)(1) Guidelines Evaluation
The Evaluation does not assess the effects of the operation of
the outlet or its related
cumulative effects, evaluate other potential practicable
alternatives, or present an adequate
mitigation proposal, and thus would not demonstrate compliance
with CWA Section 404.
Adequacy of the Information. The Evaluation does not contain
essential information
needed to formulate a proper determination on compliance. In
particular, the Evaluation does
not include necessary information, nor does it evaluate the
environmental impacts arising from
the operation of the Preliminarily Selected Outlet Plan as
required by the Section 404(b)(1)
Guidelines (hereinafter “the Guidelines”) (See 40 CFR
§230.12(a)(3)(iv).) The Guidelines
require the evaluation of the direct impacts of a proposed
project, together with the long-term
direct, indirect, and cumulative effects of a discharge and those
effects that do not result from the
actual discharge of dredged or fill material. (40 CFR §§
230.11(g) and 11(h).)
Alternatives Analysis. Inherent in performing an evaluation of
compliance under the
Guidelines is an analysis of alternatives and the determination
of the least environmentally
damaging practicable alternative, or LEDPA (40 CFR §230.10(a)).
The Evaluation does not
examine alternatives that may be practicable and that may meet
the project purpose of flood
protection. This failure to consider alternatives that may have a
less adverse affect on waters of
the United States raises concerns as to whether the LEDPA has
been selected. Although the
DEIS does discuss several alternatives, the Evaluation conducted
here provides no such analysis
specific to waters of the U.S., nor does it conclude that the
Preliminarily Selected Outlet Plan is
the LEDPA.
The Guidelines state that, “the analysis of alternatives
required for NEPA environmental
documents, including supplemental Corps NEPA documents, will in
most cases provide the
information for the evaluation of alternatives under these
Guidelines. ” (40 CFR §230.10(a)(4).)
However, as discussed elsewhere in our comments, the DEIS
provides less information on non-outlet
alternatives than that which is provided on proposals to
construct an outlet. The
information that was provided in the DEIS was not carried forward
for evaluation under the
Guidelines. The inadequacy of information provided on
alternatives in the DEIS raises concerns
as to whether the Preliminarily Selected Outlet Plan would
qualify as the LEDPA, as required by
the Guidelines.
Water Dependency. No determination has been made that the
proposed project is a water-dependent activity, as defined under
the Guidelines (40 CFR §230.10(a)(3)). In fact, the
discussion of an upland storage alternative would indicate
otherwise. The Guidelines state that
“Practicable alternatives that do not involve special
aquatic sites are presumed to be available,
unless clearly demonstrated otherwise.” (40 CFR
§230.10(a)(3).) The DEIS has not provided
this demonstration as part of the alternatives analysis. However,
in order to show compliance
with 40 CFR §230.10(a) of the Guidelines, it must documented
that the project avoids waters of
the United States to the maximum extent practicable. Thus, as
there were alternatives presented
in the DEIS which may not discharge dredged or fill material into
waters of the U.S. that were
not analyzed under the Section 404(b)(1) Guidelines and the DEIS
does not rebut this
presumption, it is inappropriate to exclude these alternatives
from the 404(b)(1) analysis.
Special Aquatic Sites. The Guidelines identify wetlands as
special aquatic sites (40 CFR§
230.3(q-1), Subpart E). The Evaluation states that individual
wetlands along the outlet
alignment will be affected by fill activities, yet later the
Evaluation indicates, “No known special
aquatic sites would be affected by the proposed fill
activities.” (Page 404-6, Evaluation.) This
inconsistency only further underscores the inadequacy of the
Evaluation.
Significant Degradation. The Guidelines state that, “No
discharge of dredged or fill
material shall be permitted which will cause or contribute to
significant degradation of the waters
of the United States.” (40 CFR §230.10(c).) The DEIS
discusses many potential adverse
impacts resulting from the construction and operation of an
outlet, most of them downstream
from the outfall structure. Some of the adverse impacts include
loss of stream bank stability due
to erosion and loss of vegetation, increased turbidity, loss of
aquatic habitat, significant changes
to aquatic life present in the Sheyenne, induced flooding,
groundwater changes, river
access/crossing effects, increased exceedences of water quality
standards, and increased water
treatment costs by downstream water users. Moreover, the DEIS
indicates that changes in water
quality constituents and nutrients in the Sheyenne would violate
North Dakota’s anti-degradation
policy. Though not analyzed in the context of the Guidelines,
Part II. H. of Appendix I reaffirms
the preliminary conclusions of the DEIS, stating, “Operation
of an outlet could result in
significant effects to aquatic and terrestrial resources in
Devils Lake, the Sheyenne River and the
Red River of the North.” (Page 404-6, Evaluation.)
Therefore, based on the information
provided in the DEIS, the EPA has concerns as to whether the
Preliminarily Selected Outlet
Plan, as proposed, would meet this provision of the Guidelines,
and further evaluation is needed
prior to a determination of compliance being made.
