Home See Province of Manitoba Begins Legal Act over Devils Lake
See Winnipeg Free Press (2 ND groups, Manitoba sue. The province is also considering taking its legal challenge to U.S. federal court.) March 30, 2004.
People To Save Sheyenne Press Release, March 29, 2004.
Today in Barnes County District Court, Valley City, North Dakota, People To
Save the Sheyenne filed an appeal of the North Dakota Health Department
permit to drain water from Devils Lake into the Sheyenne River.
The North Dakota Health Department issued a Permit to Drain (Permit #
ND--0026247) allowing the North Dakota State Water Commission to drain water
from West Bay of Devils Lake into the Sheyenne River. The permit was first
issued in August of 2003 and later reaffirmed on February 27, 2004. A North
Dakota State Water Commission outlet would pump up to 100 cubic feet per
second (constrained by water quality and quantity) into the Sheyenne River.
People To Save the Sheyenne contend that a state outlet taking water from
West Bay will degrade the Sheyenne River, add to flooding and bank erosion
and result in loss of economic and aesthetic values of the river for its
owners and users. Unable to reach a satisfactory resolution on its concerns
about water quality and other potential downstream effects with the North
Dakota Department of Health and the State Water Commission, People to Save
the Sheyenne announced their appeal today regarding the Health Department
permit.
In addition to water quality violations, the appeal intends to show (1) that
the Health Department's information for decision-making was seriously
deficient, especially considering the scope of the downstream damage
described in the Final Environmental Impact Statement (FEIS) compiled by the
U.S. Army Corps of Engineers on their Pelican Lake outlet plan; and (2) that
the Health Department followed inappropriate due process procedures.
In their appeal of the ND Health Department permit People To Save the
Sheyenne also claim that the issuance of the NDPDES Permit # ND-0026247 is
not in accordance with applicable North Dakota Water Pollution Control laws
and rules. Further, the findings of fact made by the North Dakota Department
of Health are not supported by a preponderance of the evidence in the record
and do not sufficiently address the evidence presented to the agency by the
Appellant and other commentators.
Further, degradation of the Sheyenne River, Lake Ashtabula, and Associated
Waters violates the N.D. Century Code ( 61-28-01) establishing the policy
for protection of the State's waters. The Century Code states: "It is hereby
declared to be the policy of the state of North Dakota to act in the public
interest to protect, maintain, and improve the quality of the waters in the
state for continued use as public and private water supplies, propagation of
wildlife, fish and aquatic life, and for domestic, agricultural, industrial,
recreational, and other legitimate beneficial uses . . ." [Emphasis added.]
That policy is further qualified in the N.D. Administrative Code
[33-16-02.1-02 (2)(a) and (b)] which states: "The state and public policy is
to maintain or improve, or both, the quality of the waters of the state and
to maintain and protect existing uses. . . . Waters not being put to use
shall be protected for all reasonable uses for which these waters are
suitable. All known and reasonable methods to control and prevent pollution
of the waters of this state are required, including improvement in quality
of these waters, when feasible." [Emphasis added.]
For further information contact the following:
Milton Sauer, President
People To Save the Sheyenne; 701-845-4044
Don Vig, Vice President
People To Save the Sheyenne; 701-845-5445
Attorney William J. Delmore, 701-663-9818
Attorney Daniel E. Buchanan, 701-252-6604
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March 29, 2004
PROVINCE LAUNCHES LEGAL ACT OVER DEVILS LAKE PROJECT
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Manitoba Continues to Call for Joint Reference To International Joint
Commission: Ashton
The Manitoba government is launching a legal challenge in the form of an appeal against North Dakota’s Devils Lake water diversion project, Water Stewardship Minister Steve Ashton announced today.
"While our priority is to have the International Joint Commission review the Devils Lake project, we have chosen to join our allies from North Dakota in launching legal action to stop the project," said Ashton. "This project poses a threat to Manitoba’s water resources and could affect the commercial fishery on Lake Winnipeg, deteriorate water quality and impact the quality of life of all Manitobans."
The province has appealed the North Dakota Department of Health National Pollutant Discharge Elimination System (NPDES) permit issued pursuant to delegated authority under the U.S. Clean Water Act. The permit was first issued in August 2003. The State of Minnesota, the Government of Canada, Manitoba and citizens of North Dakota thereafter petitioned the department to reconsider its decision. In February 2004, the department issued its final notice regarding the permit and a 30-day appeal period began.
