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COMMENTS ON STATEMENTS BY

NORTH DAKOTA SENATOR KENT CONRAD IN HIS LETTER

TO THE GREAT LAKES COMMISSION REGARDING

THE COMMISSION'S JANUARY 23, 2003, LETTER TO SENATORS

URGING SUPPORT OF SENATOR MCCAIN'S AMENDMENT ON

THE DEVILS LAKE OUTLET IN THE

OMNIBUS APPROPRIATIONS BILL FOR FISCAL YEAR 2003

Prepared by Gary Pearson

January 30, 2003

Statement by Senator Kent Conrad:

“First and foremost, your assertion that the Devils Lake outlet is an interbasin transfer is completely off the mark. The outlet is not an interbasin transfer. The Devils Lake Basin is a sub-basin of the Red River-Hudson Drainage Basin. Historically, at least four times in the past several centuries, Devils Lake has overflown (sic) uncontrolled into the Hudson Bay drainage:

Comment

Senator Conrad is correct that, geologically, the Devils Lake Basin is a sub-basin of the Red River-Hudson Bay Drainage Basin, and that geologic evidence indicates that Devils Lake has overflowed naturally to the Sheyenne River four times in the last 5,000 years, with the last overflow occurring approximately 1,000 years ago (Murphy, et al., 1997). However, his statement neglects to consider that, today, Devils Lake is very different biologically from the Devils Lake that overflowed naturally in the geologic past.

Beginning in 1956 and continuing through 2002, the Devils Lake fishery was restored and has been supplemented by the stocking of northern pike, walleyes, yellow perch, black crappies, white bass, striped bass and muskellunge, with many of those fish stocks originated from areas outside of the Hudson Bay Basin, including the Missouri River Basin and the Atlantic Coast (North Dakota Game and Fish Department). For example, beginning in 1967 and continuing through 2000, 138 stockings, including over 12.4 million walleyes, 2.7 million northern pike and 57,000 yellow perch—a total of over 15 million fish—were made from the Garrison Dam National Fish Hatchery on the Missouri River into Devils Lake (North Dakota Game and Fish Department). In addition to the 15 million fish, tens of thousands of gallons of untreated Missouri River water in which the fish were transported also were discharged into Devils Lake

Then, as the fishery flourished from the 1980s to the present, Devils Lake has attracted increasing numbers of fishermen from throughout the Upper Midwest, resulting in thousands of boats, boat trailers and bait buckets from areas outside the Hudson Bay Basin coming to Devils Lake every year, increasing further the potential for the introduction of biota not found elsewhere in the Hudson Bay Basin.

Consequently, although the Devils Lake Basin is geologically a sub-basin of the Red River-Hudson Bay Basin, biologically, the Devils Lake outlet represents interbasin transfers from several drainage basins outside the Hudson Bay Basin.

Statement by Senator Kent Conrad:

“Second, although your letter devotes a great deal of time to the Dakota Water Resources Act (DWRA), this project is completely separate and unrelated to the DWRA.”

Comment:

The April 1990 “Summary Devils Lake Stabilization Briefing Report” prepared by the North Dakota State Water Commission and State Engineer, the North Dakota Game and Fish Department, the Garrison Diversion Conservancy District, and the North Dakota State Health Department in cooperation with the United States Army Corps of Engineers, the Bureau of Reclamation and the United States Geological Survey concluded that:

“The only logical water source [for stabilizing water levels in Devils Lake] is the Missouri River using the Garrison Diversion Unit Project.” (North Dakota State Water Commission, et al., 1990)

When an amendment was introduced to the Senate Energy and Water Development Fiscal Year 1998 Appropriations Bill prohibiting the Secretary of the Army from using any of the funds appropriated for the Devils Lake outlet to study the feasibility of stabilizing the lake through an inlet transferring water from the Missouri River Basin, North Dakota Governor Edward T. Schafer and the North Dakota House and Senate majority leaders sent letters on August 1, 1997 to Speaker of the U. S. House of Representatives Newt Gingrich and to U. S. Senate Majority Leader Trent Lott stating, in part:

“The amendment permanently gives up all claim to federal dollars for construction of an inlet to Devils Lake. Abandoning for all time the possibility of an inlet runs contrary to the statewide water development plan, which envisions stabilization of Devils Lake. It represents a significant statewide policy shift, made suddenly at the Congressional level with minimal input form North Dakota.