Mitigation
The Guidelines require that no discharge of dredged or fill
material shall be permitted
unless appropriate and practicable steps have been taken which
will minimize potential adverse
impacts of the discharge on the aquatic ecosystem. (40 CFR
§230.10(d).) The Evaluation does
not include adequate information on how the project’s
impacts would be mitigated. Although
the document provides some information on direct impacts (150
acres to water of the U.S. from
construction, according to page 404-3 of the Evaluation) and
indirect impacts (2,100 acres
adverse impacts to wetlands, according to page 5-95 of DEIS),
cumulative wetlands impacts are
inadequately assessed as they pertain to potential changes to
water quality, riparian lands
(reportedly 6,000 acres of indirect impacts, according to page
5-95 of DEIS) and biota transfer.
For example, the following statement in DEIS, on page 5-96,
acknowledges that mitigation is not
included: “Mitigation for loss of land due to erosion,
increased soil salinity, decreased crop
production, induced flooding, river access/crossing effects, and
increased water treatment costs
by water users is not included in this discussion.” Of
further concern is the difficulty to mitigate
for some impacts. The DEIS states that, “Substantial to
significant adverse impacts to aquatic
habitat availability and suitability can be expected under most
if not all of the Devils Lake outlet
options. The most sensitive habitat types, such as riffles where
shallow, fast habitats
predominate, would be almost entirely eliminated for a majority
of the year.” (Page C-38.) The
DEIS appears to indicate that some of the project’s impacts,
therefore, are not able to be
mitigated. Furthermore, the DEIS indicates that not all adverse
wetlands and aquatic impacts are
known or understood and that supplemental NEPA documentation will
be completed after
construction of the proposed outlet is completed. However, a
detailed compensatory mitigation
plan must be developed for unavoidable wetland and aquatic
resource impacts as part of
demonstrating compliance with the Guidelines.
Finally, the estimated mitigation costs in the DEIS significantly
underestimate the
downstream costs and needed mitigation, thereby overstating the
benefit-cost ratio of the outlet
alternatives. It appears that the costs for mitigation are
underestimated just based on the
documented downstream impacts that are described in the DEIS.
Additional downstream
impacts that have not been evaluated, including many water
quality impacts to downstream
communities and aquatic ecosystems, and potential impacts and
risks of the transfer of nonnative
biota in Canada’s Red River and Lake Winnipeg, as well as
the loss of aquatic habitats and
species in the Sheyenne River, could be significant in the United
States and Canada.
Monitoring
On page 5-94, the DEIS states, “Monitoring is a major
component of the proposed
mitigation package. A major purpose of monitoring is to collect
existing information and
conduct follow-up surveys of the same resources during project
operation.” This is not a
mitigation plan but rather a plan to determine whether mitigation
is possible. Unless there is a
proposal to minimize the potential adverse impacts from the
discharge to the aquatic ecosystem,
the project would not comply with the Guidelines at 40 CFR
230.10(d).
The DEIS does not describe the environmental monitoring that is
appropriate and
necessary. There should be monitoring for all expected adverse
impacts that are determined to
be significant and be tied to outlet operations. A management
indicators list should be prepared.
Indicators should include but not be limited to: flood and
groundwater levels; infrastructure
protection and risk; fish, wildlife, and vegetative species;
vegetative structure; soils; recreation
amenities; and nonnative species such as noxious weeds or alien
predators.
Reasonable Alternatives That Need Full Consideration
The Corps did not conduct a full analysis of alternatives.
Failure to evaluate all reasonable
foreseeable future actions is contrary to NEPA and associated
Council on Environmental Quality
regulations (40 CFR 1502.14) to, “Rigorously explore and
objectively evaluate all reasonable
alternatives.” The DEIS devoted substantially greater
treatment to outlet alternatives than to
non-outlet alternatives. The DEIS does not provide adequate
information to evaluate the
comparative merits of all reasonable alternatives, as required in
40 CFR 1502.14(b), nor does the
DEIS fully evaluate the adverse impacts downstream from outlet
alternatives to determine the
relative merits of all alternatives.
Upper Basin Management and the effects of combined Enhanced
Infrastructure Protection
and Upper Basin Management need more investigation to determine
cost-effective and
environmentally beneficial approaches to reduce flood risks and
damages. An alternative(s) to
evaluate future actions that may be necessary in the unlikely
event of a natural spill also should
be developed fully in the DEIS for comparison to the existing
alternatives. The Corps should
prepare a revised DEIS that considers all viable alternatives and
fully and rigorously evaluates
their effectiveness, benefits, and costs.
Upper Basin Management
Upper Basin Management should be evaluated fully for its
potential to reduce flooding and
flood damages from expected (probable) Lake levels. In the DEIS
neither its environmental nor
economic benefits and costs are fully evaluated. Agricultural
land management practices can
greatly enhance the effectiveness of Upper Basin Management and
are not identified and
evaluated in the DEIS. Wetland restoration and land management
practices that should be fully
evaluated are outlined below.
Wetlands Restoration. The Upper Basin Storage alternative
identified 200,000 acres of
intact depressions and 92,000 acres of drained depressions. The
Fish and Wildlife Service’s
(FWS) Fish and Wildlife Coordination Report (Appendix 2)
indicated that drained depressions
were underestimated in the DEIS alternative by at least 50
percent (pages 10-2 to 10-7). There
appears to be greater opportunity for wetlands restoration than
what is assessed in the DEIS
alternative. A revised DEIS should respond to the extensive
discussion on pages 10-2 to 10-7 as
to why wetlands restoration and upper basin water storage
potential are underestimated. Further,
wetlands restoration is not fully evaluated for all of the
effectiveness and benefits that could be
accomplished, only for its flood reduction impacts. There are
many other benefits associated
with improved upper basin management of water resources.