The Province is joining People to Save the Sheyenne, a citizens organization which was formed in 1997 to oppose an outlet from Devils Lake, to file a legal challenge in state court.
"We have tried to make our case that Devils Lake water will harm us, but they’re just pushing ahead," said Milton Sauer, president and spokesperson for the People to Save the Sheyenne.
The U.S. Department of State (USDS) wrote to the Governor of North Dakota earlier this month to note continuing Canadian concerns about the state outlet project. The USDS urged that North Dakota consult with the department at the earliest opportunity before proceeding with the temporary outlet.
"North Dakota is unilaterally and aggressively moving ahead with construction of the outlet in spite of recent concerns raised by the U.S. Department of State," said Ashton. "Manitoba has pursued diplomatic options to raise our concerns with the project but all of these have been ignored by North Dakota. As a result, Manitoba has a responsibility to challenge this project to protect the interests of our citizens."
Ashton noted that, in addition to Manitoba and the People to Save the Sheyenne, opposition to the project has been expressed by the Government of Canada, the states of Minnesota and Missouri, the National Wildlife Federation and the Peterson Coulee Outlet Association.
In February, several American First Nations agreed to joint action to oppose the Devils Lake outlet project. The Red Lake Nation, Spirit Lake Nation, White Earth Reservation and the Assembly of Manitoba Chiefs participated in a First Nations and tribal summit.
"Manitoba is committed to working with all of our allies on both sides of the border who oppose this project," said Ashton.
Manitoba has been calling for the Government of Canada to pursue a joint reference with the United States to the International Joint Commission on the project. The International Joint Commission was created under the Boundary Waters Treaty of 1909 to deal specifically with trans-boundary water disputes.
"Manitoba firmly believes the Devils Lake outlet project would violate the Boundary Waters Treaty of 1909," said Ashton. "If the project is completed without challenge, this could set a serious precedent for Manitoba and many other Canadian and U.S. jurisdictions."
Devils Lake is a closed sub-basin lake that has been isolated from the Hudson Bay drainage basin for over 1,200 years. Manitoba opposes the outlet plan because it could release dissolved solids, sulphates and harmful nutrients (40 more tonnes of phosphorus per year) as well as foreign fish pathogens and fish diseases to the Sheyenne River that connects to the Red River and eventually flows into Lake Winnipeg.
BISMARCK, N.D.
A North Dakota group is teaming with the Manitoba government to appeal the state Health Department's decision to allow the channeling of Devils Lake water into the Sheyenne River.
The appeal, filed in Southeast District Court in Valley City, challenges North Dakota's decision to construct a $28 million outlet from Devils Lake to the Sheyenne. It is a tributary of the Red River, which flows north into Manitoba, emptying into Lake Winnipeg.
The Manitoba government and People to Save the Sheyenne, a North Dakota group that has opposed the outlet, say the project would introduce new, invasive fish species into Canadian waters, along with added quantities of mercury, phosphates and sulfate.
People to Save the Sheyenne has more than 50 members, who are primarily ranchers and farmers who live in the river valley in southeastern North Dakota.
Supporters of
the outlet say it is needed to stabilize the lake, which rose more than 20
feet during the 1990s, and limit flooding damage to nearby land, roads and
other public works.
Gov. John Hoeven and Dale Frink, the state engineer, say the project will not violate a U.S.-Canada water quality treaty. However, Steve Ashton, water stewardship minister for the Manitoba government, said those claims should be judged by an international panel that reviews boundary water disputes.
The panel, called the International Joint Commission, has three Canadian and three American members, including former North Dakota Gov. Allen Olson.
"We feel that there are all sorts of information gaps here, particularly on the foreign biota, that just haven't been dealt with," Ashton said in a telephone interview. "We don't think you build first and ask questions later, when it comes to something that could impact very significantly on the environment."
As planned, the outlet includes two pumping stations, about 10 miles of open channel and four miles of pipe. It would divert water from the west end of Devils Lake to the Sheyenne.
Channel digging began last fall. Two weeks ago, the state Water Commission approved $7.4 million in contracts to install concrete structures along the outlet's route and dig new segments of the channel.
The Water Commission has granted land-use and drainage permits that were necessary for the outlet's construction and operation. People to Save the Sheyenne had appealed the drainage permit in state district court, but dropped its lawsuit last December.
