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COMMENTS OF THE NATIONAL WILDLIFE FEDERATION ON THE U. S. ARMY CORPS OF ENGINEERS’ FEBRUARY 2002 DRAFT DEVILS LAKE, NORTH DAKOTA, INTEGRATED PLANNING REPORT AND ENVIRONMENTAL IMPACT STATEMENT Prepared by Gary L. Pearson 1305 Business Loop East Jamestown, North Dakota 58401 and David R. Conrad National Wildlife Federation 1400 Sixteenth Street, N. W. Washington, D. C. 20036-2266 May 6, 2002

TABLE OF CONTENTS Introduction; Flawed Scoping Process; Inappropriate Tiering of Environmental Impact Analysis; Failure to Consider Cumulative Impacts; Red River Valley Water Supply Project; Inlet to Deliver Missouri River Water to Devils Lake; North Dakota’s 300 cfs “Temporary” Emergency Outlet; Absence of Authorization to Construct and Operate an Outlet; Inadequate Description of Environmental Impacts of the Proposed Action; Devils Lake Outlets – Technically Unsound and Economically Unjustified; Hidden Costs; The Wet Future Scenario – Fantasizing Feasibility; The $125 Million Lottery Ticket; Erosion of the Natural Outlet – Indulging Geologic Fiction; Wetlands, Wetland Drainage and Wetland Restoration; Water Resource Management in the Devils Lake Basin; Wetlands and Wetland Drainage in the Devils Lake Basin; Contribution of Wetland Drainage to the Rise of Devils Lake; Wetland Restoration and Upper Basin Storage; Continuing Wetland Drainage in the Devils Lake Basin; Inflated Values and Exaggerated Benefits; Flooding at Devils Lake – Hardships, Handouts and False Hopes; Biota Transfer – Confusing Absence of Proof with Proof of Absence; Mythical Mitigation; U. S. Army Corps of Engineers Environmental Operating Principles; Conclusions. Introduction Devils Lake in northeastern North Dakota is located in a 3,814 square-mile closed sub-basin of the Red River of the North Basin, which is part of the Hudson Bay Drainage Basin. The Sheyenne River passes eastward near the southern boundary of the basin before looping 400 miles south, east and then north again to join the Red River of the North at Fargo, North Dakota. The Red River of the North then flows north into Canada where it empties into Lake Winnipeg at Winnipeg, Manitoba. The geologic record shows that, since Devils Lake was formed 10,000 years ago by the Wisconsin Glacier, its level has fluctuated widely over a range of some 65 feet, from dry at 1394 feet above mean sea level (msl) to overflowing to the Sheyenne River at 1459 feet. At elevation 1446.6 feet, Devils Lake overflows to the east through the Jerusalem Spillway to West Stump Lake and East Stump Lake before the combined lakes then rise to overflow from West Stump Lake to the Sheyenne River through the Tolna Coulee. At its overflow elevation of 1459 feet, Devils Lake has a surface area of approximately 300,000 acres. The lake last was at its current elevation of 1447 feet at the time white settlers arrived in the area in the early 1800s. The lake supported a thriving commercial and sport northern pike fishery and a small side-wheel steamer, the Minnie H, operated between the town of Devils Lake and Church's Ferry at the northwestern end of the lake. The ferry docked near a large rock that remains near current downtown Devils Lake. The lake had declined to elevation 1438 feet by the time its level first was officially recorded in 1867, and by 1889 the northern pike fishery disappeared when the lake dropped to 1424 feet. The lake continued to decline to its modern day low of 1401 feet in 1940, after which it began an erratic rise to elevation 1423 feet by 1992. However, by 1975 Devils Lake had risen to 1425 feet, and developments which had been encroaching on the bed of the lake as it had receded already were being threatened by the rising water. By 1983, the State was petitioning the U. S. Army Corps (Corps) to construct an outlet from Devils Lake to the Sheyenne River. The severe drought of 1988 to 1992 was followed by seven years of unusually high levels of precipitation that resulted in the lake rising from 1423 feet in 1992 to 1448 feet in 2001. The lake currently is at 1447 feet and is expected to drop another two feet this year. However, the dramatic rise of the lake starting in 1993 generated renewed pressure for the construction of an outlet to the Sheyenne River, and in 1996 the Corps released an “Emergency Outlet Plan, Devils Lake, North Dakota” that examined two outlet routes from West Bay of Devils Lake to the Sheyenne River (U. S. Army Corps of Engineers, 1996), and the Emergency Supplemental Appropriations Act of 1997 (P. L. 105-18) appropriated $5,000,000 and directed the Corps to use the funds to: “…initiate and complete preconstruction engineering