Agricultural Management Practices. Agricultural practices that
can significantly increase
consumptive water use in the Devils Lake basin are not evaluated
in the DEIS. Permanent grass
or other vegetation, for example as supported by the Conservation
Reserve Program (CRP)
acreage mentioned in the DEIS, can retain and use a great deal of
water and attenuate runoff
while providing other significant water quality and wildlife
benefits that should be evaluated in a
revised DEIS. Special attention and incentives could be proposed
to enhance the CRP in the
Devils Lake basin. Irrigation and agricultural cultivation
practices also could significantly
enhance consumptive water use if incentives are considered.
Enforcement of private wetland
easements may contribute to greater water retention during wet
years. Dry dams and other
conventional water retention structures also should be fully
evaluated for their potential to
attenuate flood flows and increase upper basin water retention.
Future Emergency Outlet
The Corps should fully evaluate an alternative to raise and
otherwise protect the natural
outlet, to be implemented in the event of an emergency Lake level
rise and natural spillover into
the Sheyenne River in the future. The alternative should evaluate
the risks of erosion of the
natural outlet and, if found to be significant, identify
protective measures to avoid a catastrophic
natural overflow event as the Corps describes an uncontrolled
natural overflow event in the
DEIS. Evaluation of all environmental and economic benefits and
costs should be included in a
revised DEIS. Such an alternative, which determines the actions
that may be necessary in the
future, would have substantial environmental benefits and be
economically efficient (i.e.,
expected benefits would be greater than expected costs). Given
the statistical unlikelihood of the
Lake reaching the elevation necessary to overflow, this
alternative also would have smaller
overall environmental risks and adverse impacts downstream even
in the unlikely event of a
natural overflow. The statement on page 1-S-6, “Since it is
unknown whether measures will be
taken to minimize erosion at the natural outlet. . .” should
be replaced with a more realistic
assessment, as stated on page 5-89, that it is reasonable to
assume that erosion protection
measures for the natural outlet would be undertaken if necessary.
Combining Alternatives for an Environmental Protection
Alternative
A combination of Enhanced Infrastructure Protection, Upper Basin
Management, and
protection of the natural outlet should be evaluated. Above we
outline the multiple benefits of
those three alternatives and how all three avoid the certain
adverse downstream environmental
impacts that would be caused by an artificial outlet and its
operation. A combined alternative
also will be more cost effective than any single alternative or
an alternative that includes an
artificial outlet and its resulting adverse impacts and
mitigation costs for downstream impacts.
Need Assessment
Based on our review of the DEIS, we have questions and concerns
regarding the
meteorological and hydrological assumptions that are being used
in the DEIS to project the
potential for a natural overflow event sometime in the future.
The purpose and need statement
on page 1-4 of the DEIS states, “The purpose of the proposed
action is to reduce the flood
damages related to the rising lake levels in the flood-prone
areas around Devils Lake and to
reduce the potential for a natural overflow event.”
The DEIS discusses and acknowledges the uncertainty associated
with forecasting Lake
levels (e.g., Table A, page 1-S-3, which provides a comparison of
past Lake level probability
estimates with actual peak stages). However, the DEIS did not
support its conclusion that
constructing an outlet can be viewed as a risk aversion insurance
policy. Several hydrological
scenarios were run to predict future Lake stages. The DEIS should
disclose how and why those
hypothetical scenarios were constructed as they were to create
various flood stages, without
being based on statistical probabilities. Modeling assumptions
and the sensitivity of the models
and outputs to those assumptions should be discussed. Because the
bulk of the DEIS addresses
the effectiveness and impacts of various outlet alternatives
under the constructed hydrological
scenarios, those scenarios create the need for the Preliminarily
Selected Outlet Plan. We found
the three scenarios confuse rather than clarify the likely future
Lake levels. As a result, the
scenarios are confusing and do not appear to justify the need for
an artificial outlet at this time.
Based on the probability-based meteorologic, hydrologic, and
economic modeling in the DEIS,
an outlet is not justified on the basis of economic or
environmental considerations.
The Wet Scenario modeled in the DEIS far exceeds the range of
precipitation data in the
historic record. As a constructed scenario without a statistical
foundation, the DEIS did not
provide an explanation of why this unlikely scenario was
projected; it appears to be constructed
to justify the need for an artificial outlet because the
probability-based data failed to justify it.
The Wet Scenario assumes the wettest seven-year cycle ever
recorded in the Devils Lake Basin
(1993 to 1997) will continue and be repeated three times over the
next 21 years. After that, the
conditions similar to those in the stochastic analysis for 1980
to 1999 will follow for the next 20
years, that period having above-average precipitation compared to
the overall historic record as
well. As the DEIS states, “While the use of a wet future
scenario may provide insight into
potential benefits of the outlet alternatives, such analysis
provides little assurance as to the
soundness of such an investment, since it is tied to the unlikely
assumption that a particular
scenario will ever occur” (page 4-40). We concur with that
assessment. A better approach
would be to provide a discussion of what climatic conditions and
runoff would be required to
reach a natural overflow event, and how small the statistical
likelihood is that such a weather
pattern and flooding events could occur.