The Health Department permit allows the discharge of up to 100 cubic feet of water per second from Devils Lake to the Sheyenne River, provided that the water's sulfate levels do not exceed 300 milligrams per liter. The permit is good until June 2008.
Normally, such permits are requested when a city wastewater treatment operation wants to dump its effluent, or when a power plant wants to dispose of water that had been used for cooling.
The Manitoba government and People to Save the Sheyenne have hired two attorneys, William Delmore of Mandan and Daniel Buchanan of Jamestown. Delmore is the Health Department's former top environmental enforcement attorney.
Delmore said the lawsuit seeks to force the Health Department to reverse its decision to grant the permit, and hold a new hearing to present evidence in the dispute. The litigation does not ask to halt construction of the outlet, although that option may be pursued later, Delmore said Monday.
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Devils Lake outlet plan goes to court Manitoba, two citizens' groups join in N.D. lawsuit to stop project Tuesday, March 30th, 2004 By Mia Rabson MANITOBA filed a lawsuit in North Dakota state court yesterday to stop the Devils Lake outlet. The province, joined by two North Dakota citizens' groups -- the People to Save the Sheyenne and the Peterson Coulee Outlet Association -- will argue in court the channel violates state law because it doesn't take the environmental impact into account. Specifically, they are appealing the operating permit granted to the state for the outlet, issued by the North Dakota Department of Health. This will not directly stop construction, but Manitoba Water Stewardship Minister Steve Ashton said there is no point in building the outlet if it can't be used. "The bottom line here is the Devils Lake outlet does one thing good neighbours don't do," Ashton said. "It dumps dirty, polluted water into the Red River basin." At issue is a $28-million state-funded outlet that would drain about 100 cubic feet of water per second from Devils Lake to ease chronic flooding. The water would flow into the Sheyenne River, which runs east and ends up in the Red River. The Red flows north into Lake Winnipeg, which is a major economic asset to the province for tourism and fisheries. Manitoba and North Dakota have been fighting over the outlet since 1997. Manitoba argues it will pollute Manitoba waters because Devils Lake has higher levels of salt, phosphorus and mercury. There is also a fear fish species not native to Manitoba will wreak havoc on the province's water system. The People to Save the Sheyenne also believe the extra water from the outlet will erode that river's banks and increase land loss. The province wants the project reviewed by the International Joint Commission, which reviews boundary water disputes between Canada and the United States. Thus far, North Dakota has chosen to go ahead without the IJC. "Maybe they understand if it ends up before the IJC, a lot of our concerns will be made valid," Ashton said. The environmental analysis used by Manitoba to support its objection to the project was done in connection with another version of the outlet, one sponsored by the U.S. government. That version would drain three times as much water and cost six times more, but it has built-in environmental protections, including sand filters. The state outlet has no filters. U.S. Secretary of State Colin Powell has approved the federal outlet but not the state version. He sent a letter to that effect to North Dakota Gov. John Hoeven earlier this month. Hoeven argues the outlet will not harm the environment in North Dakota or Manitoba. The lake needs an outlet because it has no natural outflow. A series of wet years has pushed water levels up over seven metres in the last decade, flooding farmland and housing and costing the state hundreds of millions of dollars. Nobody from Hoeven's office or the state water commission could be reached for comment yesterday. Don Vig, spokesman for People to Save the Sheyenne, said he feels the lawsuit adds strength to the argument against the outlet. "This suit is going to force the state of North Dakota to address these issues," Vig said. Tory MLA Jack Penner, whose riding borders the United States, said Manitoba is "playing a dangerous game" by suing North Dakota. He fears the state will retaliate on other economic fronts, adding the province should keep the fight diplomatic. He also said Manitoba should get its own scientific analysis done to be sure of its position. "We may find out there is virtually no difference in that water than in ours," Penner said. "We don't know that, so why don't we find out?" Ashton said Manitoba has not done its own analysis because it's North Dakota's water and its project and North Dakota should be the one to do it. The province is also considering taking its legal challenge to U.S. federal court, where it would likely argue that the outlet violates the boundary waters treaty, which prevents either nation from making unilateral changes to boundary waters. A decision on that will be made within the next few weeks, Ashton said. He is also planning a diplomatic trip to Washington to argue Manitoba's case with the U.S. State Department.
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