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The Minnesota Center for Environmental Advocacy (“MCEA”)

Via Electronic Mail

TO: District Engineer, St. Paul District, U.S. Army Corps of Engineers

C/O: Dave Loss, david.c.loss@usace.army.mil

Re: Comments of the Minnesota Center for Environmental Advocacy on the Draft Integrated Planning Report / Environmental Impact Statement for the Devils Lake, North Dakota, Study.

The Minnesota Center for Environmental Advocacy (“MCEA”) is pleased to submit the following comments on the Corps of Engineers’ Draft Integrated Planning Report / Environmental Impact Statement for the Devils Lake, North Dakota, Study (“DEIS”). The DEIS has numerous flaws and deficiencies, as outlined in more detail in our comments. Nonetheless, MCEA agrees with the key conclusion of the DEIS: “The outlet plan that has been preliminarily selected for design [the Pelican Lake 300 cubic feet per second outlet] is not economically justified using methods that would determine the expected benefits by producing probability-weighted benefits and costs.” (DEIS p. 1-S-7)

Based on the environmental and economic research and analysis contained in the DEIS, it is clear that the Pelican Lake outlet would have significant environmental impacts and the cost of the plan is not justified by the likely benefits. Further, other alternatives, notably increasing upper basin water storage through restoration of wetlands, would substantially reduce the problems associated with rising lake levels, while at the same time bring an environmental benefit at a reduced cost to taxpayers.

MCEA is concerned about the environmental and economic problems associated with rising water levels in Devils Lake, most notably the impact on the surrounding communities. The complexity of these problems, as well as the significant public expenditures and potential environmental impacts implicated in the Pelican Lake outlet plan, warrant more detailed and thorough analysis. MCEA looks forward to continuing to work with the Corps and other stakeholders to address these problems in the most cost-efficient and environmentally responsible manner.

Comments of the Minnesota Center for Environmental Advocacy on
the Draft Integrated Planning Report / Environmental Impact Statement
for the Devils Lake, North Dakota, Study

Submitted to U.S. Army Corps of Engineers
District Engineer, St. Paul District

Introduction

The Minnesota Center for Environmental Advocacy (“MCEA”) submits the following comments on the Corps of Engineers’ Draft Integrated Planning Report / Environmental Impact Statement for the Devils Lake, North Dakota, Study (“DEIS”). While MCEA recognizes that the Corps did grant a short extension for comments on the DEIS, the brief time period simply does not allow for a thorough technical analysis of the complex issues presented in the report. Thus, MCEA’s comments focus on the general flaws in the Corps’ analysis and the areas of controversy, unresolved issues, and conclusions. MCEA also supports and expressly incorporates by reference the submitted comments of the National Wildlife Federation, the Minnesota Department of Natural Resources, the Minnesota Pollution Control Agency, the Minnesota Department of Health, and the Joint Canadian Comments (submitted by Environment Canada, Fisheries and Oceans Canada, and Manitoba Conservation).

The DEIS has numerous flaws and deficiencies, and is inadequate for satisfying the requirements of the National Environmental Policy Act (“NEPA”). The flaws and deficiencies include:

failure to adequately address issues identified in the EIS scoping document and of concern based on public comments;
inappropriate tiering of environmental impacts and failure to adequately consider cumulative impacts;
failure to adequately consider the causes of the rising water levels in Devils Lake;
failure to adequately consider environmental impacts of the Pelican Lake outlet;
failure to adequately consider all reasonable alternatives;
failure to use the best scientific analysis in considering the “wet future scenario.”

Despite the overall inadequacy of the DEIS, it does reach a key conclusion supported by MCEA: “The outlet plan that has been preliminarily selected for design [the Pelican Lake 300 cubic feet per second outlet] is not economically justified using methods that would determine the expected benefits by producing probability-weighted benefits and costs.” (DEIS p. 1-S-7).

Given the inadequacy of the DEIS, and the environmental impacts and cost-benefit ratio of the Pelican Lake outlet, MCEA recommends that the Corps continue to study and evaluate alternatives to address the fluctuating water levels in Devils Lake, notably upper basin water storage and wetland restoration, along with continued structural protections.