The DEIS should rely primarily on stochastic, probability-based
analysis to predict future
flood stages. This traditional method used by the Corps to
project flood scenarios is based on the
Principles and Guidelines (Economic and Environmental Principles
and Guidelines for Water
and Related Land Resources Implementation Studies, 1983). The
DEIS points out that the
Principles and Guidelines allow for development of alternative
future conditions or scenarios in
situations where there is uncertainty. The scenario-based
analysis in the DEIS was conducted to
address potential solutions to problems in the basin if wet
conditions that exceed any period in
the basin’s history are experienced. The scenario-based
approach should explain that it is a
significant departure from the Corps’ typical flood
prediction methods. There is considerable
scientific debate about how stationary the climate is and how it
affects conditions in the Devils
Lake basin; that issue is central to determine whether a
scenario-based approach is warranted.
As such, that debate should be summarized briefly in the DEIS.
Based on the results of the stochastic analysis, the DEIS
concludes that an outlet would
reduce the chance of an overflow from 9.4 percent to 4.1 percent.
We have reviewed other
technical reports that have evaluated the risk of a natural
overflow that come to different
conclusions. On page 19 of a 1998 report prepared by the
Corps’s Institute for Water Resources,
“The Virtual Flood of Devils Lake, North Dakota,” found
that the chance for a natural spill was
only 0.4 percent, more than an order of magnitude smaller risk
than described in the DEIS. That
report further reported that an outlet would reduce the chance of
a natural spill into the Sheyenne
by only 0.2 percent. Please resolve the differences between the
DEIS and the earlier Corps’
analysis of the risks of a natural overflow.
International Issues
The DEIS understates the importance of meeting the requirements
of the Boundary Waters
Treaty of 1909 (Treaty) between the United States and Canada. In
fact, the DEIS does not
address whether proposed operations in the Preliminarily Selected
Outlet Plan meet the
requirements of the Treaty. The limited information in the DEIS
suggests that construction of an
outlet raises several significant issues with respect to the
no-harm provisions of the Boundary
Waters Treaty. For example, we are concerned with information
included in the DEIS about the
potential for increased exceedences of the water quality
objectives established at the border by
the International Joint Commission (IJC) Red River Board.
Further, we are concerned that the
DEIS does not acknowledge the IJC International Red River Board's
water quality alert levels.
These alert levels address a large number of water quality
parameters, including metals and
pesticides.
Statements that water quality changes to the Sheyenne River could
result in substantial
changes in aquatic biota (page 5-53) and concerns expressed about
biota transfer (page 5-61) and
related, unresolved operational impacts of the Devils Lake
outlet, including those to downstream
water uses, and adequate review and consideration of appropriate
mitigation measures, need to
be more fully addressed prior to project construction.
We emphasize that U.S. consultations with the federal and
provincial governments of
Canada need to take place prior to outlet construction. We
continue to support such United
States-Canada consultations, including further consideration of
the IJC being called upon to
assist the two countries. Timely and close U.S. consultation and
coordination with Manitoba and
Canada, with the assistance of the IJC, on the Devils Lake
project will also help ensure that the
United States fulfills requirements of U.S. Executive Order 13112
on Invasive Species.
The DEIS does not adequately address U.S. legal requirements to
confer with the IJC. The
IJC is a binational independent organization, chartered by the
Treaty. The IJC receives Treaty
work references from the governments of the United States and
Canada. The importance of
timely references to the IJC from the two governments should not
be underestimated.
Cumulative Impacts from Reasonably Foreseeable Future Actions
The Corps did not fully consider the State of North Dakota’s
proposed outlet at Round Lake
in the DEIS sensitivity analysis of that State outlet (page
1-S-10). Since the DEIS was released,
the Governor of North Dakota has indicated that the State intends
to proceed with its outlet. P.L.
105-62 does not appear to preclude the Corps from its
responsibility to consider a State outlet’s
cumulative environmental impacts and the effect that a State
outlet would have on the economic
and environmental feasibility of a Corps outlet. The DEIS states
that if the State actually
constructs an outlet, a decision would have to be made on whether
the future without conditions
should be reevaluated. Given North Dakota’s commitment to
proceed with its outlet, the
construction and operation of a State outlet should be considered
a reasonably foreseeable action
and evaluated in the DEIS. Reportedly, the State outlet follows
an alignment similar to the
Peterson Coulee outlet, merges with the Pelican Lake outlet, and
is sized to accommodate the
combined release of both outlets.
The Corps should evaluate the cumulative impacts from a proposed
Missouri River inlet to
Devils Lake. An inlet has important implications for Devils Lake
and especially to downstream
areas in the Sheyenne and Red Rivers. Our understanding of P.L.