and design and the associated Environmental Impact Statement for an emergency outlet from Devils Lake, North Dakota, to the Sheyenne River.” (U. S. Army Corps of Engineers and North Dakota State Water Commission, 2001) The Corps received an additional $6 million for preconstruction engineering and design of the outlet and the associated environmental impact statement in Fiscal Year 2000 ($2 million) and 2001 ($4 million) supplemental appropriations (U. S. Army Corps of Engineers and North Dakota State Water Commission, 2001). A notice of availability of the February 2002 Draft Devils Lake, North Dakota, Integrated Planning Report and Environmental Impact Statement (DEIS) was published in the March 8, 2002, Federal Register. The following comments are submitted in response to that announcement for inclusion in the official record of public comments on the Draft Devils Lake, North Dakota, Integrated Planning Report and Environmental Impact Statement. Flawed Scoping Process In their March 1998 joint “Devils Lake Emergency Outlet Newsletter”, Issue #1, the Corps and the North Dakota State Water Commission (NDSWC) announced a series of “Public Scoping Meetings” where members of the public would have opportunities to (1) learn about scoping issues which already had been identified by local, State and Federal regulatory agencies and public officials, (2) identify issues which they felt were important, (3) help to prioritize the scoping issues that had been identified, and (4) submit comments on the proposed outlet from Devils Lake to the Sheyenne River (U. S. Army Corps of Engineers and North Dakota State Water Commission, 1998). However, by already having obtained lists of scoping issues from local, State and Federal officials before the public scoping process was announced and conducted, and by already having proposed a variety of outlet alternatives in six reports dating back over a period of 18 years before the scoping process was initiated, the Corps violated the guidelines for scoping of environmental documents prepared pursuant to the National Environmental Policy Act (NEPA) (Pearson, 1998). In addition, the scoping process utilized by the Corps in 1998 was designed to discourage and frustrate, rather than encourage and facilitate, public participation and involvement (Pearson, 1998). In an attempt to bestow economic feasibility on the proposed outlet from Devils Lake and under pressure from the North Dakota congressional delegation, the purpose of an outlet was expanded in 2001 from reducing the damages from flooding at Devils Lake to include reducing the already low potential for a natural overflow to the Sheyenne River (U. S. Army Corps of Engineers and North Dakota State Water Commission, 2001).1 Therefore, the Corps and the NDWSC announced in their March 2001 “Devils Lake Study Newsletter” that “new directions” had been set for the study and that a series of “supplemental public scoping meetings” would be held to (1) update the public on the current status of the study, (2) seek comments regarding the alternatives that the Corps would be carrying into the next phase of the study, and (3) “identify any new issues associated with those alternatives.” However, because, the public was deprived of meaningful opportunities for input on the issues and alternatives that had been identified by local, State and Federal government officials and presented in the initial 1998 scoping meetings, the restriction in these supplemental scoping meetings three years later to comments on “new issues regarding alternatives that the Corps would be carrying forward” (U. S. Army Corps of Engineers and North Dakota State Water Commission, 2001) simply perpetuated the systematic denial of meaningful participation by the public in the scoping process. As one example of failure of the Corps’ scoping process to incorporate public comments in a meaningful and substantive way, numerous comments were submitted by the public raising the issue of the contribution of wetland drainage in the Devils Lake Basin to the recent rise in the lake (See, e.g., Pearson, 2001), and the Corps even acknowledges in its Environmental Justice Analysis that: “Findings from this study revealed a noticeable lack of definitive information available from agency sources on a number of issues, such as… impacts to Devils Lake flooding of upper basin drainage.” (DEIS Appendix C, p. C-102) However, the DEIS does not include upper basin drainage among the areas of controversy or unresolved issues identified during the EIS process (DEIS p. 1-S-9-13). Similarly, although it includes such things as “rocketing and weather patterns” among issues to be summarized or not