1. The DEIS fails to adequately address issues identified in the EIS scoping document and of concern based on public comments.

“Draft environmental impact statements shall be prepared in accordance with the scope decided upon in the scoping process.” 40 CFR 1502.9(a). The Corps’ failure to adequately address issues identified in the EIS scoping process, coupled with the failure to allow for and incorporate public comment, are indicative of the haste with which the process appears to be proceeding. While the problems of fluctuating water levels are pressing, a rushed and flawed process not only violates NEPA, but fails to give the public the best solution for the least cost and environmental impacts.

The scope of review should include “significant environmental issues deserving of study.” 40 CFR 1500.4(g). Two areas in particular warrant further discussion and analysis. First, the Corps must fully consider whether the Pelican Lake outlet and any other alternatives comply with the Boundary Waters Treaty of 1909. Based on the limited information contained in the DEIS, it appears that the Pelican Lake outlet would in fact violate the Boundary Waters Treaty, and this fact alone could end consideration of that alternative.

Second, the DEIS failed to adequately consider wetland loss and drainage, an issue that was raised in the scoping process (DEIS Appendix C, p. C-102). As discussed further below, the loss of wetlands in the Devils Lake drainage basin is a significant cause of the fluctuating water levels, as the wetlands provide natural water storage benefits. Not only must restoration of upper basin wetlands as an alternative be considered more fully, but the impact of the loss of such wetlands on the water levels in Devils Lake must be further analyzed.

2. The DEIS inappropriately tiers environmental impacts and fails to adequately consider cumulative impacts.

The DEIS improperly defers a complete analysis of the environmental impacts of operating the Pelican Lake outlet, stating that “supplemental NEPA documentation will be prepared as required.” (DEIS p. 1-S-2). However, tiered analysis of the environmental impacts of operating the Pelican Lake outlet is inconsistent with NEPA and the Council of Environmental Quality Regulations.

The deferral of complete analysis regarding the Pelican Lake outlet is compounded by the failure to adequately consider cumulative impacts. To study the environmental impacts of the rising water levels and the Pelican Lake outlet, and yet ignore the environmental impacts of lowering water levels, potential inlet projects, and the North Dakota emergency outlet, provides the public with skewed information. Such a fractured analysis violates NEPA, and provides the public with limited and isolated information.

3. The DEIS fails to adequately consider the causes of the rising water levels in Devils Lake.

Devils Lake has risen over 25 feet in the past 8 years, due to both natural cycles and human influences. The DEIS analysis of the causes of the fluctuating water levels is wholly inadequate. More study is required to better understand the complex and interrelated natural and human causes of the rising water levels. Natural weather cycles (both short- and long-term), changes in surrounding land use, drainage of wetlands and other natural water storage features in the drainage basin, and climate-changing emissions of carbon dioxide are among the many factors causing the lake levels to rise and that warrant further study.

The Corps’ analysis of lake level trends and alternatives for addressing rising lake levels must begin with a thorough analysis of the causes of the problem. Simply correlating lake levels to weather cycles is superficial and misleading. First, the analysis does not adequately address the underlying problems of changes in land use and loss of wetlands in the surrounding basin. The comments of the National Wildlife Federation (NWF) provide a detailed analysis of the impact of the loss of wetlands in the basin on fluctuating water levels. Using the EIS scoping document and NWF comments as a starting point, a more thorough analysis of the impact of wetland loss and drainage must be undertaken.

Second, a cursory “blame it on the weather” approach completely ignores the role of human carbon dioxide emissions in causing changes in climate. The connection between atmospheric carbon dioxide and rising average global temperatures has been established in the broad scientific community and cannot be ignored in the DEIS. Further, global climate change may result in heavy snows, increased rainfall, and increased flooding in local climates. Curbing industrial carbon dioxide emissions and minimizing the human cause of climate change would have direct and quantifiable effects on both past and future climate conditions which influence water levels in Devils Lake. If the Corps’ environmental analysis is going to begin by blaming the problem on the weather, it must acknowledge the impact of industrial carbon emissions on the weather, and consider alternatives that address this particular cause of the problem. For a more thorough discussion of this issue, please see the attached report, “Playing with Fire – Climate Change in Minnesota” prepared by Minnesotans for an Energy Efficient Economy, and the series of reports by the Intergovernmental Panel on Climate Change entitled “Climate Change 2001” (available online at www.ipcc.ch and incorporated into these comments by reference.).