105-62 is that it constrained
the Corps only from using Devils Lake study funds to examine the
feasibility of an inlet and did
not preclude the Corps from evaluating the cumulative impacts
from an inlet to Devils Lake and
to the Sheyenne and Red Rivers. Implicit in the DEIS and in the
State of North Dakota’s water
plans is an objective to operate Devils Lake as a stable
reservoir rather than as a fluctuating,
closed-basin lake. With an outlet constructed, a Missouri River
inlet would cause significantly
greater potential for downstream impacts in the Red River basin
from aquatic species not found
there that are found in the Missouri River.
Fish and Wildlife Impacts
Nonnative Species and Biota Transfer
The Corps should address how the proposed actions are consistent
with Executive Order
13112 for Invasive Species. Under that Executive Order, to the
extent practicable and permitted
by law, any Federal agency is required to identify actions that
can increase the risk of
introducing invasive species; prevent the introduction of
invasive species; and conduct research
to prevent introduction of invasive species. Further, the
Executive Order provides, to the extent
practicable and permitted by law, that Federal agencies not
authorize, fund, or carry out actions
that are believed likely to cause or promote the introduction or
spread of invasive species in the
United States or elsewhere unless, pursuant to guidelines that it
has prescribed, the agency has
determined and made public its determination that the benefits of
such actions clearly outweigh
the potential harm caused by invasive species; and that all
feasible and prudent measures to
minimize risk of harm will be taken in conjunction with the
actions.
EPA requests that additional information be provided in a revised
DEIS, prior to decisions
regarding the project and how to avoid and mitigate its potential
downstream impacts from
nonnative biota. For example, there is a lack of good fish health
information on species in both
the Rivers and Lake (Appendix C). The older literature used (all
references and reports) are
inappropriate sources for current fish health conditions.
Significant parasites and pathogens
have been introduced in the Lake and rivers. The Corps indicated
that fish pathogen and parasite
surveys are being conducted, but in any survey those species that
are detected are generally those
that are sought. It would be helpful if a revised DEIS notes what
techniques are used to do
pathogen and parasite surveys.
A revised DEIS should assess concerns about those species that
are present in the Sheyenne
and Red Rivers but not found in Devils Lake. At a minimum, those
fish and invertebrate species
that are potentially more sensitive to environmental change
should be evaluated for the potential
impacts on them from later water releases. There could be many
parasite species, particularly
the myxosporidians and digenetic trematodes, present in their
intermediate hosts in Devils Lake
and not causing fish health problems because the fish host is not
present. However, release of
water containing these intermediate hosts could initiate severe
disease problems for the riverine
fishes downstream. Fish parasites occurring in Devils Lake that
have not been found in the
Sheyenne and Red Rivers include Gyrodactylus hoffmani and Ligula
intestinalis, and no analysis
or discussion of the potential risks from those parasites is in
the DEIS.
A further aspect of the fish health issues is the potential
“accumulation” of infective parasite
stages or other microbial pathogens in the Lake environment. The
finer-sediment, higher-nutrient,
lower-flow environment of a lake may be conducive to large
populations of an
intermediate host for a tubifex worm, for example. Hence, large
numbers of an infective spore
can be present in water releases from lakes, causing high
infection rates and death of fish
downstream. There are differences in worm populations in terms of
their ability to become
infected by the spores and the numbers of infective spores
produced. Environmental alterations
could change the population makeup of benthic organisms that act
as intermediate hosts; habitat
changes could have significant effects. Information indicates
that environmental stress upsets
the balance between a host and a “good” parasite (one
that does not seriously impact or kill its
host) and stressing fish with poorer water quality or increasing
parasite numbers could
significantly alter the effects on host fish.
The Corps failed to address the nonnative biota risks associated
with any future inlet from
the Missouri River. While not part of the outlet discussion, the
Corps should address the
ongoing studies by the Bureau of Reclamation that are authorized
by the Dakota Water
Resources Act in the cumulative impacts section of a revised
DEIS. Many important nonnative
species, such as zebra mussel (Dreissena polymorpha Pallas), may
be introduced or enhanced in
Devils Lake if a Missouri River inlet were constructed. Control
of zebra mussel and other
environmentally- and economically-damaging, nonnative species has
proven difficult and
ineffective. Important species that are nonnative and invasive
and for which no extensive survey
was conducted (page C-62) in the Sheyenne River include Eurasian
water milfoil (Myriophyllum
spicatum Linnaeus) and purple loosestrife (Lythrum salicaria
Linnaeus, Lythrum virgatum
Linnaeus). A Missouri River inlet could significantly change the
Red River’s ecosystems by
introducing native and nonnative Missouri River fish species,
including the Asian carp species
such as the silver carp (Hypophthalmichthys molitrix
Valenciennes) and zander (Stizostedion
lucioperca). In 1989, North Dakota planted over 1,000 fingerling
zander in Spiritwood Lake
near Jamestown, ND. Zander reproduction was documented there in
1999, after that lake
overflowed in 1997. As the DEIS points out (page C-66), there is
no effective means to ensure
that outlet operations could be mitigated to ensure that
nonnative species would be precluded
from the Red River basin.
More complete information is needed for an inlet and other
reasonably foreseeable future
actions. Complete disclosure is needed to determine whether there
are significant long-term
risks from nonnative biota to the Red River system and downstream
ecosystems that could result
from the indirect and cumulative effects of a Devils Lake outlet
and water diversion proposals.
Wildlife Habitat Effects and Biodiversity
Further analysis and disclosure of adverse impacts to aquatic
life are needed. All outlet
alternatives would cause unavoidable, significant, adverse
impacts to downstream fish and
wildlife (Appendix 2). Numerous statements in Appendix C indicate
that those impacts will be
difficult or impossible to mitigate if outlet operations proceed
(e.g., pages C-38 to C-40).
Aquatic life stressors from outlet operations or a natural
overflow event that are mentioned
include increased erosion and TDS, chlorides, nutrients, algal
concentrations, dissolved oxygen
concentrations, CO2 concentrations, pH, alkalinity,
carbonate-bicarbonate balance, and habitat
losses (Appendix C). Adverse aquatic life impacts are noted to
persist for many years. Data
were provided only for a few constituents and stressors (i.e,
TDS, nutrients, and some habitat
losses). Some aquatic species that are adversely and
significantly impacted may be significant
components (e.g., mussel spp.) necessary for ecosystem health and
functions. Those functions
and their values are not evaluated in the DEIS.
Proposed planning to avoid adverse impacts and mitigation for
unavoidable adverse impacts
is needed in the DEIS. Mitigation is needed for outlet operations
and their significant adverse
impacts that are noted to aquatic species and to both rare and
more common species of small
mammals, birds, reptiles, and other native wildlife.
The DEIS should recognize and analyze the sub-lethal effects to
fish populations and other
aquatic life that could be expected in the Sheyenne and Red
Rivers. Impacts will occur through:
loss of habitat; loss of host fish species for the glochidia; and
potential sub-lethal stress effects of
increased dissolved solids, sulfates, chloride and other
constituents. A revised DEIS should
examine the impacts to aquatic life from all of these sub-lethal
effects.
There are statements in Appendix C that threshold levels of some
aquatic species would be
approached with outlet operations but that no significant effects
are anticipated. We are unsure
what thresholds are referred to there. If constituent elements
are expected to approach toxic
thresholds, sub-lethal effects to aquatic life should be
anticipated and therefore evaluated as they
could influence the growth, survival, and reproduction of aquatic
species.
The DEIS does not recognize that the addition of stressors such
as TDS, chloride and
sulfides could lead to excessive proliferation of these potential
pathogens and ultimately disease
problems for aquatic life. For instance, TDS can affect the gills
of fish (and probably mussels)
through irritation, stimulation of mucus production, and clogging
that can lead to bacterial gill
disease, various protozoal infections of gills, and so forth,
when those organisms have been
allowed to proliferate.
We suggest analyzing the fish for mercury if there is reason for
concern. There is a
statement on page C-74, paragraph 2, “Mercury accumulation
is of particular concern, as methyl
mercury levels in Red River fish are currently high, and
additional methyl mercury could be
released in newly flooded areas.” Summary data for this
pollutant should be included in the
DEIS for current levels of methyl mercury (from reference
provided, Brigham et al. 1998). Low
pH is an important factor in converting mercury to methyl
mercury, and pH values are not
provided in the DEIS. Additional information is needed to
reasonably conclude that mercury is
not a significant concern associated with operating a Devils Lake
outlet.
Outlets should be evaluated for their impacts from long-term
operations. The DEIS should
note that the State of Minnesota has identified segments of the
Red River as impaired, based on
biological measures. Outlet operation may further impair those
segments in the future, but data
beyond 20 years were not presented. More saline water would be
pumped out of the Devils Lake
Basin after 20 years, and this data gap leads to underestimation
of long-term downstream
impacts. Operation of an outlet over time would result in
increases in the magnitude, frequency,
and duration of elevated water quality contaminant exceedences
for TDS and sulfate. In
addition, nutrients such as phosphorus are expected to contribute
to degraded water quality
downstream.
Economic Evaluation
Economic Justification
No outlet alternative considered was economically justified
(i.e., had estimated benefits that
exceed the estimated costs) using the Corps planning guidance and
their Principles and
Guidelines criteria to evaluate the National Economic Development
(NED). The Corps
understated the adverse impacts downstream to economic and
natural resources. Because the
economic evaluation underestimates those impacts it, therefore,
understates the actual costs for
an outlet. Benefits are overstated because they are projected for
50 years of operations, while the
Corps concedes that operations may have to be constrained only to
the “current emergency
situation,” to meet water quality standards. Given the
underestimate of costs and the slight
overestimate of benefits, the B/C ratio actually is lower,
probably significantly so, than what is
reported in the economic evaluation of the DEIS. Many reasonably
measurable costs and
benefits are not estimated for all alternatives. Benefits appear
to be underestimated for non-outlet
alternatives and costs appear to be underestimated for outlet
alternatives. Because of those
shortcomings, the B/C decision criterion in the DEIS (i.e., B/C
greater than 1) is flawed.
Underestimated Costs for Outlet Alternatives
Real costs are understated for each outlet alternative because
the Corps’ NED approach
does not incorporate many, and perhaps most, adverse
environmental impacts to express them in
dollars. The relatively small costs reported for mitigation costs
downstream do not include the
likely costs from losses and damages to many natural resources.
Nor are any adverse impacts to
Canadians and Canada’s natural resources evaluated in the
DEIS; the reviewer has no
information to determine whether they are significant.
