[Senate Hearing 111-288]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 111-288
 
PROTECTING RESIDENTS OF THE DEVILS LAKE REGION FROM RISING WATERS, AND 
       THE POTENTIAL FOR SPRING FLOODING IN THE RED RIVER VALLEY 

=======================================================================

                                HEARING

                                before a

                          SUBCOMMITTEE OF THE

            COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            SPECIAL HEARING

                   FEBRUARY 11, 2009--WASHINGTON, DC

                               __________

         Printed for the use of the Committee on Appropriations


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html

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                      COMMITTEE ON APPROPRIATIONS

                   DANIEL K. INOUYE, Hawaii, Chairman
ROBERT C. BYRD, West Virginia        THAD COCHRAN, Mississippi
PATRICK J. LEAHY, Vermont            ARLEN SPECTER, Pennsylvania
TOM HARKIN, Iowa                     CHRISTOPHER S. BOND, Missouri
BARBARA A. MIKULSKI, Maryland        MITCH McCONNELL, Kentucky
HERB KOHL, Wisconsin                 RICHARD C. SHELBY, Alabama
PATTY MURRAY, Washington             JUDD GREGG, New Hampshire
BYRON L. DORGAN, North Dakota        ROBERT F. BENNETT, Utah
DIANNE FEINSTEIN, California         KAY BAILEY HUTCHISON, Texas
RICHARD J. DURBIN, Illinois          SAM BROWNBACK, Kansas
TIM JOHNSON, South Dakota            LAMAR ALEXANDER, Tennessee
MARY L. LANDRIEU, Louisiana          SUSAN COLLINS, Maine
JACK REED, Rhode Island              GEORGE V. VOINOVICH, Ohio
FRANK R. LAUTENBERG, New Jersey      LISA MURKOWSKI, Alaska
BEN NELSON, Nebraska
MARK PRYOR, Arkansas
JON TESTER, Montana

                    Charles J. Houy, Staff Director
                  Bruce Evans, Minority Staff Director
                                 ------                                

              Subcommittee on Energy and Water Development

                BYRON L. DORGAN, North Dakota, Chairman
ROBERT C. BYRD, West Virginia        ROBERT F. BENNETT, Utah
PATTY MURRAY, Washington             THAD COCHRAN, Mississippi
DIANNE FEINSTEIN, California         MITCH McCONNELL, Kentucky
TIM JOHNSON, South Dakota            CHRISTOPHER S. BOND, Missouri
MARY L. LANDRIEU, Louisiana          KAY BAILEY HUTCHISON, Texas
JACK REED, Rhode Island              RICHARD C. SHELBY, Alabama
FRANK R. LAUTENBERG, New Jersey      LAMAR ALEXANDER, Tennessee
TOM HARKIN, Iowa                     GEORGE V. VOINOVICH, Ohio
JON TESTER, Montana
DANIEL K. INOUYE, Hawaii, (ex 
    officio)

                           Professional Staff

                               Doug Clapp
                             Roger Cockrell
                         Franz Wuerfmannsdobler
                        Scott O'Malia (Minority)
                         Brad Fuller (Minority)

                         Administrative Support

                              Michael Bain













                            C O N T E N T S

                              ----------                              
                                                                   Page

Opening Statement of Senator Byron L. Dorgan.....................     1
Statement of Colonel Jon L. Christensen, District Commander, St. 
  Paul District, U.S. Army Corps of Engineers....................     5
    Prepared Statement...........................................     7
Statement of Scott Dummer, Hydrologist-in-Charge, North Central 
  River Forecast Center, National Weather Service, National 
  Oceanic and Atmospheric Administration, Department of Commerce.     8
    Prepared Statement...........................................    10
Statement of Dennis Walaker, Mayor, City of Fargo................    15
Letter From Michael R. Brown, Mayor, City of Grand Forks.........    16
Prepared Statement of Dennis Walaker.............................    21
Statement of Fred Bott, Mayor, City of Devils Lake; President, 
  Devils Lake City Commission....................................    23
    Prepared Statement...........................................    24
City's Regional Importance.......................................    25
Drinking Water Supply Project....................................    25
Levee Project....................................................    25
Statement of Dale L. Frink, State Engineer, North Dakota Water 
  Commission.....................................................    26
    Prepared Statement...........................................    28
Discussion on Red River Valley...................................    30
Topsoil Saturation of the Region.................................    34
Devils Lake Flooding Projections.................................    34
Devils Lake, North Dakota White Paper............................    38
Timing of New Forecasts..........................................    44
Letter From Curtis A. Yri, Mayor, City of Minnewaukan............    51
Letter From Gary L. Pearson, D.V.M...............................    52
Prepared Statement of Gary L. Pearson, D.V.M.....................    53
The Rise of Devils Lake..........................................    53
Damages Resulting From Flooding at Devils Lake...................    53
Continuation of the Wet Cycle....................................    54
Measures to Deal With Flooding at Devils Lake....................    55
Wetland Drainage in the Devils Lake Basin........................    55
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......................................................    56
Flawed Scoping Process...........................................    57
Inappropriate Tiering of Environmental Impact Analysis...........    58
Failure to Consider Cumulative Impacts...........................    60
Absence of Authorization to Construct and Operate an Outlet......    62
Inadequate Description of Environmental Impacts of the Proposed 
  Action.........................................................    63
Devils Lake Outlets--Technically Unsound and Economically 
  Unjustified....................................................    66
Hidden Costs.....................................................    67
The Wet Future Scenario--Fantasizing Feasibility.................    67
The $125 Million Lottery Ticket..................................    69
Erosion of the Natural Outlet--Indulging Geologic Fiction........    70
Wetlands, Wetland Drainage and Wetland Restoration...............    72
Inflated Values and Exaggerated Benefits.........................    81
Flooding at Devils Lake--Hardships, Handouts and False Hopes.....    82
Biota Transfer--Confusing Absence of Proof With Proof of Absence.    85
Mythical Mitigation..............................................    88
U.S. Army Corps of Engineers Environmental Operating Principles..    92
Letter From Charon K. Johnson....................................    95
Letter From City of Wahpeton, Public Works.......................    96
Prepared Statement of Myra Pearson, Tribal Chairperson, Spirit 
  Lake Tribe.....................................................    96


PROTECTING RESIDENTS OF THE DEVILS LAKE REGION FROM RISING WATERS, AND 
       THE POTENTIAL FOR SPRING FLOODING IN THE RED RIVER VALLEY

                              ----------                              


                      WEDNESDAY, FEBRUARY 11, 2009

                               U.S. Senate,
      Subcommittee on Energy and Water Development,
                               Committee on Appropriations,
                                                    Washington, DC.
    The subcommittee met at 9:35 a.m., in room SD-138, Dirksen 
Senate Office Building, Hon. Byron L. Dorgan (chairman) 
presiding.
    Present: Senator Dorgan.


              opening statement of senator byron l. dorgan


    Senator Dorgan. I call the hearing to order. This is a 
hearing of the Appropriations Subcommittee on Energy and Water 
in the U.S. Senate.
    Today the subcommittee is going to take testimony on the 
continued flooding problems and the issues--particularly in the 
Devils Lake Basin--and the projected potential flooding issues 
that we will face this spring in the Red River Valley of North 
Dakota.
    I held a field hearing, on the issue of increasing lake 
levels in Devils Lake, last March. At that time, there was a 20 
percent chance, we were told, that Devils Lake would match the 
record level that we saw in May 2006; that is, 1,449.2 feet. 
Now, 1 year later, the National Weather Service, with the 
latest estimate that I have seen, indicates that there is a 98 
percent chance that the levels in Devils Lake will exceed the 
record high that was seen in 2006. There is a 25 percent chance 
that the levels will exceed 1,452 feet. This is a serious 
issue, and much, of course, has changed in the last year.
    Since 1980, we've seen a substantial increase in 
precipitation in the Devils Lake region. There's a 72 percent 
chance, we are told by the Weather Service, that these 
conditions will persist for 10 years, and a 37 percent chance 
they will continue for 30 years.
    Devils Lake is a body of water with no natural outlet, 
unless, of course, the lake rises to the level of 1,459 feet, 
at which point it's expected the water would flow naturally 
into the Cheyenne River and across the divide.
    The precipitation forecast and the dramatic changes that 
we've seen in recent years are pretty troubling, in terms of 
what we might expect with respect to Devils Lake. I believe it 
is the only closed basin with respect to ``no outlet.'' We have 
a very small State outlet that is not letting a lot of water 
out at this point, but the Great Salt Lake and Devils Lake are 
two basins that are closed.
    This is a very difficult and hard-to-understand problem for 
most people, because we don't have lake flooding in our 
country, we have river flooding, where the river courses and 
gorges and takes houses and buildings with it, and you can see 
the fury of it, and then it subsides and the event is over. 
That has not been the case with Devils Lake. This lake, a 
closed basin, has a flood that has come and stayed, and now 
will get worse, we are told.
    In the report issued by the U.S. Geological Survey in 2008, 
people who live in an elevation of 1,454.6 feet will have the 
same chance of being flooded in the next 10 years as people who 
live at the edge of a 100 year floodplain along a river. 
According to the National Weather Service prediction, there's a 
2 percent chance those folks at 1,454 feet will be flooded this 
year. Having been through this for some years, we now 
understand that, when there's a 2 percent or a 1 percent 
chance, it is not unusual for it to happen in Devils Lake. 
We've seen it happen before.
    Last week, NOAA also issued a report that the Red River 
Basin in North Dakota has a 50 to 75 percent chance of ``major 
flooding'' this spring. I'm holding this hearing to try to 
understand what is happening and what the projections are for 
both circumstances, Devils Lake and the Devils Lake Basin, 
number one, and the Red River Valley, number two. We'll receive 
testimony on both.
    We have asked Colonel Jon Christensen, the Commander of the 
St. Paul District of the Army Corps of Engineers, to be with 
us; Scott Dummer, hydrologist in charge of the North Central 
River Forecast Center of the National Weather Service; and Myra 
Pearson chairwoman of the Spirit Lake Nation was to be with 
us--she was not able to--her travel arrangements were canceled; 
and Dale Frink, the State engineer from the North Dakota State 
Water Commission, is with us. In addition, Fred Bott, the mayor 
of Devils Lake, is with us, and Dennis Walaker, the mayor of 
Fargo.
    And, Dennis, I understand you were selected to represent 
the interests of the Red River Valley, Wahpeton, Fargo, and 
Grand Forks. I appreciate your making the trip to Washington on 
short notice.
    I believe that the National Weather Service forecast for 
the potential flooding of both Devils Lake--the continued 
flooding in Devils Lake and the Basin, and the Red River 
Valley, makes this a very important and timely hearing. 
Hopefully, we can address these issues, to the extent possible, 
and, prior to any flooding that occurs, develop any mitigation 
and other policies that will minimize flooding.
    We last met on the subject of flooding at Devils Lake, as I 
said, less than a year ago. We had experienced a few relatively 
calm years, with the lake elevation holding, at Devils Lake, 
around 1,447 feet. The hearing last year was held to jumpstart 
the thinking about what might need to be done to protect 
people's homes and infrastructures if the water level continues 
to rise and what would the triggers be, what would trigger 
additional activities, such as levees and so on.
    I included $5 million in the 2007 emergency supplemental 
bill to allow the Corps of Engineers to start the process of 
planning about how to continue to protect the community of 
Devils Lake from these lake levels. And the Corps, I know, is 
using that funding, and has had a number of meetings in the 
region to assess public support for various protection options. 
Colonel Christensen will discuss that in some detail.
    The National Weather Service forecast, recently, is what 
has added to my concern and urgency about this. They predicted 
a 99 percent likelihood that Devils Lake will exceed the record 
storage level of 1,449.2 feet, due to the abundant snowfalls in 
the region. As I said, they've predicted, just recently, a 50 
to 75 percent chance of major flooding in the spring in the 
eastern part of the State, particularly the Red River Valley, 
as a result of abundant snow and rain that we've had in recent 
months. Scott Dummer will talk more about those forecasts.
    All of us who have joined here have been involved in very 
significant flood fights in the past, probably no two people 
more than Mayor Walaker and Mayor Bott. These flood fights are 
difficult. Floods that visit the Red River Valley or a flood 
that has visited and stayed with respect to Devils Lake causes 
very substantial damage and there is a lot of concern by the 
people who live there.
    We've done some work in virtually all of the communities. 
We've done a lot of work in Devils Lake with respect to roads 
and levees and mitigation issues. We've done a lot of work in 
the Red River Valley, Wahpeton-Breckenridge, Fargo-Moorhead, 
Grand Forks and East Grand Forks. Grand Forks and East Grand 
Forks have the largest completion of the significant flood-
protection project. But, all of the communities have, since the 
flood 10 years--11 years, or 12 years ago--hit us, all of the 
communities have done a lot of work, and we'll hear a little 
about that today.
    But, we need to try to get ahead of all of this as quickly 
as we can to understand what might happen and what we need to 
do as a result of it. In Devils Lake, we've done a lot of work 
by the Army Corps. My understanding from the Corps' estimates, 
if we have to raise the levee at Devils Lake once again, which 
may very well be likely with these forecasts, that is--that's a 
very expensive proposition; there are lots of ramifications 
with respect to raising the dikes or levees. We're in a 
situation here where this is an emergency, but we also have 
very significant fiscal problems. And I know the city of Devils 
Lake doesn't have the kind of resources for local matches, for 
much.
    So, we also are now, likely to complete this afternoon or 
this evening, the stimulus program, or economic recovery plan--
they worked through the night on trying to get all of that 
together. I just came from a meeting on that, and that's going 
to have some emergency funding for various things, as well. The 
Corps will have, I think, probably around $4.6 billion, and the 
question is, would we have projects that are ready, here, that 
could be accessed from that program, as well?
    I want to make sure that we have all of the funding that is 
necessary to address a proper flood fight on the Red and the 
Red River Valley, and the things that we need to do to make 
sure that we are prepared for what is now expected to be an 
almost certain substantial rise and an almost certain record 
level of flooding at Devils Lake.
    I want to just put up a chart that shows you what we have 
seen now with the projections. The gray represents a 90 percent 
probability. This line is the record line for Devils Lake. 
That's 1,449.13 feet--that's been the highest level for Devils 
Lake. And, of course, all of this is at flood level. I mean, at 
1,449.13 feet, as you can see, the projection is, with a 90 
percent confidence that we're going to exceed the highest level 
of Devils Lake at some point in April. And the 50 to 90 percent 
confidence is the blue, and the 10 to 50 percent confidence is 
the red. So, you can see what could happen up to 1,452-1,453 
feet, at which point we have very serious issues, I think, with 
roads, roads built as dikes, but not really engineered for that 
purpose. At what point do you have too much stress on those 
roads? That's certainly true with respect to the Indian 
reservation, especially.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    So, we have a lot of questions about all of this; and, 
again, the more recent projections of 50 to 75 percent major 
flooding in the Red River Valley persuades me that we need to 
include that as a part of this discussion.
    So, I appreciate all of you coming to this hearing, and I 
want to begin and have a discussion with the Corps of 
Engineers, Colonel Jon Christensen, who's a district commander 
at the St. Paul District.
    Colonel Christensen, thank you. If you will turn your 
microphone on, you may begin.
STATEMENT OF COLONEL JON L. CHRISTENSEN, DISTRICT 
            COMMANDER, ST. PAUL DISTRICT, U.S. ARMY 
            CORPS OF ENGINEERS
    Colonel Christensen. Chairman Dorgan, I'm honored to appear 
before you to report on the Corps of Engineers current efforts 
to address the rising lake levels of Devils Lake. My testimony 
will address the situation regarding Devils Lake and how the 
Corps of Engineers could continue to support the people of this 
lake region.
    This past year, we have been working with the residents and 
the local agencies to address the potential continued rise of 
Devils Lake. The National Weather Service is forecasting an 
almost 99 percent likelihood the water level at Devils Lake 
will exceed the recent record lake level of 1,449.2 feet, set 
in May 2006. There is also a 25 percent probability that the 
water level at Devils Lake will exceed 1,452 feet, and a 2 
percent possibility the water level will exceed the height of 1 
foot below the current dike protection level of 1,455 feet.
    We are taking these forecasts very seriously. Recent 
meetings in Bismark, North Dakota reinforced the urgency felt 
by the local officials and their concerns that construction 
proceed as quickly as possible.
    Since updating you last March, the Corps team has had 
several public meetings in the city of Devils Lake, on the 
Spirit Lake Reservation, and in other communities, such as 
Minnewaukan and Cooperstown. The purpose was to identify all 
the potential solutions for combating a future lake rise, 
screen and eliminate those alternatives that were not feasible. 
The alternatives were evaluated to determine if the alternative 
was effective in maintaining a reliable level of flood risk 
management at the city of Devils Lake. Other criteria included 
environmental effects, social effects, expected acceptability, 
implementability, risk, and cost. This resulted in the 
conclusion that one of the immediate actions to afford reduced 
flooding risk to the city of Devils Lake was to raise the 
existing embankments from an elevation of 1,460 feet to 1,465 
feet, and extend them to tie back into high ground. In 
designing the embankment system for the city of Devils Lake, we 
used the dam design criteria for the geotechnical design.
    Senator Dorgan. Colonel, let me just interrupt you for a 
moment and ask, on a point you're just raising, you said 2 
percent possibility the level will exceed a height of 1 foot 
below the current dike protection level of 1,455 feet. Our dike 
protection is 1,460 feet, with 5 foot freeboard--Is that 
correct?
    Colonel Christensen. Yes, sir.
    Senator Dorgan. That gets to what you just described, of 
1,460 to 1,465 feet. If you're at 1,465 feet, what is your real 
dike protection level?
    Colonel Christensen. It's the same 5-foot level that 
protects our freeboard underneath that.
    Senator Dorgan. All right, thank you.
    Colonel Christensen. In designing the embankment system 
from the city of Devils Lake, we used dam design criteria for 
the geotechnical design. This was done due over long periods of 
time that water would remain against the embankments. Recently, 
we determined that we should apply some dam safety criteria to 
other aspects of the design, because the amount of water--time 
the water would remain against the embankments. This includes 
the analysis of when the embankments should be raised.
    While there are other alternative alignments still under 
consideration for the tieback, we are prepared to accelerate 
our design schedule on the most critical reach. The most 
critical reach is the Creel Bay reach, which is subject to the 
greatest wind and wave action. The challenge is to begin 
construction soon enough to stay ahead of possible future years 
of flooding. While the existing embankments will contain the 
high lake levels projected this year, the risk of exceeding 
these elevations increases each year, assuming projected 
increased lake levels, until there is a 17 percent probability 
that the current level of protection would be exceeded between 
2010 and 2013.
    Since it will take 2 to 3 years of construction to complete 
a raise of the embankments, it is important that the 
construction be initiated soon. We are continuing to work with 
the city of Devils Lake on its emergency action plan, 
communication of associated risks to the public, and other 
tools available to help reduce flood risks.
    While the focus of the funding from Public Law 110-28, 
title III, chapter 2, titled ``U.S. Troop Readiness, Veterans 
Care, Katrina Recovery, and Iraq Accountability Appropriations 
Act 2007,'' was for the study of alternatives and design of 
raising and extending the existing city of Devils Lake's 
embankments, the Corps also identified the need to coordinate 
with other areas bordering the lake; specifically, the Spirit 
Lake Nation and Minnewaukan. Our intent is to continue to 
provide technical flood risk reduction assistance to support 
them as they develop their responses to this spring's lake-
level forecast.
    We are particularly concerned about the Spirit Lake Nation. 
Some areas are currently relying on emergency temporary levees 
that were built during previous flood fights. These were 
constructed to keep water at bay until a permanent solution 
could be identified. The solution has been identified by the 
Federal Highways Administration, but has not yet been 
constructed. While construction of the work will be started 
this summer, the lake may come up this spring, before the 
permanent projects are in place. We will continue to work with 
the tribe, Bureau of Indian Affairs, North Dakota Department of 
Transportation, and the Federal Highway Administration to 
ensure that public safety is the top priority.
    I would like to end by providing a progress update of other 
Corps projects in the Basin. Progress has been made on turning 
over the projects that raised the city of Devils Lake 
embankments to the current height of 1,460 feet. The project 
was turned over to the city on September 30, 2008. At that 
time, we were able to provide FEMA with reasonable assurance 
that the embankments would safely contain the 1 percent flood 
elevation, as determined by the United States Geological 
Survey. This is part of a process to keep the city out of the 
floodplain outlined in the FEMA flood insurance maps. However, 
in general, we would encourage the residents of the region to 
buy flood insurance to protect their investment, just as they 
buy homeowners insurance.


                           prepared statement


    We understand there are many challenges to be overcome in 
the coming months. The Corps of Engineers will continue to work 
in our partnership with other Federal, State, and local 
agencies as long as our assistance is needed.
    Again, thank you for allowing me to testify today, Mr. 
Chairman. This concludes my testimony. I would be happy to 
answer any questions you have.
    [The statement follows:]
            Prepared Statement of Colonel Jon L. Christensen
    Chairman Dorgan and members of the subcommittee, I am honored to 
appear before you to report on the Corps of Engineers current efforts 
to address the rising lake levels of Devils Lake. My testimony will 
address the situation regarding Devils Lake and how the Corps of 
Engineers could continue to support the people of this lake region.
    This past year, we have been working with the residents and local 
agencies to address the potential continued rise of Devils Lake. The 
National Weather Service is forecasting an almost 99 percent likelihood 
the water level at Devils Lake will exceed the recent record lake level 
of 1,449.2 feet, set in May 2006. There is also a 25 percent 
possibility the water level at Devils Lake will exceed 1,452.1 feet, 
and a 2 percent possibility the water level will exceed a height of 1 
foot below the current dike protection level of 1,455.0 feet. We are 
taking these forecasts very seriously. Recent meetings in Bismarck, 
North Dakota reinforced the urgency felt by the local officials and 
their concerns that construction proceed as quickly as possible.
    Since updating you last March, the Corps team has held several 
public meetings in the city of Devils Lake, on the Spirit Lake Indian 
Reservation, and in other communities such as Minnewaukan and 
Cooperstown. The purpose was to identify all the potential solutions 
for combating a future lake rise, screen them and eliminate those 
alternatives that were not feasible. The alternatives were evaluated to 
determine if the alternative was effective in maintaining a reliable 
level of flood risk management at the city of Devils Lake. Other 
criteria included environmental effects, social effects, expected 
acceptability, implementability, risk, and cost. This resulted in the 
conclusion that one of the immediate actions to afford reduced flooding 
risk to the city of Devils Lake was to raise the existing embankments 
from an elevation of 1,460 feet to 1,465 feet and extend them to tie 
back into high ground.
    In design of the embankment system for the city of Devils Lake, we 
used dam design criteria for the geotechnical design. This was done due 
to the long periods of time that water would remain against the 
embankments. Recently, we determined that we should apply some dam 
safety criteria to other aspects of the design, because of the amount 
of time water would remain against the embankments. This includes the 
analysis of when the embankments should be raised.
    While there are alternative alignments still under consideration 
for the tie backs, we are prepared to accelerate our design schedule on 
the most critical reach. The most critical reach is the Creel Bay 
reach, which is subject to the greatest wind and wave action. The 
challenge is to begin construction soon enough to stay ahead of the 
possible future years of flooding. While the existing embankments will 
contain the high lake levels projected for this year, the risk of 
exceeding those elevations increases each year--assuming projected 
increased lake levels--until there is a 17 percent probability that the 
current level of protection would be exceeded between 2010 and 2013. 
Since it will take 2 to 3 years of construction to complete a raise of 
the embankments, it is important that construction be initiated soon. 
We will continue to work with the city of Devils Lake on its emergency 
action plan, communication of associated risks to the public, and other 
tools available to help reduce flood risks.
    While the focus of the funding from Public Law 110-28, title III, 
chapter 2, titled ``U.S. Troop Readiness, Veterans' Care, Katrina 
Recovery, and Iraq Accountability Appropriations Act, 2007,'' was for 
the study of alternatives and design of raising and extending the 
existing city of Devils Lake embankments, the Corps also identified the 
need to coordinate with other areas bordering the lake, specifically 
the Spirit Lake Nation and Minnewaukan. Our intent is to continue to 
provide technical flood risk reduction assistance to support them as 
they develop their responses to this spring's lake level forecast.
    We are particularly concerned about the Spirit Lake Nation. Some 
areas are currently relying on emergency temporary levees that were 
built during previous flood fights. These were constructed to keep the 
water at bay until a permanent solution could be identified. The 
solution has been identified by the Federal Highway Administration, but 
has not been constructed. While construction of the work will be 
started this summer, the lake may come up this spring before the 
permanent projects are in place. We will continue to work with the 
tribe, Bureau of Indian Affairs, North Dakota Department of 
Transportation, and the Federal Highway Administration to ensure that 
public safety is the top priority.
    I would like to end by providing a progress update on another Corps 
project in the basin. Progress has been made on turning over the 
project that raised the city of Devils Lake embankments to their 
current height of 1,460 feet. The project was turned over to the city 
on September 30, 2008. At that time we were able to provide FEMA with 
reasonable assurance that the embankments would safely contain the 1 
percent flood elevation as determined by the U.S. Geological Survey. 
This is part of the process to keep the city out of the floodplain 
outlined on FEMA flood insurance maps. However, in general we would 
encourage the residents of the region to buy flood insurance to protect 
their investment just as they buy homeowners insurance.
    We understand there are many challenges to be overcome in the 
coming months. The Corps of Engineers will continue to work together in 
our partnership with other Federal, State and local agencies as long as 
our assistance is needed. Again, thank you for allowing me to testify 
here today. Mr. Chairman, this concludes my testimony. I would be happy 
to answer any questions you may have.

    Senator Dorgan. Colonel, thank you very much.
    Next, we'll hear from Mr. Scott Dummer, the National 
Weather Service, National Oceanic and Atmospheric 
Administration, U.S. Department of Commerce.
    Mr. Dummer, thank you. You may proceed.
STATEMENT OF SCOTT DUMMER, HYDROLOGIST-IN-CHARGE, NORTH 
            CENTRAL RIVER FORECAST CENTER, NATIONAL 
            WEATHER SERVICE, NATIONAL OCEANIC AND 
            ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF 
            COMMERCE
    Mr. Dummer. Good morning, Chairman Dorgan. I am Scott 
Dummer, from NOAA's National Weather Service. I serve as the 
hydrologist in charge of the North Central River Forecast 
Center located in Chanhassen, Minnesota. NOAA's weather, water, 
and climate programs work to monitor conditions and provide 
forecasts to meet the Nation's need for reliable and accurate 
information. Thank you for inviting me to discuss the latest 
national weather forecast for the water levels at Devils Lake 
and the related science and coordination required to produce 
those forecasts.
    This past fall, precipitation was 200 to 300 percent above 
average across eastern North Dakota and northwestern Minnesota. 
This was the wettest fall on record for the cities of Devils 
Lake, Fargo, and Grand Forks. Soil moisture observations taken 
just prior to freeze-up in early December revealed nearly 
saturated moisture levels in the upper 8 inches of soil across 
the Red River Valley. This includes those areas that feed into 
Devils Lake. Observations are critical for our understanding 
and prediction, including river-gauge observations from the 
United States Geological Survey, as well as radar, temperature, 
and precipitation observations.
    The onset of winter came abruptly as temperatures plunged, 
in early December. The quick hard freeze occurred with minimal 
snow cover. Near-saturated soil moisture conditions allowed the 
frost to quickly penetrate to the ground to a depth of 2 feet. 
Snow fell on 23 days in December, with 24\1/2\ inches falling 
in Devils Lake after December 14. By the end of the month, new 
December snowfall records were established for Fargo and Grand 
Forks. The water content of the snowpack was 170 to 300 percent 
of average levels. January precipitation and snowfall were near 
normal levels, while temperatures remained well below average. 
The result is a very heavy snowpack and very wet soil 
conditions.
    We believe, when this year's snowpack melts, it will make a 
major contribution to flooding in the Red River Basin, which 
includes Devils Lake. The Devils Lake Basin is large and flat, 
which results in unusually long travel time for precipitation 
or snowmelt to reach Devils Lake. Current extended-range 
forecasts suggest the water levels at Devils Lake will peak in 
late June through early July, which is normal for this area. 
The current forecast calls for an almost 99 percent likelihood 
the water level at Devils Lake will exceed the recent rate--
recent record lake level of 1,449.2 feet, set in May 2006. We 
continue to monitor the situation closely, update our forecasts 
using the latest information available to us, and provide 
briefings to Federal, State, and local officials.
    Now I will speak briefly about some of the science and 
tools behind our forecasts. Our river and lake level 
forecasting system integrates soil moisture, snow, and icepack, 
seasonal precipitation, and temperatures. It continues to yield 
more complete and comprehensive forecast information through 
the implementation of the Advanced Hydrologic Prediction 
Service, or AHPS for short. AHPS is a new and essential 
component of our climate, water, and weather services. Through 
the implementation of the Web-based AHPS, we are extending the 
range, quantifying the certainty, and improving the timeliness 
and accuracy of our river forecasts and warnings. We are also 
making this information available in user-friendly text and 
graphical products. The AHPS provides forecasts of river and 
lake levels over periods ranging from an hour to a season, and 
for areas large and small.
    AHPS includes river forecast information, such as how high 
the river or lake will rise, when the river or lake will reach 
its peak, and how long the flooding will continue. AHPS also 
provides better information to water managers and city 
officials. This helps them make decisions, such as when and 
where to conduct evacuations, how to use reservoir storage 
capacity and releases, and when to reinforce levees and dikes, 
and at what level.
    There are currently 2,237 AHPS forecast points across the 
Nation, 404 within my area of responsibility, including one at 
Devils Lake. Our confidence in our forecasts and outlooks is 
based on our new AHPS capability and the environmental 
conditions, which include the excessive snowpack, the very wet 
soil conditions, and expected precipitation and temperatures 
for the next 9 months.
    At this time, it is not possible to forecast how much 
additional snow will fall before the start of the normal 
snowmelt cycle. Historically, an additional 20 to 25 inches of 
snow can be expected to fall by the end of March. As conditions 
can change prior to snowmelt, the National Weather Service will 
continue to carefully monitor the situation. Snowmelt typically 
occurs in late March or early April. We update our long-range 
forecasts every month or more frequently if conditions warrant. 
Once snowmelt begins, we will issue daily forecasts for the 
lakes and rivers on our area, including Devils Lake.

                           PREPARED STATEMENT

    Mr. Chairman, this concludes my testimony. I thank you for 
the opportunity to discuss the National Weather Service's role 
in forecasting lake levels for Devils Lake.
    The threat for flooding this spring in that part of the 
country is high. The National Weather Service will continue to 
monitor the situation closely and work with Federal, State, and 
local officials to ensure they have the information needed to 
make the best decisions possible to prepare for flooding.
    I would be happy to answer any questions you may have.
    [The statement follows:]
                   Prepared Statement of Scott Dummer
    Good morning, chairman and members of the subcommittee. I am Scott 
Dummer of the National Oceanic and Atmospheric Administration's 
(NOAA's) National Weather Service. I am the Hydrologist-In-Charge of 
the North Central River Forecast Center, located in Chanhassen, 
Minnesota. Thank you for inviting me to discuss the National Weather 
Service (NWS) hydrologic forecast for the Devil's Lake region of North 
Dakota.
    NOAA's vision is an informed society that uses a comprehensive 
understanding of the role of the oceans, rivers, lakes, coasts, and 
atmosphere in the global ecosystem to make the best social and economic 
decisions. NOAA pursues this vision through its mission to monitor, 
understand and predict changes in Earth's environment and conserve and 
manage coastal, marine, and freshwater resources to meet our Nation's 
economic, social, and environmental needs. NOAA's programs provide the 
Nation with services and information to protect lives and property, and 
improve management of weather and water sensitive sectors, such as 
energy, agriculture, transportation, recreation and emergency response. 
These services and information are built upon an infrastructure which 
includes environmental observations, analyses and predictions, 
forecasts, and sustained user interaction. NOAA's weather, water, and 
climate programs work to monitor conditions and provide forecasts to 
meet the Nation's need for reliable and accurate information.
    In my testimony today, I will discuss the latest NWS forecast and 
uncertainty information for the water levels at Devil's Lake, and 
describe the science and coordination required to produce our 
forecasts. First, I will provide a little background about the North 
Central River Forecast Center. The North Central River Forecast Center 
(NCRFC) is part of a network of 13 River Forecast Centers across the 
United States. River Forecast Centers collect and process observations, 
and provide forecasts and information about water resources for major 
rivers and their tributaries across the country. My area of 
responsibility is highlighted in Figure 1. River Forecast Centers are 
also fully integrated with the larger network of Weather Service 
Forecast Offices and together we communicate and coordinate our 
forecasts and information with Federal, State and local officials who 
play an active role in water management and emergency response. It is 
our role to provide information to these officials to enable them to 
make the best decisions possible.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    During this past fall (September, October, and November) 
precipitation was up to 200-300 percent of average across eastern North 
Dakota and northwestern Minnesota. The precipitation was spread across 
the entire 3 month period, as each of the 3 months recorded above 
average rainfall totals. This was the wettest fall on record for the 
cities of Devils Lake, Fargo and Grand Forks. Soil moisture 
observations taken just prior to the freeze-up in early December, 
revealed nearly saturated moisture levels in the upper 8 inches of soil 
across the Red River Valley, including those areas that feed into 
Devil's Lake.
    The onset of winter came abruptly as temperatures plunged in early 
December. The quick, hard freeze occurring with minimal snow cover and 
near saturated soil moisture conditions allowed the frost to quickly 
penetrate the ground to a depth of 2 feet. Snow fell on 23 days in 
December, with 24.5 inches falling in Devils Lake after December 14. By 
the end of the month, new December snowfall records were established 
for Fargo and Grand Forks, with the water content of the snow pack at 
170-300 percent of average levels. January precipitation and snowfall 
were near normal levels, while temperatures remained well below 
average.
    Based on the fall and early winter weather, we identified a 
significant threat of major flooding this spring in the Red River of 
the North basin in northwestern Minnesota and eastern North Dakota 
(Figure 2). Devils Lake is located within this basin. We believe when 
this year's significant snowpack melts, it will make a major 
contribution to flooding in the Red River basin. Because of this 
threat, the NWS is actively coordinating with other Federal agencies, 
and State and local officials within the U.S. portion of the Red River 
basin, as well as providing information to appropriate authorities for 
Manitoba, Canada.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    We began mentioning the potential for significant spring flooding 
in December, based on the hard freeze and above average snowfall. In 
January, we increased our coordination and conducted a conference via 
the Internet with representatives from the U.S. Geological Survey's 
North Dakota Water Science Center, the U.S. Army Corps of Engineers' 
St. Paul District, the Department of Water Stewardship for the 
Government of Manitoba, and the North Dakota State Water Commission. 
The objective of the conference was to alert these agencies of the 
potential threat identified in our preliminary internal model runs, and 
the high probabilities of flooding in the Red River basin, including 
Devils Lake. We asked all of the conference participants to provide 
assistance in acquiring observations of snow water content throughout 
the area to help us produce the best possible outlook.
    Our standard outlook available on the Internet provides potential 
water levels out to 3 months (http://www.weather.gov/water). However, 
the Devils Lake River Basin is large and flat which results in an 
unusually long travel time for precipitation and/or snow melt to reach 
Devils Lake. Due to this long travel time and associated slow response 
in the level of Devils Lake, we provide to our users extended outlooks 
for this location through September 2009. This particular service 
provides an early outlook which includes the possible height to which 
Devils Lake could rise during the spring and summer. An example of this 
product is in Figure 3. The ``Exceedence Probability'' graph represents 
the likelihood, or probability, of the lake exceeding a certain level 
for 5 ranges of probability, over the time period January 19-September 
30, 2009. Current extended range forecasts suggest the water levels at 
Devils Lake will peak in late June through early July (which is normal 
for this area).

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    In developing forecasts, the NWS also considers historical data 
provided by local entities. Devils Lake is a closed basin (where runoff 
terminates in the lake) below the 1,459 foot level. According to the 
North Dakota State Water Commission: \1\
---------------------------------------------------------------------------
    \1\ http://www.swc.state.nd.us/4DLink9/4dcgi/GetContentPDF/PB-206/
DL_Quick_Facts.pdf.
---------------------------------------------------------------------------
  --Flooding in the Devils Lake Basin, which began in the 1990s and 
        continues to the present (2008), has destroyed hundreds of 
        homes and businesses and inundated thousands of acres of 
        productive farmland.
  --Since 1993, Devils Lake has risen about 25 feet and the volume of 
        water in Devils Lake has quadrupled.
  --The State of North Dakota has constructed an outlet to allow water 
        from Devils Lake to flow into the Sheyenne River.
  --At least twice in the last 4,000 years Devils Lake has risen to the 
        1,459 foot level. This is the level at which Devils Lake will 
        begin to divert water into the Sheyenne River.
    In addition, according to the U.S. Geological Survey, Devils Lake 
began flowing into Stump Lake (an adjacent closed basin) in 1999. The 
two lakes have since merged and are rising together.
    The current forecast calls for an almost 99 percent likelihood the 
water level at Devils Lake will exceed the recent record lake level of 
1,449.2 feet, set in May 2006. There is also a 25 percent possibility 
the water level at Devils Lake will exceed 1,452.1 feet, and a 2 
percent possibility the water level will exceed a height of 1 foot 
below the current dike protection level of 1,455.0 feet (Figure 3). In 
late January, we briefed this information to the U.S. Army Corps of 
Engineers Regional Interagency Levee Task Force, and other public 
officials. We continue to monitor the situation closely, update our 
forecasts using the latest information available to us, and provide 
briefings to Federal, State, and local officials.
    Now I will talk briefly about some of the science behind our 
forecasts. Our river and lake level forecasting system, which 
integrates soil moisture, snow and ice pack, and seasonal precipitation 
and temperatures, continues to yield more complete and comprehensive 
forecast information through the implementation of the Advanced 
Hydrologic Prediction Service (AHPS). Complex environmental conditions 
and interactions are represented in our models to produce forecast and 
uncertainty information for specific river or lake locations. Through 
the implementation of AHPS, we are extending the range, quantifying the 
certainty, improving the timeliness and accuracy of our river forecasts 
and warnings, and making this information available in user friendly 
text and graphical products. AHPS provides forecasts of river and lake 
levels over time periods ranging from 1 hour to a season and for areas 
large and small, including river forecast information such as:
  --How high the river or lake will rise;
  --When the river will reach its peak; and
  --How long the flooding will continue.
    AHPS also provides better information to water managers and city 
officials, helping them make decisions about water allocation and 
economics such as:
  --When and where to evacuate people, goods and industrial property 
        from potential flood areas;
  --How to use reservoir storage capacity and release to reduce flood 
        impacts on people and businesses, including agricultural 
        demands; and
  --When to reinforce levees and at what level.
    AHPS provides more accurate forecasts for flow conditions ranging 
from droughts to floods in a timely and user-friendly manner. AHPS 
enables our forecasters to use a combination of software and hardware 
tools to analyze data and create graphical displays of probability 
forecasts. There are currently 2,237 AHPS forecast points across the 
Nation, 404 within my area of responsibility, including one at Devils 
Lake.
    Our outlooks are for planning purposes and provide the probability 
of the lake exceeding various stages based on current conditions and 58 
years (1948-2006) of observed precipitation and temperature data from 
January through September. We seldom see such a high probability of 
exceeding record levels. Our confidence is based on the excessive 
snowpack, the very wet soil conditions, and expected ``average'' 
precipitation and temperatures for the next 9 months. We also believe 
there is more snow in and near shelterbelts which is not well 
represented in an ``average'' snowpack. Shelterbelts, also known as 
windbreaks, and are made up of one or more rows of trees or shrubs 
planted in a manner which provides shelter from the wind. They are 
commonly planted around the edges of fields on farms. They are also 
planted to help keep snow from drifting onto roadways and yards.
    At this time, it is not possible to forecast how much additional 
snow will fall before the start of the normal melt cycle, but 
historically, an additional 20-25 inches of snow can be expected to 
fall by the end of March. By incorporating the past 58 years of 
climatological data, the outlooks already take into account the threat 
of above average precipitation, and this is represented by the 
forecasts for higher lake levels, but with a much lower probability the 
levels will rise that high. As conditions can change prior to snow 
melt, the NWS will continue to carefully monitor the situation. Snow 
melt typically occurs in late March or early April. We update our long-
range forecasts every month, or more frequently if conditions warrant. 
Once snow melt begins, we will issue daily forecasts for the lakes and 
rivers in our area.
                           concluding remarks
    Mr. Chairman, this concludes my testimony. I thank you for the 
opportunity to discuss the NWS's role in forecasting lake levels for 
Devils Lake. The threat for flooding this spring in that part of the 
country is high. The NWS will continue to monitor the situation closely 
and work with Federal, State and local officials to ensure they have 
the information needed to make the best decisions possible to prepare 
for flooding. I would be happy to answer any questions you or other 
members of the subcommittee may have.

    Senator Dorgan. Mr. Dummer, thank you. You've painted a 
pretty ominous picture of what might be ahead of us in the next 
several months in North Dakota, but we appreciate the work the 
National Weather Service does to give us their best estimate of 
what might happen.
    Mayor Walaker, you have been involved in flood fights in 
many different ways. In the major 1997 flood, I recall you 
standing on the top of a dike. You led the flood fight in the 
city of Fargo, and the Fargo Forum actually printed a cartoon 
of you standing on the top of the dike with a red cape on. But, 
I think the folks in Fargo understood the importance of your 
work in that flood fight in 1997. So, it's not as if this issue 
of flooding is a stranger to you. We appreciate your coming. 
You're now, of course, the mayor of the community, and will be 
engaged once again. But, I'm interested in hearing your 
perspective of what this might mean with the Weather Service 
suggesting that--the risk of major flooding in the Red River 
Valley this year, and where we are relative to where we were in 
1997.
    You may proceed.
STATEMENT OF DENNIS WALAKER, MAYOR, CITY OF FARGO
    Mr. Walaker. Senator Dorgan and members of the committee, 
reflecting back to 1975, when I joined the engineering 
department of the city of Fargo, there is a certain amount of, 
always, optimism, because you can't enter these events without 
some optimism that you're going to succeed. But, it gets 
tiring. We thank you for inviting us to testify today on behalf 
of the city of Fargo in regards to flood issues in our 
community and the entire Red River Valley.
    As mayor of Fargo, I can tell you from experience, flooding 
in the valley is the No. 1 cause for concern when it comes to 
natural disasters. I have firsthand experiences in dealing with 
the rising waters in our community, along with many of our 
staff.
    Prior to becoming mayor in 1996, I was the head of the 
public works for the city and one of the lead-person staff on 
responding to flooding conditions in our community. Before I 
relate to you some of the flood issues in Fargo, I want to 
address some of the more general flood issues in the entire Red 
River Valley.
    For the most part, the Red River to the north, from Lake 
Traverse, located in North Dakota, serves South Dakota, 
Minnesota and South Dakota border to Winnipeg, Manitoba, 
Canada. There's very little elevation drop. On average, the 
fall is about 1 foot per mile. The land surrounding the river 
is very flat. It's been described as a bathtub. And the Red 
River is where the drain is.
    For the most part, the topography of the island--of the 
land in Minnesota is higher than North Dakota property. The Red 
River flows north into Hudson Bay; thus, the river melts faster 
in the south end of the stream than the north end. This causes 
problems, such as ice dams, pooling of water in the upper 
reaches, because the frozen river system in the lower reaches 
is not ready to accept water flowing north.
    We all have to realize it is the only river in the United 
States that flows north. It starts, and it flows north into 
Canada. There are some rivers that start in Canada, come down, 
and then--and flow north, but this is the only one that begins 
in the United States and ends up in Hudson Bay.
    As you're aware of a number of cities along the Red River 
experiencing severe drought flooding--or, severe flooding in 
1997, and have addressed their problems through assistance of 
the Federal and State governments. Grand Forks, North Dakota, 
East Grand Forks, Minnesota, Breckenridge, Minnesota, and 
Wahpeton, North Dakota, have all developed a flood protection 
system that meets the Corps of Engineers certification process 
for levees.
    Back in 1997, we were basically--since we were successful 
in our flood fight to allow the other cities to receive--so, 
as--the question always has been, Is it better to win than it 
is to lose? I still think winning is the answer.
    Winnipeg, Manitoba, Canada, improved their bypass 
diversions after the 1997 flood, as well, with Federal 
expenditures there exceeding $800 million. Duff's Ditch as it's 
currently called--or Duff's Folly--was widened to double, 
basically, the size in their bypass. One of the things about 
1997 was it was the largest deployment of the National Guard in 
Manitoba in the history of the country.
    I've been in touch with Mayor Brown, from Grand Forks, on 
the current status of their flood projects, attached is Mayor 
Brown's observations.
    [The information follows:]
                  Letter From Michael R. Brown, Mayor
                                       City of Grand Forks,
                                Grand Forks, ND, February 10, 2009.
Senator Byron L. Dorgan,
Chairman, Energy and Water Development Subcommittee on Appropriations, 
        U.S. Senate, Washington, DC.
    Chairman Dorgan and Members of the Senate Appropriations 
Subcommittee on Energy and Water: Thank you for this opportunity to 
provide testimony on the potentially catastrophic situation that is 
taking shape in North Dakota in the form of unprecedented spring 
flooding events.
    Unfortunately, we in Grand Forks have firsthand experience of a 
major flood disaster. In 1997, our community of 50,000 people was 
inundated with floodwater, forcing nearly all residents to evacuate and 
ceasing commerce for weeks and everyday life for months and even years. 
The financial cost alone, at an estimated $2 billion, is staggering. 
Just as significantly, the damage and the hardship of rebuilding took a 
tremendous psychological toll on individuals and the community as a 
whole.
    As we look across the countryside and as we receive preliminary 
data about spring flood expectations this year, we shudder. Of course, 
our community was assisted by the entire Nation in our rebuilding and 
part of this Herculean effort included a flood protection system 
constructed under partnership at all levels of government. However, 
even with our flood protection project, we remain vigilant. We're 
continuously monitoring all new information available and we're taking 
precautionary measures to ensure we are as prepared as possible.
    More pressing than our own situation, we shudder for our friends in 
the communities around us who are not as prepared as we are. Because we 
know the impact of this disaster, we are committed to make every effort 
to ensure other communities will not have to go through what we did. 
Therefore, we urge you to encourage and facilitate a significant 
planning effort by all appropriate Federal agencies.
    Already, several organizations such as FEMA and the National 
Weather Service have been very helpful in providing preliminary data 
and evaluation and other mitigation planning tools. We are urging that 
they will continue to do so and, importantly, have the resources to do 
so. There is little doubt this area will be the scene of a crisis this 
spring. We all desperately need help to mitigate this impending 
disaster.
    Thank you, again, for this opportunity to provide testimony on this 
serious matter and I, on behalf of our community and those all around 
us, appreciate any action you can take.
            Sincerely,
                                          Michael R. Brown,
                                    Mayor, City of Grand Forks, ND.

    Mr. Walaker. Since 1997, we have experienced three other 
significant flood events. One of the events was a summertime 
flood, in 2000. We--it was called a ``hidden flood,'' because 
it flooded so many inland areas of our city--while 2 spring 
events in 2001 and 2006 also fell within the top 10 floods of 
all time in Fargo. Why is this? Is it weather patterns? Is it 
drainage issues? Is it farming practices? I would say it's a 
combination of all of them.
    After the 2006 flood, I was invited down to Abercrombie, 
North Dakota, by one of its previous mayors, to survey the 
conditions and what's causing this quickness of flooding in the 
valley. As we traveled into the farmlands of both Minnesota and 
North Dakota, it appeared to us that more and more farmland is 
being drained into legal ditches that are being enlarged to 
accommodate farmland runoff. Given the prices of crops, who can 
blame the farmer for seeking to increase his production? But, 
there is a price to pay, and that is an increase in the flows 
of the Red River. If we don't have protection around our 
communities, we will see more flooding taking place.
    As for Fargo, I have attached a historic record of flood 
events for our community. You can see how the most recent 
floods have been paired against the 1997 flood that brought 
over 39 feet to the Red River flood stage through Fargo. Our 
normal flood stage is 18 feet; right now, the river is running 
about 15 feet. So, you understand that it's a significant 
raise.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Also attached are pictures of flooding waters south of 
Fargo during 1997. And one time during this flood, I flew to 
the upstream reaches of the Red River, and the Wild Rice River 
which joins the Red about 6 miles south of Fargo. During these 
aerial flyovers, we saw water coming at Fargo that was 8 miles 
wide and 10 to 12 miles long. All of the water had to flow 
through Fargo-Moorhead on its way north. Imagine an hourglass, 
and imagine how water flowing at 5 miles an hour at a rate of 
28,000 cubic feet per second must move through a community for 
14 miles before it reaches the north side of Fargo. Normally, 
the river flows at 3 miles an hour at a rate of about 2,000 
cubic feet per second or less.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    We have addressed a number of flood-prone areas since 1997. 
We have purchased over 100 homes that were located in the area 
that was flooded at 31 feet above flood stage. We have 
improved, relocated, and added pumping stations for our 
sanitary and storm sewers, but not--it should also be noted, 
while we must protect property from Red River flooding, we must 
also be aware of flooding during a rain event, whereby the 
community can be flooded from the inside of the dikes if the 
pumping system doesn't work.
    We have grown into rural areas on the south side of Fargo 
that requires additional levee protection. One of the major 
revelations during the 1997 flood was the overland flooding 
that took place. We now--so, now we need to--not only protect 
the community from Red River breakouts, but we must protect our 
property from overland flooding that occurs when the water 
breaks out from lesser streams, like the Wild Rice River.
    And finally, while all this protection is being planned, we 
must also assure our citizens that the pumps work in case we 
have a major rain or snow storm during high water.
    In closing, first of all, I want to thank the committee for 
listening, remind everyone that a lot of work has gone into 
protecting our communities and properties of the Red River. If 
you drive north into Canada, you will see that every community, 
from the border to Winnipeg, is protected by rain dikes. After 
the 1997, Fargo committed to allowing other communities that 
suffered more damage to proceed in finding a flood protection 
plan to assist them. They are now protected. The Corps of 
Engineers did a wonderful job in Grand Forks, just an absolute 
wonderful job.
    The figure that's being used for the 1997 flood was $2 
billion. These figures would be exceeded if we would have lost 
Fargo. And I can remember our Governor at that time asking me 
the simple question--he said we couldn't afford to lose both 
towns, because we served as the basis for providing aid and 
assistance to Grand Forks after the 1997 flood.

                           PREPARED STATEMENT

    We think it is our turn to receive assistance, and we are 
willing and--more than willing to work with anybody that could 
move our south-side flood protection. The dike up by the VA 
hospital, in that area, is proceeding. It should be completed 
this summer, this spring. They are doing a study on the rest of 
the city. We know that's not--even with our south-side flood 
protection, the projects do not end before we receive what we 
consider adequate protection from the raging Red.
    Thank you.
    [The statement follows:]
                  Prepared Statement of Dennis Walaker
    Dear Senator Dorgan and members of the subcommittee, thank you for 
inviting me to testify today on behalf of the city of Fargo in regards 
to flood issues in our community and the Red River Valley. As Mayor of 
Fargo, I can tell you from experience, flooding in the Valley is the 
number one cause for concern when it comes to natural disasters. I have 
first hand experiences in dealing with rising waters in our community. 
Prior to becoming Mayor in 2006, I was the head of Public Works for the 
city and lead staff person responding to flood conditions in our 
community. Before I relate to you some of the flood issues in Fargo, I 
want to address some of the more general flood issues in the Red River 
Valley.
    For the most part the Red River of the north from Lake Traverse, 
located on the North Dakota, Minnesota, and South Dakota border, to 
Winnipeg, Manitoba, Canada has very little elevation drop--on average 
the fall is about 1 foot per mile. The land surrounding the river is 
very flat, for the most part the topography of the land in Minnesota is 
higher than the North Dakota property. The Red River flows north into 
Hudson Bay. Thus, the river melts faster on the south end of the stream 
then the north end. This causes problems such as ice dams, and pooling 
of water in the upper reaches because the frozen river system in the 
lower reaches is not ready to accept water flowing north.
    As you are aware a number of cities along the Red River experienced 
severe flooding in 1997 and have addressed their problems through the 
assistance of the Federal and State governments. Grand Forks, East 
Grand Forks, Breckenridge, Wapheton all have developed a flood 
protection system that meets the Corp of Engineers certification 
process for levies. Winnipeg, Manitoba, Canada improved their by-pass 
diversions after the 1997 flood as well, with Federal expenditures up 
there exceeding $800 million. I have been in touch with Mayor Mike 
Brown from Grand Forks on the current status of their flood projects, 
attached is Mayor Brown's observations.
    Since 1997, we have experienced three other significant flood 
events. One of the events was a summer time flood--2000; while two 
spring time events in 2001 and 2006 also fell within the top 10 floods 
of all time for Fargo. Why is this? Is it weather patterns, is it 
drainage issues, is it farming practices? I would say it is a 
combination of all of them. After the 2006 flood I was invited down to 
Abercrombie, North Dakota by its Mayor to survey conditions surrounding 
that small community. We traveled into the farm lands in both Minnesota 
and North Dakota. It appeared to us that more and more farm land is 
being drained into the legal ditches, that are being enlarged to 
accommodate the farm land run off. Given the price of crops nowadays, 
who can blame the farmer from seeking to increase production. But there 
is a price to pay and that is an increase in the flows of the Red 
River. If we don't have protection around our communities we will see 
more flooding taking place.
    As for Fargo, I've attached an historic record of flood events for 
our community. You can see how the most recent floods have compared 
against the 1997 flood that brought over 39 feet to the Red River 
through Fargo. It should be noted flood stage for Fargo is 18 feet. 
Also attached are pictures of flooding waters south of Fargo during 
1997. At one time during this flood, I flew the upstream reaches of the 
Red River and the Wild Rice River, which joins the Red about 6 miles 
south of Fargo. During these aerial flyovers we saw water coming at 
Fargo that was 8 miles wide and 10 to 12 miles long. All of the water 
had to flow through Fargo-Moorhead on its way north. Imagine an hour 
glass, and imagine how water flowing at 5 miles an hour, at a rate of 
28,000 per cubic foot per second must move through a community for 14 
miles before it reaches the north side of Fargo. Normally, the river 
flows at 3 miles an hour at a rate of about 2,000 per cubic foot per 
second or less.
    We have addressed a number of flood prone areas since 1997. We have 
purchased over 100 homes that were located in areas that were flooded 
at 31 feet about flood stage. We have improved, relocated and added 
pumping station for our sanitary and storm sewers. It should be noted, 
while we must protect property from Red River flooding we must also be 
aware of flooding during a rain event whereby the community can be 
flooded from the inside of the dikes if the pumping system doesn't 
work.
    We have also grown into rural areas on the south side of Fargo that 
requires additional levy protection. One of the major revelations 
during the 1997 flood was the overland flooding that took place. So now 
we need to not only protect the community from Red River breakouts, we 
must protect property from overland flooding that occurs when water 
breaks out from lesser streams like the Wild Rice River and finally 
while all this protection is being planned we must also assure our 
citizens that the pumps work in case we have a major rain or snow storm 
during high water.
    In closing, I want to thank the subcommittee for listening and 
remind everyone that a lot of work has gone into protecting communities 
and properties along the Red River. After the 1997 flood, Fargo 
committed to allowing other communities that suffered more damage to 
proceed in finding a flood protection plan to assist them, they are now 
protected. We think it is our turn to receive assistance. Thank you.

    Senator Dorgan. Mayor, thank you very much. You know, the 
issue of flood threats in some areas might be responded to 
differently than in our area after the 1997 flood--you know, 
apparently a 500-year flood, or perhaps even more, and 
essentially, the largest city evacuated since the Civil War--
and to see the fight that went on in Fargo to try to make sure 
you saved the city of Fargo--I think all of us understand the 
urgency and the tension whenever we hear, again, a flood 
threat, and especially when you talk about major flood threat. 
And so, this is not just some ordinary response in our part of 
the country. We understand the need to respond aggressively to 
just the threat. And it's the reason for this hearing.
    Mayor Bott, you have, as I indicated, been the recipient of 
a lake flood that came and stayed, and now appears, by all 
accounts, to be moving towards new record levels of flooding, 
which will have a substantial impact on much of your 
infrastructure--levees, roads, the economy, and all the things 
that are impacted by this flooding. So, I appreciate your 
coming today, and why don't you proceed.
STATEMENT OF FRED BOTT, MAYOR, CITY OF DEVILS LAKE; 
            PRESIDENT, DEVILS LAKE CITY COMMISSION
    Mr. Bott. Good morning, Senator Dorgan. Thank you for 
giving me the opportunity to speak to you today concerning 
these challenges facing our community and the implications with 
the rising water levels. I would have to echo what Mayor 
Walaker said. When you're living in a community where flooding 
is likely, it seems like it's always on the horizon. You 
certainly need to be optimistic that you're going to be able to 
deal with this.
    I would like to thank you for the ongoing support you've 
provided to our community throughout those years of flooding. 
The dike protecting the city, the roads leading to our 
community, and the development of our new drinking water supply 
would not have been possible without your unrelenting support.
    I'd like to discuss three items of the multiple challenges 
facing the city of Devils Lake: the importance of the city 
within the region, our water supply project, and then the levee 
system.
    Devils Lake is the 11th largest city in North Dakota. The 
2000 census placed our population at 7,222 residents. We have a 
regional airport that, last year, had 3,226 departures. Five 
miles south of Devils Lake is the Spirit Lake Nation, which is 
home to approximately 6,500 people. Spirit Lake relies almost 
entirely on the city of Devils Lake for its retail needs. Also 
just south of the city is Camp Grafton, a National Guard 
training facility which employs 220 people, year round. Camp 
Grafton is in the process of implementing tens of millions of 
dollars worth of improvements, and relies heavily on the local 
airport for transportation of students. Last year alone, Camp 
Grafton trained nearly 3,200 regular Army and Reserve-component 
soldiers. With the closest regional center being 90 miles away, 
the city of Devils Lake plays a vital role in the local 
economy.
    The drinking water supply project, we are proceeding with 
the development of our emergency water source replacement 
project. This project was initiated several years ago to 
address the precarious situation created by the lake inundating 
6 miles of our existing supply line. A failure within the 
inundated portion of the pipeline would leave the city without 
adequate drinking water.
    In 2007, the city completed installation of 32\1/2\ miles 
of pipeline to connect the city to our new water source. Work 
on our well field has been ongoing since last fall. We hope to 
be able to supply water from the new source to the city 
residents by the end of March this year.
    The city is currently working on the design of a water 
treatment facility, with hopes of awarding bids for 
construction this summer.
    The total water supply project is expected to cost nearly 
$18 million. With your help, Senator, the city has secured 
nearly $7.5 million in Federal grants, including $5.9 million 
from the U.S. Army Corps of Engineers and $1.6 million from the 
EPA. The city has also secured nearly $4.5 million in grant 
funds from the North Dakota State Water Commission.
    And the levee project, my personal file, labeled ``Corps 
and Bank Projects,'' has a beginning date of February 17, 1994. 
The lake elevation at that time was 1,428 feet. The first 
document in that file on that date is a copy of a letter sent 
by Senator Byron Dorgan to Colonel James T. Scott, District 
Engineer of the St. Paul District. The letter concerned 
potential spring flooding.
    The second document within the file is dated March 3, 1994, 
and it is a reply to Senator Dorgan from the division engineer, 
Omaha District, concerning spring flooding.
    Other documents within the file include the city's letter 
to then-Governor Shafer asking him to secure assistance from 
the U.S. Army Corps of Engineers to raise and extend the 
existing protection levee for the city of Devils Lake, dated 
June 21, 1996.
    Our hope was that this would be our only request. We never 
expected that, nearly 13 years later, we would be making yet 
another request to protect the city from the flood emergency 
caused by the waters of Devils Lake.
    It appears that there is significant chance the lake will 
experience a dramatic rise this spring. This is of great 
concern to the city, because the existing levee, with a top 
elevation of 1,460 feet, is already near the fringe for meeting 
Corps dam safety criteria and FEMA floodplain regulations. 
Increasing lake levels will exacerbate this problem and 
ultimately require additional protection measures to be 
implemented.
    Approximately $54 million has been invested in the levee 
system protecting our area. Preliminary estimates for future 
levee work range in excess of $73 million for a 5-foot raise. 
This amount will make it extremely difficult to fund at a local 
level.

                           PREPARED STATEMENT

    Again, Senator Dorgan, thank you for the opportunity to 
speak today. We appreciate that you continue to understand the 
challenges that lie ahead of us, and we hope we are able to 
work together to find workable solutions.
    Thank you, Senator.
    [The statement follows:]
                    Prepared Statement of Fred Bott
    Senator Dorgan and subcommittee members, thank you for the 
opportunity to speak with you today regarding the current challenges 
facing the city of Devils Lake and the potential implications related 
to rising water levels within the lake. My name is Fred Bott. I am the 
president of the Devils Lake City Commission.
    First and foremost, I would like to thank you for the ongoing 
support you have provided to our community throughout the years of 
flooding. The dike protecting the city, the roads leading to our great 
community, and the development of our new drinking water supply project 
would not have been possible without your unrelenting support.
    As you are aware, the city of Devils Lake has faced a multitude of 
challenges resulting from fluctuating lake levels. Today I would like 
to discuss three items with you: the importance of our city within the 
area, our ongoing drinking water supply project, and the Devils Lake 
levee system.
                       city's regional importance
    Devils Lake is the 11th largest city in North Dakota. The city's 
2000 Census population was 7,222 residents. Our public schools have 
1,649 students. Our private elementary school has 140 students. Our 
medical facilities consist of 2 clinics, which saw over 54,000 patients 
last year. Mercy Hospital, our local hospital, had 1,632 patients last 
year and its emergency room saw 10,273 patients. We have three nursing 
and retirement homes. Our regional airport had 3,226 departures last 
year. Lake Region State College, a comprehensive 2 year college and 
vocational school serving nearly 1,700 students, and the North Dakota 
School for the Deaf are also located in Devils Lake. Finally, the size 
of the work force in Devils Lake for which data is available numbered 
5,422.
    Five miles to the south of Devils Lake is the Spirit Lake Nation 
which is home to approximately 6,500 people. Spirit Lake relies almost 
entirely on the city of Devils Lake for its retail needs. Also just to 
the south of the city is Camp Grafton, a National Guard training 
facility, which employs 220 people year round. Camp Grafton is in the 
process of implementing tens of millions of dollars worth of 
improvements and relies heavily on the local airport for transportation 
of students. Last year alone Camp Grafton trained nearly 3,200 regular 
army and reserve component soldiers.
    With the closest regional center being 90 miles away, the city of 
Devils Lake plays a vital role in the local economy. North Dakota State 
Sales tax reports show Devils Lake to have the sixth highest taxable 
sales per capita in the State. This indicates a strong regional 
shopping presence in the city. It would be an extreme hardship if area 
residents, including the Spirit Lake Tribe, had to travel 90 miles for 
shopping access.
                     drinking water supply project
    The city of Devils Lake continues to proceed with the development 
of our Emergency Water Source Replacement Project. The project was 
initiated several years ago to address the precarious situation created 
by the lake inundating 6 miles of our existing supply line that has 
been in service 47 years. A failure within the inundated portion of the 
pipeline could leave the city without an adequate drinking water 
supply. The project will also allow the city to comply with the new 
Safe Drinking Water Act (SDWA) standards for arsenic. The current city 
supply is nearly 3.5 times the allowable limit and we are operating 
under an administrative consent agreement with the North Dakota 
Department of Health. This agreement states that the city will continue 
to work toward development of our new supply and imposes daily fines if 
the system is not operational by March 31.
    In 2007 the city completed installation of 32.5 miles of pipeline 
to connect the city to our new water source. Work on our well field has 
been ongoing since last fall. We hope to be able to supply water from 
the new source to city residents by the end of March of this year. The 
city is currently working on the design of a water treatment facility 
with hopes of awarding bids for construction this summer. Once 
operational, the treatment plant will remove iron and manganese from 
our drinking water and we will no longer have to add chemicals to mask 
their effects.
    The total water supply project is expected to cost nearly $18 
million. With your help, Senator, the city has secured nearly $7.5 
million in Federal grants, including $5.9 million from the U.S. Army 
Corps of Engineers and $1.6 million from the EPA. The city has also 
secured nearly $4.5 million in grant funds from the North Dakota State 
Water Commission. In an effort to ensure that water rates remain 
affordable to city residents, we have requested an additional $1.6 
million in funds from your office to assist in completing this much-
needed project. Any additional aid you can provide will decrease the 
local share required and the community will see a direct benefit in 
lower water bills.
                             levee project
    My personal file labeled ``Corps and Dike Project'' has a beginning 
date of February 17, 1994. The lake elevation at that time was 1,428 
feet. The first document in that file on that date is a copy of a 
letter sent by Senator Byron Dorgan to Colonel James T. Scott, District 
Engineer, St. Paul District. The letter concerned potential spring 
flooding. The second document within the file is dated March 3, 1994, 
and is a reply to Senator Dorgan from Colonel John Schaufelberger, 
Division Engineer, Omaha District, concerning spring flooding. Two 
other documents within the file include the city's Emergency 
Declaration dated June 17, 1996, and the city's letter to Governor 
Shafer asking him to secure assistance from the U.S. Army Corps of 
Engineers to raise and extend the existing flood protection levee for 
the city of Devils Lake dated June 21, 1996. Our hope was that this 
would be our only request. We never expected that nearly 13 years 
later, we would be making yet another request to protect the city from 
the flood emergency caused by the waters of Devils Lake.
    As you will hear today from representatives of the National Weather 
Service, it appears there is a significant chance the lake will 
experience a dramatic rise this spring. This is of great concern to the 
city because the existing levee, with a top elevation of 1,460 feet, is 
already near the fringe for meeting Corps dam safety criteria and FEMA 
floodplain regulations. Increasing lake levels will exacerbate this 
problem and ultimately require additional protection measures to be 
implemented. Local officials have met several times with 
representatives from the Corps regarding this issue, and the Corps has 
initiated the planning process for potential measures to be taken to 
address increasing lake elevations.
    Currently, approximately $54 million has been invested in the levee 
system protecting our area. Preliminary estimates for future levee work 
range in excess of $73 million for a 5 foot raise and nearly $150 
million for a 10 foot ``ultimate'' raise. This amount will make it 
extremely difficult to fund at the local level and I hope that we are 
able to work with State and Federal officials to find a cost effective 
alternative should the lake continue to rise. In the coming months I 
suspect a preferred protection alternative will be chosen that will 
have cost implications. I ask that you continue to support measures 
necessary to protect the city of Devils Lake.
    Again, thank you for the opportunity to speak today. We appreciate 
that you continue to understand the great challenges that lie ahead of 
us and hope that we are able to work together to find workable 
solutions.

    Senator Dorgan. Mayor Bott, thank you very much. Time 
flies, I guess. But, I was just thinking, the letter that you 
found in your files that I sent to the Corps, that's 15 years 
ago.
    So, as I indicated at the start of that, this has been lake 
flooding that is chronic; comes and stays, and now apparently 
is set to substantially increase.
    The North Dakota State water engineer, Dale Frink, Mr. 
Frink, please proceed.
STATEMENT OF DALE L. FRINK, STATE ENGINEER, NORTH 
            DAKOTA WATER COMMISSION
    Mr. Frink. Okay. Thank you, Mr. Chairman, and thank you for 
the opportunity to discuss both Devils Lake and hear some more 
about the Red River Valley flooding.
    If--those that are following my testimony, I am going to 
skip a couple of paragraphs.
    The National Weather Service's 50 percent chance forecast 
is for a 4 foot increase in Devils Lake in 2009. If this 
occurs, widespread damages will occur around the lake.
    Devils Lake currently has a surface area of 140,000 acres, 
an increase of 86,000 acres since 1993. If the lake rises 4 
feet, another 33,000 acres will be lost, and many of the 33,000 
acres are prime farmland. Since 1993, approximately $500 
million has been spent raising roads, sometimes several times, 
relocating roads, moving homes and buildings, building dikes, 
especially around the city of Devils Lake, and relocating and 
modifying water and sewer systems. This does not include the 
abandoned infrastructure or the value of the flooded farmlands.
    A pressing concern is the levee that Mayor Botts has talked 
about, the levee system that now protects the city of Devils 
Lake. The city of Devils Lake and the Army Corps of Engineers 
are present today and address this in a little more detail, but 
there are a couple of points that I do want to talk about.
    The cost of these various scenarios is in the--from what I 
understand, in the $72 million to $100 million range. A major 
concern is how the cost of this recommended project will be 
shared. The current dike was built with a 75/25 cost share by 
the Corps of Engineers. In addition, the project will have 
significant annual operation and maintenance costs. Due to the 
terrible economic impact in the last 15 years, the city of 
Devils Lake and the region have very limited ability to cost-
share.
    Another major concern is Camp Grafton. Camp Grafton used to 
be considered a North Dakota Army National Guard training site, 
but it is becoming a national military training center. The 
Camp Grafton Training Center employs over 200 personnel that 
support the North Dakota National Guard's role as an 
operational force in the global war on terror. The 164th 
Engineer--or Regional Training Institute is located on this 
installation, and this institute trains over 3,100 reserve and 
active component soldiers annually in the engineering/military 
skill sets. The training center has over $193 million worth of 
infrastructure and provides an annual economic impact to the 
region of $17 million.
    Camp Grafton is literally surrounded by Devils Lake, and 
has lost considerable acreage to the lake. Highway 20/57 
provides the main access to the training site, and efforts are 
underway to rebuild the Acorn Ridge portion of this road to act 
as a dam. This alternative was found to be the most cost-
effective option for this portion of the project. The current 
project has only enough funds to rebuild the road to current 
elevation of 1,455 feet. And based on the Weather Service's 
projected lake level, additional Federal funds should be 
allocated to this project, because of--they will get in trouble 
at anything above that level.
    Major expenditures will be required to raise roadways if 
the lake levels continue to rise. It is estimated to cost about 
$279 million to raise all State highways impacted by the rising 
water to elevation 1,465 feet. This does not include the cost 
to raise county and BIA roads that will also be impacted.
    In addition, it's estimated to cost about $67 million to 
raise railroad grades to 1,465 feet, and this is provided by 
North Dakota DOT.
    I'll skip the next paragraph.
    The flood in Devils Lake is far different from the flooding 
that occurs near rivers that will rise then fall to normal 
levels. When a home or business is flooded by Devils Lake, the 
water does not recede; the structure is lost for good. It 
should be noted that properties several feet above the actual 
lake level are in jeopardy as a result of wave action, 
saturated ground, and erosion.
    Fifteen years of flooding have taken a serious toll on 
Devils Lake, with some 600 structures being impacted, and 450 
of these were homes. FEMA has engaged in the flood-fight 
process by processing over 1,200 insurance claims amounting to 
$33 million. With the forecast of new record highs, FEMA and 
the local emergency managers are encouraged--are encouraging 
the continuous purchase of flood insurance. FEMA has a 
significant presence with other programs.
    And I'll skip the next two paragraphs.
    Communities adjacent to Devils Lake have all suffered 
greatly over the last 15 years. The city of Churchs Ferry was 
bought out by FEMA in 2000. The city of Minnewaukan, a small 
county seat lying on the western edge of Devils Lake, is now in 
jeopardy of the same fate. U.S. Highway 281 used to go through 
their community. It now has been rerouted about a mile west, to 
get around the lake.
    Lake water is lapping at Minnewaukan School and in many 
homes. The original city sewage lagoons were flooded and 
replaced in the early 1990s. The projected lake level threatens 
their water and sewage systems, with the likelihood that 
manholes will be flooded this year.
    The Corps has investigated the option of building levees to 
protect the town, but feasibility is a major issue. Clearly, 
the city of Minnewaukan will have difficult decisions to make 
as the lake rises.

                           PREPARED STATEMENT

    In addition to the larger problems, there are numerous 
smaller areas that are experiencing problems, such as Stump 
Lake Park, in Nelson County, boat ramps all around the lake, 
campgrounds, and various lake cabin sites around the lake. 
Groundwater levels continue to rise, which will create 
significant problems for any structure with a basement.
    In closing, I'd like to thank you for this hearing. I look 
forward to working with you on this important issue.
    [The statement follows:]
                  Prepared Statement of Dale L. Frink
    Chairman Dorgan and members of the subcommittee on Energy and Water 
Development, thank you for the opportunity and privilege to provide an 
update on flooding problems that continue to plague the Devils Lake 
region of North Dakota. Last March, it was my pleasure to provide your 
subcommittee a summary of flood related issues that have impacted the 
Devils Lake area over the past decade-and-a-half, and highlight actions 
the State has taken to mitigate damages. Unfortunately, based on the 
latest report from the National Weather Service's North Central 
Forecast Center, it appears flooding will worsen again this year. Above 
average rainfall last fall, coupled with significant snow pack across 
the basin this winter, indicates that Devils Lake will likely 
experience a new record high lake level in 2009.
    The National Weather Service's 50 percent chance forecast is a 4 
foot increase for Devils Lake in 2009. If this occurs, widespread 
damages will occur around the lake. Devils Lake has a current surface 
area of 140,000 acres, an increase of 86,000 acres since 1993. If the 
lake rises 4 feet to 1,451 feet msl, another 33,000 acres will be lost. 
Also, many of the 33,000 acres are prime farm land.
    Since 1993, approximately $500 million has been spent raising 
roads, some several times, relocating roads, moving homes and 
buildings, building dikes especially around the city of Devils Lake, 
and relocating and modifying water and sewer systems. This does not 
include the abandoned infrastructure or the value of the flooded lands.
    Of pressing concern is the levee system that now protects the city 
of Devils Lake. Representatives from the city of Devils Lake and the 
U.S. Army Corps of Engineers are present today and will address this 
issue in detail. We are all currently involved in the Corps' 
feasibility study to examine flood protection measures necessary to 
address future rises in Devils Lake water levels. The Corps will 
explain their efforts thus far, including their cost estimates for 
modification to the current levee system. Preliminary cost estimates 
have been presented for three levee alignment scenarios. These 
scenarios range in cost from $72 million to about $100 million. A major 
concern is how the cost of the recommended project will be shared. The 
current dike was built with a 75/25 percent Federal/non-Federal cost 
share by the Corps of Engineers. In addition, the project will have a 
significant annual operation and maintenance cost. Due to the terrible 
economic impact 15 years of flooding has had on the city of Devils Lake 
and the region, the local ability to pay is severely limited.
    Another area of concern is Camp Grafton--a major North Dakota Army 
National Guard training site. The Camp Grafton Training Center employs 
over 200 personnel that support the North Dakota National Guard's role 
as an operational force in the Global War on Terror. The 164th Regional 
Training Institute (RTI) is located on this installation. The RTI 
trains over 3,100 reserve and active component soldiers annually in the 
engineering military skill sets. The training center has over $193 
million worth of infrastructure and provides an annual economic impact 
of $17 million on the local economy.
    Camp Grafton is literally surrounded by Devils Lake and has lost 
considerable acreage to Devils Lake. Highway 20 and 75 provides the 
main access to the Camp Grafton Training Center. Efforts are underway 
to rebuild the Acorn Ridge portion of this road to act as a dam. This 
alternative was found to be the most cost effective option for this 
portion of the Roads Acting As Dams project. The current project has 
only enough funds to rebuild the road to its current elevation of 1,455 
feet. Based on the National Weather Service's projected lake levels, 
additional Federal funding should be allocated to the Acorn Ridge 
portion of the Roads Acting As Dams project to ensure adequate 
protection is provided. Without this additional protection, many of the 
RTI training centers that are required for accreditation would be 
inundated with water.
    Major expenditures will be required to raise roadways if the lake 
level continues to rise. It is estimated to cost about $279 million to 
raise all State highways impacted by rising water to an elevation of 
1,465 feet msl. This does not include the cost to raise county and BIA 
roads that will also be impacted. In addition, it is estimated to cost 
about $67.8 million to raise railroad grades to 1,465 feet msl.
    As Devils Lake has sprawled across the landscape, many miles of 
township, county, State, and Federal roadways have been impacted. Many 
local road segments have had to be abandoned while most State and 
Federal roads have been raised or relocated. Road closures and 
construction have been very disruptive for personal travel, commerce, 
and especially for emergency operations. The forecasted lake elevation 
will undoubtedly pose additional burdens on the local transportation 
systems. The representative from the Spirit Lake Nation will brief you 
on road and other issues within their boundaries. We anticipate that 
non-reservation roads in several areas will need additional work in 
2009. In the past, the solution has been to raise the road grade or re-
route. Some of the raised roads became barriers, essentially dikes, 
protecting land, homes, and commercial properties from Devils Lake. 
Highway 20/57 south of Devils Lake near Acorn Ridge is particularly 
problematic since that road now protects areas of Camp Grafton and 
several residential properties. The North Dakota Department of 
Transportation, U.S. Army Corps of Engineers, North Dakota National 
Guard, and the North Dakota State Water Commission have been 
considering solutions to maintaining this important transportation 
conduit to protect the Camp Grafton training facilities.
    The flood at Devils Lake is far different from the flooding that 
occurs near rivers that will rise then fall to normal levels. When a 
home or business is flooded by Devils Lake, the water does not recede--
the structure is lost for good. It should be noted that properties 
several feet above the actual lake level are in jeopardy as a result of 
wave action, saturated ground, and erosion. Fifteen years of flooding 
has taken a serious toll on development around Devils Lake with some 
600 structures being impacted--450 of those were homes. FEMA has been 
engaged in the flood fight processing almost 1,200 insurance claims 
accounting for about $32.5 million in damages. With the forecast of a 
new record high, FEMA and local emergency managers are encouraging the 
continued purchase of flood insurance. FEMA has a significant presence 
with its other programs as well.
    As a result of the unique circumstance at Devils Lake, FEMA's flood 
insurance policies were modified in 1999 to provide for continuous lake 
flooding hazards. This has been very beneficial in that buildings 
threatened by the rising lake can be moved before they are actually 
inundated. The flood insurance claims process is also beneficial in 
that it operates completely in the private sector and land remains in 
private ownership. Local governments monitor remaining vacant property 
so that any future development recognizes and avoids future flood 
threats.
    In the Lakewood area alone, almost 100 homes valued at more than 
$14 million lie below elevation 1,455. If the Corps current embankments 
aren't modified, these homes and several commercial or public 
structures, and the infrastructure that support them, are in jeopardy. 
Corps representatives will talk about the Devils Lake embankment 
feasibility study and what they believe needs to be done to protect 
this area.
    Communities adjacent to Devils Lake have all suffered greatly over 
the past 15 years. The city of Churchs Ferry was bought out by FEMA in 
2000. The city of Minnewaukan, a small county seat town lying on the 
western edge of Devils Lake, is now in jeopardy of the same fate. U.S. 
Highway 281 used to go through their community but has been rerouted 
about a mile to the west to get away from the lake. Lake water is 
lapping at their school and many homes. The original city sewage 
lagoons were flooded and replaced in the early 1990s. The projected 
lake level threatens their water and sewage system with the likelihood 
that man-holes will be flooded this spring. The Corps has investigated 
the option of building levees to protect the town, but feasibility is 
an issue. The city of Minnewaukan will have difficult decisions to make 
as the lake rises.
    In addition to the larger problem areas, there are numerous smaller 
areas that are experiencing problems such as Stump Lake park in Nelson 
county, boat ramps, camp ground areas, and various lake cabin sites all 
around the lake. Groundwater levels continue to rise with the lake 
creating significant problems for any structure with a basement.
    In closing, thank you for holding this hearing on Devils Lake 
flooding. I look forward to working with you on this very important 
issue.

    Senator Dorgan. Mr. Frink, thank you very much.

                     DISCUSSION ON RED RIVER VALLEY

    Let me begin asking some questions about the Red River 
Valley, then I'm going to ask questions about Devils Lake, 
although, Colonel, I think, in your testimony, and Mr. Dummer, 
as well, you indicate that, in many ways, the two are joined, 
in terms of the amount of moisture that has been piling up, and 
the potential for flooding as a result of it.
    Colonel Christensen, we had asked you to come and talk 
about Devils Lake. You did not mention the Red River Valley. 
But, Mr. Dummer talked about the Red River Valley some.
    I have the chart that Mayor Walaker brought, that shows the 
flood events. The top red line shows the 1997 event. There is a 
green line that shows the 2006 flood event. Those appear to me 
to be the largest flood and the third largest flood, perhaps, 
if I'm reading this chart right.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Dummer, in terms of the Red River Valley and the water 
that has to move through our State by the Red River, what kind 
of expectations should those communities and the people who 
live there have as a comparison to some of the previous 
flooding? When you say ``major''--you used the term--I believe 
the Weather Service used the term ``major flood threat.'' What 
does that mean? What's ``major'' mean? Is it a flood threat 
equivalent to the 1996, the 1997 or 2006 flood threat? What are 
you estimating when you say ``major flood threat?''
    Mr. Dummer. When we say ``major flood threat,'' those are 
different levels. We have a minor flood threat, moderate, and 
major. And what the National Weather Service does is, we work 
with our local customers and partners--in this case, for Fargo, 
we work with Fargo city officials and county officials to help 
them assess what level this should be set at.
    When we typically say ``major flood threat,'' that's when 
it's having major impacts on the city itself with regards to a 
flood fight. Typically--I don't know the exact level that is at 
Fargo offhand right now, but when you get to a major flood 
level, or major flooding, typically you can have buildings 
start to be inundated and more major roads become impassable 
due to high water.
    Senator Dorgan. I think, mayor, the three most significant 
floods, if I read this graph correctly, well, the most 
significant, of course, is 1997, then 2006--or 1969. Are those 
the three largest flood events in the Red River?
    Mr. Walaker. In 100 years----
    Senator Dorgan. In what----
    Mr. Walaker [continuing]. Of record.
    Senator Dorgan. Right.
    Mr. Walaker. There's some process in 1897 that--we're 
approximately the same level--and so forth. What he's talking 
about is the flood levels. Basically, flood stage is 18 feet 
above. Okay? At 31 feet, we have to construct a dike to protect 
city hall. We have to put the earthen dike on Second Street, 
from the railroad tracks down to First Avenue. Okay? If it gets 
above 34, then we're talking about significant--every foot that 
the river goes up creates more and more investment.
    Now, we have to make decisions sometime, probably in 
February, whether we're going to bring in the deepwater well 
pumps to protect our sanitary and our storm sewer. If it gets 
above 34 feet, you know, the 90--the $64,000 question, if you 
can remember that story on television, is, where is it going to 
go? You know, and that's the big question, and so forth. These 
probabilities bring up the apprehension of the general public, 
but what people that are in the system want to know is, where 
is it going to be? There are too many variable factors, at this 
time, to determine that.
    But, my concern is, you know, the pumps, the earthen dike, 
and Second Street. Those are the two immediate difficult 
decisions that we have to make, because they're very expensive.
    Senator Dorgan. So, when the Weather Service describes a 
potential major flood threat, that is able to trigger----
    Mr. Walaker. Absolutely.
    Senator Dorgan [continuing]. Certain decisions and----
    Mr. Walaker. Yes.
    Senator Dorgan [continuing]. Actions by the city now.
    Mr. Walaker. Yes, absolutely. And we're going to--we're 
going to go ahead, and so forth, and we have people that are 
meeting on a 2-week period, and then that'll probably go to a 
weekly period, here shortly, on what's going to be done.
    We got a half-inch of rain there this weekend. The drains 
are different than 1997; they're open. We have 2 or 3 feet of 
water running in the drains right now. All of that is good. All 
of that is--you know, gets rid of some of the--but, you know, 
it's a--it's not a simple process.
    You know, the probability--I was in Colorado when--this 
came out of the Federal offices in Boulder, and they talked 
about this--probabilities and so forth, in--you know, did that 
help us? You know, it's good for the public to make 
opportunities to be successful. They have to be aware of what 
could happen, you know. But, what we need is more precise 
numbers, and we won't get those until the runoff starts, and so 
forth.
    So--now, are we concerned about spring? Yes. Are we making 
preparations? Yes. The long term on this whole project, as far 
as I'm concerned, is that we need some assistance to proceed 
with protecting our entire city. Nothing would make me more--
feel better if we could just sit in city hall and watch the 
river go by. I mean, that's the ultimate goal. And to get 
there, Wahpeton-Breckenridge are pretty good shape right now, 
and Grand Forks is in great shape, and all of the cities north 
of the Canadian border are--they lost one in 1997, and they've 
improved all the holes on the south side of Winnipeg, and so 
forth. And if you haven't had a chance to go out there, it's 
amazing what they did after the--they cannot--they're not so 
concerned about the 1997 flood, they're concerned about the 
1826 and 1825 flood. And so----
    Senator Dorgan. Right.
    Colonel, in our State--Wahpeton-Breckenridge, Fargo-
Moorhead, Grand Forks-East Grand Forks, and the others north--
give me your assessment of where we are with respect to the 
capability to move that water through in a major flooding 
event.
    Colonel Christensen. Sir, I think a lot of that has been 
talked about, sir, by my contemporaries here. We start with 
Grand Forks-East Grand Forks. We have finished the significant 
portion of that project. It is now certified at the 100-level 
of protection. We feel good about that. We are continuing to 
work with Fargo in their planning efforts, in the Fargo-
Moorhead area, in the Ada area. If we go down to Breckenridge-
Wahpeton, the diversion channel at Breckenridge has been 
completed and we're continuing to work on the in-city levees 
there.
    And we are scheduling flood coordination meetings with the 
local communities. We have one coming up in Fargo, on the 25th 
of this month, making sure that our sandbags and pumps and 
everything are available and strategically located throughout 
the area. And we stand ready to assist in any way possible.
    Senator Dorgan. Mr. Frink, is that your assessment, as 
well?
    Mr. Frink. Yes, it is, and just a couple of other thoughts 
on Fargo.
    Prior to 1997, I always considered Fargo to have a bigger--
larger risk than Grand Forks. In 1997, I think, there are a 
couple of things that happened. The timing was very bad for 
Grand Forks. Fargo got a little bit lucky. The other factor is 
that Fargo has gotten very good at building dikes, and it--part 
of its practice. But, long term, you're going to lose. And, you 
know, the Corps has got a major study, and, I think, at some 
point, we need to get some--a permanent flood-control project 
for them. It's--it just has to happen. And, you know, I've been 
the State engineer for 8 years, and I think I've seen a dike 
out in front of city hall maybe three times, four times. And, 
you know, it's--you just--you just--we just need to move and 
get a--something permanent for them.
    For the current situation right now, it is not as bad or--
as it was in 1997, but that water--the upper--the watershed 
south of Fargo is very, very wet. We're moving into that period 
where we're going to get some very wet blizzards. They're--and 
they're clearly in jeopardy right now. And, you know, I know 
they're prepared to build dikes again, but, at some point, we 
need a--you need a permanent solution for them.
    Senator Dorgan. Yes, I think all of us agree that there 
needs to be that type of permanent solution. I think--the mayor 
said it in his testimony--following the 1997 flood, I think the 
understanding was, the more vulnerable portion of the valley 
was in Grand Forks, and so, well over $400 million was moved 
into that area. They now have first-rate protection. And Fargo, 
of course, has fought a valiant battle for a long, long time.
    I think you're right, as well, all of us have seen these 
earthen dikes and seen the substantial activity, when Fargo 
gets busy, to make sure they can protect the city. But, I agree 
with the mayor and with you, that ultimately there needs to be 
the kind of permanent protection that will not require them to 
build those earthen dikes outside of city hall, and to be able 
to protect all of the city of Fargo.

                    TOPSOIL SATURATION OF THE REGION

    Mr. Dummer, one of the things that you said that was 
interesting to me is you measure topsoil and the amount of 
moisture in the topsoil. You indicated that the 8 inches of 
topsoil in the entire region is largely soaked. Is that 
correct?
    Mr. Dummer. Yes, that is correct. Really, in the top 8 
inches, it's almost solid water within there, so, when the--we 
froze, it almost became frozen--instead of frozen soil, it's 
almost frozen ice within that top inch--8 inches, because there 
was so much moisture in that soil profile.
    Senator Dorgan. That means, as the snowpack and other rains 
come, with blizzards and so on, there's no place for that to 
soak into the soil. It's--that's going to remain on top, isn't 
it?
    Mr. Dummer. That's correct. It would be runoff.
    Senator Dorgan. And that contributes to your estimates of 
what is going to happen with respect to flooding.
    Mr. Dummer. That's correct.

                    DEVILS LAKE FLOODING PROJECTIONS

    Senator Dorgan. Let me talk about Devils Lake, just for a 
few moments, because, you know, the projections in Devils Lake 
are more certain than your suggestions about the Red River 
Valley and flooding in the Red River itself. Your projections 
about Devils Lake are projections that say 98 percent certainty 
we're going to exceed the record level of Devils Lake. The 
mayor just described that we've been dealing with this for 15 
years now. So that's a flood that comes and stays, doesn't 
leave. Now we had several years of some tranquility there, but 
at least part of that, Mayor Bott, was because that lake ran 
off into Stump Lake. Stump Lake is now full, there's no place 
for it to go anymore towards that direction. Stump Lake is 
filled up. So, whatever comes in from that Basin into Devils 
Lake, that's just Devils Lake flooding, as we look at the 
future.
    But, you're more certain about these predictions, and what 
you are saying is give me the 2 percent chance. And the reason 
I ask you for that is, we have had, in our experience with 
Devils Lake, I think, 3 or 4 years in which we've had the 1 and 
2 percent chance actually realized, which--you know, you think 
2 percent, well, that's a pretty small percentage, but we've 
actually seen it in Devils Lake on several occasions.
    Mr. Dummer. All right, currently our predictions--we're 
predicting the 2 percent chance that Devils Lake will reach 
1,454 feet; that is 1 foot below what the Corps of Engineers 
has established as the level of protection.
    Senator Dorgan. Colonel, at 1,454 feet--let's not always 
assume the worst, but, for this discussion, let me assume that 
we get to 1,453-1,454 feet. You have a dike or, a levee that 
provides protection at 1,455 feet, plus 5 foot of freeboard. 
Tell me about your trigger levels and what your thinking is of 
how quickly you have to move if this lake would move to 1,454 
feet in this year.
    Colonel Christensen. Sir, that 2 percent is a low 
probability, but I understand what you're saying, that it seems 
to be highly likely in this area of the world.
    Essentially, it will take 2 to 3 years to complete the 
project, if we initiate it this fall. And I think if it gets up 
to the 2 percent prediction, we need to start, at the latest, 
this fall, to continue building.
    Senator Dorgan. What happens with dike protection if you're 
into the freeboard? In other words, say, you're at 1,456 feet.
    Colonel Christensen. There's always danger that the wind 
action and the wave action will overtop that levee and start 
eroding the levee from the other side. So, there is danger.
    Senator Dorgan. What do you estimate the cost would be to 
take the levee system, the broad levee system that protects 
Devils Lake and related properties--I think you talk about 
taking it to 1,465 feet?
    Colonel Christensen. Yes, sir.
    Senator Dorgan. What do you estimate the total cost of that 
to be?
    Colonel Christensen. To take the levees to 1,465 feet, it 
would be approximately $70 million to $105 million.
    Senator Dorgan. So, roughly $80 million.
    Colonel Christensen. Seventy million to $105 million.
    Senator Dorgan. Oh, I'm sorry. Okay.
    Colonel Christensen. Yes, sir.
    Senator Dorgan. Okay, $70 million----
    Colonel Christensen. To $105 million----
    Senator Dorgan. Okay.
    Colonel Christensen [continuing]. Depending on the 
alignments.
    Senator Dorgan. Seventy million to $105 million, all right.
    Traditionally, what is the State and local share on that 
project?
    Colonel Christensen. I believe, on this project, it was 75/
25 for the previous build, based upon the Flood Control and 
Coastal Emergency cost-sharing agreement.
    Senator Dorgan. And that would build the levees that 
currently protect the city of Devils Lake, and related property 
in the surrounding area, but that is not anything that would 
protect, for example, the city of Minnewaukan. Is that correct?
    Colonel Christensen. That's correct, sir.
    Senator Dorgan. And other areas that, I think, Mr. Frink 
mentioned. Having had some small experience with the Corps of 
Engineers, let's assume the higher number, for the moment, $100 
million.
    Now, I chair the subcommittee in Congress that funds the 
Corps of Engineers, so I have a little bit of acquaintance. And 
I'm not suggesting anything by this, but you know and I know 
that what happens is, these estimates are made, and then the 
projects are several years out, and pretty soon they increase 
in cost. $100 million for that levee portion. You have a number 
of other areas that are not resolved, in Minnewaukan and so on. 
And then you have the very large area of roads as dikes. And I 
think Mr. Frink mentioned some of that exists at Camp Grafton, 
a substantial amount exists with respect to the Indian 
reservation. Does anyone have an estimate of what it would cost 
to go in and--let's assume this lake goes to 1,453 feet, pretty 
reasonable estimate that it might get up to 1,452 or 1,453? At 
that point, we've got to do a lot of work on an emergency basis 
on roads to keep traffic moving and keep the economy working in 
the Devils Lake region. Are there any estimates about what the 
aggregate costs of dealing with those roads would be? Mr. 
Frink, do you or anyone else have any information about that?
    Mr. Frink. Senator Dorgan, I don't have the numbers with--
they do exist, and we can get them. I was relying on Chairman 
Pearson to be here today.
    But, the costs of the roads are very, very significant on 
the reservation. The numbers in my testimony are--represent off 
the reservations, primarily. So----
    Senator Dorgan. Do you know the potential impact if we go 
to 1,452 feet, at that level--is there potential impact on the 
railroads? You know, we had a problem with Amtrak and the 
freight railroads, given the line that was running east and 
west. I know you indicate, in your testimony, there was some 
cost. But----
    Mr. Frink. Right.
    Senator Dorgan [continuing]. Will that have to be rebuilt?
    Mr. Frink. There are some real significant issues on that 
railroad. At Churchs Ferry, where the line comes in there, 
there is some concern that that would be abandoned, and that 
the rail would be rerouted south. If that's the case, then you 
would--Devils Lake could lose their rail service. And that's 
the main line from Seattle all the way to Minneapolis, so it's 
a pretty--it would be a significant hit. The railroad could go 
south, and avoid the cost of trying to raise that rail line to 
1,465 feet. So, that's a significant issue for the region up 
there.
    Senator Dorgan. Mayor, I assume you all have talked about 
that some in your----
    Mr. Bott. Right. The concern would be, as Mr. Frink said, 
that it would go south, it would go what's referred to as the 
Surry Route. And that portion--whatever they needed to do, as 
far as moving grain into Devils Lake, they could--they could 
come that far, and then they could back up. And there is a 
concern about them doing that if they need to raise the road. 
And, of course, then the Amtrak service would be rerouted 
through that Surry Route; it wouldn't go through Devils Lake. 
And I don't know that it would go through Grand Forks then, 
either; but that, I'm not sure about.
    Senator Dorgan. Well, tell me, if you can, what specific 
preparations are underway now by the cities and the States and 
also the Corps, in terms of activities you have an outline, I 
assume. Here we are getting close to mid-February, and this 
plays out over a period of the next 4 months or so, and then 
the threat is largely over after the 4 months. So, what kinds 
of things--if you will remind us, Colonel Christensen, is the 
Corps involved in right now in both areas, in terms of the 
planning process and potential execution of assistance that 
would be needed, both in Red River Valley flooding and also 
Devils Lake?
    Colonel Christensen. Well, sir, as I mentioned before, we 
do have a flood coordination meeting set up on February 25, 
with Federal, State, and local entities in Fargo, to figure out 
the way ahead and how are we going to attack the potential 
flooding in Fargo.
    We also had a similar meeting on December 11, with the city 
officials in Devils Lake and Federal and State and local 
officials, to figure out how we're going to deal with any 
potential flooding in the Devils Lake area. We've had numerous 
public meetings in Devils Lake this past year to figure out 
what the best alignments are. We haven't reached a final 
decision on what those optimal alignments are. We are still 
working with the city on that. However, we can begin 
construction, because a lot of the potential future levee 
system will be on the current alignment as it is, with----
    Senator Dorgan. Right.
    Colonel Christensen [continuing]. Tiebacks a little bit 
later. So, we are prepared to accelerate the design process, 
and we believe we can be ready for construction this fall.
    Senator Dorgan. Can you tell us if--assuming you do all 
that is necessary to be done, within your power, to assist the 
Devils Lake region, for example, what areas would remain 
vulnerable?
    Colonel Christensen. We've mentioned many of those areas 
already, sir. It's the Spirit Lake Nation. We have concerns on 
the temporary emergency levees we put in awhile back. The 
Federal Highway Administration is working with the Spirit Lake 
Nation to build the roads acting as water barriers. 
Construction is supposed to begin this spring. The question is 
whether they can stay ahead of the rising water. There is also 
concern at Minnewaukan with the sanitary system, what they have 
there, and some of the residents in the low-lying areas. There 
is concern that--depending on what alignment is chosen in Creel 
Township. There is concern in Stump Lake Park, as mentioned 
before. And there is concern at Camp Grafton.
    Senator Dorgan. Would you be willing to give me a white 
paper on that so that we have some understanding of what lays 
outside of what the protective actions might be, so that we can 
pay some particular attention to that, as well?
    Colonel Christensen. Certainly, sir.
    [The information follows:]
                 Devils Lake, North Dakota White Paper

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                               background
    Devils Lake is currently at elevation 1,447.2, after rising over 25 
feet in the past 17 years. Between 2004 and 2007, the lake rose to an 
elevation of over 1,449. In 2001, Devils Lake began flowing into Stump 
Lake and the two lakes have now equalized and act as one system. The 
combined lakes are at a record volume. In the latest forecast released 
February 27, 2009 the National Weather Service forecast a 99 percent 
likelihood the water level at Devils Lake will exceed 1,450.3 feet, a 
20 percent possibility the water level at Devils Lake will exceed 
1,452.2 feet, and a 2 percent possibility the water level will exceed 
1,453.8 feet. At an elevation of 1,459 water will flow uncontrolled 
through its natural outlet, Tolna Coulee, into the Sheyenne River and 
into Canada.

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    In 2007, $5 million was provided as part of the supplemental 
appropriation to determine what to do next should the lake continue to 
rise. As part of this Flood Damage Reduction Project, coordination has 
been ongoing with the city of Devils Lake, the Spirit Lake Nation, the 
city of Minnewaukan, Camp Grafton, and in general with the North Dakota 
State Water Commission. Each impacted area will be discussed below.
                          city of devils lake

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    With a population of 6,700, the city of Devils Lake is the 11th 
largest city in North Dakota, and serves an even greater region of the 
surrounding area. The Spirit Lake Indian Tribe, located on the south 
side of the lake has 6,000 members that rely on the city of Devils Lake 
for many of their services. The nearest cities large enough to provide 
needed services include Minot, Jamestown, and Grand Forks which range 
from 90-120 miles away. The Canadian border lies just 60 miles to the 
north. The city of Devils Lake is home to the Lake Region State 
College, the North Dakota School for the Deaf, and the 25-bed Mercy 
Hospital. Transportation needs are served by Amtrak and the Northwest 
Airlink, which provides twice daily flights out of the Regional 
Airport.
    Should the lake rise to an elevation of 1,451.5 (50 percent 
probability), the city embankment would not meet dam safety criteria 
hydraulically and the letter of reasonable assurance that was sent to 
FEMA stating the embankment system can contain the 1 percent event 
would no longer be applicable and could require the residents behind 
the embankment to purchase flood insurance. At an elevation of 1,452 
(30 percent probability) 67 structures would be inundated. Additional 
structures may be impacted due to flooded basements, inaccessibility, 
or damaged sewer lines. Currently the airport and city sewage treatment 
system are being protected by the embankment.
    A series of public meetings have been held to discuss the best 
course of action should the lake continue to rise and alternatives have 
been evaluated and screened. The decision was made that the best course 
of action was to raise and extend the existing embankments. Since the 
National Weather Service forecast for unprecedented lake level 
increases was released, a two prong approach is recommended. This would 
include continued discussions on the alternative alignments still under 
consideration for the tie backs embankments while at the same time 
accelerating the design on the most critical reach of the existing 
embankment. The challenge is to begin construction soon enough to stay 
ahead of the possible future years of flooding. While the existing 
embankments will contain the high lake levels projected for this year, 
the risk of exceeding those elevations increases each year.
    Rather than using specific lake levels as trigger points as has 
been done in the past, the cumulative exceedence probability is now 
being used for planning purposes. The cumulative exceedence probability 
is the probability of exceeding a given elevation during a given number 
of years. Based on the USGS long term lake level forecasts, there is a 
17 percent probability that the current level of protection would be 
exceeded between 2009 and 2013. From a risk management perspective, it 
would be desirable to keep the risk down to 1 percent or less. Since it 
will take 2 to 3 years of construction to complete a raise of the 
embankments, it is important that construction be initiated soon.
                          city of minnewaukan

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    Minnewaukan, a small community with a population of 400, is located 
along the northwest shoreline of Devils Lake and recently celebrated 
their 125th anniversary. It is also the county seat for Benson County, 
employing 75 people. The Courthouse, constructed in 1901, is listed on 
the National Register of Historic Places. Minnewaukan's school system 
serves grades K-12 and employs over 50 people. At a lake elevation of 
1,451, 50 homes could begin to experience basement flooding. First 
floor flooding begins at elevation 1,453.8.
    The city of Minnewaukan's most pressing concern with the rising 
lake levels and rising water table is infiltration and subsequent 
failure of their sewer system via unlined sewer lines; and manholes 
and/or lift stations that are below the forecasted lake levels. 
Currently there are 10 manholes below an elevation of 1,455 and 5 below 
an elevation of 1,453. The lift station closest to the lake and at the 
lowest elevation is their master lift station. They have 3,500 feet of 
clay pipe that remains to be slip-lined to prevent infiltration. City 
leaders have expressed an interest in addressing this issue through the 
section 594 North Dakota Environmental Infrastructure Program.
    In previous discussions with Minnewaukan, they have stated they are 
not interested in pursuing a permanent flood control project due to 
cost share requirements and long-term operation and maintenance costs. 
At the most recent public meeting, held February 25, 2009 there was 
much concern expressed that the city sewer system could fail leaving 
homes too high to be bought out under FEMA's flood insurance program 
uninhabitable nonetheless. There were also concerns about basement 
infiltration from the rising lake, which is also not covered by flood 
insurance. City officials would like to identify a buy-out program 
should their sewage system fail but to date no programs have been 
identified that fit this situation.
           spirit lake nation and roads acting as dams (raad)

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    During flooding in the late 1990s, a number of culverts under 
roadways were plugged to prevent the floodwaters from spreading. What 
started out as a short term solution has now created a situation where 
several roads are acting as dams although they were not designed or 
constructed to hold back a head of water. In addition, a series of 
emergency levees, with assistance from the Corps of Engineers, were 
constructed over the past 10 years to protect public infrastructure 
including roads and State Highways. The levees were constructed to 
allow the tribe time to develop a permanent solution. With two 
exceptions, the levees and roads acting as dams are all dependent on 
each other. That is, if one structure is overtopped, all the remaining 
area will be inundated with lake water. At the lake level of 1,449, 
this area includes 116 homes, 3 businesses, and 1,916 acres which could 
be impacted directly by floodwaters or have their utilities and access 
impacted. There is a 70-85 percent probability that the two lowest 
levees will be overtopped this year, based on the National Weather 
Service forecasts.
    Seventy million dollars has been authorized for the Federal Highway 
Administration (FHWA) to complete a permanent project which will 
correct the roads that are acting as dams and replace the temporary 
emergency levees. These funds were earmarked in the 2005 Transportation 
bill, ``Safe, Accountable, Flexible, Efficient, Transportation Equity 
Act--A Legacy for Users,'' and were specified that up to a maximum of 
$10 million would be available over several years up to the limit of 
$70 million. To date, $40 million has been provided. Other limited 
sources of funding have been identified, specifically for the roadwork 
itself. However, best estimates by the FHWA indicate that $120 million 
is needed to construct protection to an elevation 1,455 and the 
permanent project is not expected to be constructed before the high 
water is experienced this spring.
    At a meeting on February 25, 2009 with the tribe, BIA, and the 
FHWA, the FHWA presented the possibility of accelerating some of the 
work (driving sheetpile, constructing a cofferdam) that would provide 
some temporary protection from the rising lake. The tribe is expected 
to request assistance from the Corps of Engineers to raise the 
emergency levees and help with any other areas not able to be raised by 
the FHWA or BIA. However, there are concerns that continuing to raise 
the emergency levees will increase the risk to residents in the area 
since they were not constructed as dams but as temporary structures 
during a flood flight. With an increased head of water across the 
temporary structure comes increased risk of failure. The tribe has 
indicated they cannot cost share in more permanent measures for the 
emergency levees. A serious concern is that there may not be time to 
take action given the short time between spring thaw and when the lake 
is forecast to exceed the emergency levees capacity in June or July.
                        nelson county/stump lake

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    Stump Lake has steadily encroached on Nelson County, inundating 
over 7,000 acres of agricultural lands. To date, over 20 acres of 
wooded parkland has been flooded and at an elevation of 1,453, the loss 
will total nearly 24 acres. According to the Emergency Manager from 
Nelson County, their primary concern is the road system and the Nelson 
County Park and Campground. The park has approximately 100 campsites, a 
large historic pavilion, playground, open-walled shelter, cafe and 
restroom/shower facility. Much of the park land, along with the 
restrooms and cafe will be directly impacted by increased lake levels. 
The restroom/shower facility will be impacted by lake levels of 1,450 
feet. The cafe will be impacted at elevation 1,452.
                              camp grafton

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    Camp Grafton is a major North Dakota Army National Guard training 
site and employs over 200 personnel. The 164th Regional Training 
Institute is located on this installation and trains over 3,100 reserve 
and active component soldiers annually. The training center has over 
$193 million worth of infrastructure and provides an annual economic 
impact of $17 million on the local economy. At an elevation of 1,452, 
Camp officials have identified $20.6 million in infrastructure that 
will be impacted. Camp Grafton is also concerned about the number of 
acres used for training exercises that will be lost to the lake as it 
continues to rise.

                        TIMING OF NEW FORECASTS

    Senator Dorgan. Mr. Dummer, how periodic will your new 
forecasts be as we lead up to this potential spring event? When 
do you expect to continue to evaluate and issue additional 
guidance?
    Mr. Dummer. Typically, what we have with our long-term 
outlooks is, they're issued once a month, toward the end of the 
month, so end of this--February, the last week of February, so 
in about--roughly, about 2 weeks for our long-term outlooks. If 
things change significantly, meaning we get a tremendous amount 
of snow in that area, we can always do an analysis in short 
order, upon request. And then, like I had mentioned in my 
testimony, when the runoff starts occurring in the spring, and 
the river starts--the rivers and lakes start rising, then we'll 
transition into a daily operation and provide a daily forecast.
    Senator Dorgan. If it snowed 23 days in 1 month, I think, 
as you indicated in December--is that correct?
    Mr. Dummer. That's correct.
    Senator Dorgan. I mean the tourism department wouldn't want 
us to advertise that, necessarily. But, if it snowed 23 days in 
one month in December would that predict anything about an 
extraordinary snowfall in the following spring? In other words, 
are we in a season or a time of excessive moisture?
    Mr. Dummer. Currently, our models, they take into account 
all the range of possibilities. This--of course, December was a 
very stormy month. We did break, as I mentioned, many records 
on that. And if that were to occur again, we believe--later on, 
in the next couple of months--we believe our predictions 
reflect that, with the varying probabilities.
    Senator Dorgan. Mayor Walaker, because you've been through 
this many times, I would understand that, when a forecast comes 
out that says, ``Uh-oh, we might have some trouble here, we 
might set ourselves up for a flooding event,'' the last thing 
you want is for anybody to be panicked about it. The issue is, 
you want people to be aware of it and then to have enough 
information for the folks in the city to begin making 
preparations, working with the Corps and all the things that 
you do. Is that a fair assessment of how a mayor would view 
this?
    Mr. Walaker. In 1997, early in January--I've always had a 
close relationship with the people in Chanhassen; I've always 
had a close relationship with the people in National Weather 
Service forecast group up in Grand Forks. Early in January 
1997, we were given this, ``We have a prediction that we think 
that we may exceed floods of record.'' So, that's when we 
ordered our first pumps and so forth. If the river is not going 
to go over 31 feet, we don't, so forth. So, you know, we pay 
very close attention. We have their phone number and so forth, 
and we also have a book of operations and triggers and so 
forth, as to what's happening.
    We used to have 5 to 7 days prior to anything happening, 
and we could start constructing the dike on Second Street. 
Things have changed a little bit. There seems to be more and 
more process of expediency, as far as the river is concerned. 
It seems like it's coming at us faster. Is it because we're 
getting older? I hope not. But, as far as--we take it very, 
very carefully, as far as, you know, the boy with the finger in 
the dike, and all that stuff, trying to put out good 
information. And we have done that, based on the best 
information we can put together.
    And that's what we'll continue to do. We will continue to 
monitor this very, very closely. Our people are going to be 
meeting. We--like I said, we're going to change the frequency. 
That's going to come up sooner. But, I mean, the long term of 
this is to understand, very simply, that we need to do 
something long term. Okay? We need to start the planning. We 
need to work with the Corps of Engineers to not only take care 
of everything south of Fargo, but to start working on a plan 
with both Moorhead and the city of Fargo on the north side. I 
mean, that's the ultimate goal.
    Our city engineer, Mark Bittner, is--we have done more 
improvements to the city of Fargo since 1997 than we did in the 
previous 15-20 years, and we did something every year, and so 
forth. So, we have a very good area engineer, from the Corps of 
Engineers, whose office is in Fargo. I mean, he's the area 
engineer. He's the guy that gets his boots on, and so forth, 
and deals directly with the Colonel. And they have some 
emergency funding, and we can start--we have to provide the 
fill and so forth, but they could start that if they see an 
ominous threat, so forth.
    So, are we prepared? I would say yes. Am I optimistic? I 
would say yes. But, what you're talking about is something that 
could happen, and we don't want that to happen, by any stretch 
of the imagination. And we want to--but, we want to continue 
on. You know, we want to see our south-side flood protection 
start to move a little faster. And we would love to see that in 
place. And the downtown area, they're doing a study on the 
downtown, which is including the north side, a whole 
comprehensive plan of the flood. We have removed all of our 
temporary dikes. The city of East Grand Forks used to say--the 
mayor used to say, ``We need--another flood, we need to raise 
our dikes,'' so they would build temporary dikes. Well, that's 
not the answer, because they get very soft. If they're not 
engineered, they get very soft. So, what you need is permanent 
flood protection, so forth. They stand up much, much better 
than temporary measures, so forth. So, we've gotten rid of 
those. We're getting rid of the last one, here shortly. And we 
got rid of the one that protected the hospital on the south 
side. That was done after 1997.
    So, no, things are--I can't give you 100-percent assurance, 
but--I'm confident that we will be successful in 2009, but I 
can't speak for 2010 and 2011. Just like Mr. Frink said, sooner 
or later we're going to go back to 1826, and we're going to 
have an event, no matter what we do, we can't stop and be 
protected. What we've been doing is concentrating in the last 
few years on is giving everybody an opportunity to be 
successful, everybody on the same plate. We have an awful lot 
of homes that were built in Fargo that were built prior to any 
floodplain administration. We've removed the majority of those. 
We don't have any walkout basements anymore along the Red River 
and so forth, no matter how wonderful they were to the 
occupants; they're all gone, so forth. So, we are better today 
than we were. We would like to be a lot better in the future.
    Senator Dorgan. And you have a first-rate staff that's been 
around in Fargo for a long, long while that----
    Mr. Walaker. Well, they're changing.
    Senator Dorgan [continuing]. That has----
    Mr. Walaker. They're----
    Senator Dorgan [continuing]. That has----
    Mr. Walaker. They're changing, Senator. I mean, as we all 
get a little older. I mean, we have new staff, but we still 
have some of the people that have been there through the 
fights.
    Senator Dorgan. Well, you've got a couple behind you that 
have been----
    Mr. Walaker. Yes.
    Senator Dorgan [continuing]. In a lot of those----
    Mr. Walaker. Absolutely.
    Senator Dorgan [continuing]. Fights.
    Mr. Walaker. Absolutely.
    Senator Dorgan. So let me just say, as well, that--because 
I chair the appropriations panel that funds the Corps of 
Engineers, when we get a comprehensive plan, flood protection 
for Fargo, permanent flood protection--I'm very anxious to work 
with you and the city of Moorhead, and to proceed to get it 
done. So, I agree with you that that is a necessary project in 
our future.
    Mr. Walaker. Thank you.
    Senator Dorgan. Mayor Bott, the same question, I guess. And 
there's a slight difference here, in the sense that, at least 
we believe, based on what the Weather Service says, we're going 
to see record levels in Devils Lake. That's not the case with 
the Red River Valley. There, it's prospect of, perhaps, major 
flooding, maybe not. In Devils Lake, we know now that there's 
an overwhelming opportunity, or overwhelming chance that we're 
going to see record levels, probably up into the 1,450s. And 
so, you know, as mayor--and I think Mr. Frink and others know--
that we have to begin working with the Corps to address the 
permanent structures that we have to change.
    Tell me the financial situation in your city, because your 
city has been involved in flood fights now, for a long while, 
that has required participation of the city and the State for 
certain matches. What's the financial condition of your city?
    Mr. Bott. Well, the intention, Senator, for the city--the 
first time the dike was raised, back in the mid-1990s, the 
State of North Dakota and the city of Devils Lake split the 
local match. And then, after that we informed the State that we 
just couldn't provide any more local funding.
    This time, we are looking at providing some local funding; 
redirect some resources, at least with the initial work that 
may be done with the levee. But, again, the amount of funding 
that we have available is limited, but we feel that, you know, 
we can't rely on someone doing the 100 percent that we need to 
do as much as we can, and we're just going to have to make 
decisions that infrastructure work, for example, that could be 
done within the city is probably going to have to be put on 
hold, and people aren't going to appreciate that, but we're 
going to do what we can, financially. We're also different this 
time from the original dike raised. We're working with the 
county and the township, rural utilities and the Basin board, 
because all of the additional work that will be done will be 
literally outside the reach of the city of Devils Lake, it'll 
be outside of our 2 mile extraterritorial. So, we felt we 
needed to work with these entities that have some control and 
some presence in those areas, because they're far beyond our 
reach, so we're working with them. But, that doesn't negate the 
point, we are the local sponsor. It is the community's 
responsibility to come up with that local match, and that's 
what we're working on. Local and Federal match, I should say.
    Senator Dorgan. I should say that you two have some really 
great help in the city that's had a lot of experience, now for 
a long while, in addressing these issues. Myra Pearson, the 
chairwoman of the Spirit Lake Nation, was not able to be here 
because of travel difficulties today, but they, at Spirit Lake 
Nation, face really significant challenges, as you know. They, 
because of the road issues, can be completely cut off from the 
normal commerce in Devils Lake. I don't know who--whether it 
was Mr. Frink or--maybe it was you, Mayor Bott-- someone 
described the amount of commerce that the Spirit Lake Nation 
relies on by going to Devils Lake. And if that's cut off 
because they don't have access, because of flooding that 
inundates these roads, that's a very serious problem for an 
economy on the reservation that is very fragile, in any event. 
So, all of us--even though Myra Pearson, the chairwoman, 
couldn't be here, all of us need to reach out and do all that 
we can to work with Spirit Lake Nation. This is very important 
to them. It's important to the city of Devils Lake, just as 
important to the Spirit Lake Nation, and we need to work very 
closely with them and the chairwoman and the tribal council.
    Mr. Frink, whenever we pass the Economic Recovery Act, 
presuming we do--and I think we will--it will include, likely, 
$4.4 to $4.6 billion for the Corps of Engineers, it'll include 
probably $1 billion, slightly more, for the Bureau of 
Reclamation. It'll include some water money. But, you're the 
only one that shows up at this table with a lot of money. The 
State has a very significant surplus, and I know the State 
legislature is working through that at the moment. Tell me the 
position that you feel like you're in to be able to also, from 
the State standpoint, address some of these needs. I know that 
you've already done some, and will continue to do more. But, 
our State is blessed, in many ways, with not having the kind of 
huge budget deficits that Minnesota or California or so many 
others have. I know that the State legislature is now meeting; 
can you describe to me what you think might happen with respect 
to funding for water projects that you'll have to be involved 
in, especially now, flood fights, as well?
    Mr. Frink. Senator Dorgan, you are right, North Dakota is 
in better shape than most other States. We--however, you know, 
when you have a national economy like this, North Dakota cannot 
remain an island. It's--it does have impacts. We're seeing 
layoffs. And so, there will be, certainly, impacts.
    An important part of the water--of the State Water 
Commission budget includes a certain amount of money from our 
resources trust fund, and that's the money that goes to support 
water projects statewide. It's all dependent on oil revenues. 
And oil revenues are very low, and dropping. And so, that 
makes--you know, that amount of money, it started out, in 
November that the amount of money available was about $100 
million for State projects that we could cost share. That is 
now down to $70 million, and if you--if the oil prices stay 
where they are, that could actually drop down to $30 million or 
$40 million. And so, that's all that would be available.
    And if you look at the water projects that we have on--you 
know, on the front burner; you've got Devils Lake, you've got 
the Fargo South Flood Control Project, and you've got 
Southwest. That $20 or $30 million is going to get spread very, 
very thin.
    Senator Dorgan. I don't know whether you have an emergency 
pot of money, but given what we have heard recently now, of 
potential major flooding on the Red and almost certain flooding 
above highest levels at Devils Lake, you might want to at least 
go back to the legislature--I've talked to Governor Hoeven 
about this, as well, but it might be useful to put together a 
small emergency fund of some type, or perhaps not so small, to 
be available--I mean, the Federal Government is obviously going 
to have to come in with the Corps and other agencies, but I 
know the State will want to do that, too. I'll visit with 
Governor Hoeven about that.
    And I appreciate the work that the State has done. The two 
mayors know--it's always been a team fight. I mean, the major 
fights back home, of course, with mayors walking the dikes and 
so on. But, the Federal Government, State government, and the 
cities, and the Corps of Engineers, and the Weather Service, 
all the Federal agencies, have to be involved, and have been 
very actively involved.
    I say that, only because our history is a history unlike 
most other parts of the country. I mean, the fact is, we have 
the only lake flooding in the United States that has been 
pretty devastating to a region, and we've spent a lot of 
money--hundreds and hundreds of millions of dollars over the 
last 10, 12, 14 years, to try to address that. And it's getting 
worse, not better, according to the predictions. We're the 
State that had the 1997 flood experience. It was extraordinary. 
The circumstance of an entire city being evacuated, the largest 
since the Civil War; in the middle of an evacuation, a city 
that stood stark empty in the middle of a city that's been 
evacuated, there's a fire consuming major city buildings. I 
mean all of that. The country remembers that, as well, because 
it was so nearly unbelievable.
    As a result of that, all of us want to be very careful as 
we take a look at estimates and be on the right side of 
preparedness to make certain that, when things might happen 
that are going to cause us a repeat of some of the things we've 
seen in the past, we want to be able to be prepared to fight it 
as completely and fully as we can.
    I want to, as I close, especially thank the two mayors.
    And, Mayor Walaker, I know you will pass my regards to the 
mayor of Wahpeton the mayor of Grand Forks and the other 
communities on the Red River.
    To Colonel Christensen and the Corps of Engineers thanks 
for your work.
    And to the Weather Service, keep telling us what you think 
is going to happen, and be as close as you can.
    And to Dale Frink, thank you for the work that the water 
commission does, and please thank the Governor for me, as well.
    Mr. Frink. Thank you.
    Senator Dorgan. Let me thank you for traveling to the 
hearing, and we will stay in close touch on this matter, and 
hopefully, in 4 or 5 months, we can have an informal visit and 
believe that we got through all of this, and it was much less 
than we expected would happen. That would be the best of all 
news.
    Anyone have anything else you wish to add before you leave?
    Mr. Bott. Senator, I think I need to add something about 
the Corps of Engineers and how much we rely on them and how 
confident we are in them. I think there are many people in 
Devils Lake who thinks there definitely is a division of the 
U.S. Army Corps of Engineers in Devils Lake, because they're 
there so often. And a lot of optimism and the confidence that 
we have is because we know we have the--whatever support and 
whatever they need to do to help us, they're there to do that. 
So, I do want to publicly thank them. They're always there.
    Senator Dorgan. Well, Colonel, are you glad you stayed long 
enough to hear that?
    Colonel Christensen. I am, sir, and I thank the mayor for 
those comments. And we feel the same way about Devils Lake and 
Fargo, as well.
    Senator Dorgan. The Corps has many lives and many different 
extremities. And I have been, in the past, highly critical of 
the Corps of Engineers--extremely so--and, on other occasions, 
enormously positive, and especially in the area of flood 
fights. If you're going to suit up to go with somebody for a 
flood fight, you want the Corps of Engineers, because it's a 
terrific organization to have as a partner in fighting floods. 
So, Colonel Christensen, thank you.

                         CONCLUSION OF HEARING

    Senator Dorgan. This hearing is recessed.
    [Whereupon, at 11:05 a.m., Wednesday, February 11, the 
hearing was concluded, and the subcommittee was recessed, to 
reconvene subject to the call of the Chair.]


             MATERIAL SUBMITTED SUBSEQUENT TO THE HEARINGS

    [Clerk's Note.--The following testimonies were received by 
the Subcommittee on Energy and Water Development subsequent to 
the hearing for inclusion in the record.]
                       Letter From Curtis A. Yri
                                             Mayor,
                                       City of Minnewaukan,
                                 Minnewaukan, ND, February 6, 2009.
Senator Byron L. Dorgan,
United States Senate,
Washington, DC 20510.
    Dear Senator Dorgan: The citizens of Minnewaukan face some 
difficult days ahead, but with some help we feel the town is not done 
for yet. In the 10,000 years since Devils Lake was formed by the 
glaciers, there have been many times that the lake has overflowed into 
Stump Lake. But geologists believe there have only been about three 
occasions when the lake rose high enough to flow into the Sheyenne 
River. Devils Lake may stop rising after this year. Or it may not. 
Nobody knows. When it comes to Devils Lake, almost everything is a 
guess.
    As a people we choose to live as though the water of Devils Lake is 
a wonderful neighbor. As a governing body, we must act as though it is 
not. This letter is being respectfully submitted to you by the 
governing body of the city of Minnewaukan.
    With the latest lake level forecast by the National Weather 
Service, we find we must take proactive steps to deal with the 
potential rising water of Devils Lake. We find ground saturation and 
the rising water table to be of utmost concern. Should the lake rise to 
1,450 feet or higher, our sewer system will be compromised and we need 
to take steps now to complete the relining of our sewer lines and 
sealing or raising of manholes, We believe diking our lift stations 
will also be necessary to save our sewer system.
    In addition we feel many houses could be saved if funding is 
available to fill in basements and build mechanical rooms at ground 
level to house furnaces, hot water heaters, etc.
    We believe it is important for a buyout program to be in place in 
case our sewer system fails. It will take time to put this program 
together and if the sewer system fails, the population of the entire 
town will be virtually homeless. The buyout program would be accessed 
if and when the sewer fails or when the lake threatens to flood the 
town overland.
    Our city is the county seat for Benson County. The county employs 
approximately 75 people; the school over 50 people and there are a 
number of smaller businesses, all important to our area. We have 
buildings on the National Historic Registry. In a recent survey 
completed in the city of Minnewaukan and fire district, we discovered a 
poverty level exceeding 58 percent.
    A considerable amount of money has been spent on building and 
maintaining our infrastructure. Our city recently celebrated its 125th 
anniversary. Residents rose to the occasion by improving their property 
and the town in general. We are currently working to build a community 
center and fire hall. We are actively seeking ways to keep our city 
viable and thriving. We cannot, however, do this without your help. We 
respectfully request your support in seeing these projects to fruition 
and keeping our city viable.
            Respectfully yours,
                                             Curtis A. Yri,
                                        Mayor, City of Minnewaukan.
                                 ______
                                 
                  Letter From Gary L. Pearson, D.V.M.
                                                 February 10, 2009.
Honorable Senator Byron Dorgan,
Chairman, Senate Subcommittee on Energy and Water Development, Room 186 
        Dirksen Senate Office Building, Senate Appropriations 
        Committee, United States Senate, Washington, DC 20510.
    Dear Senator Dorgan: This letter and its attachments are submitted 
as outside witness testimony for the record of the Senate Subcommittee 
on Energy and Water Development's February 11, 2009, hearing on 
``Determining what action must be taken to protect residents of the 
Devils Lake region from rising waters.''
    Because neither the facts nor the issues associated with the recent 
rise in the level of Devils Lake have changed significantly or been 
addressed substantively in the last year, I am resubmitting the 
attached outside witness testimony that I submitted a year ago in 
conjunction with the Senate Subcommittee on Energy and Water 
Development's March 25, 2008, field hearing on flooding at Devils Lake.
    The impetus for this year's hearing appears to be the National 
Weather Service's projection, reported by the Associated Press on 
January 21, 2009, of a 90 percent chance that Devils Lake will rise 3 
feet this year and reach an elevation of 1,450 feet, which is 9.6 
inches higher than the 2006 record of 1,449.2 feet. However, it is 
important to recognize that this is neither disastrous nor unexpected. 
As was pointed out in my attached testimony submitted for the 
subcommittee's March 25, 2008, field hearing regarding a report on 
Devils Lake water levels prepared by Mr. Aldo Vecchia of the U.S. 
Geological Survey:

    ``. . . according to Mr. Vecchia's report, there is a 50 percent 
chance that the lake will not rise above 1,450 feet over the next 32 
years, a 90 percent chance that it will not rise above 1,453.8 feet, 
and a 95 percent chance that it will not rise above 1,455.7 feet. As he 
points out, elevation 1,450 feet would be less than a foot higher than 
2 years ago, and elevation 1,453.8 feet would be only 4 feet higher.''

    Consequently, the National Weather Service's January 23, 2009, 
projection of a 90 percent chance that Devils Lake will reach an 
elevation of 1,450 feet this year is entirely consistent with what Mr. 
Vecchia told the subcommittee a year ago. Nothing has changed.
    As I pointed out in my attached testimony for that same hearing:

    ``Moreover, should Devils Lake/Stump Lake continue to rise, 
increased evaporation (which averages 2.5 feet annually at Devil Lake) 
from the expanding surface area will soon off-set any increases in the 
current precipitation levels.''

    The recent projection by the National Weather Service does nothing 
to refute either Mr. Vecchia's testimony presented at the 
subcommittee's March 25, 2008, hearing nor my outside witness testimony 
submitted for the record of that hearing.
    If the subcommittee really is concerned about the people at Devils 
Lake and is genuinely interested in taking action to protect the 
residents of the Devils Lake region from rising waters, I would submit 
that, instead of continuing to spend additional tens of millions of 
taxpayer dollars simply to accommodate the rising lake, the 
subcommittee should recognize and address the one action that could be 
taken to reduce the amount of water that reaches the lake and causes it 
to rise.
    In my March 25, 2008 testimony, I pointed out that much of the 
317,000 acre-feet average annual inflows to Devils Lake from 1993 to 
2000 was the direct result of the drainage of 358,000 acres of wetlands 
in the Devils Lake Basin. Attached and included for the record with 
this letter is a copy of the May 6, 2002, 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, which document the sordid history of 
rampant wetland drainage in the Devils Lake Basin over the past half-
century; the abysmal failure of the North Dakota State Water 
Commission, the State Engineer and local water boards to enforce 
drainage laws and manage water responsibly in the basin; the 
contribution of wetland drainage to the rise of Devils Lake over the 
past 16 years; and the potential for wetland restoration and upper 
basin storage to reduce the level of Devils Lake.
    I would recommend that the subcommittee address the one primary 
contributor to the rise in the level of Devils Lake that it can by 
directing appropriate Federal agencies with expertise in wetland 
hydrology and wetland restoration, such as the U.S. Environmental 
Protection Agency, the U.S. Department of Agriculture's Natural 
Resources Conservation Service, the U.S. Fish and Wildlife Service and 
the U.S. Army Corps of Engineers, to develop and implement a 
comprehensive, effective and scientifically sound wetland restoration 
program for the Devils Lake Basin.
    Pumping more Federal taxpayer dollars into accommodating an 
incremental rise in the level Devils Lake may be a boon to the local 
economy. But, with the Nation's taxpayers facing an astronomical and 
escalating Federal deficit, it is time for the subcommittee to begin 
treating the cause instead of just the symptoms--to begin putting out 
the fire instead of simply continuing to throw water on the fire bell.
            Sincerely,
                                            Gary L. Pearson, D.V.M.
                                 ______
                                 
             Prepared Statement of Gary L. Pearson, D.V.M.
    The following information is submitted to address issues relating 
to flooding at Devils Lake, North Dakota, that either were not 
addressed or were incompletely or incorrectly addressed by the invited 
witnesses at subcommittee Chairman Senator Byron Dorgan's March 25, 
2008 field hearing at Devils Lake.
                        the rise of devils lake
    Two witnesses, Aldo Vecchia of the U.S. Geological Survey, and 
North Dakota State Engineer Dale Frink, testified at the March 25, 2008 
field hearing that Devils Lake has risen 25 feet since 1992, one, 
Devils Lake Outlet Downstream Acceptance Coordinator Joe Belford, 
testified that the lake has risen over 25 feet since 1993, and one, 
Devils Lake Basin Joint Water Resource Board Manager Michael Connor 
testified that the lake has risen 26 feet since 1993. Mr. Frink 
testified that Devils Lake currently is at an elevation of 
approximately 1,447 feet.
    None of the witnesses mentioned that Devils Lake had been at 
elevation 1,428.8 feet in 1987, before a severe 4 year drought (during 
which the State of North Dakota aggressively advocated for an inlet to 
deliver Missouri River water to raise the lake) had lowered the level 
to elevation 1,422.74 feet on April 1, 1993. Consequently, none of the 
witnesses acknowledged in their testimony that the lake actually is 
only 18.2 feet higher today than it was in 1987.
    It should also be noted that none of the witnesses mentioned that 
the target elevation for Devils Lake where operation of the North 
Dakota State Water Commission's Devils Lake outlet would be suspended 
is 1,445 feet, which is only 2 feet below the lake's current elevation. 
Consequently, none of the witnesses explained why a lake elevation of 
1,447 feet represents an unacceptable threat when the State's target 
elevation for the lake is only 2 feet lower.
             damages resulting from flooding at devils lake
    State Engineer Dale Frink testified that:

    ``The city of Churchs Ferry has been bought out by the Federal 
Emergency Management Agency (FEMA), hundreds of other homes have been 
destroyed, roads and dikes have been raised, re-routed and, in some 
cases, abandoned, and utilities have been rerouted.''

    And Joe Belford testified that:

    ``Since 1993, the lake's ever-expanding waters have, in fits and 
starts, swallowed up homes, roads, private and public land, and 
utilities. Losing one's home is a tragedy, and sadly, hundreds of homes 
have been lost, relocated or burned to prevent hazards to the lake.''

    Mr. Belford neglected to tell the subcommittee that his own 
business, Joe's Corner Market, is built on the bed of Devils Lake below 
the site where the side-wheel steamer, the Minne H., docked in the mid-
1800s. Consequently, neither he nor Mr. Frink told the subcommittee 
that much of the ``flooding problem'' at Devils Lake is man-made and 
the result of the imprudent and unregulated encroachment of development 
on the lake bed.
    Neither Mr. Frink nor Mr. Belford told the subcommittee that, 
according to the U.S. Army Corps of Engineers, most of the 400 homes 
affected by the rising level of Devils Lake were not lost, abandoned or 
burned but were relocated--largely at public expense. For example, by 
the fall of 1997, the National Flood Insurance Program had paid over 
$14 million in claims on some 300 homes around Devils Lake that had 
been relocated and on which the owners had paid insurance premiums 
totaling only $900,000--a $13.1 million bailout by U.S. taxpayers. In 
fact, some homeowners filed claims and received payments for moving 
their homes or businesses twice, because they had not moved them far 
enough from the lake the first time.
    In the spring of 2000, the Federal Emergency Management Agency 
spent $3.5 million to buy out the town of Churchs Ferry, a small town 
of 113 people and 43 homes at the northwest side of Devils Lake--
equivalent to $31,000 per person. FEMA reportedly paid approximately 
$45,000 apiece for three 20-year-old mobile homes, plus relocation 
incentives up to $22,500 and averaging $14,466. One Churchs Ferry 
resident reportedly exulted:

    ``I'm getting into a gorgeous house . . . a step up. There's a lot 
of excitement . . . I've always dreamed of having a house like this. 
The (buyout) price we got for our house was great . . . wonderful and 
that's all I can say about that. But we wouldn't have been able to do 
this without the buyouts.''

    Eight years later Churchs Ferry still has not been flooded and 
people continue to live in the town.
    It is not surprising, therefore, that when local officials were 
seeking $70,000 in Community Development Block Grants and economic 
development funds in 2000, they were hard pressed to show that the rise 
of the lake had adversely impacted the area. As Devils Lake Economic 
Director Jim Dahlen explained:

    ``The challenge we have is statistically the (flooding) impact 
doesn't show up real well in areas of taxable sales and services. Our 
unemployment rate is very low, well below the national average. And the 
average wage continues to rise. It's a hard thing to show what impact 
the flooding's had.''

                     continuation of the wet cycle
    Both Mr. Vecchia and Mr. Frink alluded in their testimony to the 
Devils Lake area being in a wet cycle that began in 1993, and expressed 
concern about the wet cycle continuing. However, National Weather 
Service data show that the ``wet cycle'' in the Devils Lake Basin ended 
in 2001. In fact, on the day of the March 25, 2008, subcommittee 
hearing in Devils Lake, an Associated Press story ran in North Dakota 
quoting a National Weather Service official as saying:

    ``The whole State is still in drought. The western third is under 
severe drought, the central is moderate drought, and the eastern half 
is abnormally dry, or the wettest of the dry.''

    This is reflected in the elevations of Devils Lake, which rose to 
elevation 1,447 feet in 1999 and have fluctuated between 1,447 feet and 
1,449 feet since then. Mr. Belford testified that Devils Lake overflows 
to Stump Lake at elevation 1,447 feet, and that Stump Lake has a volume 
of 494,000 acre-feet and:

    ``Now that Stump Lake is at the same elevation as Devils Lake, 
there is nothing to prevent the lakes from rising together in the 
future.''

    However, according to the Corps of Engineers, inflows to Devils 
Lake averaged 317,000 acre-feet per year from 1993 to 2000. 
Consequently, the fact that it has taken 9 years since Devils Lake 
first reached elevation 1,447 feet for the overflows to raise Stump 
Lake to the same elevation simply provides further confirmation that 
the ``wet cycle'' had ended by 2001. Moreover, should Devils Lake/Stump 
Lake continue to rise, increased evaporation (which averages 2.5 feet 
annually at Devils Lake) from the expanding surface area will soon off-
set any increases in current precipitation levels.
    Mr. Frink testified that the U.S. Geological Survey report prepared 
by Mr. Vecchia states that there is a 72 percent chance that the ``wet 
cycle'' will last for another 10 years. However, Mr. Vecchia's report 
also states that:

    ``The generated traces were used to compute cumulative flood 
elevations for 2008-2040 by computing the elevations that have a fixed 
probability of being exceeded sometime between now and a given future 
year. For example, there is about a 1 percent chance of Devils Lake 
exceeding 1,459.9 feet (0.9 foot above the natural spill elevation), a 
5 percent chance of exceeding 1,455.7 feet, and a 10 percent chance of 
exceeding 1,453.8 feet sometime between 2008 and 2015. Although the 
risk of much higher lake levels in future years is relatively high, 
there also is about a 50 percent chance the lake will not exceed 1,450 
feet (less than 1 foot above the historical record level of 1,449.2 
feet set in 2006) anytime during 2008-2040.''

    Consequently, according to Mr. Vecchia's report, there is a 50 
percent chance that the lake will not rise above 1,450 feet over the 
next 32 years, a 90 percent chance that it will not rise above 1,453.8 
feet, and a 95 percent chance it will not rise above 1,455.7 feet. As 
he points out, elevation 1,450 feet would be less than a foot higher 
than 2 years ago, and elevation 1,453.8 feet would be only 4 feet 
higher.
             measures to deal with flooding at devils lake
    Mr. Frink testified that ``over $500 million have been spent 
fighting the Devils Lake flood.'' What he did not tell the subcommittee 
is that most of that (nearly $400 million by 2004) was Federal funds 
and that it was an economic bonanza for the Devils Lake area.
    Mr. Frink testified that:

    ``In-basin water management efforts include the Extended Storage 
Acreage Program (ESAP), which pays landowners to store water in the 
basin; the irrigation test project, which uses water in the basin to 
irrigate crops and increase the evaporation of water in the basin 
reducing the inflow to Devils Lake; and, storing additional water in 
Sweetwater and Morrison Lakes. The State's emergency outlet has been 
completed and will discharge the maximum amount of water allowed by the 
permits governing its operation.''

    What Mr. Frink did not tell the subcommittee is:
  --From 1996 to 1999 when inflows to Devils Lake were averaging 
        317,000 acre-feet per year, the North Dakota State Water 
        Commission's Available Storage Acreage Program (ASAP) stored an 
        average of only 17,345 acre-feet of water annually. By 2005, 
        the revised ESAP was storing an average of only 800 acre-feet 
        per year, and the State Water Commission is ending the program 
        this year.
  --Mr. Connor acknowledged in his testimony that the 1,000-acre 
        irrigation test project is being financed primarily with 
        Federal taxpayer dollars, and that additional Federal funding 
        will be necessary to pay for the proposed $4,350,000 expansion 
        to a 4,000-acre Pilot Project. He said that 8 inches of water 
        were applied in 2006 and 3 inches in 2007, but he neglected to 
        mention that no irrigation water was applied in 2005 because 
        there was too much rain--a common occurrence in years when the 
        lake was rising. If the entire 4,000-acre Pilot Project were 
        able to apply 8 inches of water, it would utilize a total of 
        2,668 acre-feet water per year. That would be equivalent to a 
        0.019 foot reduction in the level of the 140,000-acre Devils 
        Lake--less than a quarter of an inch. If the Pilot Project were 
        able to apply only 3 inches of water, it would reduce the level 
        of the lake by 0.086 inch.
  --Since operation began in 2005, the State Water Commission's $28 
        million Devils Lake outlet (with annual operation and 
        maintenance costs of over $250,000) has removed a total of 
        336.6 acre-feet of water from Devils Lake. This is equivalent 
        to a reduction in the level of the lake of 0.0024 foot or 0.29 
        inch--less than a tenth of an inch a year. Mr. Frink also 
        neglected to tell the subcommittee that documents from the 
        Corps of Engineers prove that he knew before the outlet was 
        built that it would be worthless.
               wetland drainage in the devils lake basin
    The 1911-1912 Final Biennial Report of the North Dakota State 
Engineer pointed out that:

    ``The drainage area of Devils Lake is nearly 2,000 square miles 
[subsequently determined to be 3,814 square miles], but the land lies 
so nearly level, and there are so many marshes, meadows, small ponds 
and lakes which arrest the flow of water and from which it evaporates 
that it is not likely that the run-off from more than 700 square miles 
of the total area ever reaches the lake.''

    Data from the State of North Dakota show that 358,000 acres of the 
original 569,000 acres of wetlands in the Devils Lake Basin had been 
drained by 1998. A 1983 report co-authored by now-North Dakota State 
Engineer Dale Frink determined that natural wetlands in the Devils Lake 
Basin hold an average of 11.8 inches of water in a 10 year run-off, 
15.7 inches in a 50 year run-off, and 18.5 inches in a 100 year runoff. 
Because wetlands lose water by evaporation (which averages 30 inches 
per year in the Devils Lake Basin), evapo-transpiration and seepage, 
much of that storage capacity is renewed and available every year. 
Consequently, it is clear that much of the average 317,000 acre-feet of 
inflows to Devils Lake from 1993 to 2000 was the direct result of 
wetland drainage in the Devils Lake Basin.
    Despite the fact that a 1979 U.S. General Accounting Office report 
to the Congress cited the Devils Lake Basin as a specific example where 
wetland drainage resulted in severe flooding in lower portions of the 
watershed, not a single one of the invited witnesses at the March 25, 
2008, field hearing even mentioned the rampant and unregulated wetland 
drainage that has occurred for decades--and continues to occur--in the 
Devils Lake Basin. Nor did any of them discuss how much past and future 
flooding and flood damages could have been prevented if some of the 
$500 million of mostly U.S. taxpayer dollars had been used to restore 
drained wetlands in the Devils Lake Basin.
    The argument that wetland restoration would adversely affect the 
agricultural economy of the area is specious because many of those 
drained wetland basins cannot be farmed in wet years anyway. Besides, 
any adverse impact of wetland restoration on the agricultural economy 
has to be weighed against the adverse impacts of wetland drainage on 
other components of the economy, including U.S. taxpayers.
                               conclusion
    The Subcommittee on Energy and Water Development should step 
forward and fulfill its responsibilities to the Congress and to the 
public by exposing the fallacies upon which the alleged ``flooding 
problem'' at Devils Lake is based, and it should then take decisive 
steps to end this 15 year raid on the Federal Treasury that has been 
carried out under the guise of disaster relief at Devils Lake.
                                 ______
                                 
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, DC 20036-2266, May 6, 2002.
                              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 1,394 feet above mean sea 
level (msl) to overflowing to the Sheyenne River at 1,459 feet. At 
elevation 1,446.6 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 
1,459 feet, Devils Lake has a surface area of approximately 300,000 
acres.
    The lake last was at its current elevation of 1,447 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 Churchs 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 1,438 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 1,424 feet. 
The lake continued to decline to its modern day low of 1,401 feet in 
1940, after which it began an erratic rise to elevation 1,423 feet by 
1992. However, by 1975 Devils Lake had risen to 1,425 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 of Engineers (Corps) to 
construct an outlet from Devils Lake to the Sheyenne River.
    The severe drought of 1988 to 1992 was followed by 7 years of 
unusually high levels of precipitation that resulted in the lake rising 
from 1,423 feet in 1992 to 1,448 feet in 2001. The lake currently is at 
1,447 feet and is expected to drop another 2 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 (Public Law 105-
18) appropriated $5 million 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 3 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.
---------------------------------------------------------------------------
    \1\ Wiche et al. (2000) had estimated the year before that the 
approximately 2 percent chance of the lake overflowing without the 
proposed 300 cubic feet per second (cfs) outlet would be reduced to 
less than 1 percent with the outlet. Examination of the data presented 
shows that, while there was a 1.82 percent chance that the lake would 
reach the overflow elevation of 1,459 feet mean sea level (msl) without 
the outlet, this consisted of a 1.32 percent chance that the lake would 
peak between 1,459.0 and 1,460.8 feet where peak flows would not be 
substantially greater than from a 300 cfs outlet, and only a 0.5 
percent chance that it would exceed 1,460.8 feet where the peak flows 
would be substantially greater than from the outlet. The outlet would 
reduce the 1.32 percent chance of the lake peaking between 1,459.0 and 
1,460.8 feet by 0.98 percent, and it would reduce the peak discharge if 
the lake peaked above 1,460.8 feet from 2,100 cfs to 1,100 cfs, but it 
would not significantly reduce the 0.5 percent chance of the lake 
exceeding 1,460.8 feet.
---------------------------------------------------------------------------
    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 5 
years and $11,000,000 preparing these complex and confusing 3-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:
    ``(a) 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.
    ``(b) 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:

    ``The final Integrated Report/EIS is scheduled for July 2002. The 
Record of Decision is to be signed by September 2002. Items to be 
completed include coordination with Canada and determination of 
compliance with the Boundary Waters Treaty of 1909.'' (DEIS Appendix C, 
p. C-136)

    However, with the final EIS to be completed in 2 months and the 
record of decision to be signed in 4 months, it is clear that the DEIS 
is not an EIS on a specific action at an early stage and that the 
issues of its environmental impacts are ripe for consideration, so 
tiering of the DEIS is not appropriate under section 15.28(b), either.
    The DEIS states that:

    ``Additional data acquisition and monitoring will be required to 
further define and evaluate the operational impacts of an outlet. Based 
on the results of these evaluations, supplemental National 
Environmental Policy Act (NEPA) documentation will be prepared as 
required.'' (DEIS p. 1-S-2)

    Of course, it is not the impacts of construction, but the impacts 
of the operation of an outlet that are the most significant and the 
most important to compliance with NEPA and to the decision of whether 
or not the outlet should be built. It is precisely to assure that full 
information on the environmental impacts of proposed Federal actions is 
available to the public, to the Congress and to Federal agency 
officials before decisions are made that section 102(2)(C) of the 
National Environmental Policy Act requires that all agencies of the 
Federal Government shall--

    ``(C) include in every recommendation or report on proposals for 
legislation or other major Federal Actions significantly affecting the 
quality of the human environment, a detailed [emphasis added] statement 
by the responsible official on--
            ``(i) the environmental impact of the proposed action,
            ``(ii) any adverse environmental effects which cannot be 
        avoided should the proposal be implemented,
            ``(iii) alternatives to the proposed action,
            ``(iv) the relationship between local short-term uses of 
        man's environment and the maintenance and enhancement of long-
        term productivity, and
            ``(v) any irreversible and irretrievable commitments of 
        resources should it be implemented.''

    It is important to note that it is not just mitigation of the 
environmental impacts of the construction of the outlet that the Corps 
proposes to address in supplemental NEPA documents under CEQ Regulation 
1508.2(b), but also the impacts of the operation of the outlet itself 
(DEIS pp. 5-92-94). Thus, rather than employing ``tiering'' as provided 
under the regulation, the Corps is instead using ``tiering'' as a ploy 
for segmenting the analysis of the environmental impacts of the 
proposed action itself, in clear violation of both CEQ Regulation 
1508.2(b) and NEPA.
    Until an operation plan is developed for the proposed outlet and 
the impacts of the operation of the outlet are described in detail, the 
Corps will be unable to make a decision regarding the construction of 
the outlet that is in compliance with NEPA. However, the Corps proposes 
instead to postpone the collection of data on the impacts of the 
operation of the outlet while it proceeds with completion of the Final 
EIS in 2 months and a formal decision on construction of the outlet 2 
months later with no provision for information on the impacts of the 
operation of the outlet being made available beforehand to the public 
and other agencies for review and comment in supplemental NEPA 
documents. Thus, any supplemental NEPA documents dealing with the most 
significant impacts of the outlet will not become available until after 
the decision has been made to build the outlet, when it is too late to 
avoid those impacts or select less damaging alternatives. The Corps' 
NEPA process for the proposed outlet, therefore, is deliberately 
crafted to circumvent the fundamental purpose of NEPA.
                 failure to consider cumulative impacts
Red River Valley Water Supply Project
    The Dakota Water Resources Act of 2000 authorizes a Red River 
Valley Water Supply Project, one alternative of which to be considered 
is the delivery of Missouri River water to the Sheyenne River utilizing 
the U.S. Bureau of Reclamation's Garrison Diversion Unit. The DEIS 
acknowledges that utilizing the Garrison Diversion Unit to deliver 
Missouri River water for a Red River Valley water supply project is a 
reasonably foreseeable action (DEIS p. 5-92), but, despite the fact 
that the projects would deliver water to the Sheyenne River from 
different sources, it does not discuss how operation of the proposed 
Devils Lake outlet might alter the operation or impacts of the Red 
River Valley Water Supply Project, or how operation of the Red River 
Valley Water Supply Project might alter the operation or impacts of the 
proposed outlet. With absolutely no data or analysis, the DEIS 
summarily dismisses discussion of the cumulative impacts of the two 
projects with the statement that they ``do not result in any additional 
impacts above those described in this Draft Report/EIS'' (DEIS p. 5-
92).
Inlet to Deliver Missouri River Water to Devils Lake
    The DEIS recognizes that:

    ``The purpose of an inlet from the Missouri River would be to help 
stabilize the lake during drier climatic conditions. Regionally, there 
is great interest in stabilizing the lake to try to maintain the 
recreational and economic value of the lake. Other States, Minnesota 
and Missouri, Canada, and some agencies are concerned about water 
quality, water quantity, and biota transfer issues associated with an 
inlet.
    ``Many believe that an outlet is the first step toward an inlet and 
oppose the outlet for that reason or feel that the report should 
include a discussion of the effects of an inlet.'' (DEIS p. 1-S-11)

    In fact, on August 1, 1997, North Dakota Governor Edward T. Schafer 
and the majority leaders of the North Dakota House and Senate sent 
letters to U.S. Senate Majority Leader Trent Lott and U.S. House 
Speaker Newt Gingrich stating, in part:

    ``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 for 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.''

    On September 26, 1997, the Governor and the North Dakota Senate and 
House majority leaders then sent letters to the North Dakota 
congressional delegation 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 region, and is a significant component of 
the 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 a legislative history that should emphasize the State's 
interest in revisiting an inlet when the circumstances dictate.''

    That same day, North Dakota Senator Byron Dorgan was quoted in The 
Forum (Fargo, North Dakota) as stating that he would bring back the 
inlet debate in future sessions of the Congress, but for now, the 
outlet is what is needed (Condon, 1997).
    Although the construction of an inlet to deliver Missouri River 
water to Devils Lake could have profound consequences for the operation 
and impacts of the proposed outlet, particularly by escalating the risk 
of transfer of foreign biota to the Hudson Bay Basin, the DEIS 
arbitrarily dismisses consideration of the cumulative impacts of an 
inlet with the statement that:

    ``Public Law 105-62 prohibits the Corps from using any funds to 
study any inlet involving the transfer of water from the Missouri 
Basin. Therefore, an inlet is not part of the analysis.'' (DEIS p. 1-S-
1)

    However, the Corps misinterprets the language of the 1997 Energy 
and Water Development Appropriations Act (Public Law 105-62). The act 
states:

    ``Provided further, That no funds made available under this Act or 
any other Act for any fiscal year may be used by the Secretary to carry 
out the portion of the feasibility study of the Devils Lake Basin, 
North Dakota, authorized under the Energy and Water Development 
Appropriations Act of 1993 (Public Law 102-377), that addresses the 
needs of the area for stabilized lake levels through inlet controls 
[emphasis added] or carry out any activity that would permit the 
transfer of water from the Missouri River Basin into Devils Lake.''

    Thus, Public Law 105-62 prohibits the Corps only from carrying out 
a feasibility study for an inlet to Devils Lake, and it does not 
prohibit the Corps from addressing the cumulative environmental impacts 
of an inlet in association with an outlet from Devils Lake that is 
required under NEPA.
North Dakota's 300 cfs ``Temporary'' Emergency Outlet
    The DEIS acknowledges that a temporary outlet from Devils Lake to 
the Sheyenne River constructed by the State of North Dakota along 
Peterson Coulee is a reasonably foreseeable action (DEIS p. 5-92). 
However, despite the facts that (1) the North Dakota Legislative 
Assembly has authorized, and appropriated $15 million for, construction 
of the temporary outlet, (2) former State Engineer David Sprynczynatyk 
stated at a public meeting in Valley City, North Dakota, on August 23, 
2000, that the State's 300 cfs temporary outlet will be operated 
indefinitely if the Corps does not build a permanent outlet, (3) the 
NDSWC has requested engineering design proposals and has retained the 
firm of Bartlett, West and Boyle to design the outlet, (4) the NDSWC's 
``Request for Proposal'' for the temporary outlet states that the 
outlet could operate for 10 to 15 years if the current wet cycle 
continues, and (5) the Governor and the NDSWC continue to reiterate 
their decision to construct the outlet, the Corps declines to include 
the temporary outlet in the discussion or without project future 
conditions (DEIS p. 1-S-10) and again dismisses consideration of its 
cumulative effects in conjunction with the proposed Pelican Lake 300 
cubic feet per second (cfs) outlet (DEIS p. 5-92).
    Clearly, the construction and operation by the State of a 300 cfs 
West Bay outlet would have profound impacts on the justification for 
and feasibility of the Corps' proposed Pelican Lake 300 cfs outlet, as 
well as on the cumulative impacts to the Sheyenne River if the Corps's 
proposed outlet were to be built. However, the Corps summarily 
dismisses consideration of the State's proposed 300 cfs West Bay outlet 
with the statement that:

    ``The design and detailed operation plan for a temporary outlet 
have not been completed at this time, and there is a high probability 
for delays or suspension of the plan due to possible litigation and 
permitting issues. Therefore, the construction and operation of a 
temporary outlet is not considered to be a reasonably foreseeable 
action at this time, and the Corps is not including this outlet in the 
future without project conditions. If the State actually begins 
construction, a decision would have to be made on whether the future 
without project conditions should be reevaluated, which would result in 
the extension of the schedule to complete project design and the 
preparation of a revised NEPA document.'' (DEIS p. 1-S-10)

    Of course, a detailed operation plan has not been completed for the 
Corps' proposed Pelican Lake 300 cfs outlet, either (DEIS p. 6-16), yet 
the Corps is proceeding on the premise that it is a reasonably 
foreseeable action subject to the requirements of NEPA. Meanwhile, the 
State also has indicated that it intends to build and operate its 300 
cfs temporary outlet without completing a detailed operation plan 
(Associated Press, 2001b), but the Corps claims that exempts the 
State's project from consideration of cumulative impacts under NEPA.
    The DEIS purports to conduct a sensitivity analysis ``[t]o address 
the uncertainty of the implementation of a temporary outlet'' (DEIS p. 
1-S-10), and it states that:

    ``The analysis includes a discussion of the potential effect of the 
temporary outlet on lake levels, and how it would affect the economic 
feasibility of the Pelican Lake outlet alternative.'' (DEIS p. 1-S-10)

    However, despite the facts that (1) the NDSWC's ``Request for 
Proposal'' for the temporary outlet calls for a capacity of ``at least 
300 cfs'' and indicates that it could be operated for 10 to 15 years 
until the current wet cycle ends (North Dakota State Water Commission, 
2001), and (2) the DEIS acknowledges that the ultimate capacity of the 
outlet would be ``up to 300 cfs'' (DEIS p. 3-25), the sensitivity 
analysis is based on the assumption that the temporary outlet would 
simply be an interim measure until a permanent outlet is operable, and 
it is limited to only the first 100 cfs initial phase of the State's 
project (DEIS p. 3-25-26). Consequently, despite acknowledging that:

    ``The inclusion of the State's [assumed 100 cfs] temporary outlet 
as part of the future without project conditions could reduce the 
impacts of a Pelican Lake outlet and mitigation measures.'' (DEIS p. 
47-37)

the DEIS concludes that:

    ``These changes would not affect conclusions reached through the 
alternatives evaluation.'' (DEIS p. 4-36)

    Clearly, compliance with NEPA requires that the Corps address the 
State's authorized 300 cfs West Bay outlet as a reasonably foreseeable 
permanent feature of the without project future conditions, and that it 
address substantively the cumulative impacts of (1) the authorized Red 
River Valley Water Supply Project delivering Missouri River water to 
the Sheyenne River, (2) an inlet to deliver Missouri River water to 
Devils Lake as part of the State's official water development plan, and 
(3) the State's authorized 300 cfs outlet from West Bay to the Sheyenne 
River.
      absence of authorization to construct and operate an outlet
    The DEIS cites the 1997 Emergency Supplemental Appropriations Act 
as its authority to undertake preconstruction engineering and design 
and the associated EIS for an emergency outlet from Devils Lake to the 
Sheyenne River (DEIS p. 1-2), and it cites the Energy and Water 
Development Appropriations Acts for fiscal years 1998, 1999, 2000, and 
2001 as ``providing funding for the construction of an emergency outlet 
from Devils Lake to the Sheyenne River'' (DEIS p. 1-2), but it does not 
cite any congressional authorization act language that specifically 
authorizes the construction and operation of an outlet from Devils Lake 
to the Sheyenne River.
    The 1998 Energy and Water Development Appropriations Act cited by 
the DEIS states, for example, that:

    ``The Secretary of the Army acting through the Chief of Engineers, 
may use up to $5 million of the funding appropriated herein to initiate 
[emphasis added] construction of an emergency outlet from Devils Lake, 
North Dakota, to the Sheyenne River . . .''

subject to a determination by the Secretary of the Army that the 
construction:

    ``is technically sound, economically justified, and environmentally 
acceptable and in compliance with the National Environmental Policy Act 
of 1969.''

    Provided further:

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

    Not only have none of these necessary conditions been met before 
construction may be initiated on an outlet from Devils Lake to the 
Sheyenne River (DEIS p. 6-28), but the Corps cites no congressional 
authorization to complete and operate an outlet from Devils Lake to the 
Sheyenne River. The language of the 1998 Energy and Water Development 
Appropriations Act clearly indicates that it was the intent of the 
Congress that the Corps, after meeting the conditions specified, was 
authorized only to ``initiate construction of an emergency outlet'' 
from Devils lake to the Sheyenne River. The language demonstrates that, 
in the event the Corps should meet the conditions specified in the act 
and initiate construction of an outlet, the Congress retained the 
authority to review the status of the ``emergency'' before authorizing 
further construction and operation of the outlet and the appropriation 
of additional funds for its construction. That authorization would 
properly be in the form of a specific congressional authorization act, 
rather than simply through the appropriation of funds in a continued 
piecemeal fashion.
 inadequate description of environmental impacts of the proposed action
    Not only does the DEIS fail to describe adequately the 
environmental impacts of the operation of the proposed Pelican Lake 300 
cfs outlet, but the discussion that is provided is designed to minimize 
and obscure the impacts that are identified.
    The downstream impacts of the operation of the proposed Pelican 
Lake 300 cfs outlet under a ``wet future scenario'' where those impacts 
would be most severe have not been modeled, so they have simply been 
interpolated from the impacts of West Bay 300 cfs and 480 cfs 
alternatives modeled under two ``moderate'' (1,450 and 1,455 feet) lake 
future scenarios. For example:

    ``Impacts to aquatic resources were evaluated for a 300 cfs 
constrained and a 480 cfs unconstrained outlet from West Bay . . . The 
effects of outlets from other locations, such as Pelican Lake, would 
have to be interpreted from these findings. It is possible [emphasis 
added] that a Pelican Lake outlet would approximate the water quality 
effects of a 300 cfs West Bay outlet and the flow effects of a 480 cfs 
West Bay outlet. (DEIS Appendix C, p. C-38)
    ``The determination of the effects of operating an outlet from 
Devils Lake is dependent on the conditions assumed to persist into the 
future and the location of the outlet. These two conditions affect the 
quality of the water to be discharged into the Sheyenne River and flows 
that are in the Sheyenne River, which in turn affects the assumptions 
concerning the operation of an outlet . . . Because of the uncertainty 
as to which outlet operation plan would be proposed for design, 300 cfs 
or 480 cfs--constrained or unconstrained, the analysis of natural 
resources effects was designed to bracket the potential effects for the 
two moderate lake scenarios [emphasis added] selected for analysis . . 
. 
    ``The outlet plan preliminarily selected for design does not 
originate in West Bay and falls somewhat outside the bounds for this 
analysis [emphasis added]. The water quality effects on aquatic 
resources would likely be [emphasis added] very similar to those 
identified with the West Bay 300 cfs outlet, constrained by water 
quality and channel capacity. However, since a Pelican Lake outlet 
captures the fresh water flowing into Devils Lake, the outlet would 
have substantially higher flows, and the effects of increased flow on 
aquatic habitat in the Sheyenne River would likely be [emphasis added] 
closer to the effects identified with the West Bay 480 cfs outlet. In 
lieu of additional modeling, the water quality effects of the 300 cfs 
constrained operation and the flow effects of the 480 cfs unconstrained 
operation were used to evaluate the potential effects of the Pelican 
Lake outlet on aquatic resources.'' (DEIS p. 5-45)

    In discussing the impacts of the operation of the proposed Pelican 
Lake 300 cfs outlet on the Sheyenne River under the more ``moderate'' 
1,450 feet lake future scenario, the DEIS shows a ``typical operation 
year'' that imposes 300 cfs flows from the outlet on Sheyenne River 
base flows that peak at 200 cfs in July and average less than 100 cfs 
from May 1 through September 1, with flows from the outlet dropping to 
an average of perhaps 50 cfs from September 1 through November 30 (DEIS 
Figure 35, p. 5-50). Therefore, in a ``typical operation year'' under 
the 1,450 ``moderate'' scenario, it appears that the Pelican Lake 300 
cfs outlet would be expected to discharge about 80,000 acre-feet of 
water from Devils Lake to the Sheyenne River. Under these ``moderate'' 
conditions, the DEIS states that:

    ``Operation of the Pelican Lake outlet would result in a 
substantial change in the flow regime of the Sheyenne River. Discharges 
of up to 300 cfs over a major portion of the summer would represent a 
5- to 10-fold increase in summer/fall flows along the Sheyenne River. 
(DEIS p. 5-48)
    ``. . . the outlet could result in up and down flows with sudden 
and extreme fluctuations in flow. These are the types of situations 
that made it difficult for species to adapt to habitat conditions. 
(DEIS p. 5-48)
    ``The changes in flow duration, stage and frequency could result in 
an increase in erosion and sedimentation on Sheyenne River. (DEIS p. 5-
52)
    ``The changes on the Sheyenne River in water quality, hydrology, 
geomorphology and habitat could result in substantial changes in 
aquatic biota. (DEIS p. 5-53)
    ``Even under a constrained operation approach, the levels of many 
water quality constituents are increased by two to three times to 
concentrations just below the established water quality standards. 
(DEIS p. 5-53)
    ``. . . although water quality standards on the Sheyenne River are 
not violated, the percent of time any particular concentration is 
exceeded increases dramatically. For example, sulfate exceedences go 
from zero to 42 percent for the 250 mg/l sulfate level. (DEIS p. 5-53)
    ``The loss of habitat due to increased flows, changes in channel 
geometry, loss of overbank cover and sedimentation, coupled with 
changes in water quality and algal growth, would all contribute to a 
substantial change in the aquatic community present in the Sheyenne 
River. Projected water quality changes associated with outlet operation 
may adversely influence fish reproduction and result in lost-year 
classes. The cumulative result of all these changes would be a decrease 
in diversity and density of aquatic species in the Sheyenne River. The 
threshold chloride levels of some aquatic species, such as mussels, 
would be approached with operation of an outlet; however, no effects 
are anticipated. (DEIS p. 5-53)
    ``Many of the effects associated with the operation of an outlet 
cannot readily be quantified. (DEIS p. 5-96)
    ``Some of the aquatic losses would not be mitigated; for example, 
loss of invertebrates, loss of fish year classes, loss of wetted usable 
area due to increased channel width, and changed channel morphology. 
(DEIS 5-97)
    ``Changes in the aquatic community would persist for many years 
after outlet operation ceased, especially on the Sheyenne River above 
Lake Ashtabula. (DEIS Appendix D, p. D-31)
    ``. . . the 300 cfs [West Bay] constrained pumping alternative 
would cause much less damage than the 480 cfs [West Bay] unconstrained 
pumping alternative [which approximates the flow impacts of a 300 cfs 
Pelican Lake outlet] under either the moderate or wet climatic 
scenario. (DEIS Appendix A, p. A-254)
    ``The flow impacts due to a Pelican Lake alternative could be 
dramatic, particularly in the upper Sheyenne, which is essentially 
isolated from recolonization. Water quality changes would be 
devastating to uinonids. (DEIS p. 5-102)
    ``Substantial to significant adverse impacts on aquatic habitat 
availability and suitability can be expected under most if not all of 
the Devils Lake outlet options. The most flow sensitive habitat types, 
such as riffles where shallow, fast habitats predominate, would be 
almost entirely eliminated for a majority of the year. The largest 
adverse impacts on habitat would likely occur in the Sheyenne River 
above Lake Ashtabula, where stages are projected to increase up to 3 
feet. (DEIS Appendix C, p. C-38)
    ``Downstream interests would bear most of the negative impacts of 
this [480 cfs] plan [which reflect the water quantity impacts of a 
Pelican Lake 300 cfs outlet]. Flooding may increase, primarily on 
agricultural lands along the Sheyenne River. Higher flows may 
exacerbate streambank erosion that may threaten farmstead structures 
and residences along the river. The added flow translates into stage 
increases, resulting in additional damage to structural property from 
direct flooding. Under these circumstances, flood easements would be 
purchased to compensate landowners for future expected losses to their 
properties. The potential for bearing these adverse impacts of an 
outlet is a source of controversy with downstream interests and has 
produced conflict with their upstream neighbors. (DEIS p. 4-10)
    ``As in the case of an overflow, farms that withdraw water from the 
Sheyenne River or the Red River for irrigation could suffer reduced 
crop yields from the lower river water quality associated with an 
outlet. Exacerbated flooding in the Sheyenne River could damage 
agricultural property, including lands, equipment, and structures. 
Also, higher flows in the river could affect some farms that straddle 
the river . . . These river crossings may be impeded or prohibited by 
additional river flow associated with an outlet. (DEIS p. 5-42)
    ``In rare instances, there could be overbank flooding due to 
unforecasted rainstorms and the inability to turn the outlet off in 
time. (DEIS p. 5-56)
    ``Using a \1/4\ mile area of influence, groundwater changes could 
potentially affect about 112,000 acres of riparian lands along the 
Sheyenne River and 76,000 acres along the Red River. (DEIS p. 5-57)
    ``Although the Sheyenne River channel appears currently stable, 
channel instability may be onset if the flows are increase[d] due to 
the operation of an outlet . . . The process of channel adjustment may 
take 50 to 100 years or more. (DEIS Appendix C, p. C-69)
    ``There is an increased risk of transfer of biota or the increase 
in the distribution of existing organisms associated with any feature 
that improves the connectivity between systems that have been 
segregated for many centuries.'' (DEIS 5-56)

    As noted above, the DEIS shows that, in a ``typical operation 
year'' under the more ``moderate'' 1,450 feet future lake level 
scenario, the proposed Pelican Lake 300 cfs outlet would discharge 
approximately 80,000 acre-feet of water from Devils Lake to the 
Sheyenne River, primarily from May through August. Although the DEIS 
does not show a ``typical operation year'' for the Pelican Lake 300 cfs 
outlet under the ``wet future scenario,'' in order to prevent an 
overflow, it appears that the outlet would have to operate at its 300 
cfs maximum capacity for the full 7 months from May 1 to November 30 
every year. For example, with the lake reaching 1,457 feet even with 
the outlet in operation (DEIS p. 5-86), it would have a surface area of 
approximately 230,000 acres (DEIS Figure 7, p. 2-26). The average 
annual 21 inches of precipitation in the Devils Lake area during the 
1993-1999 period on which the ``wet future scenario'' is based (DEIS p. 
4-12) would contribute 402,500 acre-feet of precipitation directly to 
the surface of the lake each year. With the additional average 317,000 
acre-feet of inflows during that period (DEIS p. 1-5), total annual 
accruals would average 719,000 acre-feet through the first 21 years of 
the ``wet future scenario.'' The average annual 29 inches of 
evaporation through the 1993-1999 period (WEST Consultants, Inc., 2001) 
would be expected to remove 556,000 acre-feet per year from the lake, 
leaving an average annual net accrual of 162,000 acre-feet that would 
have to be removed by the outlet to prevent the lake from continuing to 
rise above 1,457 feet. A 300 cfs outlet operating at maximum capacity 
for 7 months would remove 126,000 acre-feet per year, so it appears 
that the Pelican Lake 300 cfs outlet would have to operate at maximum 
capacity from the 5th through the 21st year (DEIS Appendix A, p. A-110) 
of the a ``wet future scenario'' in order to prevent the lake from 
overflowing to the Sheyenne River and justify its construction.
    Because the downstream impacts of the operation of the proposed 
Pelican Lake 300 cfs outlet have not been modeled, the DEIS attempts to 
interpret the possible impacts--examples of which are cited above--
based on the water quality impacts of a 300 cfs constrained West Bay 
outlet and the water quantity impacts of a 480 cfs unconstrained West 
Bay outlet modeled under ``moderate'' future lake conditions of 1,450 
and 1,455 feet.
    However:

    ``A wet future in the Devils Lake basin would also probably result 
in a wet future in other basins.'' (DEIS p. 5-81)

including the Sheyenne River Basin, and the statements that:

    ``The primary downstream area affected would be those areas flooded 
when the flow on the upper and lower Sheyenne River reach 1,000 and 
1,500 cfs, respectively.'' (DEIS Appendix C, p. C-138)

and:

    ``Operation of an outlet at 300 cfs would have limited effect on 
the extent or duration of flooded area along the upper or lower 
Sheyenne River with flows not exceeding 1,000 or 1,500 cfs, 
respectively.'' (DEIS Appendix C, p. C-138)

indicate that the operation of the outlet would not, in fact, be 
constrained to the 600 cfs capacity of the Sheyenne River channel 
during a ``wet future scenario'' as claimed (DEIS p. 3-14, 4-18), so 
the impacts could be expected to be substantially greater and more 
severe than those described under the moderate future scenarios 
discussed in the DEIS.
    It is instructive, therefore, to consider how the DEIS describes 
the downstream impacts associated with the more than 50 percent 
increase in discharges from these ``moderate'' conditions (from 80,000 
acre feet to 126,000 acre-feet per year) of a Pelican Lake 300 cfs 
outlet operating under ``wet future scenario'' conditions where the 
Sheyenne River would already be experiencing unusually high flows:

    ``Because the scenario is based on a wet climate, the pumping may 
[emphasis added] last longer and greater quantities may [emphasis 
added] be pumped out. Therefore, the impacts described for the 
stochastic analysis would last longer and the flow effects would be 
greater. For example, erosion would be more, aquatic effects from flow 
would be the same type but would be of a greater magnitude, soil 
salinity effects would also be of the same type but irrigators and land 
users would be subject to those effects for a longer period. (DEIS 5-
86)
    ``In summary, changes in hydrology would be significant with a 
Pelican Lake alternative because large amounts of water could be 
discharged during wet periods in the Devils Lake Basin due to improved 
water quality. Erosion will be greater, summer nursery habitat will be 
less, unproductive habitat will increase in summer and fall, and change 
in flow magnitude between fall and winter will be greater. Therefore, 
aquatic communities may survive the water quality changes of the 
alternative, only to be affected by the change in habitat and 
hydrology. The changes in the aquatic community would persist for many 
years after outlet operation has ceased.'' (DEIS p. 5-55)

    That's it! These two paragraphs are the sum and substance of what 
the public, the Congress and other decisionmakers are told about the 
specific environmental impacts of the operation of the proposed Pelican 
Lake 300 cfs outlet in the ``wet future scenario'' under which outlet 
proponents such as the North Dakota congressional delegation, Ramsey 
County elected officials and Lake Emergency Management Committee 
representatives are advocating that the outlet be justified (Associated 
Press, 2002a).
    Of course, the reader is told that more detailed discussion of the 
impacts under the scenario future is presented in the Technical 
Appendices (DEIS p. 5-66), but examination of Appendix C, which 
addresses ``Environmental Resources,'' reveals only the same kinds of 
abstract and ambiguous generalizations that are used in the DEIS itself 
to minimize and obfuscate the downstream impacts of the operation of 
the proposed Pelican Lake 300 cfs outlet under the ``wet future 
scenario'' necessary to rationalize its construction.
    The failure of the DEIS to provide the detailed statement of the 
qualitative and quantitative environmental impacts of the construction 
and operation of the proposed Pelican Lake 300 cfs outlet required by 
NEPA renders the DEIS technically inadequate and legally deficient on 
its face.
 devils lake outlets--technically unsound and economically unjustified
    The DEIS concludes that the proposed Pelican Lake 300 cfs outlet 
only:

    ``Minimally reduces flood damages around the lake and moderately 
reduces the potential for a natural overflow event.'' (DEIS p. 4-38)

    However:

    ``When balancing the project needs and objectives, including cost 
effectiveness, downstream water quality impacts, and other 
considerations, the Pelican Lake 300 cfs outlet alternative is the best 
overall outlet plan. Additionally, it is moderately effective in 
controlling future lake levels'' (DEIS 1-S-7).

    Under a conventional stochastic analysis, the proposed Pelican Lake 
300 cfs outlet would reduce the expected lake stage from 1,450 feet 
without the outlet to 1,449.5 feet with the outlet--a half foot 
reduction (DEIS p. 1-S-4). Without the outlet, there is a 50.6 percent 
chance that the lake would reach or exceed 1,450 feet and a 20.8 
percent chance the lake would reach or exceed 1,454 feet (DEIS p. 1-S-
4-5). The outlet would reduce the chance that Devils Lake would reach 
elevation 1,459 feet where it would begin to overflow to the Sheyenne 
River from 9.4 percent to 4.1 percent (DEIS p. 5-71). ``Devils Lake 
would have to rise to 1,460.6 before there would be a significant flow 
(at least 300 cfs) to the Sheyenne River'' (DEIS p. 2-9), and the 
proposed Pelican Lake 300 cfs outlet would reduce the chance of that 
occurring by 2 percent, from 4 percent without the outlet to 2 percent 
with the outlet (DEIS Appendix B, Table II.ST-2, p. B-195). However, 
the 1 percent chance that Devils Lake would reach elevation 1,463 feet 
where the damages would be the greatest (DEIS p. 2-9, 5-71-84; Appendix 
C, p. C-124) still remains at 1 percent even if the Pelican Lake 300 
cfs outlet is built (DEIS Appendix B, Table II.ST-2, p. B-195). Thus, 
the outlet would do virtually nothing to prevent the most serious 
damages resulting from an overflow of Devils Lake at 1,463 feet.
    Under the ``wet future scenario,'' the lake would continue to rise 
another 10 feet from the January 2002 elevation of 1,447.1 feet to 
1,457 feet even with the outlet in operation (DEIS p. 5-89), and with 
any significant increase in precipitation from the 1993 to 1999 
average, it also would overflow to the Sheyenne River (see The Wet 
Future Scenario--Fantasizing Feasibility below). Moreover, as pointed 
out above, during a ``wet future scenario'' when the Sheyenne River 
already has high flows, the operation of the outlet would have to be 
constrained below its maximum capacity, in which case it would be even 
less effective in preventing the lake from continuing to rise above 
1,457 feet, or, if operated at maximum capacity, it would result in 
even more severe downstream impacts on the Sheyenne River. 
Consequently, the proposed Pelican Lake 300 cfs outlet is technically 
unsound on its face.
    According to the DEIS:

    ``Therefore, there is about a 75 percent chance that if an outlet 
were built it would not be economically beneficial. (DEIS p. 1-S-5)
    ``The outlet plan that has been preliminarily selected for design 
is not economically justified using methods that would determine 
expected net benefits by producing probability-weighted benefits and 
costs. (DEIS p. 1-S-7)
    ``The outlet alternative under the stochastic analysis with the 
highest benefit-cost ratio (although it is not shown to be economically 
justified) is the Pelican lake 300 cfs outlet.'' (DEIS p. 4-3)

    The benefit-cost ratio for the proposed Pelican Lake 300 cfs outlet 
under the stochastic analysis is 0.37 (DEIS Table 4, p. 4-2). This is 
even less than the 0.69 benefit-cost ratio of taking no additional 
action whatsoever in the Devils Lake Basin to protect the local 
infrastructure (DEIS p. 3-24, Table 4, p. 4-2). The benefit-cost ratios 
for the other outlet alternatives considered are: West Bay 300 cfs 
outlet = 0.28, West Bay 480 cfs outlet = 0.01, Pelican Lake 480 cfs 
outlet = 0.10, Pelican Lake Bypass 480 cfs-PL 2 = 0.14, Pelican Lake 
Bypass 480 cfs-PL3 = 0.21, and East End Outlet = 0.02 (DEIS Table 4, p. 
4-2)
    The Energy and Water Development Appropriations Acts for fiscal 
years 1998, 1999, 2000 and 2001 specify:

    ``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 for the Army Corps 
of Engineers for all flood control projects, and that the economic 
justification be fully described, including the analysis of the 
benefits and costs, in the project plan documents.'' (DEIS p. 1-2)

    The DEIS states that:

    ``The Corps of Engineers traditionally recommends plans that show 
the greatest expected net benefits, where benefits exceed costs based 
on the probability of events. As a standard process under the 
Principles and Guidelines, this is referred to as the National Economic 
Development, or NED, plan. A stochastic approach was used for economic 
evaluation. The benefit-cost ratio of the best outlet plan 
incorporating probabilities of occurrence is 0.37.'' (DEIS Abstract)

    The proposed Pelican Lake 300 cfs outlet, therefore, is without 
economic justification under the law, as well as under the Corps' own 
Principles and Guidelines. Consequently, the Corps has no alternative 
under the law except to recommend that the outlet not be built.
                              hidden costs
    The DEIS lists the Total First Cost of the proposed Pelican Lake 
300 cfs outlet as $97,651,000 (DEIS Table 3, p. 3-23) and the Total 
Costs at $117 million (DEIS Table 4, p. 4-2) to $125 million (DEIS 
Table 6, p. 4-13). However, because the lake would continue to rise 
under the ``wet future scenario'' even with the outlet (DEIS p. 5-86), 
it still would be necessary to incur the additional costs of 
implementing infrastructure protection measures (DEIS p. 5-89), 
including raising the levees protecting the city of Devils Lake, 
relocating homes, building temporary levees, raising selected roads and 
railroads, and protecting or relocating utilities (DEIS p. 3-9).
    The DEIS estimates these additional infrastructure protection costs 
under the ``wet future scenario'' without the outlet and the lake 
reaching 1,460.6 feet (DEIS Table B, p. 1-S-4) at $585 million (DEIS 
Table 6, p. 4-13). With the outlet in operation and the lake reaching 
1,457 feet, (DEIS p. 5-86)--just 2 feet below overflow elevation, it 
might be assumed that these infrastructure protection costs still could 
reach $300 to $400 million. Therefore, the total cost of implementing 
the Pelican Lake 300 cfs outlet plus the associated infrastructure 
protection for a lake level of 1,457 feet required with this 
alternative is not the $125 million shown in the DEIS, but likely is in 
the range of $425 to $525 million.
            the wet future scenario--fantasizing feasibility
    In outlining the rationale for evaluating alternatives under a 
``wet future scenario,'' the DEIS explains that:

    ``The stochastic modeling was based on an assumption of the 
stationarity of the climate. Because of the uncertainty of and the 
differing scientific opinions regarding future climatic conditions in 
the Devils Lake basin, a scenario based analysis was also performed. In 
situations of uncertainty, the Principles and Guidelines allow for 
development of alternative future conditions, or scenarios. This 
scenario based analysis was used to specifically address potential 
solutions to the problems in the basin if the recent wet conditions 
continue. (DEIS Abstract)
    ``The scenarios for Devils Lake include the WET future, the 
moderate trace 1,445, an even more moderate trace 1,450, and a DRY 
future. The WET future assumes that the years 1993 to 1999 would occur 
for two cycles. At this point the lake would reach the overflow 
elevation of 1,459 in the year 2014. The period 1993 to 1999 is 
repeated again to generate overflow and then the years 1980 to 1990 to 
finish out 50-years. The WET future was necessary to assess the impacts 
of a natural overflow from Stump Lake to the Sheyenne River. (DEIS 
Appendix A, p. A-21).
    ``The wet future scenario analysis evaluated one set of 50-year 
lake levels that is based on very recent climatic conditions for the 
years 1993-1999. The wet future scenario repeats the climatic and 
hydrologic conditions for the seven highest inflow years in recent 
history (1993-1999) for three cycles, causing the lake to overflow. The 
remaining years of the 50-year cycle were defined assuming climatic and 
hydrologic conditions similar to 1980 through 1999, and then 1980 
through 1990, to complete the 50-trace.'' (DEIS p. 3-5)

    The DEIS offers no evidence and makes no claim that the ``wet 
future scenario'' provides a more reliable--or even remotely more 
realistic--analysis of future lake conditions than the stochastic 
analysis. On the contrary, the DEIS points out that:

    ``The duration of the recent wet conditions cannot be determined 
definitely because of the complex interactions between global weather 
factors. (DEIS Appendix A, p. 1-18)
    ``As indicated by the regional Weather Information Center, climatic 
conditions during 2000-2015 are expected to be similar to conditions 
during 1980-1999. (DEIS Appendix A, p. 1-18)
    ``No one can know or predict with confidence climate 50 years into 
the future. The National Academy of Sciences (NAS) provided guidance 
for another study (citation omitted) on analysis when the future is 
uncertain. They warn that, `Failure to deal explicitly with uncertainty 
leads the unwary to have far too much confidence in the resulting 
forecast and analysis, which can lead to bad public decisions [emphasis 
added] . . .' (DEIS Appendix A, A-20)
    ``While the use of a wet future scenario may provide insight into 
potential benefits of the outlet alternatives, such an analysis 
provides little assurance as to the soundness of such an investment, 
since it is tied to the unlikely assumption that a particular scenario 
will ever occur. (DEIS p. 4-40)
    ``The probability of the scenario future occurring is practically 
zero because it is an artificial scenario. (DEIS p. 5-88)
    ``The alternatives were evaluated using an alternate future without 
conditions, which assumes a continued wet climate scenario based on the 
climate sequence from 1993 through 1999 repeated until a natural 
overflow to the Sheyenne River occurred. The probability that the lake 
will rise exactly in this way is zero.'' (DEIS p. 5-71)

    Thus, the ``wet future scenario'' has nothing to do with reality, 
but is simply a set of manufactured conditions specifically created to 
result in just enough precipitation over a 21-year period to cause the 
lake to overflow without the Pelican Lake 300 cfs outlet, but not so 
much that the lake would still overflow even with the outlet. But, of 
course, ``The probability that the lake will rise exactly in this way 
is zero'' (DEIS p. 5-71). Nevertheless, proponents of the outlet cite 
this artificially contrived scenario as justification for building the 
outlet. For example:

    ``The key to getting a Devils Lake outlet, one official says, is to 
persuade the Army Corps of Engineers [to] accept a so-called `wet-cycle 
scenario.'
    ``Ramsey County Commissioner Joe Belford said that if the Corps 
accepts the premise that the wet cycle of the last 8 years will 
continue for another 10 years or more, the project easily would meet 
Federal benefit-cost requirements.'' (Associated Press, 2002b)

    Of course, the Corps cannot accept a premise that the wet cycle of 
the last 8 years (2001 was not a wet year in the Devils Lake Basin) 
will continue for another 10 years because it is without valid 
scientific foundation. However, rather than dealing with the matter on 
a rational, factual basis:

    ``Mike Connor, manager of the Devils Lake Basin Joint Water Board 
said . . . `I think it's time for people to holler a little bit . . . 
Well, maybe not a little bit, maybe a whole lot.' '' (Associated Press, 
2002b)

    Unfortunately, this has been the approach universally employed by 
proponents of an outlet from Devils Lake since the lake began its rapid 
rise in 1993. The Corps, however, is obligated to take a more 
responsible approach, and it is required under NEPA to recognize and 
respond substantively to the National Academy of Sciences' admonition 
that failure to deal explicitly with uncertainty leads the unwary to 
have far too much confidence in the resulting forecast and analysis, 
which can lead to bad public decisions. The proposed outlet from Devils 
Lake reflects precisely such a failure to deal explicitly with 
uncertainty leading the North Dakota congressional delegation, the 
Governor, the State Water Commission and other unwary proponents of the 
outlet to have far too much confidence in the ``wet future scenario'' 
and, therefore, to advocate a bad public decision.
    According to the DEIS:

    ``To better understand the sensitivity of assumptions used for 
future lake conditions, both with and without project, the alternatives 
were evaluated in comparison to other possible conditions.'' (DEIS p. 
3-24).

    Those conditions were (1) No Action Protection Strategy, (2) 
Moderate Future Scenarios, (3) Erosion of Natural Outlet, and (4) 
Proposed Temporary Outlet as Part of Future Conditions (DEIS pp. 3-24-
25). However, the DEIS does not provide a sensitivity analysis of the 
proposed Pelican Lake 300 cfs outlet itself under a ``wet future 
scenario.'' As noted above, the ``wet future scenario'' is a 
manufactured set of conditions specifically contrived to result in just 
enough precipitation over the next 21 years to cause the lake to 
overflow without the outlet, but not so much that it would still 
overflow even with the outlet. Therefore, it would be helpful to the 
public and to decisionmakers in understanding the tenuous nature and 
dubious relevance of the ``wet future scenario'' for the Corps to 
perform a sensitivity analysis of the outlet itself to show the effect 
on the efficacy and benefits of the proposed outlet of variations from 
the specific ``wet future scenario'' conditions outlined in the DEIS. 
For example, at elevation 1,457 feet, the ``expected lake stage'' with 
the proposed Pelican Lake 300 cfs outlet after the first 14 years of 
the ``wet future scenario'' (DEIS Table B, p. 1-S-4; Appendix A p. A-
21), the lake would have a surface area of approximately 230,000 acres 
(interpolated from DEIS Figure 7, p. 2-6). Annual inflows to the lake 
from 1993 to 1999 averaged 317,000 acre-feet (DEIS p. 1-5) and 
precipitation, which averaged 21.0 inches from 1993 to 1999 (WEST 
Consultants, Inc., 2001) would contribute another 402,500 acre-feet to 
the 230,000 acre lake, for average total annual accruals of 719,000 
acre-feet. Evaporation, which averaged 29.0 inches, or 2.42 feet, 
during the period (WEST Consultants, Inc, 2001), would remove 319,440 
acre-feet, and the outlet, operating at maximum capacity for 7 months 
would remove another 126,000 acre-feet, leaving a net gain of 36,900 
acre-feet per year under the ``wet future scenario.''
    If average annual precipitation in the Devils Lake Basin under the 
``wet future scenario'' were to increase by 1 inch (5 percent) above 
the 1993-1999 level, average annual inflows might be expected to 
increase from 317,000 acre-feet to 332,850 acre-feet and direct 
precipitation on the lake would increase from 402,500 acre-feet to 
420,900 acre-feet, for an increase in total average annual accruals to 
753,750 acre-feet. Evaporation would remove a little more than 319,440 
acre-feet because the surface area of the lake would be a little 
larger, but the outlet still would remove only 126,000 acre-feet, 
leaving a net gain of about 71,000 acre-feet, or about 3.7 inches, per 
year, bringing the lake dangerously close to the overflow elevation of 
1,459 feet by the end of the third 7 years of the ``wet future 
scenario.'' An increase in average annual precipitation under the ``wet 
future scenario'' of 2 inches (10 percent) would result in an overflow 
to the Sheyenne River even with the proposed Pelican Lake outlet 
operating at full capacity, thus negating much of the assumed benefit 
of the outlet.
    Similarly, a decease of 1 inch (5 percent) in average precipitation 
from the ``wet future scenario'' would not result in significant 
overflows to the Sheyenne River even without the proposed outlet, and a 
decrease of 2 inches (10 percent) would result in virtually no 
overflow, again negating much of the assumed benefit of the outlet.
    Paradoxically, the DEIS cites the impossibility of predicting 
future lake levels with certainty as the reason for employing the ``wet 
future scenario'' (DEIS Abstract) and to justify the proposed outlet 
(DEIS p. 1-S-8), but it ignores the fact that realization of the 
anticipated benefits of the proposed outlet presumes an ability to 
predict future lake levels with virtual absolute certainty, because any 
significant deviation from the ``wet future scenario'' would 
substantially diminish or negate those benefits.
                    the $125 million lottery ticket
    The DEIS attempts to rationalize a justification for the proposed 
outlet in the face of such climatic uncertainty (DEIS p. 1-S-4-10; 
Appendix A, p. A-9-18) and tenuous benefits (DEIS p. 5-71) by 
suggesting that:

    ``Given the uncertainty and controversy around the ability to 
forecast future lake stages, a decision to proceed with an outlet must 
consider risk aversion. Instead of relying on the probability analysis, 
one could view the construction of an outlet as an insurance policy, 
rather than as an investment.'' (DEIS p. 1-S-3)

    The analogy, however, is patently invalid. An insurance policy is 
not a guarantee that an adverse event will not occur, but rather 
provides compensation if the event should occur. The proposed Pelican 
Lake 300 cfs outlet does neither. It does not guarantee that the lake 
will not continue to rise--under the ``wet future scenario'' it would 
(DEIS p. 5-86)--or that it would not overflow to the Sheyenne River--it 
could (DEIS p. 5-89), nor does it provide any compensation if either of 
these occurs. Consequently, rather than viewing the proposed Pelican 
Lake 300 cfs outlet as an insurance policy as the DEIS suggests, it 
should more accurately be viewed as a $125 million (DEIS Table 6, p. 4-
13) lottery ticket--with virtually no chance of winning (DEIS pp. 4-40, 
5-71, 5-88).
       erosion of the natural outlet--indulging geologic fiction
    The DEIS states that:

    ``A sensitivity analysis was conducted assuming the natural outlet 
would erode and no actions would be taken to prevent it. The analysis 
is based on the materials present at the site and not on a 
determination if it actually eroded in the past. There is evidence and 
some debate if it did erode in the past or did it actually accrue 
sediment. Materials at about 7 feet are over 7,000 years old. Devils 
Lake is estimated to have spilled to the Sheyenne River within the last 
1,200 years; therefore, it did not erode at that time.'' (DEIS p. 5-90; 
Appendix C, p. 129).

    Nevertheless, the DEIS then goes on to describe the impacts that 
would occur if the natural outlet were to erode:

    ``It the outlet were allowed to erode, the effects would be much 
more significant. It is estimated that the outlet would erode down to 
elevation 1,450 feet with a maximum discharge of about 6,000 cfs and 
erosion of over 400,000 cubic yards of material . . .
    ``Downstream effects resulting from the erosion of the natural 
outlet would be significant. There would be increased sedimentation in 
the Sheyenne River and Lake Ashtabula. Erosion would also increase in 
the Sheyenne River. There would be substantial effects to the 
downstream aquatic resource on the Sheyenne and Red Rivers. High flows, 
changed water quality, sedimentation, erosion, increased groundwater 
levels, and overbank flooding would result in the loss of aquatic and 
riparian habitats. Aquatic biota and terrestrial wildlife populations 
in the riparian zone would be totally modified.'' (DEIS p. 5-90; 
Appendix C, p. 129)

    However, in discussing erosion of the natural outlet, DEIS Appendix 
B states that:

    ``Based on the most recent surveys, overflow from Stump Lake occurs 
when the lake level reaches an elevation of 1,459.1 feet. This analysis 
indicates that the outlet control point would slowly be eroded, with 
the maximum potential erosion occurring down to 1,450.8.
    ``Under this analysis, a peak discharge of 1,440 cfs was expected 
to occur during year 17. (This compares to a peak discharge of only 206 
cfs when no erosion of the Tolna Coulee is assumed.) . . .'' (DEIS 
Appendix B, p. B-25)

    Whether the peak discharge would be 6,000 cfs or 1,440 cfs, because 
the potential impacts identified with erosion of the natural outlet 9 
feet (or 8 feet) from its current elevation of 1,459 feet to 1,450 feet 
(or 1,450.8 feet) are so dramatic, it is appropriate and instructive to 
consider further the likelihood of this occurring.
    The DEIS states that the materials at 7 feet (elevation 1,452 feet) 
are over 7,000 years old and that the last overflow is estimated to 
have occurred within the last 1,200 years, so the outlet did not erode 
at that time. However, this overlooks a substantial portion of the 
geologic evidence regarding the absence of erosion of the natural 
outlet in past overflow events. For example, Murphy et al. (1997) 
report that:

    ``Sufficient sedimentological evidence exists from the Tolna Outlet 
to document at least six times [emphasis added] in the Holocene (the 
last 10,000 years BP [Before Present]) when water from the Devils Lake/
Stump Lake system overflowed into the Sheyenne River.''

and they cite evidence of five overflow events occurring between 7,500 
and 9,500 years ago and four occurring between about 700 and 5,000 
years ago, including one that apparently lasted for several hundred 
years, for a total of nine overflow events in the past 10,000 years 
since Devils Lake was formed by the Wisconsin Glacier (Murphy et al., 
1997). In fact, the sediments in Tolna Coulee 6 feet down at elevation 
1,453 feet are over 5,000 years old and those 8 feet down at elevation 
1,451 feet are over 7,400 years old (Murphy et al., 1997) Therefore, 
with materials at 1,453 feet being over 5,000 years old and those at 
1,451 feet being over 7,400 years old, it is clear that the outlet did 
not erode to elevation 1,450 feet during any of at least four overflow 
events that have occurred in the last 5,000 years. In fact, with the 
sediments at 1,458.5 feet--a half foot below the current overflow 
elevation of 1,459 feet--being over 1,100 years old, it is evident that 
virtually no erosion of the outlet occurred during the last overflow 
event about 700 years ago (Murphy et al., 1997).
    The geologic evidence indicates that, rather than the outlet 
eroding during overflow events, the trend has been exactly the 
opposite, with deposition of sediment during overflow events building 
up the outlet. As Murphy et al. (1997) point out:

    ``Evidence of at least seven fluvial events has been preserved in 
the channel fill deposits of [Tolna Coulee] trench TT1. Fluvial events 
are marked by layers of coarse grained sediments presumably washed into 
the Coulee by water flowing from Stump Lake. These sediments were 
deposited at times when water levels in Devils Lake were sufficiently 
high to cause water to flow into the Sheyenne River through Tolna 
Coulee. [emphasis added] It is likely that additional flood events 
occurred in this Coulee, but are not recorded in the sediments at this 
site. The sedimentological evidence is missing either because floods 
were of insufficient size and duration, or because it was removed by 
the scouring action of subsequent flood events.''

    However, Murphy et al. (1997) cite no geologic evidence, and the 
DEIS cites no other evidence, of sediments having been scoured from the 
outlet during overflow events. Therefore, if additional overflow events 
did occur, it is more reasonable to conclude that they were minor and 
did not result in either significant erosion or sedimentation of the 
channel. Examination of the data presented by Murphy et al. (1997) 
provides further support for this conclusion. For example, at a second 
site in the Tolna Coulee, snail and clam shell fragments were found in 
3,500 to 4,500 year old sediments between elevation 1,455 and 1,456 
feet (Murphy et al., 1997). Although it is possible that these could 
have been deposited in a former isolated wetland at the sampling site 
in Tolna Coulee, it is equally possible that they were incorporated in 
sediments deposited during an overflow event or events. The fact that 
snail and clam shell fragments were found at seven different strata 
dating from 7,000 to 8,000 years ago at the two sampling sites (Murphy 
et al., 1997) would suggest that their deposition was related to events 
occurring on a larger scale than the appearance of isolated wetlands. 
In any case, the presence of these shell fragments in 3,500 to 4,000 
year old sediments 3 to 4 feet below the current overflow elevation of 
1,459 feet provides additional evidence that significant erosion of the 
outlet has not occurred in any of at least three overflow events that 
have occurred over the last 2,500 years, and that overflows actually 
resulted in aggregation rather than erosion of the outlet.
    A revised DEIS should expand its discussion of the probability of 
the natural outlet at Tolna Coulee eroding if Devils Lake should 
overflow by pointing out that there is no evidence in the geologic 
record to indicate that significant erosion of the outlet has occurred 
during any of at least four overflow events that have occurred in the 
past 5,000 years, or in any of the nine overflow events that have 
occurred since Devils Lake was formed 10,000 years ago. The DEIS should 
also point out that the evidence from the geologic record shows that, 
instead of resulting in erosion of the outlet, overflow events tend to 
deposit sediment in the outlet, causing the overflow elevation to 
increase. A revised DEIS should make it absolutely clear that there is 
no evidence in the geologic record to support speculation that an 
overflow would cause the outlet to erode 9 feet to elevation 1,450 and 
result in the discharge of up to 6,000 cfs of water to the Sheyenne 
River with the erosion of over 400,000 cubic yards of material.
    Not only is there no evidence in the geologic record that 
significant erosion of the outlet would result if an overflow occurred, 
but the probability of an overflow occurring is, itself, very small. 
The probability that Devils Lake will reach elevation 1,459 feet is 9 
percent and the probability that it will reach elevation 1,460 is 7 
percent (DEIS Appendix B, Table II.ST-2, p. B-195).
    However:

    ``. . . Devils Lake would have to rise to 1,460.6 before there 
would be a significant flow (at least 300 cfs) to the Sheyenne River . 
. . Computer simulations of possible future lake levels assumed no 
erosion of the natural divide and suggest a probable maximum lake level 
of about 1,463, with a corresponding outflow exceeding 2,500 cfs . . 
.'' (DEIS p. 2-9)

    Elsewhere, the DEIS states that the peak discharge with no erosion 
of the outlet would be only 550 cfs (DEIS p. 4-34), and the Fish and 
Wildlife Service points out in Appendix 2 that analysis of Corps data 
for a 6-year flood event and a Standard Project Flood (SPF) event 
revealed that:

    ``The 6-year outflow showed that the maximum outflow out of the 
basin within the first 24 months was in month 18, with a maximum 
outflow of 80 cfs, with a 24 month average of 61 cfs. The SPF outflow 
showed a maximum of 1,196 cfs in month 6, with a 24 month average of 
463 cfs.'' (DEIS Appendix 2, p. 14-6)

    The probability that Devils Lake will rise to 1,463 feet is only 1 
percent and the probability that it will rise to 1,460.6 is about 5 
percent (DEIS Appendix B, Table II.ST-2, p. B-195). Consequently, the 
probability that Devils Lake will rise to a level where significant 
overflows would occur is extremely low, and construction of the 
proposed Pelican Lake 300 cfs outlet would reduce that probability by 
half but would not eliminate it--and it would not reduce the 1 percent 
chance the lake will reach 1,463 feet at all (DEIS Appendix B, Table 
II.ST-2, p. B-195).
    As the DEIS points out:

    ``The probability of a natural overflow is small and therefore 
effects described under the scenario future without project conditions 
for downstream effects of a natural overflow do not have a high 
probability of occurring. (DEIS p. 5-88)
    ``Since the probability of a natural overflow to the Sheyenne River 
is relatively low (less than 10 percent), a natural overflow is not 
assumed to be part of the most likely future.'' (DEIS p. 4-12)

    Finally, in the unlikely event that Devils Lake would rise to 
elevation 1,459:

    ``. . . measures at the location of a natural overflow to minimize 
erosion were also considered as potential features of the most likely 
future without the proposed project.'' (DEIS p. 3-9)

and:

    ``One of the assumptions for the base condition upon which 
alternatives were compared was that measures would be taken at the 
location of a natural overflow to minimize erosion . . . The structure 
envisioned with that alternative included a 380-foot-wide concrete drop 
structure, with a cost for the structural portion of $1.1 million.'' 
(DEIS p. 4-33)

    Thus, (1) the probability that Devils Lake will overflow is very 
low, (2) if Devils Lake were to approach the overflow elevation, 
measures would be implemented to prevent erosion of the natural outlet 
and (3) even if Devils Lake were to overflow and no measures were taken 
to protect the natural outlet, there is no evidence in the geologic 
record to indicate that significant erosion of the outlet would occur. 
Consequently, the discussion of erosion of the natural outlet in the 
DEIS is entirely speculative and has little relevance, and a revised 
DEIS should make that clear.
           wetlands, wetland drainage and wetland restoration
    A fundamental deficiency of the DEIS is its narrow focus on 
engineering solutions to the problems resulting from the rising level 
of Devils Lake, to the total exclusion of any consideration of the 
cause. For example, the DEIS fails to relate those problems to Devils 
Lake's long and consistent history of wide fluctuations in levels, 
ranging from completely dry at 1,394 feet to overflowing at 1,459 feet 
(DEIS p. 2-2). The DEIS does not address the fact that, despite 
widespread recognition that the lake was at its current level as 
recently as 1830 and was officially recorded at elevation 1,438.4 feet 
in 1867, development was permitted to encroach on the bed of the lake 
as the level continued to decline to its modern day low of 1,400 feet 
in 1940; development was permitted to continue on the bed of the lake 
as the level began to rise again after 1940; it was permitted to 
continue even after 1983 when the lake had reached 1,427 feet with a 
surface area of 54,000 acres and the State was seeking disaster 
assistance from the Corps for ``flooding problems'' around the lake; 
and it even has been permitted since the lake began its recent dramatic 
rise in 1993. The DEIS does not recognize the simple fact that the 
``flooding problem'' at Devils Lake is the direct result of people 
moving onto the bed of the lake which has been higher than its current 
level in the past.
    Although increased levels of precipitation from 1993 to 1999 
(average of 21 inches per year, compared with an average of 16.5 inches 
per year from 1980 to 1992 [WEST Consultants, Inc., 2001]) obviously 
were the force driving the recent dramatic rise of the lake, the DEIS 
does not make any attempt to identify the contribution of other 
factors, such as land use changes and wetland drainage in the Devils 
Lake Basin, in exacerbating the rise of the lake.
Water Resource Management in the Devils Lake Basin
    In his Final Biennial Report for 1911-1912, the North Dakota State 
Engineer reported to the Governor that:

    ``The water level of any lake possessing no outlet depends on the 
amount of evaporation, seepage, rainfall and run-off into the Lake from 
the drainage area tributary to it. The drainage area of Devils Lake is 
nearly 2,000 square miles, but the land lies so nearly level, and there 
are so many marshes, meadows, small ponds and lakes which arrest the 
flow of the water and from which it evaporates that it is not likely 
that the run-off from more than 700 to 800 square miles of the total 
area ever reaches the lake.'' (State Engineer, 1912)

    Unfortunately, management of water resources in the Devils Lake 
Basin since that time has been characterized by decades of rampant and 
unregulated private wetland drainage and ill-considered public 
agricultural drainage projects (Pearson, 1985). For example, in the 
mid-1950s when wetland drainage began causing problems for landowners 
lower in the watershed, the NDSWC placed a moratorium on private 
drainage in the Devils Lake Basin, but the State Engineer made no 
attempt to enforce the moratorium and the chairman of a local water 
board even declared publicly that farmers would continue to drain 
wetlands regardless of State laws and the NDSWC's moratorium (Pearson, 
1985).
    With agricultural flooding problems north of Devils Lake 
intensified by wetland drainage in the upper basin, the U.S. Soil 
Conservation Service was authorized in 1967 to begin detailed planning 
of a 246,477-acre Starkweather Watershed Project, involving the 
construction of more than 60 miles of channels and the drainage of some 
60,000 additional acres of prairie wetlands and lakes, with the 2,000 
cfs main channel (Channel ``A'') discharging directly into Six-Mile Bay 
of Devils Lake (Pearson, 1985). However, the Soil Conservation Service 
abandoned the project in 1973 after environmental impact analyses 
mandated by NEPA disclosed the project's severe adverse impacts on 
wetlands and water quality in Devils Lake (Pearson, 1985).
    An Associated Press story in 1975 already was reporting flooding 
problems at Devils Lake:

    `` . . . But today too much water plagues the lake and nearby 
residents.
    ``Between 1972 and 1975, the lake rose 6 feet [to 1,425 feet], 
becoming a threat to low-lying roads and private property along the 
shore.
    ``In the dry period, roads were built across narrow parts of the 
lake bed; farmers planted and harvested below the old high water mark; 
and the city of Devils Lake expanded into part of the old lake bed.
    ``Now the city is planning to build a dike between the lake and the 
town and the Army Corps of Engineers is working with local officials to 
plan for a possible flood during spring runoff.
    ``A heavy runoff could raise the water level 1 or 2 feet and flood 
businesses and private property, city and State authorities said.
    ``The State Highway Department says North Dakota 57, at the narrows 
between the main lake and East Bay, has been damaged by high water . . 
. 
    ``County and township roads also have been damaged by high water . 
. .'' (Zaleski, 1975)

    With flooding problems in the watershed and around Devils Lake 
unresolved and the Starkweather Watershed Project stalled, the 1975 
North Dakota Legislative Assembly established a Devils Lake Basin 
Advisory Committee, dominated by drainage interests and supported by 
the NDSWC, to study water management problems in the Devils Lake Basin 
and to recommend solutions (Pearson, 1985). However, at the same time, 
the Legislative Assembly appropriated $600,000 for the construction of 
the 2,000 cfs Channel ``A'' of the Starkweather Project, thereby 
precluding any possibility of the committee's not including this 
feature in its recommendations (Pearson, 1985). Although the cost 
participation agreement for Channel ``A'' between the NDSWC and the 
Ramsey County Water Management District explicitly stated that:

    ``It is the determination of the Commission that additional 
drainage of presently noncontributing areas will significantly 
contribute to increased lake levels in the Devils Lake chain, thereby 
increasing the flood hazard potential to the city of Devils Lake and to 
thousands of acres of littoral land.''

and required the Ramsey County Water Management Board to enforce all 
applicable drainage laws, noting:

    ``Specifically, this includes the establishment of an effective 
drainage permit program to implement section 61-01-22 of the North 
Dakota Century Code (or any other similar statutory permit program 
hereafter enacted) and any supplementary regulations adopted by the 
Commission. Further, this includes the establishment of a procedure for 
closure of unauthorized drains, lateral drains, or ditches as required 
by section 61-16-50 (or any similar statute hereafter enacted). An 
effective drainage regulatory mechanism is essential to preserve the 
integrity of Channel `A' and the investment of the State.''

    The State drainage laws required a permit for the drainage of 
watersheds 80 acres or larger and a permit was not to be issued unless 
an investigation determined that the quantity of water drained would 
not flood or adversely affect downstream landowners. However, county 
water boards typically take the position that it is not their job to be 
policemen and will take action on violations only if formal complaints 
are filed (Pearson, 1985). Consequently, both the county water boards 
and those who want to drain wetlands routinely ignore the permit 
requirement. Because landowners generally are reluctant to file 
complaints against neighbors (Associated Press, 1991), only the most 
egregious violations are reported (Pearson, 1985). When complaints are 
filed, they are then routinely dismissed (1) as being ``clean-outs'' of 
existing drains, a claim that is difficult to disprove after the fact, 
(2) as involving watersheds of less than 80 acres, either by arbitrary 
decision of the board or the expedient of two or more drains being used 
to drain the watershed, (3) by simply denying that drainage has 
occurred, or (4) ordering perfunctory closures while permits are issued 
after the fact (Pearson, 1985). If the complaint cannot be dismissed 
readily through these ploys, the boards frequently will repeatedly 
delay action until the complainant finally gives up in frustration. 
Consequently, little effort was made by either the Ramsey County Water 
Management Board or the NDSWC to enforce the agreement, and, in fact, 
between 1977 and 1982, the State Engineer himself approved a dozen 
drainage permits in the Starkweather and Edmore Watersheds, both of 
which drain through Channel ``A'' (Pearson, 1985).
    Despite mounting concern over the rising levels of Devils Lake in 
the mid-1970s (Zaleski, 1975), the State Engineer approved a permit in 
1976 for the partial drainage of Hurricane Lake, an area heavily used 
by migrating snow geese, adding another 7,000 acre-feet of water to 
Devils Lake (Pearson, 1985). Then during the spring and summer of 1979 
when Devils Lake was rising from elevation 1,422 feet to 1,427 feet, 
74,000 acre-feet of water were discharged into the lake from Channel 
``A'' (U.S. Army Corps of Engineers, 1980). These flows were equal to 
nearly half of the 159,000 acre-feet flowing into West Bay from Mauvais 
Coulee (U.S. Army Corps of Engineers, 1980), which historically had 
been the primary route of inflows into the Devils Lake Chain (U.S. Army 
Corps of Engineers, 1983). In fact, on May 4, 1979, with Devils Lake at 
1,424.6 feet, the 1,560 cfs discharge from Channel ``A'' exceeded the 
1,350 cfs natural flows at Mauvais Coulee (U.S. Army Corps of 
Engineers, 1980).
    By 1981, the rising lake was creating problems at the city of 
Devils Lake's new industrial park, which one city official admitted 
privately was in an area that ``is too low to begin with'' (Zaleski, 
1981).
    In the spring of 1982, at the same time the Ramsey County 
Commission was petitioning to have Devils Lake declared a disaster area 
because of flooding that was occurring as the lake reached a level of 
1,427 feet (Associated Press, 1982), the Ramsey County Water Management 
Board, which operates Channel ``A,'' had the control gates open to 
permit the discharge of additional water into Devils Lake (Pearson, 
1983).
    A year later, in the spring of 1983, while the State was seeking 
disaster assistance from the Corps for flooding problems around Devils 
Lake, the Ramsey County Water Management Board, without the required 
permit from the State Engineer, constructed a ditch from Lake Irvine to 
drain up to another 6,000 acre-feet of water into Devils Lake, and then 
a few months later approved a permit to drain Morrison Lake into Devils 
Lake (Pearson, 1985).
    The attitude of drainage proponents in the face of the escalating 
problems created by the rising level of Devils Lake was still being 
expressed 2 years later in 1985 by Ramsey County Water Resource Board 
chairman and Devils Lake Basin Advisory Committee member Robert Garske:

    ``Wetland drains are a `round robin' that profit both farmers and 
businessmen, Garske said. Farmers can raise wheat instead of ducks on 
drained wetlands, and businessmen profit from more customers drawn to 
the Devils Lake fishery, which runoff water supports by keeping the 
lake from getting too salty and killing the fishery, he said.
    `` `Rather than trying to hold (water) back, we need to figure out 
how to get more in,' Garske said.'' (Buttz, 1985)

    That attitude has not changed. At an August 26, 2000, public 
meeting in Valley City, North Dakota, on the State of North Dakota's 
proposed ``temporary'' emergency outlet from Devils Lake, former North 
Dakota State Engineer David Sprynczynatyk stated that his office would 
resume issuing permits for wetland drainage in the Devils Lake Basin as 
soon as the outlet is built.
    At a June 22, 1983, public meeting held by the Corps on water 
related problems in the Devils Lake Basin, the North Dakota Chapter of 
The Wildlife Society reviewed the history of water resource 
mismanagement in the Devils Lake Basin and recommended that the Corps 
(1) place a ban on further wetland drainage in the basin, (2) initiate 
a study of the impacts of current water management practices on Devils 
Lake, (3) conduct a comprehensive hydrologic investigation to identify 
the factors contributing to flooding and other water resource problems 
in the basin, (4) assume leadership in developing a comprehensive water 
resource management program for the basin, and (5) reject the 
alternative of an outlet to the Sheyenne River and require that water 
management problems be resolved within the basin (Pearson, 1983). 
However, nearly two decades later, the Corps still has done none of 
these, but instead remains focused on the construction of an outlet 
from Devils Lake to the Sheyenne River, while still not having done the 
studies necessary to determine the causes of the problem it purports to 
solve.
Wetlands and Wetland Drainage in the Devils Lake Basin
    Although the DEIS acknowledges that wetland drainage in the Devils 
Lake Basin is an issue that was raised in the scoping process (DEIS 
Appendix C, p. C-102), it makes no attempt to address the issue. In 
describing the Base Conditions/Affected Environment, the only 
information related to wetlands provided in the DEIS is:

    ``Wildlife in the Devils Lake basin is closely associated with 
water and wetlands. Shallow water wetland habitats are clearly the most 
valuable habitat for waterfowl. Many wildlife and waterfowl species 
utilize lakes in the Devils Lake chain and surrounding habitats. Stump 
Lake has long been known as an excellent staging and breeding area for 
waterfowl and shorebirds. In 1905, President Theodore Roosevelt 
declared a portion of the west bay of Stump Lake as a National 
Reservation, making it one of the oldest refuges in the Nation.'' (DEIS 
p. 2-14)

and in Appendix C, the DEIS states, regarding Base Condition--Upper 
Basin, that:

    ``Wetland habitats of Devils Lake and its watershed can be grouped 
into broad categories which provide several functions and values unique 
to wetlands such as flood water storage, habitat for wildlife, 
filtering of polluted water, and groundwater recharge. Most of the 
wetlands in the basin can be classified as palustrine, emergent, 
temporarily, seasonally and semipermanent flooded wetlands. The upper 
basin chain of lakes can be described as lacustrine.'' (DEIS Appendix 
C, p. C-20)

    There is no discussion of the numbers and acreages of the different 
types of wetlands originally in the Devils Lake Basin, no discussion of 
the numbers, acreages and types of the wetlands that have been drained 
and their flood water storage capacity, and no discussion of the 
contribution of that drainage to the rise in Devils Lake. In fact, the 
only substantive information on wetlands and wetland drainage is in the 
Fish and Wildlife Coordination Act Report, which is Appendix 2 to the 
DEIS. Here the reader learns that the Corps initiated an evaluation of 
upper basin storage in 1999 and that the evaluation was conducted by 
WEST Consultants, Inc., of San Diego, California (DEIS Appendix 2, p. 
10-1). The reader also learns here that the study by WEST Consultants 
identified 200,000 acres of intact wetlands and 92,000 acres of drained 
wetlands, but the study covered only 68 percent of the Devils Lake 
Basin (DEIS Appendix 2, p. 10-2-3). In addition, the digital evaluation 
model used by WEST Consultants employed a 5-foot contour for 65 percent 
of the upper basin and a 10-foot contour for the remaining 35 percent 
that was studied, resulting in a failure to identify many drained 
wetlands (DEIS Appendix 2, p. 10-3). WEST Consultants also supplemented 
the digital evaluation modeling with National Wetland Inventory maps 
based on 1979 and 1983 photography (DEIS Appendix 2, p. 10-3), but 
nearly 100,000 acres of wetlands already had been drained in the Devils 
Lake Basin by 1975 (TPI Consultants, Inc., 1976), so many of those also 
would have been missed.

    ``As a result, it's likely that a significant number of drained 
depressions were never included in this study due to the limitations of 
the DEM data, a fact that WEST acknowledges.'' (DEIS Appendix 2, p. 10-
3)

    Because of the difficulty in accurately identifying drained 
wetlands, a more reliable method is to compare the acreage of remaining 
wetlands in the Devils Lake Basin with the original wetland acreage in 
the basin. Hydric soils develop under saturated or flooded conditions 
which support the growth of hydrophytic vegetation and, therefore, are 
an indictor of wetlands. Approximately 588,900 acres of hydric soils 
occur in the Devils Lake Basin (U.S. Fish and Wildlife Service, 1997). 
The Devils Lake Basin Advisory Committee, in a study authorized by the 
North Dakota Legislative Assembly and prepared with the assistance of 
the NDSWC and under the supervision of the Governor's Office, 
determined that 569,000 acres of wetlands originally were present in 
the Devils Lake Basin, and that 98,000 acres of wetlands had been 
drained in the basin by 1975 (TPI Consultants, Inc., 1976). Thus, it 
appears that from 569,000 to 589,000 acres of wetlands originally were 
present in the Devils Lake Basin.
    Ludden et al. (1983), using photogrammatic mapping of selected 
areas of the basin, estimated that a total of 412,000 acres of drained 
and undrained wetlands were present. The Fish and Wildlife Service 
estimated in 1997 that there were 211,000 acres of undrained and 
189,000 acres of drained wetlands in the Devils Lake Basin (U.S. Fish 
and Wildlife Service, 1997).
    A July 14, 1998, letter from the North Dakota State Water 
Commission to the St. Paul District of the U.S. Army Corps of Engineers 
also reported that:

    ``Approximately 211,000 acres of wetlands exist in the Devils Lake 
basin including upper basin lakes, which comprise about 30,000 acres of 
the total.''

    The results of the study by WEST Consultants, Inc., are consistent 
with these figures. WEST Consultants identified 201,990 acres of 
``possibly intact'' existing wetlands in the 68 percent of the Devils 
Lake Basin included in their study (WEST Consultants, Inc., 2001).
    West Consultants also identified 92,429 acres of ``possibly 
drained'' wetlands in the 68 percent of the Devils Lake Basin included 
in their study (WEST Consultants, Inc., 2001). However, as noted above, 
the methods used in the WEST Consultants' study have been found to 
underestimate the acreage of drained prairie wetlands by 50 percent 
(DEIS Appendix 2, p. 4-2), so the 92,429 acres of drained wetlands 
identified in the WEST study likely reflect only half of 185,000 acres 
of drained wetlands in the 68 percent of the Devils Lake Basin included 
in their study.
    Therefore, it may be concluded that a minimum of 189,000 acres to a 
maximum of 378,000 acres of wetlands have been drained in the Devils 
Lake Basin.
Contribution of Wetland Drainage to the Rise of Devils Lake
    Although wetland drainage obviously is not the sole cause of the 
recent rise of Devils Lake, with inflows to the lake from 1993 to 1999 
averaging 317,000 acre-feet (DEIS p. 1-5), the contribution of wetland 
drainage to those inflows clearly warrants careful evaluation.
    Ludden et al. (1983) estimated the average depth of natural 
wetlands in the Devils Lake Basin at 7.1 inches in 2-year frequency 
runoffs, 11.8 inches in 10-year runoffs, 14.6 inches in 25-year 
runoffs, 15.7 inches in 50-year runoffs, and 18.5 inches in 100-year 
runoffs, with maximum average depths of 20.9 inches. The higher levels 
of precipitation and runoff in the Devils Lake Basin from 1993 to 1999 
were preceded by 4 years of severe drought--comparable to the Dust Bowl 
days of the 1930s--from 1988 to 1992, so many of the wetland basins 
were dry and at near maximum potential storage capacity at the time the 
increased precipitation began in 1993. This would suggest, therefore, 
that as much as 328,860 acre-feet of water entered Devils Lake as a 
direct result of the lost storage capacity of 189,000 acres of drained 
wetlands in the basin. This is 2.6 times the volume that could be 
removed from the lake by the proposed Pelican Lake 300 cfs outlet 
operating at maximum capacity for 7 months from May through November. 
This does not include the continued annual inflow reductions that would 
have occurred if those wetlands had not be drained.
    The U.S. Fish and Wildlife Service estimated the maximum storage 
capacity of the 189,000 acres of wetlands it determined had been 
drained in the Devils Lake Basin at 491,000 to 926,100 acre-feet (U.S. 
Fish and Wildlife Service, 1997). This is 3.9 to 7.4 times the volume 
that could be removed from the lake by the proposed 300 cfs outlet 
operating at maximum capacity for 7 months, and it also does not 
include the subsequent annual inflow reductions to the lake that would 
have occurred if those wetlands had not been drained.
    WEST Consultants estimated the volume of the 92,429 acres of 
``possibly drained'' wetlands they identified in the 68 percent of the 
Devils Lake Basin included in their study at 132,729 acre-feet (WEST 
Consultants, Inc., 2001). However, as noted above, the methods used by 
WEST to identify drained wetlands likely resulted in the actual acreage 
of drained wetlands being underestimated by 50 percent. Therefore, 
doubling the volume of the 92,429 acres of ``possibly drained'' 
wetlands identified in WEST's study results in a total of 265,458 acre-
feet of lost initial storage capacity, and, consequently, added inflows 
to Devils Lake when the 1988-1992 drought ended in 1993, as a direct 
result of wetland drainage. This is 2.1 times the volume that could be 
removed from the lake by the proposed outlet operating at maximum 
capacity for 7 months, and it is over three times the volume that would 
be removed by the outlet in a typical year of operation. Of course, 
this also does not include the subsequent reductions in annual inflows 
that would have occurred if those wetlands had not been drained.
    It is evident from these data that the drainage of 189,000 acres of 
wetlands in the Devils Lake Basin--the minimum estimate--resulted in 
265,458 to 924,100 acre-feet of additional water initially reaching 
Devils Lake when the 1988-1992 drought was succeeded by unusually high 
levels of precipitation beginning in 1993. That is equivalent to an 
additional 2 to 7 feet at the January 2002 lake elevation of 1,447.1 
feet and surface area of 132,000 acres, including Stump Lake (DEIS p. 
2-6), and it again does not include the subsequent reduction in annual 
inflows that would have occurred if those wetlands had not been 
drained.
    The average annual reduction in runoff provided by the renewable 
storage of existing, intact wetlands in the Devils Lake Basin includes 
(1) the difference between average annual precipitation (21 inches from 
1993 to 1999) and evaporation (29 inches from 1993 to 1999) (WEST 
Consultants, Inc., 2001), which was 8 inches, (2) percolation into the 
soil from wetland basins, which averages 7.2 inches, and (3) 
evapotranspiration from areas of emergent vegetation in wetlands and 
vegetation at the perimeter, which averages 25.32 inches (U.S. Fish and 
Wildlife Service, 1997). However, because information is not available 
on the proportions of wetland basins that are open water and the 
proportions that have vegetation, and because the proportions vary with 
changes in water elevations, for purposes of illustration, it will be 
assumed that the combined evaporation and evapotranspiration from 
intact wetland basins average 27 inches from 1993 to 1999. Therefore, 
the average annual runoff reduction from existing, intact wetlands is 
in the range of 1.1 feet, or 1.1 acre-feet per acre.\2\ This means that 
the 211,000 acres of existing wetlands in the Devils Lake Basin reduce 
annual runoff by 232,000 acre-feet during wet periods like 1993-1999. 
This also means that, if they were still intact, the 189,000 acres of 
drained wetlands in the Devils Lake Basin could reduce average annual 
runoff by another 207,600 acre-feet. This continuing reduction in 
average annual runoff if the 189,000 acres of wetlands had not been 
drained is equivalent to 1.6 feet at the lake's January 2002 elevation 
of 1,447.1 feet, or 1.65 times the volume that could be removed from 
the lake each year with the proposed Pelican Lake 300 cfs outlet 
operating at maximum capacity.
---------------------------------------------------------------------------
    \2\ Particularly in wet years, wetlands less than a foot in depth 
may still reduce runoff by more than their depths as water is 
alternately lost through evaporation and seepage and replenished by 
precipitation.
---------------------------------------------------------------------------
Wetland Restoration and Upper Basin Storage
    If all of the precipitation occurred as snow in the winter and all 
of the runoff occurred as snowmelt in the spring with the ground 
frozen, these figures would represent the annual net renewable storage 
capacity and runoff reduction provided by wetlands (particularly 
seasonal and temporary wetlands). However, precipitation and runoff 
also occur at other times of the year, and non-wetland and drained 
wetland soils also have the capacity to store water and reduce runoff 
through percolation, evaporation and evapotranspiration, so these must 
be subtracted to arrive at the net increase in runoff reduction 
attributable to wetlands or to the net reduction in runoff attainable 
through wetland restoration.
    WEST Consultants estimated the average additional annual runoff 
reduction that could be achieved by restoring wetlands in the Devils 
Lake Basin at 0.35 feet, or 4.2 inches, i.e., 0.35 acre-feet per acre 
of restored wetland (WEST Consultants, Inc., 2001), and explained that:

    ``This value primarily represents the difference between storage 
and evaporation in restored depressions and the percolation and 
evapotranspiration from the soil before restoration. It does not 
represent the average evaporation from a depression, which was 
approximately 20 or more inches per year.'' (WEST Consultants, Inc., 
2001)

    However, the WEST Consultants report points out that:

    ``The PRINET model did not include a soil moisture algorithm 
beneath the [restored wetland] depressions. Instead, the depressions 
were modeled as hard-bottom `bowls'. Consequently, infiltration of 
water from a depression into the soil and evapotranspiration from the 
soil in the dry portion of a depression (when the depression was less 
than 100 percent full) were not modeled. Therefore, the model could be 
underpredicting the net total evaporation (free surface evaporation 
plus evapotranspiration from the soil) in the depressions.
    ``Since the net total evaporation from depressions was probably 
underpredicted, the annual runoff reduction with depression restoration 
could be underestimated.'' (WEST Consultants, Inc., 2001)

    The omissions and underpredictions result in a substantial 
underestimation of runoff reduction resulting from wetland restoration. 
First, including percolation from drained wetland basins but excluding 
seepage from restored wetlands, which averages 7.2 inches annually 
(U.S. Fish and Wildlife Service, 1997), underestimates average net 
annual runoff reduction of restored wetlands by 0.6 foot. Second, 
including evapotranspiration from drained wetland basins but not from 
restored wetland, which averages 25.2 inches in prairie wetlands (U.S. 
Fish and Wildlife Service, 1997), further reduces average net annual 
runoff reduction of restored wetlands. Third, surface evaporation in 
the Devils Lake Basin from 1993 to 1999 averaged 29 inches (WEST 
Consultants, Inc., 2001), or an additional 0.75 foot more than the 20 
inches attributed to restored wetlands in WEST's calculation of runoff 
reduction. Therefore, the 0.35 foot average annual runoff reduction for 
restored wetlands calculated by WEST appears to underestimate the 
actual runoff reduction by 0.6 foot of seepage and about 0.75 foot of 
combined evaporation and evapotranspiration, or by a total of about 
1.35 feet. This is a 386 percent underestimation of potential runoff 
reduction by restored wetlands.
    In evaluating the potential for upper basin storage, WEST 
Consultants determined that 79,762 acres, or 86 percent, of the 92,429 
acres of drained wetlands they had identified in the 68 percent of the 
Devils Lake Basin included in their study were one-half foot or greater 
in depth (WEST Consultants, Inc., 2001). Using 0.35 feet as the net 
average annual runoff reduction from restored wetlands, WEST then 
calculated the average annual runoff reduction for different climate 
sequences with restoration of 25 percent (19,472 acres) 50 percent 
(39,681 acres), 75 percent (59,872 acres) and 100 percent (79,762 
acres) of those drained wetlands one-half foot or greater in depth 
(WEST Consultants, Inc., 2001). WEST calculated the capacity of 50 
percent of the 79,762 acres of drained wetlands one-half foot or 
greater in depth (39,681 acres) to be 63,608 acre-feet, and the average 
annual runoff reduction with restoration to be 12,910 acre-feet under 
stochastic climatic sequences and 15,642 acre-feet under the wet 
climate sequence (WEST Consultants, Inc., 2001). With 100 percent 
restoration, the 79,762 acres of drained wetlands one-half foot or 
greater in depth identified in the WEST study would have a capacity of 
127,835 acre-feet and would result in an average annual runoff 
reduction of 23,841 acre feet under stochastic climate sequences, or 
31,193 acre-feet under the wet climatic sequence (WEST Consultants, 
Inc., 2001).
    The only upper basin storage alternative considered in the DEIS is 
restoration of 50 percent of the 79,762 acres of drained wetlands 
greater than one-half foot in depth identified in the WEST Consultants 
study:

    ``For this analysis to determine effects on Devils Lake stage 
effectiveness and cost effectiveness only 50 percent of the possibly 
drained depressions by volume, with depths greater than 6 inches, were 
used.'' (DEIS p. 3-19)

    In discussing the impacts of this level of upper basin storage, the 
DEIS states:

    ``Restoration of 50 percent by volume of the total possibly drained 
depressional area greater than 6 inches in depth in the upper basin 
would reduce the amount of fresh water entering Devils Lake . . . 
Because of the small amount of annual inflow reduction, ranging from 
13,000 (stochastic) to 16,000 (wet scenario) acre-feet, there would be 
little long-term effect on water quality and the aquatic resource in 
Devils Lake (based on restoration of 50 percent by volume of the total 
possibly drained depressions greater than 6 inches in depth).'' (DEIS 
p. 5-32)

    Consequently:

    ``On the basis of analyses performed to date, upper basin storage 
will not meet the project objectives as a stand-alone project.'' (DEIS 
p. 4-9)

    However, the assertion upon which this conclusion is based, i.e., 
that wetland restoration would result in only ``a small amount of 
annual inflow reduction, ranging from 13,000 (stochastic) to 16,000 
(wet scenario) acre-feet,'' seriously underestimates, misrepresents and 
minimizes the potential for wetland restoration in the upper basin to 
reduce flooding problems at Devils Lake.
    First, the 12,000 to 16,000 acre-feet annual inflow reduction cited 
in the DEIS fails to consider the initial 63,608 acre-feet of storage 
created by the restoration of 39,681 acres of drained wetlands in the 
upper basin (WEST Consultants Inc., 2001). Second, the 12,000 to 16,000 
acre-feet annual runoff reduction figures are based on the 0.35 foot 
figure from the WEST Consultants report which, as discussed above, 
underestimates seepage from restored wetlands by 0.6 feet and 
underestimates evaporation from restored wetlands by 0.75 feet, for a 
total underestimation of the annual runoff reduction from restored 
wetlands of 1.35 feet. Therefore, the inflow reduction resulting from 
the restoration of 39,681 acres of drained wetlands would be 63,608 
acre feet initially, and then an average of 46,000 acre-feet under 
stochastic climate conditions to 62,000 acre-feet under the ``wet 
future scenario'' annually thereafter.
    However, because the WEST Consultants' study also underestimates 
the acreage of drained wetlands in the Devils Lake Basin by 50 percent, 
the potential inflow reduction with restoration of one-half of the 
159,524 acres of drained wetlands over one-half foot in depth that 
likely are present in the basin actually would be 92,000 acre feet 
(stochastic) to 112,000 acre-feet (wet future) annually. This is 115 
percent of the volume that would be removed by the proposed Pelican 
Lake 300 cfs outlet in a typical operation year and 89 percent of the 
volume that could be removed with the outlet operating at maximum 
capacity under the ``wet future scenario,'' respectively.
    It should also be noted that van der Kamp et al., (1999) report 
that:

    ``The long-term water level data presented in this paper show 
conclusively that when the catchments of small prairie wetlands are 
converted from cultivated land to undisturbed brome grass the wetlands 
dried out and remained dry, even in years of heavy precipitation.''

    Therefore, inflows to Devils Lake could be reduced even further by 
planting the catchments of both existing and restored wetlands to 
permanent grasses, rather than cultivating to the margins of the 
wetlands.
    The DEIS attempts further to diminish the feasibility of 
alternatives involving wetland restoration in the upper Devils Lake 
Basin by stating that:

    ``About 75 percent of the land use (about 30,000 acres) in the 
depressions is classified as cropland or grassland. (DEIS p. 5-32)
    ``Landowners in the upper basin . . . feel that drainage is 
necessary in order to productively farm their land. They feel that 
additional inflows from their drainage practices have had little impact 
on increasing the lake level. (DEIS P. 4-9)
    ``On the basis of previous attempts to voluntarily acquire runoff 
storage areas in the upper basin, this plan will be difficult and 
costly to implement. The value of payments to acquire easements for 
storage areas, which are based on lost productivity of the land, are 
likely to be contested by landowners. This increases the administrative 
costs of implementing this plan significantly. (DEIS p. 4-9)
    ``Program administration and negotiations, included to acquire land 
through condemnation (Minimum of $4,800 per tract). (DEIS Appendix B, 
p. B-29)
    ``Converting 30,000 to 40,000 acres of farmland to runoff storage 
areas reduces the economic base of the local economy that is already 
highly dependent on the agricultural sector. The storage areas could be 
farmed in dry years. But, in those years when they could not be farmed, 
the impact would be felt throughout the local economy. (DEIS p. 4-9)
    ``Annual costs for previous upper basin storage programs ranged 
from $40 to $90 per acre per year. (DEIS Appendix B, p. B-29)
    ``This analysis assumes that the storage is in place when the lake 
is above elevation 1,440. Previous programs have varied from an annual 
program to one with a 10-year contract. Therefore, it is assumed that 
an expanded program could involve contract lengths of any duration up 
to 10 years. Implementation of an upper basin storage program would 
involve construction of outlet structures, acquisition or leasing of 
land and development of an operating plan for outlet structures when 
the lake recedes. On the basis of these items, it was assumed that the 
implementation of the storage would cost $1,000 per acre. Therefore, 
the total project costs are $39,681,000.'' (DEIS p. 3-20).

    Consequently:

    ``On the basis of the stochastic analysis, upper basin storage is 
not cost effective. Net benefits result under the wet future 
scenario.'' (DEIS p. 6-30)

    Elsewhere, however, we find that:

    ``In 1996, agriculture accounted for 48 percent of the area's 
economy, followed by Federal Government outlays (38 percent), tourism 
(10 percent) and manufacturing (3 percent). Tourism has been the 
fastest growing component of the area's economic base, increasing from 
3 percent in 1980 to 10 percent in 1996. Tourism is particularly 
important in Ramsey County, having reached nearly two-thirds the 
importance of agriculture in 1996. The tourism figures are understated 
because they account only for the expenditures of travelers from out of 
State. (DEIS p. 2-16)
    ``The per-acre market value of land and buildings is also similar: 
Ramsey $391, Benson $320, Nelson $476.'' (DEIS p. 5-19)

and:

    ``. . . many candidate wetlands in the High and Severe 
[salinization] hazard classes may be good candidates for restoration 
because they may no longer represent productive cropland. Many such 
wetlands are now unsuited or marginal for agriculture due to drainage-
related salinity problems. Placing restored saline wetlands and their 
surrounding buffer zones into a conservation reserve program may be an 
attractive option to farmers whose land is not producing efficiently 
because of existing, drainage-related salinity problems (DEIS Appendix 
C, p. C-113)
    ``Costs for these outlet structures . . . could vary from $0 up to 
$100,000 per site. (DEIS Appendix B, p. B-29)
    ``Costs for easements or leases could vary widely since some lands 
may be more valuable agricultural areas than others may (ranging from 
10 to 70 percent of fee title). (DEIS Appendix B, p. B-29)
    ``Approximately 200,000 acres of land is currently under the CRP 
program in the basin.'' (DEIS Appendix C, p. C-17)

    The Corps' failure to consider wetland restoration objectively and 
forthrightly in discussing the upper basin storage alternative is 
reflected in the statement that:

    ``Upper basin storage consists of storing water in depressions in 
the upper basin. This alternative would result in the conversion of 
agricultural lands to intermittent or permanent wetland storage 
areas.'' (DEIS p. 6-30)

    Clearly, the Corps does not understand, or does not want to 
recognize, that wetland restoration involves converting wetlands that 
have been drained for agricultural production back to wetlands, rather 
than converting what were originally agricultural lands to wetlands.
    It is apparent that restoring 40,000 to 80,000 acres of farmed 
wetlands--equivalent to 20 to 40 percent of the CRP acreage or 2.6 to 
5.2 percent of the 1,562,000 acres of cropland in the basin--would not 
have a negative impact and could actually have a positive impact on the 
local economy and could be an attractive alternative for many 
landowners with marginally productive drained wetlands or drained 
wetlands that still cannot be farmed in wet years. It also is evident 
that the $1,000 per acre figure ``assumed'' in the DEIS for wetland 
restoration represents a significantly inflated estimate--perhaps by 
two to five times--of the actual costs of a properly managed wetland 
restoration program. Consequently, by minimizing the benefits of 
wetland restoration by several fold while exaggerating the costs by 
several fold, the DEIS seriously underestimates, and thereby dismisses, 
the feasibility of the upper basin storage alternative.
    The failure of the DEIS to provide an accurate, objective and 
realistic analysis of upper basin storage involving wetland restoration 
and other land use practices to reduce inflows to the lake renders the 
discussion of alternatives to the proposed action, and therefore the 
DEIS itself, inadequate on their face.
Continuing Wetland Drainage in the Devils Lake Basin
    Because continued drainage of the remaining 211,000 acres of 
wetlands in the Devils Lake Basin would eliminate the water storage and 
runoff reduction capacity of those wetlands and exacerbate the problems 
caused by the high water at Devils Lake, the U.S. Fish and Wildlife 
Service points out:

    ``Accelerated Wetland Drainage in the Upper Basin as a Result of 
the Outlet.--The Service is concerned about the accelerated loss of 
wetland habitat in the upper basin as a result of this project. A 
private drainage survey conducted from 1965 to 1980 documented a 2.5 
percent drainage rate of wetlands per year in the Devils Lake basin. 
The Service believes that the pressure to drain remaining unprotected 
wetlands for agricultural and other purposes has not diminished over 
time. Within the basin, there is continuing legal action by lower basin 
landowners who claim that they have been adversely affected by the rise 
of Devils Lake, due in part to decades o[f] wetland drainage by upper 
basin landowners. In the recent wet cycle, the practice of wetland 
drainage, including pumping, has shown itself to be a contributing 
factor in the rise of the lake. The Service is concerned that the 
construction of an outlet, without control on additional inflow to the 
lake from drainage, will provide the supporters of wetland drainage a 
way to export water out of the basin.'' (DEIS Appendix 2, p. 11-20)

    Therefore, the Service recommended:

    ``Moratorium on New Wetland Drainage and Pumping Within the Basin 
for the Life of the Project.--The Service recommends that the Corps 
coordinate with the State to insure that any plans to remove water from 
the landscape and place it into the lake through wetland drainage be 
postponed during the life of the project to avoid the need to move 
additional water downstream. Taking precautions to prevent further 
aggravating factors, such as wetland drainage and pumping from 
increasing lake levels is consistent with the goal of the outlet to 
reduce lake levels and prevent a natural overflow of Devils Lake to the 
Sheyenne River.'' (DEIS Appendix 2, p. 14-2)

    As noted above, at a meeting in Valley City, North Dakota, on 
August 26, 2000, former North Dakota State Engineer David Sprynczynatyk 
stated that his office would resume authorizing wetland drainage in the 
Devils Lake Basin as soon as an outlet to the Sheyenne River is built. 
However, the Corps summarily dismisses the Fish and Wildlife Service's 
recommendation with the perfunctory statement that:

    ``The Corps concurs that controls on future wetland drainage in the 
upper basin would improve the effectiveness of other features. The 
decision to place a moratorium on future drainage is under the control 
of the State.'' [emphasis added]

    Thus, the Corps agrees that future wetland drainage in the Devils 
Lake Basin would reduce the effectiveness of its proposed $125 million 
Pelican Lake 300 cfs outlet, but it leaves control of future wetland 
drainage to the very agency which already had announced publicly 2 
years ago that it will resume authorizing wetland drainage as soon as 
the outlet is built!
    WEST Consultants estimated that the 201,990 acres of remaining 
wetlands identified in their study have a capacity of 481,604 acre-feet 
(WEST Consultants, Inc., 2001), and draining those wetlands could 
contribute up to 481,000 acre feet of water to Devils Lake.\3\ This is 
equivalent to 3.6 feet at the lake's January 2002 elevation of 1,447.1 
feet, and it is 3.8 times as much water as the proposed Pelican Lake 
300 cfs outlet could remove operating at maximum capacity from May 
through November. Drainage of the 201,990 acres of remaining wetlands 
would also result in an additional 272,000 acre-feet of inflows to 
Devils Lake annually, which is more than two times the volume that 
could be removed by the proposed Pelican Lake 300 cfs outlet operating 
at maximum capacity.
---------------------------------------------------------------------------
    \3\ The fact that wetlands may be protected by easement does not 
assure that they will not be drained (Grosz, 2001).
---------------------------------------------------------------------------
    It is clear, therefore, that before expending any further public 
revenues on the proposed $125 million Pelican Lake 300 cfs outlet or 
other structural measures to deal with problems caused by the high 
water levels at Devils Lake, the Corps has a fiduciary duty to 
implement and enforce an effective program to prevent further wetland 
drainage in the Devils Lake Basin in order to protect the Federal 
Government's investment in those measures. That drainage prevention 
program and its enforcement provisions should be discussed in detail in 
a revised DEIS.
    Indeed, Congress requires that this be part of any Corps of 
Engineers flood damage reduction project. Section 402(c) of the Water 
Resources Development Act of 1986 as amended requires, as a basic 
condition of Federal participation in any flood control project, the 
development and completion of a floodplain management plan by non-
Federal interests that will preserve and enhance natural floodplain 
values and address those measures to be taken by non-Federal interests 
to preserve the level of flood protection that is provided by the 
project and upon which it is justified. The plan is intended to be 
developed as part of and concurrent with the project feasibility study. 
In this case it appears, to the contrary, that the Corps is not 
involved in working with the State of North Dakota and local agencies 
in developing the required plans and non-Federal activities that would 
be necessary to preserve the level of flood protection that is intended 
to be accomplished by the proposed Pelican Lake 300 cfs outlet.
                inflated values and exaggerated benefits
    The DEIS states that:

    ``Rising lake levels have severely affected the rural economy 
around Devils Lake. Many of the farms and ranches bordering the lake 
have been forced to abandon operations because of the loss of pasture 
and croplands. At its January 2001 stage of 1,447.1, the lake covered 
137,000 acres (DEIS p. 2-6 puts the figure at 132,000 acres), an 
increase of about 93,000 acres (approximately 145 square miles) since 
1993. At an average land value of $600 per acre for non-urban land, 
this represents a loss of over $55 million.'' (DEIS p. 2-38)

    However:

    ``Agricultural land that would be inundated by further rise of 
Devils Lake lies primarily in Ramsey County, with a relatively small 
area in Benson County and an even smaller area in Nelson County . . . 
    Agriculture in Ramsey, Benson, and Nelson Counties is profiled on 
the basis of information contained in the 1997 Census of Agriculture. 
The three counties have a similar agricultural profile. The farm sizes 
(in acres) of the three counties are similar: Ramsey 1,254; Benson 
1,255; Nelson 1,136. The per-acre market value of land and buildings 
also is similar: Ramsey $391, Benson $320, Nelson $476.'' (DEIS p. 5-
19)

    Thus, by calculating the loss of flooded non-urban land at an 
inflated value of $600 per acre instead of market value, the DEIS 
overestimates the damages by more than $19 million or by 53 percent. 
(In fact, as shown in the following paragraph, the average value of 
these non-urban lands is less than $265 per acre, so the claim that the 
flooding of 93,000 acres of non-urban lands since 1993 represents a 
loss of over $55 million actually overestimates the loss by $30 million 
or 120 percent.) And, of course, inflating the damages from flooding 
exaggerates the benefits of preventing those damages.
    It also is necessary to recognize that less than one-half (91,323 
acres) of the 184,182 acres of non-urban land around Devils Lake 
between elevations 1,447 feet and 1,463 feet is classified as cropland 
(DEIS Appendix C, Table C-5, p. C-16). Another 38,198 acres are 
grassland (DEIS Appendix C, Table C-5, p. C-16), which had an average 
value of $165 per acre in North Dakota in 2001 (Associated Press, 
2001c). The remaining 54,661 acres are classified as woodland (9,622 
acres), grass-shrub (95 acres) and wetland (44,944 acres) (DEIS 
Appendix C, Table C-5, p. C-16) which might be expected to have values 
of $100-$125 per acre. Thus, the non-urban lands that would be flooded 
in the unlikely event that Devils Lake would rise to 1,463 feet have a 
value of about $49 million, or an average of less than $265 per acre.
    Even if the proposed $125 million Pelican Lake 300 cfs outlet were 
built, the lake still would continue to rise to elevation 1,457 under 
the ``wet future scenario'' (DEIS p. 5-89). As noted above in the 
discussion of Hidden Costs this means that some $300-$400 million still 
would have to be expended on infrastructure protection, including 
raising the dike to protect urban areas at the city of Devils Lake. 
And, if the lake should rise to elevation 1,457 feet, approximately 
64,000 additional acres of non-urban land, with an average value of 
$265 per acre, would be flooded. This means that, even with the outlet, 
under the ``wet future scenario'' necessary to justify it, an 
additional $17 million in losses would occur to non-urban land. This 
also means that the Corps is proposing to spend $125 million to build 
an outlet to reduce the chance of flooding of the remaining 62,000 
acres of non-urban land between elevations 1,457 and 1,463 feet, which 
are worth approximately $17 million, from about 2 percent to 1 percent 
(DEIS Appendix B, Table II.ST-2, p. B-195).
    Unfortunately however, even this may be overly optimistic because 
the soils of the bed of Devils Lake below elevation 1,461 generally are 
not of the same quality as the upland soils upon which average land 
values in the area are predominantly based, so even the $17 million in 
losses to non-urban lands that might be prevented by the outlet likely 
are exaggerated.
      flooding at devils lake--hardships, handouts and false hopes
    According to the DEIS:

    ``At its January 2001 stage of 1,447.1 feet, the lake covered 
137,000 acres, an increase of about 93,000 acres (approximately 145 
square miles). At an average value of $600 per acre for non-urban 
lands, this represents a loss of over $55 million. (DEIS p. 2-38)
    ``Since 1993, there have been 11 Presidential disaster declarations 
for the Devils Lake region. These declarations were made for regions 
within North Dakota that extended well beyond the Devils Lake area to 
address the effects of the climatic wet cycle, including flooding of 
agricultural impacts. Under emergency authorities, Federal agencies 
have moved or bought out and abandoned homes that were flooded by the 
rising lake. Approximately 400 homes around Devils Lake have been moved 
or abandoned in response to the rising lake waters. While some homes 
have been abandoned, most homes have been relocated. Some of the houses 
were second homes, but most were primary domiciles.'' (DEIS p. 5-7)

and:

    ``It is likely that the physical conditions on the lake under the 
with- and without-project conditions would require additional 
relocations of homes and commercial structures with consequent social 
and local economic disruption.'' (DEIS p. 5-8)

    Proponents of an outlet frequently cite the ``loss'' of 400 homes 
and the flooding of 93,000 acres of ``agricultural'' land around Devils 
Lake as demonstrating the need to ``do something'' and, therefore, as 
justification for constructing an outlet from Devils Lake to the 
Sheyenne River. The DEIS states that:

    ``The perceived risk may be more damaging to community vitality 
than the actual risk. Although it is unlikely that the city of Devils 
Lake would be inundated, there is a perception propagated by media 
coverage of the rising lake [emphasis added] that the city proper is at 
risk. According to economic development officials, multiple enterprises 
have postponed or deferred decisions on new investment in the city. 
This stigma reduces the vitality of the community and its ability to 
reverse the trend of population loss, through perceived economic 
stagnation in addition to problems associated with the lake.'' (DEIS p. 
5-14)

    Instead of addressing these misperceptions, however, the Corps 
proposes to build a $125 million outlet to the Sheyenne River:

    ``An intangible benefit of the outlet would be the initial 
psychological boost to the local economy that the solution to the 
problem is at hand and that the Devils Lake community will prosper in 
the future as a result. (DEIS p. 4-9)
    ``An outlet from Devils Lake would promote economic development in 
the city of Devils Lake and stimulate business activity by reducing 
uncertainty and risks to commercial enterprises associated with rising 
lake levels. An outlet would also help restore regional shopping 
patterns that allowed the city to serve as the retail center for areas 
south of the lake. The construction of an outlet would temporarily 
stimulate business activity in the lake area and in the city of Devils 
Lake as the economic hub of the area.'' (DEIS p. 5-42-42)

    Unfortunately, even if the proposed Pelican Lake 300 cfs outlet 
were to be built, the lake would still continue to rise another 10 feet 
to 1,457 feet under the ``wet future scenario,'' and it would still 
have a 4 percent chance of reaching elevation 1,459 feet, a 2 percent 
chance of reaching 1,461 feet and a 1 percent chance of reaching 1,463 
feet (DEIS Appendix B, Table II.ST-2, p. B-195). Consequently:

    ``. . . although a 300 cfs outlet would reduce peak levels under 
most climatic conditions, it would not prevent the lake from rising 
altogether if it is already on an upward trend and most of the costs 
and damages occurring under the without project condition would be 
incurred with this plan in place as well. A 300 cfs outlet may generate 
controversy among the local community, as the elation initially 
produced by the outlet is followed by the disappointment of unmet 
expectations regarding the outlet's effectiveness in lowering lake 
levels. (DEIS p. 4-9-10)
    ``It is supposed that a constrained or unconstrained outlet could 
also have negative impacts on lakeside communities if the lake keeps 
rising despite the outlet. The dashed expectations could be more 
detrimental to community vitality than if they had never had an 
outlet.'' [emphasis added] (DEIS p. 5-41)

    And, as the U.S. Fish and Wildlife Service points out:

    ``The Service is concerned that the public's expectation that an 
outlet will solve their flood problems is not met with the current 
alternatives. An outlet that fails to perform to the public expectation 
may create future pressure to operate the outlet in a way inconsistent 
with its original intent by increasing its pumping duration and 
capacity. Increasing the pumping duration or capacity will likely 
create additional downstream water quantity degradation, erosion and 
sedimentation on the Sheyenne and Red rivers, as well as other 
environmental problems.'' (DEIS Appendix 2, p. 15-2)

    As we have already seen above in the discussion of Exaggerated 
Benefits, the value of the 93,000 acres the non-urban lands within the 
bed of Devils Lake that have been ``flooded'' since 1993 is not $600 
per acre, but less than $265 per acre, so the damages are not the $55 
million claimed in the DEIS (p. 2-38), but actually less than $25 
million.
    The DEIS explains that:

    ``The Federal Emergency Management Agency (FEMA) has led this 
effort [to relocate houses] around most of the lake, but the Department 
of Housing and Urban Development (HUD) has taken responsibility for 
relocating many structures on the Fort Totten Indian Reservation. FEMA 
administers the National Flood Insurance Program (NFIP) through which 
the Federal Government provides flood insurance for those communities 
that adopt floodplain management ordinances. (DEIS p. 5-7)
    ``Regarding FEMA's impacts on land use around the lake, the agency 
urged Ramsey and Benson counties and the city of Devils Lake to adopt 
permanent land use ordinances establishing conservation easements that 
prohibit new construction below 1,460 feet msl in exchange for the NFIP 
waiver allowing structures to be moved before inundation. After much 
deliberation, Ramsey County decided not to adopt the ordinance, but 
Benson County and the city of Devils Lake decided to implement the 
ordinance with minor adjustments. There are an estimated 45 people in 
Benson county who qualify for the flood insurance endorsement and 
waiver.'' (DEIS p. 5-15)

    It is important to recognize that the rise of Devils Lake has not 
been the economic disaster that proponents of the outlet frequently 
portray. For example:

    ``The rising lake has adversely affected many residents around the 
lake. However, even under the adversity produced by the rising of 
Devils Lake, some parties have benefited. For example, the influx of 
Federal emergency funds to relocate threatened homes, provide crisis 
counseling, and maintain local infrastructure has brought over $350 
million in Federal funds into the Devils Lake region. This has provided 
a significant boost to some elements of the local economy, such as 
those individuals and enterprises involved in road construction or 
house moving, or those individuals or enterprises that support these 
activities (e.g., lodging, restaurants, etc.) In addition, the 
improvement in the Devils Lake fishery associated with lake level rises 
has benefited the local recreation related industry.'' (DEIS p. 5-17-
18)

    The population of the Devils Lake Basin in 1975 was 38,473, with 
12,913 living in Ramsey County (including the city of Devils Lake), 
5,776 living in Nelson County and 5,957 living in Cavalier County (TPI 
Consultants, Inc., 1976). The population of the basin decreased 16.5 
percent from 1980 to 1996 (DEIS p. 2-15), so the current population of 
the basin is less than 32,000. The city of Devils Lake, which had a 
population of 7,742 in 1980 (U.S. Army Corps of Engineers 1992), had a 
population of 7,672 in 1996 (DEIS p. 2-16.). Consequently, the influx 
of $350 million in Federal funds into the Devils Lake region is 
equivalent to $11,000 per person living in the Devils Lake Basin.
    In fact:

    ``In 1996, agriculture accounted for 48 percent of the area's 
economy, followed by Federal Government outlays (38 percent) [emphasis 
added], tourism (10 percent) and manufacturing (3 percent). Tourism has 
been the fastest growing component of the area's economic base, 
increasing from 3 percent in 1980 to 10 percent in 1996. Tourism is 
particularly important in Ramsey County, having reached nearly two-
thirds the importance of agriculture in 1996. The tourism figures are 
understated because they account only for the expenditures of travelers 
from out of State.'' (DEIS p. 2-16)

    Consequently, in 2000 when local officials were seeking $70,000 in 
Community Development Block Grants and economic development funds, they 
had difficulty showing that the rise of the lake had adversely impacted 
the area. As Devils Lake Economic Director Jim Dahlen explained:

    ``The challenge we have is statistically the (flooding) impact 
doesn't show up real well in areas of taxable sales and services. Our 
unemployment rate is very low, well below the national average. And the 
average wage continues to rise. It's a hard thing to show what impact 
the flooding's had.'' (Anonymous, 2000)

    The Devils Lake Journal went on to report:

    ``The report could also help create an argument the cost/benefit 
ratio being used against building an outlet--which according to 
Congressman Packard is only 10 cents benefit for every dollar spen[t]--
is out of line. According to Dahlen the cost/benefit ratio is based 
only [on] lost revenue and it is not taking into consideration lost 
land or collateral.
    `` `We hope this report will put some teeth in the cost/benefit 
ratio,' Dahlen says. `But we don't have the expertise to do it 
ourselves.'
    `` `From what I've heard from out congressional delegation we'll be 
dead in the water if we don't come up with this kind of report,' 
Commissioner Dick Johnson admitted.'' (Anonymous, 2000)

    By the fall of 1997, the National Flood Insurance Program had paid 
over $14 million in claims on some 300 houses around Devils Lake that 
had been relocated--and on which the owners had paid insurance premiums 
totaling only $900,000. Owners were able to repurchase their homes from 
FEMA by matching the highest bid, which frequently was below market 
value, and then move them to another location. The cost of moving a 
house is approximately 70 percent of market value, plus the cost of a 
new lot (DEIS p. 5-8).
    Some home owners filed claims and received payments for moving 
their houses twice because they did not move them far enough from the 
lake the first time. In fact, the owner of a restaurant located near 
the lake who was interviewed buy a local television station boasted 
that he had been able to make major improvements in the restaurant when 
it was moved the first time, and that he was expecting to make 
additional improvements when it was moved the second time.
    In the spring of 2000, FEMA spent $2.2 million and was seeking 
another $1.3 million to buy out the town of Chuchs Ferry, a small town 
of 113 people and 43 homes at the northwest side of Devils Lake--
equivalent to $31,000 per person (Gilmour, 2000). FEMA reportedly paid 
``about $45,000 apiece for three 20-year-old mobile homes,'' plus 
relocation incentives up to $22,500 and averaging $14,466 (Gilmour, 
2000). In another case, the owners sold their 14 x 70 mobile home at 
Churchs Ferry to the Government and bought a 28 x 70 double-wide and 
located it at another small town 13 miles away (Gilmour, 2000). In 
fact, one Churchs Ferry resident reportedly exulted:

    ``I'm getting into a gorgeous house . . . a step up. There's lots 
of excitement . . . I've always dreamed of having a house like this. 
The (buyout) price we got for our house was great . . . wonderful and 
that's all I can say about that. But we wouldn't have been able to do 
this without the buyouts.'' (Gilmour, 2000)

    It is not surprising, therefore, that local officials are more 
concerned about the lake going down than they are about it continuing 
to go up:

    ``The hard numbers have been skewed by the nearly $300 million 
spen[t] by the Government in protecting the area through infrastructure 
improvements, says Dahlen. `What happens when the construction ends?' 
'' (Anonymous, 2000)

    Of course, constructing the proposed Pelican Lake 300 cfs outlet 
would bring another $125 million into the Devils Lake area even if the 
lake continues to go down.
    biota transfer--confusing absence of proof with proof of absence
    The DEIS states that:

    ``All of the biota in the Devils Lake basin are either known or 
considered likely to be present in the Red River basin. One possible 
exception is the striped bass, which has not been recorded in Devils 
Lake in many years. Many species have not been reported in the Red 
River basin, but were found to have sufficient means of overland or 
airborne dispersal that they could invade the Red River basin in the 
future. Other species were confirmed as being in the Red River basin on 
the basis of published scientific literature or from unpublished 
information provided by experts.
    ``The biota of the Devils Lake basin and the Red River basin are 
similar, and Devils Lake does not harbor any species that are not 
already present in the Red River basin. Additionally, there is risk of 
biota transfer from natural causes and recreational users.''(DEIS p. 5-
27-28)

    Proponents of an outlet frequently cite such statements as proof of 
the absence of any risk of transfer of foreign biota to the Hudson Bay 
basin as a result of operation of an outlet from Devils Lake to the 
Sheyenne River.
    However:

    ``The potential for an outlet to transfer biota from Devils Lake to 
the Red River basin was evaluated. This assessment was based primarily 
on existing information.
    ``The conclusions of the study were that: (1) on the basis of all 
available information, it appears highly unlikely that downstream 
habitats would suffer substantially as a result of biota transfer 
caused by the Devils Lake outlet project, and (2) available information 
is inadequate to allow conclusive statements to be made regarding all 
species of biota transfer.'' [emphasis added]

    However, three concerns were worth noting.

  --``Though unlikely to occur, transfer of significant concentrations 
        of toxic algae could cause substantial problems downstream.
  --``Salinity and nutrient changes to the Sheyenne River and Lake 
        Ashtabula could cause community composition changes in these 
        waters.
  --``It is not certain whether any known exotic, invasive species are 
        now present in Devils Lake.'' [emphasis added] (DEIS p. 5-61)

    ``Although fish and algae communities have been fairly well 
documented, data sources on other biota were relatively few and 
incomplete. Regional experts had little knowledge of Devils Lake biota, 
and most agreed that the biota of the Devils Lake and Red River basins 
had not been particularly well studied. (DEIS Appendix C, p. C-73)
    ``There are substantial data gaps in a number of taxonomic groups. 
Because of these gaps, it is impossible to state definitively that all 
species currently in Devils Lake have been accounted for. To the 
contrary, it is likely that Devils Lake does harbor species that have 
not been analyzed. Accordingly, there may be additional species that 
are currently unknown at this time. It is more likely, however, that 
many species not documented in either the Devils Lake or Red River 
basin actually present in both.
    ``. . . The recent water level rise has created much new favorable 
habitat in Devils Lake for many species and has attracted increasing 
numbers of fishermen and recreational boaters. These anthropogenic 
factors are among the most important vectors of several harmful species 
in areas that they have invaded (e.g., Eurasian watermilfoil and zebra 
mussels). Any of these species could possibly find very favorable 
habitat in Devils Lake. The zebra mussel, in particular, could exploit 
the newly freshened habitats that have traditionally been too saline 
for mussels.'' (DEIS p. 5-28)

    In fact:

    ``Out-of-State boaters from zebra mussel areas used Devils Lake 
almost exclusively during 1999. Devils Lake also served as a major 
source of movements, i.e., a potential `transportation hub,' for boats 
going on to other parts of North Dakota and other States not currently 
infested with zebra mussels and other ANS [aquatic nuisance species].'' 
(Grier and Sell, 1999)

    Thus, even if Devils Lake does not currently harbor species foreign 
to the Hudson Bay Basin, it has the potential to be a major point of 
introduction and source of dissemination of such species in the future.
    As the DEIS points out:

    ``There is increased risk of the transfer of biota or the increase 
in the distribution of existing organisms associated with any feature 
that improves the connectivity between systems that have been 
segregated for many centuries. The operation of the outlet would be 
considered such a feature. Based on available information, there do not 
appear to be any organisms in Devils Lake that are not already present 
in the Red River or the North basin. However, it cannot be said with 
certainty that some may not be identified or introduced in the future. 
In addition, the operation of an outlet or a natural overflow may 
improve the conditions necessary for the dispersal of organisms 
currently found in the Sheyenne or Red River. No mitigation feature can 
be said to be 100 percent effective in eliminating the risk of biota 
transfer. The actual effects are unknown and cannot be predicted at 
this time.'' (DEIS Appendix C, p. C-66)

    Despite the paucity of information on the biota of Devils Lake and 
the potentially catastrophic impacts that could result to the Hudson 
Bay ecosystem from the introduction of damaging foreign species, the 
DEIS concludes that:

    ``All of the biota in the Devils Lake basin are either known or 
considered likely to be present in the Red River basin.'' (DEIS p. 5-
27)

    Well, maybe not quite ``all'' species:

    ``The one possible exception is the striped bass, which has not 
been recorded in the lake in many years . . . However, experts have 
indicated that the one possible exception, striped bass, has not become 
established as a reproducing [emphasis added] population in Devils Lake 
and no further stocking is planned. If any of the originally stocked 
individuals remain in the lake, they would now be large and would 
easily be excluded from outlet pipelines and machinery by fish screens 
already planned to cover the intake openings.'' (DEIS p. 5-62)

    When 13,000 ``advanced'' fry striped bass arrived in North Dakota 
in 1977, they were found to be in such poor condition that, instead of 
being taken to hatchery rearing ponds, they were released directly into 
Devils Lake. At least three have been caught since then, one by the 
North Dakota Game and Fish Department in netting operations and two by 
anglers, and all three were large fish in the 15 to 20 pound range. In 
fact, the North Dakota State record striped bass was a 20.75 pound fish 
caught at Devils Lake in 1993--just 9 years ago and 16 years after 
striped bass were first stocked in the lake. Therefore, even if striped 
bass had not become established as a reproducing population in Devils 
Lake, it is clear that they became established as a surviving 
population.
    Since 1993, ecological conditions in Devils Lake have changed 
dramatically, with rapidly improving water quality in the lake and high 
volumes and long durations of inflows from tributaries such as Mauvais 
Coulee. The DEIS does not consider the possibility that conditions may 
now have developed that are suitable for reproduction of striped bass, 
and if they have, what the likelihood is that they would have been 
detected. It is instructive to consider examples from another lake in 
the area where exotic fish were stocked during that same time period.
    Sprirtwood Lake is an approximately 600-acre lake in a ``closed'' 
basin about 60 miles south of Devils Lake. In 1971, the North Dakota 
Game and Fish Department stocked 4,000 white amur, or grass carp, in 
the lake. Although no formal monitoring has been conducted, a few grass 
carp were periodically reported from 1975 to 1977, and grass carp are 
still being reported in Spiritwood Lake two decades after they were 
stocked.
    In the summer of 1989, the North Dakota Game and Fish Department 
stocked 20,000 European zanders in Spritwood Lake (Kraus, 1989a), and 
another 185,000 in the adjacent East Spiritwood Lake, which now is 
connected with Spiritwood Lake. However, when North Dakota Game and 
Fish Department traps in the lake failed to capture any zander, they 
were thought not to have survived . Then in 1989, a fisherman caught an 
8.5 inch zander in the lake (Lohman, 1990), but intensive netting by 
the North Dakota Game and Fish Department from 1990 through 1993 failed 
to turn up any more zander.

    `` `We never caught even one,' [North Dakota Game and Fish 
Department Chief of Fisheries Terry Steinwand] said. `After that third 
year, we thought that there weren't any zander left in the lake. But I 
gave the disclaimer that we weren't 100 percent sure, based on our 
netting techniques.' '' (Wilson, 2001)

    In August 1999, a fisherman caught and photographed a fish from the 
lake that appeared to be a zander, but extensive netting operations by 
the Game and Fish Department again failed to produce any more zander 
(Wilson, 2001). A fisherman caught and photographed another zander in 
2000, and in June of 2000, the Department's netting operations finally 
captured a 2-year-old, 3 pound, 18.5 inch zander in Spiritwood Lake.

    ``The DNA-tested zander taken from Spiritwood lake is a 2-year-old 
fish and, scientists are `fairly confident', is a product of natural 
reproduction. Meaning: There is a chance more zander remain in the 
lake, or at least did a few years back.
    `` `For natural reproduction to occur, we know that there were at 
least two in Spiritwood at one time,' Steinwand said. `And logic would 
tell you that there were more than that. But based on our inability to 
catch them with nets, and no reports coming in from anglers, the 
population is very low.'
    ``When the zander were stocked, Steinwand said Spiritwood was a 
closed basin lake.
    `` `The only possible escape for these fish was by anglers,' he 
said. `But things changed in 1997 when we started to see some overflow 
out of Spiritwood Lake' '' [to the James River]. (Wilson, 2001)

    If reproducing zander escaped detection in the 600-acre Spiritwood 
Lake for 8 years despite intensive sampling efforts, and if white amur 
have survived in the lake in low numbers for two decades, what would be 
the likelihood of detecting low numbers of reproducing striped bass in 
the 132,000-acre Devils Lake?
    The DEIS dismisses the possibility of striped bass escaping through 
the proposed outlet by assuming that ``any of the originally stocked 
fish'' would be excluded by fish screen already planned to cover the 
intake openings. Of course, the DEIS ignores the possibility that 
conditions in the lake might be or might become suitable for 
reproduction of striped bass, and it does not consider the possibility 
of damage to or other failure of the screens. Because the Energy and 
Water Development Appropriations Acts for fiscal years 1998 through 
2001 require consultation with the International Joint Commission 
before construction begins on an outlet, it is instructive to consider 
what the International Joint Commission had to say about relying on 
engineering features to prevent biota transfer under the Garrison 
Diversion project:

    ``In fact, overriding everything else, as it turns out, has been 
the necessity that such introduction be prevented at all costs . . . 
    ``Unlike some other adverse consequences that can be minimized by 
additional mitigating measures or by cessation of operation of the 
Project, remedial measures to control unwanted exotics are oftentimes 
futile and, what makes it even more difficult, is that it may be some 
years before the full adverse impact is apparent.
    ``The Board's conclusion was that the implementation of their 
proposals would virtually eliminate any direct transfer by GDU of fish, 
fish eggs, fish larvae and fish parasites and would reduce the risk of 
transfer of fish diseases to the Hudson Bay Drainage Basin. The Board 
rated the [double 40 mesh phosphor bronze] fish screen and the closed 
system together, as described in the Board's report, as a means which 
would be effective and feasible in meeting the objective assigned to 
it.
    ``There is no question in the Commission's mind that the Board's 
recommendations greatly reduce the risk of an unintentional transfer. 
There would be two lines of defense, either one of which by itself 
might accomplish the desired result . . . The Commission gives great 
weight to the Board's opinion that these two lines of defense will 
work. At the same time, the Commission must weigh the consequences to 
Canada if the Board is wrong. Were the potential biological 
consequences to the Hudson Bay ecosystem predictable in manner and 
extent, the Commission might accept the Board's approach. The Board has 
reduced the risk of a biological `time bomb' but not eliminated it. The 
Commission is concerned that even with the best engineering talent 
available and with the best operating practices possible, the very 
complexity of the scheme, the immensity of the physical features, the 
large number of human beings involved in carrying out the 
responsibility, and the possible mechanical failure, what cannot 
happen, will happen . . .'' (International Joint Commission, 1977)

    In the case of the Pelican Lake 300 cfs outlet, the Corps proposes 
to rely on a single line of defense against biota transfer--a fish 
screen, which if it doesn't fail over the 50-year life of the project, 
would exclude 15 to 20 pound adult striped bass.
    Meanwhile, the Corps cites a Biota Transfer Risk Analysis which 
recommended that:

    ``. . . surveys for the following invasive species (at a minimum) 
be carried out in Devils Lake before the outlet begins operation: rusty 
crayfish, spiny water flea, zebra mussel, and Chinese mystery snail and 
relatives.'' (DEIS Appendix C, p. C-77)

but no information is provided about whether the surveys will actually 
be conducted, what their sampling designs will be, who will pay for 
them, who will conduct them, and when they might be completed. Instead, 
the Corps proposes to proceed with the construction of a $125 million 
Pelican Lake 300 cfs outlet to the Sheyenne River before knowing 
whether the risk of biota transfer may prevent it from ever being used.