4. The DEIS fails to adequately consider environmental impacts of the Pelican Lake outlet.

The environmental and economic research and analysis contained in the DEIS makes clear that the Pelican Lake 300 cubic feet per second “preliminarily selected outlet plan” would have significant environmental impacts, including transfer of biota (particularly exotic species), deterioration of water quality, and fluctuations in water quantity.

MCEA is particularly concerned about the environmental impacts to the Red River of the North. As noted in more detail in the comments of the Minnesota Department of Natural Resources, the Minnesota Pollution Control Agency, and the Minnesota Department of Health, the increased phosphorous and sedimentation could deteriorate this treasured river. Further, the risk of invasive species not only poses a major environmental impact, but could result in cessation of the outlet by legal action.

5. The DEIS fails to adequately consider all reasonable alternatives.

Just as the DEIS provides an inadequate analysis of the causes of the problem of rising water levels, it provides an equally inadequate consideration of reasonable alternatives to solve the problem. Consideration of a reasonable range of alternatives is the “heart” of an EIS, “sharply defining the issues and providing a clear basis for choice among options by the decision-maker and the public.” 40 CFR 1502.14. The presentation of alternatives must be undertaken in good faith and is not to be employed to justify a decision already reached. Citizens Against Toxic Sprays Inc. v. Bergland, 428 F. Supp. 908 (D. Or. 1977). The purpose of this requirement is “to insist that no major federal project should be undertaken without intense consideration of other more ecologically sound courses of action, including shelving the entire project, or of accomplishing the same result by entirely different means.” Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123, 1135 (5th Cir. 1974).

All reasonable alternatives must receive a “rigorous exploration and objective evaluation … , particularly those that might enhance environmental quality or avoid some or all of the adverse environmental effects.” 40 CFR 1500.8(a)(4). The analysis of the alternatives must be “sufficiently detailed to reveal the agency's comparative evaluation of the environmental benefits, costs and risks of the proposed action and each reasonable alternative.” Id.; see also 40 CFR 1502.14(a); Bob Marshall Alliance v. Hodel, 852 F.2d 1223 (9th Cir. 1988), cert denied, 489 U.S. 1066 (1988).

As noted in the National Wildlife Federation’s analysis, restoration of wetlands in the upper basin would provide sufficient water storage capability to meet the need of the local communities around Devils Lake. Upper basin water storage with restored wetlands would also bring other environmental and economic benefits, such as increased waterfowl and tourism revenues. Equally important, NWF’s analysis demonstrates that this alternative would come at a reduced cost to taxpayers.

In addition to restoration of upper basin wetlands, incremental structural protection is another cost-efficient and less impacting alternative. As noted in the DEIS, “…implementation of the Continued Infrastructure Protection within the basin is economically justified, and may in fact represent the most economically defensible approach to flood damage management at the lake.” (DEIS p. 4-14)

6. The DEIS fails to use the best scientific analysis in considering the “wet future scenario.”

As noted by several other commentors, the “wet future scenario” is little more than a fantasized compilation of various occurrences designed to create the semblance of justification for the Pelican Lake outlet. The Corps’ reliance on this scenario and the underlying data violates its duty to use high quality information and accurate scientific analysis, as required by 40 CFR § 1500.1(b). The Corps also failed, in presenting the wet scenario, to disclose “any responsible opposing view,” as required by 40 CFR § 1502.9(b).

Even with the mythical scenario, the cost of the Pelican Lake outlet to taxpayers is not justified by the likely benefits, as the benefit-cost ratio of the best outlet plan incorporating probabilities of occurrence is 0.37.

Conclusion

The DEIS is inadequate and fails to comply with NEPA. Nonetheless, MCEA agrees with the fundamental conclusion that the costs of the Pelican Lake outlet outweigh the benefits.