Another underestimated cost is outlet operations. The DEIS
indicates that operating and
maintenance costs are not included in the cost analysis because
those costs will be borne by the
project sponsor (page B-54). EPA has not seen previous projects
where the incidence of costs
was distributed in a way to remove them from the project costs.
Nearly all of the project costs
are born by downstream water resources and user groups. All
benefits of an outlet accrue to the
local community and are included in calculations of benefits. All
NED benefits and costs should
be arrayed for evaluating the project efficiency and to determine
the benefit-cost criterion for
decision-making, as directed in the Corps planning guidance and
Principles and Guidelines.
Underestimated Benefits for Non-Outlet Alternatives
The Upper Basin Water Management alternative has environmental
benefits that are not
measured in dollars nor quantified or described in the DEIS.
Therefore, many benefits are not
incorporated for that alternative. Upper Basin Management not
only reduces adverse water flow
and quality impacts to Devils Lake, it also avoids the adverse
downstream water-quality impacts
associated with outlet alternatives. Hence, because many
environmental benefits are not
quantified for Upper Basin Management, the B/C ratio and overall
effectiveness using the NED
criterion is underestimated for the alternative.
Similarly, the Enhanced Infrastructure Measures have social and
economic benefits that are
not quantified, described, nor expressed in monetary terms and
that alternative would avoid the
adverse downstream impacts to human and natural communities. Many
benefits are not
quantified and those Measures avoid many adverse downstream
impacts that are associated with
outlet alternatives. Therefore, the economic efficiency of
Enhanced Infrastructure Measures is
greater than what is reported in the DEIS. The same benefit and
cost arguments can be made for
the Raise the Natural Outlet alternative as for the other two
non-outlet alternatives.
We are uncertain what the current flood protection level to
evaluate flooding costs avoided
in the DEIS. This is important in the calculation of benefits
under each alternative and should be
clarified. The DEIS should also clarify that the Corps did not
include the fixed costs associated
with infrastructure measures that will be undertaken regardless
of Lake elevation.
Net Economic Benefits Criterion
The DEIS fails to show an important economic decision criterion,
“net economic benefits.”
That should be used with the B/C ratio, particularly for this
proposed project(s) with its negative
B/C ratio. An outlet is less economically efficient than
non-outlet alternatives using net
economic benefits. If all downstream impacts, including those in
Canada, are properly
accounted for, the net economic benefits criterion would prove
stronger for the Upper Basin
Management, Enhanced Infrastructure Measures, and Raise the
Natural Outlet alternatives.
Using “Scenarios” to Justify Alternatives
Selecting scenarios to evaluate the alternatives, the Corps uses
assumptions that are not
related to real-world stochastic risks or analysis. Hence, the
benefits and costs are not based on
expected values but are inflated by unlikely events. Table B
(page 1-S-4) compares the
stochastic B/C ratio to scenario-based B/C ratios (which are not
probability-weighted). This
difference inflates the wet scenario-based ratios because they
are assumed to have a “100%
chance” of occurring. The statistical or theoretical
foundation for the assumptions used to arrive
at B/C ratios greater than one under wet or high lake-level
scenarios is unclear and appears to be
unjustified. Those assumptions need to be clarified. The Dry
scenario was not fully evaluated to
show the low end of the range for potential economic effects.
Distributional Impacts Not Disclosed
The DEIS does not disclose the inequities associated with the
distributional impacts from
the Preliminarily Selected Outlet Plan Alternative and other
outlet alternatives. Many more
people live downstream of Devils Lake compared to the population
of potential beneficiaries of
an outlet. The large majority of impacts to those downstream, who
are affected adversely, are
not quantified or monetized. Those impacts include adverse
effects on recreation and tourism for
activities like recreational fishing and other nature-based
recreation, and for the impacts from the
poorly understood adverse impacts to native aquatic species and
habitats and nearby terrestrial
resources. Again, no impacts to the large population of Canadians
and their natural resources are
evaluated in the DEIS. Further, as indicated previously,
potential negative impacts across the
Canadian border are not adequately evaluated in the DEIS.
Environmental Quality Impacts
All environmental quality impacts (the “EQ” account in
the Corps’ parlance using the
Principles and Guidelines) should be quantified where possible,
and expressed in monetary
terms, where possible, to fully understand the economic impacts
of an outlet on downstream
resources. EQ effects are not described nor compared in the
economic analysis and results.
According to the DEIS, those EQ impacts are not included in the
B/C ratio decision criteria.
Hence, the NED decision criterion ignores many adverse impacts
and, therefore, environmental
costs to downstream resources. Only mitigation costs are
incorporated as downstream costs in
the DEIS; that is not an appropriate measure of those costs
because the adverse downstream
impacts are not eliminated by the known mitigation measures and
probably could not be avoided
or mitigated after an outlet were completed and operating. Those
costs include impacts from
water-quality degradation, losses or degradation of aquatic and
terrestrial habitats, losses of rare
and native aquatic populations and possibly species, and
potential losses of cultural resources.
They also would include costs downstream in Canada, which are not
evaluated.