In negotiations with North Dakota's Congressional delegation, state leaders and the conservation community, we agreed to separate the issue of an emergency outlet from the longer-term question of an inlet. The amendment seems to recombine the two issues.

There are no immediate plans to build an inlet to bring Missouri River water into Devils Lake. The conditions do not require it. Five years ago Devils Lake was a shrinking body of water in danger of losing its multimillion dollar fishery. That situation may occur again. Stabilization of Devils Lake is essential for the long-term economic health of the region and our state.

...

We ask that you consider alternative language that provides funding for an emergency outlet while not shutting the door permanently on an inlet...

The Devils Lake region desperately needs construction of an emergency outlet. At the same time, North Dakota cannot afford to abandon the possibility of an inlet some time in the future.”

A September 11, 1997, story in The Bismarck Tribune headlined “N.D. senators push for emergency inlet” reported that:

“Sens. Byron Dorgan and Kent Conrad wrote a letter to Sen. Christopher Bond, R. Mo., in an effort to muster support for an outlet to the lake and to change a bill to allow an inlet if the lake level falls too low...

...

Their letter to Bond suggested an emergency inlet `if conditions warrant' could be allowed in the future...

`It's clear the inlet without restrictions is not going to sail,” Conrad said. “There is great resistance to it.

An `emergency inlet' option is the only one opponents may buy, Conrad said.

...

An inlet most likely would be supplied by Missouri River water, which Bond opposes...

...

Conrad and Dorgan said Congress could revisit the issue in the future and approve funding for an inlet...”

Then on September 26, 1997, the Governor and the North Dakota House and Senate majority leaders sent letters to North Dakota Senators Conrad and Dorgan and Congressman Pomeroy stating, in part:

“A ban on the inlet is an extremely high price to pay for the outlet language. An inlet is important to ensure the long-term economic stability of the Devils lake [sic] region, and is a significant component of our state's water-development plan. Strong support still exists for an inlet in the region...

...

Everything possible must be done to keep the inlet viable in Congress as a long-term option. We ask that this letter be included as part of the legislative history that should emphasize the state's interest in revisiting an inlet when the circumstances dictate...”

On the same day a September 26, 1997, story in The Forum (Fargo, N.D.) headlined “Panel approves $5 million for Devils Lake outlet' reported that:

“One casualty of Wednesday's decision, though is a Devils Lake inlet, which was not funded. State and local officials have long argued that an inlet is as badly needed as an outlet, for the inevitable day when Devils Lake returns to its drought-stricken stage of the early 1900s.

`We know the day will come when dry weather returns to the region and the lake level will drop dramatically,' Gov. Ed Schafer, a Republican, said Thursday.

...

Dorgan said he will bring back the inlet in future sessions, but for now, he said, the outlet is needed.”

Statement by Senator Kent Conrad:

“Third, contrary to your assertion, the Corps will complete a benefit-cost analysis appropriate to this closed basin lake flooding situation.”

Comment:

The language of the Senate Energy and Water Development Appropriations Bills dealing with appropriations for the Devils Lake outlet for Fiscal Years 1998 through 2002 required that, before funds could be expended on construction of the outlet, the Secretary of the Army first had to report to the Congress that the outlet was “economically justified,” and it specified that:

“The economic justification for the emergency outlet shall be prepared in accordance with the principles and guidelines for economic evaluation as required by regulations and procedures of the Army Corps of Engineers for all flood control projects, and that the economic justification be fully described, including the analysis of benefits and costs, in the project plan documents.”

In the amendment to the Fiscal Year 2003 Senate Energy and Water Development Appropriations Bill which was incorporated in the Fiscal Year 2003 Senate Omnibus Appropriations Bill, the requirement that the Secretary of the Army must first report to the Congress that the outlet is “economically feasible” was deleted, and the language regarding the economic justification was changed simply to:

“That the justification for the emergency outlet shall be fully described, including an analysis of the benefits and costs, in the project plan documents.”

Thus, the Omnibus Appropriations Bill exempts the Devils Lake outlet from a determination that it is economically justified, and it simply requires that an analysis of the benefits and costs be fully described in the project plan documents.

Finally, even before the benefits and costs have been described in the project plan documents, the Senate Fiscal Year 2003 Omnibus Appropriations Bill authorizes $5,000,000 for “construction of an emergency outlet from Devils Lake, North Dakota, to the Sheyenne River, at an estimated total cost of $100,000,000.” Thus, the Senate Omnibus Appropriations Bill attempts to authorize the outlet through the appropriations process by authorizing appropriations of $100,000,000 for the project.