addressed, the DEIS makes no mention at all of upper basin drainage as being among the “issues identified during the scoping process” (DEIS Appendix C, pp. C-133-136). This failure of the Corps’ public scoping process is confirmed by its own Environmental Justice Analysis, which reported that: “Data from this study indicate that a majority of respondents, from all groups, feel that their views either have not been heard, or have been heard, but not acted on. These findings call into question the effectiveness of the current public involvement process.” (DEIS Appendix C, p. C-104). and: “Findings from this study indicate that many respondents felt that the scoping process did not allow for or welcome input from the public.” (DEIS Appendix C, p. C-104) This systematic exclusion of the public from meaningful participation in the NEPA process for the proposed Devils Lake outlet is further compounded by the abbreviated 60-day comment period for the DEIS and its appendices imposed by the Corps, which, after spending five years and $11,000,000 preparing these complex and confusing three-inch documents (U. S. Army Corps of Engineers and North Dakota State Water Commission, 2001) while the lake was rising, now attempts to justify a patently inadequate public comment period under the transparent guise of “the urgency to make decisions about alternatives and construction” at a time when the lake level is expected to remain stable or decline (Associated Press, 2001a). If for no other reason, this pervasive exclusion of the public from meaningful participation in the EIS process renders the DEIS inadequate in meeting the Corps’ statutory responsibilities under NEPA. Consequently, the only avenue available to the Corps at this point for achieving compliance with the public participation and disclosure requirements of NEPA is to withdraw the DEIS and implement a proper EIS process designed to comply in good faith with both the spirit and the letter of the statute. Inappropriate Tiering of Environmental Impact Analysis The DEIS states that: “The primary purposes of this Integrated Report, in accordance with the authorizing legislation, are 1) to implement ‘tiering’ as provided in Council on Environmental Quality (CEQ) Regulation 15.28(b) and 2) to evaluate an outlet plan (proposed action being evaluated). Tiering procedures allow for supplemental EIS documentation.” (DEIS p. 1-S-1) However, the Corps’ and NDSWC’s March 1998 “Devils Lake Emergency Outlet Newsletter” discussing the 1997 Emergency Supplemental Appropriations Act (Public Law 105-18) and the 1998 Energy and Water Development Appropriations Act (Public Law 105-62) under which preparation of the EIS was authorized makes no mention of “tiering” of the EIS being authorized and states only that the project must be “in compliance with the National Environmental Policy Act” (U. S. Army Corps of Engineers and North Dakota State Water Commission, 1998). Similarly, their March 2001 “Devils Lake Study Newsletter” discussing “new directions” for the study states only that: “The Corps will use its authority and funding to continue collecting data and evaluating alternatives to address the flooding problems at Devils Lake. This will include conducting the necessary environmental impact evaluations required by NEPA and the Boundary Waters Treaty of 1909.” (U. S. Army Corps of Engineers and North Dakota State Water Commission, 2001) Nevertheless, the “tiering” employed by the Corps in the DEIS still is not in compliance with Council on Environmental Quality Regulation 15.28(b). Under CEQ Regulation 15.28 Tiering: “’Tiering’ refers to the coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared. Tiering is appropriate when the sequence of statements is: From a program, plan or policy environmental impact statement to a program, plan, or policy statement or analysis of lesser scope or to a site-specific statement or analysis. From an environmental impact statement on a specific action at an early stage (such as need and site selection) to a supplement (which is preferred) or a subsequent statement or analysis at a later stage (such as environmental mitigation). Tiering in such cases is appropriate when it helps the lead agency to focus on the issues which are ripe for decision and exclude from consideration issues already decided or not yet ripe.” Because the proposed outlet from Devils Lake clearly is not a part of a program, plan or policy of greater scope but deals with a project at a specific site, the Corps makes no claim that tiering of the DEIS is provided under Regulation 15.28(a), but instead cites section 15.28(b) as its authority. It is stated in DEIS Appendix C that: