North Dakota remains a rogue state

Posted By Jim Mosher

Posted 3 months ago

We wrote in this space in 2005 that North Dakota was acting like a rogue state, as it pushed ahead with the Devils Lake outlet. (See "Devils Lake outlet opening act of war", Interlake Spectator Editorial, Jim Mosher, June 10, 2005.)

The outlet pumps water into the Sheyenne River, which flows into the Red River near Fargo Moorhead. The Red River flows north to Lake Winnipeg, which empties into Hudson Bay via the Nelson River.

This summer, the outlet was operated at its maximum discharge of 100 cubic feet per second (cfs). It's estimated that the net effect at this maximum rate was to draw down the level of the lake four inches. The Devils Lake Basin had a wet year; the effect was Devils Lake rose up to 36 in. — a net increase of 32 in. given the estimated draw-down due to the outlet operation this year.

Since a wet spell began in the basin in 1992, the level of Devils Lake has increased 26 ft. At its current level of 1449.5 ft., it is precipitously close to flowing into Stump Lake to the east — at which time uncontrolled overflows into the Sheyenne may occur. This has been the nub of the argument for a water diversion outlet: If Devils Lake is not artificially drawn down, it may 'naturally' and 'catastrophically' flow into the Sheyenne. The fact that the draw-downs are inconsequential, though potentially having adverse effects elsewhere, is lost on outlet proponents.

Back in 2005, a long line of states joined Manitoba to protest the water diversion. Many agreed that potential adverse water quality and other issues should be thoroughly addressed by the International Joint Commission, which is responsible to administer (perhaps 'adjudicate' is closer) the Boundary Waters Treaty (1909).

In addition to concerns about foreign biota making their way to Lake Winnipeg, an already threatened freshwater lake, there were acknowledged concerns, on both sides of the border, about the concentration of sulphates in the Sheyenne River.

Sulphates are naturally-occurring. At high concentrations, they can be deadly to aquatic organisms. Likewise salt, which is also increasing in the Red River — and likely to increase as more water from the salty Devils Lake flows in the Red.

The current operation of the outlet is only allowed when the concentration of sulphate is below 450 milligrams per litre (mg/L) in the receiving water, the Sheyenne River — a concentration that the state had already induced its health commission to raise once in 2006, from 300 mg/L.

Now, the State of North Dakota, it would argue feeling the pinch of what it believes are onerous regulations, wants to raise the sulphate limit to 750 mg/L.

As usual, this will be an artful dodge. The 450 mg/L limit is a state-wide standard for so-called Class A rivers. The proposal is to 'reclassify' parts of the Sheyenne (principally the part into which Devils Lake water will flow) to a lower standard, i.e. a higher permitted concentration.

This reclassification is just part of the state's plan. It also will increase the flow at the outlet by adding extra pumps. The outflow will more than double, rising to 250 cfs, from 100 cfs if a new operating licence is approved.

We do have something of an ace in the hole — in the esteemed person of Gary Doer, former Manitoba premier now Canadian Ambassador to the United States.

Ambassador Doer can and should use his office to influence the U.S. government, which needs to be reminded that it is a signatory to the Boundary Waters Treaty 1909, among the most respected and effective pieces of bilateral legislation in the world — save for its apparent weakness in the face of intemperate states such as North Dakota.

The Boundary Waters Treaty spawned the International Joint Commission, which normally requires a reference from both the Canadian and American governments to study controversial issues like the Devils Lake water diversion.

Now that North Dakota is looking to toy with sulphate levels, the two parties have good reason to revisit the issue of a reference to the IJC. It was, after all, the two signatories who agreed to establish water-quality standards for the Red River, then handed monitoring duties to the IJC. With expected increases in sulphate concentrations, the international partners have ample reason and justification to move forward with a reference.

"We are still encouraging our federal government to seek that reference," Dwight Williamson, assistant deputy minister of Water Stewardship, said this week. "It's our view that there's been a substantial change; it's substantially different from what the situation was several years ago."

BEFORE THE OUTLET OPENED IN 2005 WE WROTE:

Reasonable people on both sides of the border acknowledge, attest and insist that the impartial International Joint Commission should test the waters.

It's an eminently sensible, internationally accepted protocol ­­— that the North Dakota project be reviewed by an international tribunal that has proved itself an example of just how well two countries that share a border can address common issues.

Against all odds, against even their own American neighbours, North Dakota is determined to press forward with opening an outlet — and a can of international worms — few want.

It is ruinous. It is North Dakota giving Canada and its own federal government the finger.

— Jim Mosher, June 2005