Regional Economic Damages
“RED” is defined as “Regional Economic
Damages” under “the Corps’ standard
damages/benefits” (page B-9). We are familiar with RED in
the Principles and Guidelines
referring to “Regional Economic Development.” Please
clarify the definition of RED if it is
incorrect. The example used is, “Prime examples (of RED) are
the impacts of flooding on the
region’s businesses, and on the $50 million per year
recreation industry.” The DEIS states that
those impacts are not accounted for in the Economic Analysis
(page B-9). Those damages
should be in the NED assessment of monetized impacts from Lake
flooding and explicitly
expressed as NED benefits for Enhanced Infrastructure Measures in
Appendix B, if those
Measures protect those human uses. That should be removed as an
example of RED if it already
is part of the NED accounting of damages to recreation and
business. Our understanding of RED
is that it measures regional transfers of income that are not
captured in NED benefits and costs.
There is inadequate information for a fully-informed decision
based on the Corps’ benefit-cost
criteria. However, the existing economic information
overwhelmingly concludes that any
outlet alternative would be an economically inefficient use of
public resources. The other
alternatives warrant greater attention to reduce economic losses
for those affected downstream.
Analysis should answer the broad questions of how to best protect
human, natural resource, and
environmental values. A reasonable way to compare monetary and
non-monetary impacts is a
matrix that describes all impacts from all alternatives.
Tribal / Environmental Justice Effects
E x e c u t i v e O r d e r 1 2 8 9 8 a n d i t s a c c o m p a n
y i n g m e m o r a n d u m h a v e a
p r i m a r y p u r p o s e t o e n s u r e t h a t , “ e a
c h F e d e r a l a g e n c y s h a l l
m a k e
a c h i e v i n g
e n v i r o n m e n t a l
j u s t i c e p a r t o f i t s m i s s i o n b y
i d e n t i f y i n g a n d a d d r e s s i n g ,a s a p p r o p
r i a t e ,d i s p r o p o r t i o n a t e l y h i g h a n d a d
v e r s e
h u m a n
h e a l t h o r
e n v i r o n m e n t a l
e f f e c t s o f i t s
p r o g r a m s ,
p o l i c i e s ,a n d a c t i v i t i e s o n m i n o r i t y p
o p u l a t i o n s a n d
l o w -i n c o m e
p o p u l a t i o n s .
” The Council on Environmental Quality (CEQ) has provided a
document to federal
agencies that spells out six principles for use in doing an
environmental justice (EJ) analysis
under the National Environmental Policy Act (NEPA). See,
CEQ’s EJ Guidance Under NEPA,
12/10/97. The DEIS lacks an in-depth EJ analysis, as explained
below using five of the six
principles of analysis.
(1) Composition of Affected Area
The DEIS should indicate how low income is defined and how those
populations are
determined, including demographic factors (e.g., race, ethnicity,
low-income status, older and
younger populations). No demographic analysis was completed for
the Spirit Lake Nation or
aboriginal peoples dependent on fish and other resources
downstream on Lake Winnipeg. Broad
generalizations were made about disproportionate impacts that may
or may not occur to minority
populations without discussing what these disproportionate
impacts may be and the effect that
they may have on the health or environment of the identified
group.
(2) Relevant Public Health Data
No specific analysis of the human health and risk factors was
completed relevant to the
environmental justice populations in North Dakota or Manitoba,
Canada.
(3) Cultural, Social, Occupational, Historical or Economic
Factors
There is no analysis specific to identified EJ communities. For
example, there is no
discussion about the health effects of this action on fish or
humans who consume them or about
the significance of subsistence hunting and fishing by tribal
members of the Spirit Lake Nation.
Under NEPA, the “differential patterns of consumption of
natural resources” are to be examined
for EJ communities.
Economic factors of the individuals in a specific EJ community
may exacerbate risks. The
economic condition of the community at large may result in
situations that preclude the local
government’s ability to protect adequately the population or
may promote the acceptance of
disproportionately high and adverse effects. Protection from
adverse impacts to existing or
potential domestic water supply and to sewage facilities should
be addressed, if appropriate.
There is no discussion or evaluation of the impacts to EJ
communities in Canada. Lake
Winnipeg supports a large and significant commercial,
recreational, and subsistence fishery.
Many aboriginal people live around Lake Winnipeg and depend on
its fishery for their livelihood
and for subsistence fishing. Any significant threats from
nonnative biota introduced to Lake
Winnipeg and its fishery resources should be discussed.
(4) Effective Public Participation
Not all studies cited in the EIS were available for review.
Access of EJ community
members to the decision-making process should be more fully
discussed. Consideration should
be given to the clarity and accuracy of presentations to the
community and whether non-written
materials, such as videos and non-English translators, are
needed. Coordination with the Spirit
Lake Nation is mentioned but their specific involvement with the
DEIS is not discussed.
(5) Tribal Government-to-Government Representation
Issues such as the Federal government’s trust responsibility
and treaties that may affect the
Spirit Lake Nation and its water rights are not discussed.
Intergovernmental issues with
Manitoba, Canada and the impacts to aboriginal populations on
Lake Winnipeg and elsewhere in
the Province are not discussed. Treaty-protected resources,
cultural use of natural resources
and/or protection of specific Tribal sacred or cultural sites are
not discussed.
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