                          mythical mitigation
    According to the DEIS:

    ``The outlet itself would consist primarily of a buried pipeline 
with open channel features restricted to areas along Highway 281 north 
of Minnewaukan and would not require mitigation.'' (DEIS Appendix C, 
pp. C-138-139)

    However:

    ``Construction and operation of an outlet from Devils Lake would 
require the development and implementation of a mitigation plan to 
compensate for unavoidable adverse effects. General geographic areas of 
potential impact would be Devils Lake, the outlet route, the Sheyenne 
River, Lake Ashtabula, and the Red River. Investigations to date 
indicate the greatest potential for significant adverse impacts to 
natural resources, cultural resources, and downstream water users is 
associated with increased flows and water quality changes in the 
Sheyenne River.'' (DEIS p. 5-92-93)

but:

    ``Many of the effects associated with operation of an outlet cannot 
be readily quantified.'' (DEIS p. 5-96)

and:

    ``Because of the inability to accurately predict project impacts 
associated with operation, an extensive resource monitoring program 
will be required. The monitoring will be necessary to quantify specific 
impacts and identify acceptable mitigation measures.'' (DEIS p. 5-93; 
Appendix C, p. C-139)

    In view of the fact that:

    ``Many of the potential effects involve long-term changes to 
existing ecosystems that may not be readily noticeable or quantified 
without extensive monitoring programs.'' (DEIS p. 5-96)

how does the DEIS propose that mitigation might be accomplished for the 
potentially severe and long-lasting impacts of operation of the 
proposed Pelican Lake 300 cfs outlet?
    These include:
  --Substantial changes in the flow of the Sheyenne River resulting in 
        up and down flows with sudden and extreme fluctuations in flow 
        that will make it difficult for species to adapt to habitat 
        conditions (DEIS p. 5-48),
  --Increased erosion and sedimentation (DEIS p. 5-52) and changes in 
        water quality, hydrology, geomorphology and habitat that could 
        result in substantial changes in aquatic biota in the Sheyenne 
        River (DEIS p. 5-53),
  --Adverse influence on fish reproduction and lost-year classes of 
        fish and decreased diversity and density of aquatic species in 
        the Sheyenne River (DEIS p. 5-53)
  --Water quality changes that would be devastating to unionids in the 
        upper Sheyenne River (DEIS p. 5-102),
  --The elimination of flow sensitive habitats, such as riffles where 
        shallow, fast habitats predominate, in the upper Sheyenne River 
        where stages are projected to increase up to 3 feet (DEIS 
        Appendix C, p. C-38),
  --Changes in the aquatic community in the Sheyenne River above Lake 
        Ashtabula that would persist for many years after outlet 
        operation ceases (DEIS Appendix C, p. D-31)
  --Higher flows that may exacerbate streambank erosion and threaten 
        farmstead structures and residences along the river (DEIS p. 4-
        10),
  --Exacerbated flooding in the Sheyenne River that could damage 
        agricultural property, including lands, equipment and 
        structures (DEIS p. 5-12), and
  --The increased risk of biota transfer (DEIS p. 5-56).
    According to the DEIS:

    ``Potential mitigation features could [emphasis added] include 
acquisition of key riparian blocks of lands, plantings, erosion 
control, fish structures, fish stocking, and vegetation management.'' 
(DEIS Appendix C-141)

    Therefore:

    ``A possible mitigation plan could [emphasis added] include 
purchase and management of strategic blocks of riparian lands along the 
upper and lower Sheyenne River. (DEIS p. 5-97)
    ``Management measures could [emphasis added] include plantings, 
erosion control structures, fish structures, and vegetation 
management.'' (DEIS p. 5-97)

except:

    ``This would be implemented after operation has ceased [emphasis 
added] in order to allow the terrestrial and aquatic ecosystems to 
recover.'' (DEIS p. 5-97)

and:

    ``For most pumping alternatives, pumping begins May 1, 2005 and 
occurs throughout the 50-years. For other Pelican Lake alternatives, 
pumping begins May 1, 2006.'' (DEIS Appendix A, p. A-40)

and:

    ``Changes in the aquatic community would persist for many years 
after outlet operation ceased, especially on the Sheyenne River above 
Lake Ashtabula. (DEIS Appendix D, p. D-31)
    ``The flow impacts due to a Pelican Lake alternative could be 
dramatic, particularly in the upper Sheyenne River, which is 
essentially isolated from recolonization sources. (DEIS p. 5-102)
    ``Some of the aquatic losses would not be mitigated; for example, 
loss of invertebrates, loss of fish year classes, loss of wetted usable 
area due to increased channel width, and changed channel morphology.'' 
(DEIS p. 5-97)

    Therefore, this approach would delay mitigation of the impacts of 
the operation of the outlet for 50 years and would result in many 
significant impacts to the aquatic ecosystem of the Sheyenne River not 
being mitigated.
    Consequently, the DEIS suggests that:

    ``Mitigation could also be implemented in other basins, which are 
also tributaries to the Red River. This would eliminate the problems 
associated with the continued operation of the outlet but would shift 
the burden of mitigation onto others not otherwise impacted by the 
project.'' (DEIS p. 5-97)

    The DEIS neglects to mention that none of the other tributaries to 
the Red River are remotely similar hydrologically, morphologically and 
ecologically to the 460 miles of the Sheyenne River below the proposed 
Pelican Lake outlet, so the impacts to the Sheyenne River cannot be 
mitigated in other basins.
    The cost estimates for these mitigation ``alternatives'' are based 
primarily on mitigation of terrestrial impacts (DEIS p. 5-97), but:

    ``A similar approach for estimating mitigation costs for losses to 
aquatic habitat is not appropriate. Two approaches would be possible 
for cost estimating. Some of the aquatic losses would not be mitigated; 
for example, loss of invertebrates, loss of fish year classes, losses 
of wetted usable area due to increased channel width, and changed 
channel morphology.
    ``In the absence of similar guidelines for estimating aquatic 
mitigation costs, one approach is to assume 5 percent of the total 
project cost is set aside for aquatic mitigation features . . . Aquatic 
mitigation features include streambank stabilization, in-stream 
structures, and fish stocking. As described above some impacts would 
not be mitigated.
    ``Another approach, which was used for the analysis in this report, 
is to assume that some aquatic mitigation could be accomplished through 
the management of riparian lands. Controlling erosion and providing a 
stable and vegetated streambank could [emphasis added] mitigate some 
[emphasis added] aquatic impacts. By maintaining a healthy riparian 
zone, aquatic resources impacts could [emphasis added] be minimized or 
populations could reestablish themselves after the outlet has ceased 
operation [emphasis added]. The acquisition of key riparian areas could 
[emphasis added] provide both terrestrial and aquatic benefits . . .'' 
(DEIS p. 5-98)

    It is evident, therefore, that the Corps (1) does not know what the 
impacts of operation of the proposed Pelican Lake 300 cfs outlet will 
be, (2) it has no plan for mitigating those impacts, (3) it does not 
know if the impacts can be mitigated, and (4) it already has written 
off the mitigation of impacts to aquatic resources. Faced with the 
daunting task of developing an effective plan to mitigate the impacts 
of the project, the DEIS finally dismisses the matter with the cursory 
statement that:

    ``Monitoring to determine the actual magnitude of effect is perhaps 
the best mitigation. Further mitigation can then be designed to address 
actual impacts.'' (DEIS p. 5-102)

    According to the DEIS:

    ``Areas that would require monitoring include, but may not be 
limited to, groundwater, erosion, sedimentation, aquatic habitat, biota 
transfer, water quality, riparian vegetation, cultural resources, soil 
salinity, surface water users, and endangered species. Monitoring is a 
major component of the proposed mitigation package [emphasis added]. 
(DEIS p. 5-94)
    ``Extensive monitoring programs for Devils Lake and along the 
Sheyenne and Red Rivers are being designed and will be proposed 
[emphasis added] for implementation prior to operation of the outlet. 
Potential [emphasis added] monitoring programs include groundwater 
monitoring, water quality monitoring, soil salinity monitoring, 
establishment of long-term survey stations to assess aquatic ecosystem 
changes, including channel morphology, fish surveys, benthic/nektonic 
surveys and mussel surveys, and the establishment of vegetation survey 
transects along the Sheyenne River riparian corridor to monitor 
vegetation changes, monitoring downstream water users to determine 
changes in treatment procedures and costs.'' (DEIS p. 5-96)

    Of course:

    ``Monitoring would require a long-term commitment of time and 
funds. It is assumed that monitoring would be required for the life of 
the project or until agency coordination determines it is no longer 
necessary.'' (DEIS p. 5.94)

    The DEIS states that:

    ``Monitoring costs should be considered as part of the mitigation 
cost of the project.'' (DEIS p. 5-96)

but it does not suggest any mechanism for assuring that funds will 
continue to be appropriated to cover the costs of monitoring 
environmental impacts over the 50-year life of the project, or to cover 
the costs of mitigating the impacts that are identified. Once the 
outlet is built and operating in 2005, the North Dakota congressional 
delegation certainly will have little incentive to seek appropriations 
to identify and mitigate adverse impacts of the project.
    So, who will conduct the monitoring and implement the mitigation 
plan for the proposed outlet from Devils Lake?

    ``Coordination with Federal, State, and local agencies and interest 
groups will be required to implement the monitoring and mitigation 
program.'' (DEIS p. 5-93)

    What local agencies and interest groups? Certainly not the Devils 
Lake Joint Water Resource Board or the Devils Lake Emergency Management 
Committee, both of whom deny that any significant adverse downstream 
impacts would occur from operation of the outlet and lack the technical 
expertise to identify them when the do. State agencies? Certainly not 
the North Dakota State Water Commission which, under a directive of the 
Governor, is proposing to build a 300 cfs West Bay outlet and operate 
it with only the most perfunctory monitoring of impacts. What Federal 
agencies? The U.S. Fish and Wildlife Service? It is not the Service's 
responsibility to monitor and mitigate the environmental impacts of 
other Federal agencies' projects.
    Responsibility for monitoring and mitigation of the environmental 
impacts of the Corps' proposed Pelican Lake 300 cfs outlet rests 
squarely the Corps, and a revised DEIS should recognize that and deal 
with that responsibility in a substantive and straightforward manner.
    But, what about mitigating the impacts of biota transfer?

    ``No mitigation feature can be said to be 100 percent effective in 
eliminating the risk of biota transfer.'' (DEIS p. 5-56)

    So, what does the DEIS propose?

    ``To minimize the risks of transfer of undesirable biota into 
waters downstream from the outlet, monitoring and outreach programs 
could [emphasis added] be implemented. These could include monitoring 
water chemistry at the outlet, at Lake Ashtabula, and at the Sheyenne 
River's mouth at a minimum.'' (DEIS p. 5-100)

    But, of course, monitoring water chemistry will do nothing to 
detect undesirable biota or mitigate the impacts of their introduction 
to the Hudson Bay Basin. Anything else?

    ``Biotic monitoring programs could [emphasis added] also be enacted 
to create an alert system that would be triggered if exotic species are 
found in Devils Lake or in the Sheyenne River. These programs could 
[emphasis added] include public education regarding boat and trailer 
cleaning and identification of exotic fish species (e.g., zander, grass 
carp), and surveillance of boats and trailers by Government officials 
at public launch sites.'' (DEIS p. 5-100)

    Of course, the absurdity of suggesting that a monitoring program 
would be effective in detecting even large exotic species such as 
zander and grass carp in the 132,000-acre Devils Lake in time to 
prevent their being transferred by the outlet to the Hudson Bay Basin 
is demonstrated by the fact, pointed out above, that zander were 
undetected in the 600-acre Spiritwood Lake for 8 years despite 
intensive sampling by the North Dakota Game and Fish Department, and 
grass carp have survived in the lake in very low numbers for two 
decades.
    Furthermore, monitoring simply may detect the presence of 
undesirable biota, but it does nothing to prevent their transfer--
particularly if they already have reached the Sheyenne River--or to 
mitigate the impacts of such a transfer. As the International Joint 
Commission pointed out:

    ``. . . remedial measures to control unwanted exotics are 
oftentimes futile and, what makes it even more difficult, is that it 
may be some years before the full adverse impact is apparent.'' 
(International Joint Commission, 1977)

    It is abundantly clear from the DEIS that the Corps not only does 
not have a mitigation plan for the proposed Pelican Lake 300 cfs 
outlet, but it then claims that monitoring is a major component of the 
project's mitigation ``package'' when it does not have a monitoring 
program, either, or know how it would be funded or who would conduct 
it--or even if it would be effective in identifying impacts.
    There could not be a more clear or blatant violation of the mandate 
of the National Environmental Policy Act for Federal agencies to known 
the impacts of their actions before taking them.
    u.s. army corps of engineers environmental operating principles
    On March 26, 2002, Chief of Engineers Lt. General Robert Flowers 
announced new Corps of Engineers Environmental Operating Principles to 
guide the Corps in all of its works:

    ``The Principles:
    ``Strive to achieve environmental sustainability. An environment 
maintained in a healthy, diverse and sustainable condition is necessary 
to support life.
    ``Recognize the interdependence of life and the physical 
environment.
    ``Proactively consider environmental consequences of Corps programs 
and act accordingly in all appropriate circumstances.
    ``Seek balance and synergy among human development activities and 
natural systems by designing economic and environmental solutions that 
support and reinforce one another.
    ``Continue to accept corporate responsibility under the law for 
activities and decisions under our control that impact human health and 
welfare and the continued viability of natural systems [emphasis 
added].
    ``Seek ways and means to assess and mitigate cumulative impacts to 
the environment; bring systems approaches to the full cycle of our 
processes and work.
    ``Build and share an integrated scientific, economic, and social 
knowledge base that supports a greater understanding of the 
environmental impacts of our work.
    ``Respect the views of individuals and groups interested in Corps 
activities, listen to them actively, and learn from their perspective 
in the search to find innovative win-win solutions to the Nation's 
problems that also protect and enhance the environment.''

    As the preceding comments document, the DEIS repeatedly violates 
every one of these principles. Therefore, a revised DEIS should 
discuss, substantively and specifically, how it has been modified to 
comply with these principles in each of the areas outlined in these 
comments.
                              conclusions
  --The DEIS is based on a flawed scoping process that discouraged and 
        frustrated public participation.
  --The DEIS inappropriately employs tiering of the analysis of the 
        environmental impacts of the proposed Pelican Lake 300 cfs 
        outlet in order to segment the analysis of those impacts and 
        avoid their disclosure until after the decision has been made 
        as whether to build the project.
  --The DEIS fails to consider the cumulative impacts of other related 
        and reasonably foreseeable projects, including the Red River 
        Valley Water Supply Project, an inlet to deliver Missouri River 
        water to Devils Lake, and the State of North Dakota's 
        ``temporary'' emergency outlet from Devils Lake to the Sheyenne 
        River.
  --The Corps lacks congressional authorization to complete and operate 
        an outlet from Devils Lake to the Sheyenne River.
  --The proposed Pelican Lake 300 cfs outlet would have severe and 
        long-lasting adverse impacts on the Sheyenne River under 
        moderate future conditions. Although, the DEIS does not 
        describe the environmental impacts of the proposed Pelican Lake 
        300 cfs outlet under the ``wet future scenario,'' they would be 
        substantially more severe.
  --All Devils Lake outlet alternatives discussed in the DEIS would 
        either be ineffective in preventing the continued rise of the 
        lake or they would cause unacceptable downstream impacts, and 
        none of the outlet alternatives have positive benefit/cost 
        ratios under standard economic analyses. Therefore, the outlet 
        alternatives are neither technically sound nor economically 
        justified.
  --The proposed Pelican Lake 300 cfs outlet is estimated to cost $125 
        million, but because the lake would continue to rise another 10 
        feet under the ``wet future scenario'' even with the outlet, an 
        additional $300-$400 million would still have to be invested in 
        infrastructure protection measures, bringing the total cost of 
        this alternative to $425-$525 million.
  --The ``wet future scenario'' upon which the proposed Pelican Lake 
        300 cfs outlet is justified is a manufactured set of conditions 
        created to result in just enough precipitation to cause Devils 
        Lake to overflow without the outlet, but not overflow with the 
        outlet. This artificial scenario has no basis in reality and 
        has a zero probability of occurring.
  --The DEIS suggests that because of the low probability that the 
        conditions will occur that are necessary to justify the 
        proposed Pelican Lake 300 cfs outlet, the outlet should be 
        viewed as an insurance policy rather than as an investment. 
        However, the outlet neither guarantees that the lake will not 
        continue to rise and overflow nor provides compensation if it 
        does. Therefore, it should be more accurately viewed as a $125 
        million lottery ticket with virtually no chance of winning.
  --There is no evidence in the geologic record to support speculation 
        that an overflow of Devils Lake would result in the natural 
        outlet eroding down 9 feet and releasing 6,000 cfs of water and 
        400,000 cubic yards of sediment into the Sheyenne River. 
        Moreover, if the level of Devils Lake were to approach the 
        overflow elevation, measures would be implemented to prevent 
        erosion of the outlet.
  --The DEIS fails to address wetland drainage in the Devils Lake Basin 
        and its contribution to the rise of the lake, it significantly 
        underestimates the potential for wetland restoration in the 
        upper Devils Lake Basin to reduce flooding problems at the 
        lake, and it disregards the effects of continuing wetland 
        drainage in reducing the efficacy of the proposed Pelican Lake 
        300 cfs outlet and other publicly funded measures to deal with 
        flooding problems at Devils Lake.
  --The DEIS significantly inflates the value of non-urban lands around 
        Devils Lake that already have been flooded and, by implication, 
        those that would be flooded if the lake continues to rise with 
        or without the outlet. The result is exaggeration of the 
        benefits of preventing those losses.
  --Although flooding at Devils Lake has resulted in personal hardships 
        for those residents living adjacent to the lake, the influx of 
        some $350 million in Federal funds and the thriving tourist 
        industry based on the outstanding sport fishery that has 
        developed at Devils Lake, combined with generous compensation 
        of affected homeowners by Federal agencies, have substantially 
        blunted the economic impacts of the rise of the lake.
  --The potential for transfer of foreign biota from Devils Lake to the 
        Hudson Bay Basin by an outlet from Devils Lake is a major 
        issue, and its resolution is complicated by the paucity of 
        information on the biota of Devils Lake, the potential for 
        introduction of new damaging species into Devils Lake, and the 
        absence of effective measures to mitigate the impacts of biota 
        transfer if it should occur.
  --The DEIS fails to provide a detailed discussion of the 
        environmental impacts of the operation of the proposed Pelican 
        Lake 300 cfs outlet, it acknowledges that it may not be 
        possible to mitigate some impacts to aquatic resources, it does 
        not include a plan to mitigate impacts that already have been 
        identified, and it does not include a plan to monitor the 
        impacts of the project and implement mitigation measures for 
        those that are identified in the future.
  --The DEIS violates each of the Corps of Engineers' recently released 
        ``Environmental Operating Principles.''
  --The DEIS is procedurally faulty, conceptually flawed, technically 
        deficient and legally defective. The inadequacies are so 
        fundamental and the deficiencies are so pervasive that the 
        Corps has no recourse under the law except to withdraw the DEIS 
        and begin the NEPA process anew to produce an environmental 
        impact statement that complies with both the letter and the 
        spirit of the National Environmental Policy Act.
  --Despite its profound shortcomings, the DEIS is forced to 
        acknowledge the inescapable conclusions that:

    ``The outlet plan that has been preliminarily selected for design 
is not economically justified using methods that would determine the 
expected benefits by producing probability-weighted benefits and costs. 
(DEIS p. 1-S-7)
    ``. . . 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)
                               references
    Anonymous. 2000. City sponsors impact report. Devils Lake Journal. 
March 28, 2000.
    Associated Press. 1982. Disaster label sought for Devils Lake. The 
Forum. Fargo, North Dakota. February 2, 1992.
    Associated Press. 1991. Survey: Farmers' ethics decline. The 
Jamestown Sun. Jamestown North Dakota. January 8, 1991.
    Associated Press. 2001a. Devils Lake expected to remain steady. The 
Jamestown Sun. Jamestown, North Dakota. December 19, 2001.
    Associated Press. 2001b. Devils Lake outlet plan to be phased in. 
The Jamestown Sun. Jamestown, North Dakota. November 14, 2001.
    Associated Press 2001c. Farm real estate up 2 percent. The 
Jamestown Sun. Jamestown, North Dakota. August 3, 2001.
    Associated Press. 2002a. Impact study shows nothing to derail plan. 
The Jamestown Sun. Jamestown, North Dakota. March 1, 2002.
    Associated Press. 2002b. Devils Lake outlet proposal may hinge on 
``wet cycle.'' Associated Press Newswires. March 5, 2002.
    Burttz, H. 1985. Comparison of Stump Lake, Devils Lake water levels 
shows effects of drainage. The Devils Lake Daily Journal. Devils Lake, 
North Dakota. February 26, 1985.
    Condon, P. 1997. Panel approves $5 million for Devils Lake outlet. 
The Forum, Fargo, North Dakota. September 26, 1997.
    Gilmour, D. 2000. So long, Churchs Ferry. The Forum. Fargo, North 
Dakota. April 2, 2000.
    Grier, J.W. and J.D. Sell. 1999. Potential of introducing aquatic 
nuisance species to North Dakota by boats. Report to the North Dakota 
Game and Fish Department. North Dakota State University Department of 
Zoology, Fargo, North Dakota. 38 pp.
    Grosz, T. 2001. Defending out wildlife heritage. Johnson Books, 
Boulder, Colorado. 384 pp.
    International Joint Commission. 1977. Transboundary Implications of 
the Garrison Diversion Unit. An IJC Report to the Governments of Canada 
and the United States. 146 pp. plus appendices.
    Karus, S. 1989a. Third try to introduce species: zander arrive at 
Spiritwood Lake. The Sun. Jamestown, North Dakota. June 9, 1989.
    Kraus, S. 1989b. Third try apparently fails: no sign of zanders in 
lake. The Jamestown Sun. Jamestown, North Dakota. September 19, 1989.
    Lohman, J. 1990. Zander may remain on hold. The Forum. Fargo, North 
Dakota. December 16, 1990.
    Ludden, A.P., D.L. Frink and D.H. Johnson. 1983. Water storage 
capacity of natural wetland depressions in the Devils Lake Basin, North 
Dakota. Journal of Soil and Water Conservation 38: 45-48.
    Murphy, E.C., A.M.K. Fritz and R.F. Fleming. 1997. The Jerusalem 
and Tolna Outlets in the Devils Lake Basin, North Dakota. North Dakota 
Geological Survey. Bismarck, North Dakota. Report of Investigation No. 
100. 36 pp.
    North Dakota State Water Commission. 2001. Devils Lake (Peterson 
Coulee) Outlet, Request for Proposal. Bismarck, North Dakota. 4 pp.
    Pearson, G.L. 1983. Statement of the North Dakota Chapter of The 
Wildlife Society submitted at the U.S. Army Corps of Engineers public 
meeting on water related problems in the Devils Lake Basin. Devils 
Lake, North Dakota. June 22, 1983. 12 pp.
    Pearson, G.L. 1985. Draining the great marsh. USA Today. November, 
1985. pp. 83-89.
    Pearson, G.L. 1998. Letter to Robert Anfang, St. Paul District, 
U.S. Army Corps of Engineers, 190 5th Street East, St. Paul, Minnesota. 
March 30, 1998. 9 pp.
    Pearson, G.L. 2001. Letter to District Engineer, U.S. Army Corps of 
Engineers, 190 5th Street East, St. Paul, Minnesota. April 8, 2001. 7 
pp.
    State Engineer. 1912. Fifth biennial report of the State Engineer 
to the Governor of North Dakota for the years 1911-1912. Public 
Document No. 21. Knight Printing Company, State Printers. Fargo, North 
Dakota.
    TPI Consultants. 1976. Devils Lake Basin Advisory Committee, Study 
Report, Volume 1. Devils Lake, North Dakota. 235 pp.
    U.S. Army Corps of Engineers. 1980. Flood control reconnaissance 
report, Devils Lake, North Dakota. Department of the Army, St. Paul 
District. 39 pp.
    U.S. Army Corps of Engineers. 1983. Devils Lake Basin, North 
Dakota, pre-reconnaissance evaluation report. St. Paul District. 51 pp.
    U.S. Army Corps of Engineers. 1992. Devils Lake Basin, North 
Dakota, reconnaissance report. St. Paul District. 119 p. plus 
appendices.
    U.S. Army Corps of Engineers. 1996. Emergency Outlet Plan, Devils 
Lake, North Dakota. St. Paul District. 25 pp.
    U.S. Army Corps of Engineers and North Dakota State Water 
Commission. 1998. Devils Lake Emergency Outlet Newsletter, Issue #1. 6 
pp.
    U.S. Army Corps of Engineers and North Dakota State Water 
Commission. 2001. Devils Lake Study Newsletter, Issue #4. 6 pp.
    U.S. Fish and Wildlife Service. 1997. Devils Lake Feasibility 
Study, Lake Stabilization, Devils Lake, North Dakota, Planning Aid 
Letter and Substantiating Report. North Dakota Field Office, Bismarck, 
North Dakota. 45 pp. plus appendices.
    van der Kamp, G., W.J. Stolte and R.G. Clark. 1999. Drying out of 
small prairie wetlands after conversion of their catchments from 
cultivation to permanent brome grass. Journal of Hydrological Sciences. 
44: 387-397.
    WEST Consultants, Inc. 2001. Final Report, Devils Lake Upper 
Storage Evaluation. Prepared for: St. Paul District, U.S. Army Corps of 
Engineers. San Diego, California. 79 pp.
    Wiche, G.J., A.V. Vecchia, L. Osborne and J.T. Fay. 2000. 
Climatology and potential effects of an emergency outlet, Devils Lake 
Basin, North Dakota. U.S. Department of the Interior, U.S. Geological 
Survey, Fact Sheet FS-089-00. 4 pp.
    Wilson, R. 2001. Zander have resurfaced in Spiritwood Lake. The 
Bismarck Tribune. Bismarck, North Dakota. March 9, 2001.
    Zaleski, J., Jr., 1975. Excess water plagues Devils Lake residents. 
The Jamestown Sun. Jamestown, North Dakota. August 14, 1975.
    Zaleski, J., Jr., 1981. High water table problem at new industrial 
park. The Devils Lake Journal. Devils Lake, North Dakota. August 18, 
1981.
                                 ______
                                 
                     Letter From Charon K. Johnson
                                                 February 17, 2009.
The Honorable Byron L. Dorgan,
United States Senate,
Washington, DC 20510.
    Mr. Chairman and Members of the Subcommittee: My name is Charon 
Johnson. My wife and I own land in sections 30, 31, and 32, in DeGroat 
Township, and section 36 in Chain Lake Township, all in Ramsey County, 
North Dakota, upstream of Devils Lake.
    There appears to be the lack of a known strategy to deal with 
downstream and upstream events that will occur if Devils Lake continues 
to rise. It seems short sighted, with all of the studies that have been 
done over the years, there is no established public plan that spells 
out what procedures would be carried out to deal with continued rising 
of Devils Lake. As things stand now, to the best of my knowledge, the 
only plan being discussed, and currently on paper, is the protection of 
the city of Devils Lake by raising and extending levees. Concern has 
been voiced about Spirit Lake Nation Tribal lands, impacts on Camp 
Grafton Military base, and the city of Minnewaukan. These are all 
important issues.
    My concern, and certainly the concern of many others who derive 
their livelihood from the approximately 50,000 acres of vulnerable 
agricultural land that lies upstream of the Lake, is what can be done 
to lessen the negative impact of a prolonged flood in that area.
    It seems apparent there is not an outlet that is acceptable in 
solving the flooding problem of the area. Not withstanding the 
obstacles, it is simply ``too little, too late''.
    Since Stump Lake has now equalized with Devils Lake, the level will 
continue to rise if the current climatic conditions continue. In all 
probability, the pressure from the tremendous head of water from the 
lakes will cause seepage and washing away of the silt buildup in the 
Tolna Coulee outlet to the Sheyenne River, well before the lake 
elevation reaches the assumed discharge level of 1,459 feet. If nature 
were allowed to take it's course, eventually the silt would no doubt 
wash away enough that the lakes would recede to the point there would 
no longer be a flooding problem in the Devils Lake basin. Undoubtedly 
before this would occur, someone, probably the Corps of Engineers, 
would react quickly to prevent serious consequences downstream from the 
volume of water that would naturally flow out of the lake. It has been 
suggested that a barrier or armor would be constructed to control the 
flow, and prevent this from happening.
    Unless constructed at a lower level, such a structure would 
transfer the devastation from downstream to upstream and the 
approximately 50,000 acres of agricultural land. Also affected, would 
be highways, railroads, game refuges, wildlife habitat, etc. At that 
point, it could become a legal problem.
    North Dakota Century Code.--Title 61, chapter 01, section 07, 
reads: Obstruction of watercourses--Penalty. ``If any person illegally 
obstructs any ditch, drain, or watercourse, or diverts the water 
therein from its natural or artificial course, the person is liable to 
the party suffering injury from the obstruction or diversion for the 
full amount of the damage done, and in addition, is guilty of a class B 
misdemeanor''.
    Therefore, I suggest that it would be prudent to start a process to 
put in place a plan that could be implemented before such an event, and 
be prepared to act rather that react. There may be interests that would 
participate in a joint venture that could provide benefits to the area 
instead of distress.
    Topographical maps will confirm the approximately 50,000 acres of 
agricultural land that is in jeopardy. From personal experience, I can 
attest that land values have already been negatively affected in the 
area.
    My interest in this matter stems from my history in the area. Our 
land located in DeGroat Township, was homesteaded in 1883 by my great 
grandfather. While farming this land, I became actively involved in 
water issues in the Devils Lake Basin while serving on the Ramsey 
County Water Management Board. I was elected the first chairman of the 
Devils Lake Basin Joint Water Management Board, and assisted in 
bringing in additional counties to help make it basin wide. I know the 
area very well, and would welcome the opportunity to visit on these 
issues at any time.
            Respectfully,
                                                 Charon K. Johnson.
                                 ______
                                 
               Letter From City of Wahpeton, Public Works
                                                 February 10, 2009.
Senator Byron L. Dorgan,
United States Senate,
Washington, DC 20510
    Dear Senator Dorgan: Thank you for the opportunity to provide input 
regarding the city's concerns with potential spring flooding on the Red 
River this year.
    Although significant progress has been made in the city's flood 
protection system since 1997 when the river crested at 19.4 ft, the 
city has only 65 percent of its permanent levee system in place and is 
dependant on temporary levees for the remaining third. Based on the 
current forecast the city will likely need to take advance measures to 
improve existing temporary levees and construct additional temporary 
levees.
    In 2004 the city completed construction of its interior flood 
protection system which greatly improves it ability to prevent interior 
flooding such as occurred in 1997. The interior flood protection system 
includes emergency generators and large portable pumps for back-up and 
increased capacity at several pump stations. Based on the current river 
forecast for Wahpeton, the city will need to make preparations for 
additional backup pumps and alternative power for its pump stations.
    If river levels reach the higher levels in the current river 
forecast or if precipitation patterns and events are more extreme than 
normal. the city may need to request the assistance of State and 
Federal agencies with advanced measures and flood fighting activities.
    If you have questions or would like additional information, feel 
free to contact me by phone at 642-6565 or by e-mail at 
[email protected].
            Sincerely,
                                      Randall Nelson, P.E.,
                           City of Wahpeton, Public Works Director.
                                 ______
                                 
  Prepared Statement of Myra Pearson, Tribal Chairperson, Spirit Lake 
                                 Tribe
    Chairman Dorgan and subcommittee members, I am Myra Pearson, 
Chairperson for the Spirit Lake Tribe. I would like to thank the 
subcommittee for inviting me here to testify on this extremely 
important issue for our tribe.
    As you know, our area was declared a Federal Disaster Area for 12 
years because of flooding. As a result of this flooding, our tribe has 
lost over 8,465 acres of land at an estimated value of over $2,962,750. 
The current prediction is that the water level will rise another 3 feet 
by June 2009. This will result in an additional loss of over 859 acres 
of trust land.
    The weather services and other science related organization are 
predicting additional flooding, and our tribal elders are making 
similar predictions. Elders age 75 and older have told us that water is 
standing in places they have never seen it in their life time. One 
elder said ``a long wet season, over 10 inches of rain in 2 days this 
fall, a quick and deep ground freeze early, all low areas filled with 
water, snow amounts not seen for many years and if we have a rainy 
spring season there is no place for the water to go.''
    Our tribal programs used their annual service budgets to respond to 
the flooding and we are now facing millions of dollars in lack of 
ability to provide needed services due to prioritizing disaster 
response. At your request the tribe has previously submitted a record 
of our financial losses with no resolve. Disaster recovery funding for 
Spirit Lake has been minimal and our recovery efforts are ongoing. The 
tribe currently has no resources to respond to new disaster mitigation 
needs, because of our lack of a tax base and because our casino is not 
as profitable as many other tribal casinos. Once again I bring to you a 
brief highlighted summary of the ongoing impacts of the severe flooding 
and the impacts that will be caused by additional flooding, and at 
financial estimates for mitigation/recovery in the short term.
    Tribal Land Base Lost to Flooding.--In the treaty between the 
Spirit Lake Tribe and the United States Government there was an 
allocation of land made to individual tribal members and for the 
tribe's designated reservation lands. This land base has since dwindled 
and diminished in usable acreage due to the flooding, which has 
detrimentally affected our tribal economic well being. We have lost 
many acres used for agricultural leasing income, which now must be used 
for home site relocation from flooded areas. We now have little to no 
available land for home sites areas except for the farmland or income 
generating acreage. With the current projections the tribe will 
continue to lose its land base.
    The loss of land base is straining our Housing Authority, which is 
incurring excessive home relocation costs, paying for repairs to homes 
damaged by ground water levels. This creates a lack of funding for 
other services. The population of our reservation is 6,500 enrolled 
members, and our housing waiting list has over 450 families waiting for 
housing availability.
    The tribe requests congressional participation for a meeting with 
the tribe and the BIA to discuss the historical land base of the 
reservation and our current status of lost usable acreage and its 
affect to our economy as a tribe and government.
    Funding Needed to Relocate Lagoon Areas.--In the St. Michael lagoon 
area on the reservation there are 90 homes currently threatened by the 
rising water levels. The lagoon must be moved to higher ground. The St. 
Michael lagoon area is surrounded by three roads that act as dams. See 
comments on RAADS project in section 5 below. There are homes with 
private septic systems and many of those systems are beginning to fail. 
In addition, there is no space available in the current lagoon for 
additional homes to be put in this area. The St. Michael lagoon has 
been damaged by excess pumping, but it is not feasible to repair the 
lagoon, when what is needed is relocation. The tribe will need $2.6 
million to relocate and build a new lagoon for the St. Michael 
district. If the IHS sanitation facilities priority list was fully 
funded, then the tribe's needs would be included.
    In addition, there are two other lagoons that the tribe must 
prepare for excess water use: (1) The Fort Totten Lagoon requires 
$135,000 in funding; and (2) the Tokio Lagoon requires $1.8 million in 
funding to prepare for flooding.
    Funding Needed to Replace Sewer Systems.--The flooding is also 
causing older sewer systems to backup into the basement of homes. The 
majority of homes with this problem are occupied by tribal elders. The 
age of the sewer systems make them more vulnerable to failure from the 
ground water flooding. Therefore, the tribe requires $400,000 to 
replace these old sewer systems in 50 homes. IHS views this sewer 
replacement project as preventative and therefore will not use current 
funding to assist the tribe. The tribe sees the replacement project as 
preventing a imminent disaster. If the tribe waits for the disaster to 
occur it will cost much more in damage to the homes, lodging cost, cost 
of health care for the elders, and continuous pumping of the systems. 
The tribe requests funding to begin this replacement project 
immediately.
    Funding Needed to Assess the Cost of Upgrading the Sewer Lift-
Stations.--The sewer lift-stations on the reservation have not been 
upgraded since the early 1990s, and the flooding is causing excess 
usage of these lift-stations. When the lift-stantions were last 
upgraded the amount of water from the flooding was not affecting the 
tribe and there the lift-stations were not built to sustain the amount 
of extra workload caused by the flooding. The tribe estimates the cost 
of upgrading these lift-stations would be $145,000.
    Funding Needed for the RAADS Project.--Lack of financial resources 
to complete within technical specifications roads under the Roads-
Acting-As-Dams Project will compromise our current transportation 
infrastructure. The current roadways which are acting as dams are not 
built to withstand the pressure of the water at these levels. The RAADS 
project could protect at least 745 acres from being lost to flooding, 
but we understand that shortfalls in funding are prohibiting this 
project from achieving its full potential. The tribe requests that 
Congress appropriate the $125 million needed to raise the roads to a 
safe level that could prevent millions of dollars in damages, lost 
lives, and lost land base. We also understand that amendments to 
section 1937 of the Safe Accountable Flexible Efficient Transportation 
Equity Act--A Legacy for Users, is needed to address the perceived 
limitation on the amount of funding that can be expended on the RAADS 
project in a single fiscal year. The tribe requests that Congress 
review those provisions and make the necessary amendments.
    Funding Needed to Address the Health Related Impacts of the 
Flooding.--The mental and physical health of our people has been 
greatly impacted. Our historical poverty conditions, unemployment, and 
now a lack of money for assistance programs. During the mid-1990s, a 
suicide crisis on our reservation was attributed to the excessive 
stress that parents and care providers were in, due to the economic 
conditions caused by the effects of the flooding. From 2006-2008 there 
were over 4,600 visits to our health care facility for depressive 
disorders. There has also been an increase in the diagnosis of cancer, 
for which our tribe asks for the CDC to assist. Our people are also 
concerned that the water quality might be a contributing factor to the 
rise in cancer rates. We request that additional health funding be set 
aside for the tribe to asses the health impacts of flooding on our 
reservation and how to best meet the needs of our people suffering from 
cancer and stress related disorders. The tribe also requests funding 
for an emergency shelter facility for our youth and funding to increase 
the number of mental health providers on the reservation for our youth.
    Devil's Lake Dike Funding.--Finally, we understand that Congress is 
considering appropriating an additional $80 million in funding to build 
up the Devil's Lake dike. While the tribe understands the need to 
protect the Devil's Lake community, the tribe also believes that 
building up the Devil's Lake dike will flood more of our lands, and 
cause more of the problems discussed here. We respectfully ask that 
when Congress is considering appropriating funds for these dike 
projects that it consider the additional costs and funds needed to 
protect our tribal lands. Those funds need to be included in any 
appropriations package for dike funding.
    It will continue to take all of our heart and spirit to work 
together to assure that we do not treat these continuing threats to our 
livelihood as a tribal nation and local community with desensitized 
moral, due to the expansive time we have lived with these conditions 
and challenges. I thank you for this opportunity to share with you the 
concerns and issues of the Spirit Lake Tribe. I will be happy to answer 
any questions you have.

                                   - 
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