Statement by Senator Kent Conrad:

“Fourth, the language in the Omnibus Appropriations bill does not eliminate the need for the Corps to complete an environmental impact analysis. The language clearly states that the project must comply with the National Environmental Policy Act.”

The January 23, 2003, letter from the Great Lakes Commission stated that the amendment to the Omnibus Appropriations Bill for 2003 “bypasses needed environmental analysis.” However, in the preceding paragraph, the letter expressed concerns about the outlet facilitating the introduction of aquatic nuisance species and chemical contaminants into the receiving basin, the elimination of provisions protecting Canada's interests, such as requirements for consultation, weakening of the U. S. Federal oversight role by transferring authorities to North Dakota officials, and ignoring the long standing concerns expressed by the International Joint Commission.

The language of the Senate Energy and Water Development Appropriations Bills for Fiscal Years 1998-2002 specified that, before funds could be expended on construction of a Devils Lake outlet, the Secretary of the Army first must report to the Congress that the project is “environmentally sound and in compliance with the National Environmental Policy Act.” That same language is retained in the Senate Fiscal Year 2003 Omnibus Appropriations Bill. However, the Corps of Engineers' draft Environmental Impact Statement for the outlet does not address substantively the introduction of aquatic nuisance species and the long-standing concerns of the International Joint Commission regarding such introductions.

Statement by Senator Kent Conrad:

“Not only must the outlet comply with NEPA, it must be in compliance with the Boundary Waters Treaty with Canada... In cooperation with the State Department, we have tried to engage the Canadian Government and the Province of Manitoba in discussions on this project. To date, they have flatly refused.”

Comment:

The language of the Senate Energy and Water Development Appropriations Bills for Fiscal Years 1998-2002 specified:

“That the plans for the emergency outlet shall be reviewed and, to be effective, shall contain assurances provided by the Secretary of State, after consultations with the International Joint Commission, that the project will not violate the requirements or terms of the... `Boundary Waters Treaty of 1909.'” (Emphasis added)

This language has been changed in the Fiscal Year 2003 Senate Omnibus Appropriations Bill, by eliminating “after consultations with the International Joint Commission,” to:

“That the plans for the emergency outlet shall be reviewed and, to be effective shall contain assurances provided by the Secretary of State, that the project will not violate the... `Boundary Waters Treaty of 1909.'”

Thus, under the language of the Senate Fiscal Year 2003 Omnibus Appropriations, Bill compliance of the outlet with the Boundary Waters Treaty of 1909 will be determined solely and unilaterally by the Secretary of State, with no provision for consultation with the Government of Canada or the International Joint Commission.

It should be noted in this context that, in an undated letter responding to a March 10, 1998, letter from John H. Zirschky, the Acting Assistant Secretary of the Army for Civil Works, regarding consultations with Canada on the Devils Lake outlet, Acting Assistant Secretary of State for European and Canadian Affairs E. Anthony Wayne stated, in part:

“We fully intend to carry out the consultations specified in the legislation. As you know, the Boundary Waters Treaty provides the principles and mechanisms to help prevent and resolve disputes, primarily those concerning water quantity and water quality along the border between Canada and the United States. As we have discussed with your staff, in order to determine the applicability of the Treaty's provisions, we will need to provide the IJC the details of the Corps of Engineers' plans, and the results of the Corps' environmental assessment, now in progress. When the Corps has completed its requirements under NEPA and has forwarded those results to the Department of State, we will be in a position to approach the IJC to undertake the necessary consultations.” (Emphasis added).

The Corps of Engineers released its Draft Devils Lake, North Dakota, Integrated Planning Report and Environmental Impact Statement in February 2002. The Government of Canada and the Province of Manitoba submitted extensive comments on the draft Environmental Impact Statement in May, 2002. The Corps of Engineers has not yet released its final Environmental Impact Statement on the Devils Lake outlet.

REFERENCES

Murphy, Edward C., Ann M. K. Fritz and R. Farley Fleming. 1997. The Jerusalem and Tolna

Outlets in the Devils Lake Basin. North Dakota Geological Survey, John P. Bluemle,

State Geologist. Report of Investigation No. 100. 36 pp.

North Dakota State Water Commission, State Engineer, North Dakota Game and Fish

Department, Garrison Diversion Conservancy District and North Dakota State Health Department. 1990. Summary Devils Lake Stabilization Briefing Report. 18 pp.

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