[Senate Hearing 111-564]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-564

 CHANGE PROPOSED BY THE NORTH DAKOTA DEPARTMENT OF HEALTH TO INCREASE 
             ALLOWABLE SULFATE LEVELS IN THE SHEYENNE RIVER

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

                                HEARING

                                before a

                          SUBCOMMITTEE OF THE

            COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                            SPECIAL HEARING

                   FEBRUARY 19, 2010--WEST FARGO, ND

                               __________

         Printed for the use of the Committee on Appropriations


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

                               __________






                  U.S. GOVERNMENT PRINTING OFFICE
56-033PDF                 WASHINGTON : 2010
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC 
area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC 
20402-0001









                      COMMITTEE ON APPROPRIATIONS

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

                    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
                    Carolyn E. Apostolou (Minority)
                         Tyler Owens (Minority)

                         Administrative Support

                            Molly Barackman











                            C O N T E N T S

                              ----------                              
                                                                   Page

Opening Statement of Senator Byron L. Dorgan.....................     1
Statement of Hon. John Hoeven, Governor, State of North Dakota...     2
    Prepared Statement...........................................     4
Statement of Dennis Walaker, Mayor, City of Fargo................     6
North Dakota State Water Commission--North Dakota Department of 
  Health.........................................................     8
Statement of L. David Glatt, Chief, Environmental Health Section, 
  North Dakota Department of Health..............................    11
Statement of Fred Bott, Mayor, City of Devils Lake; President, 
  Devils Lake City Commission....................................    13
    Prepared Statement...........................................    14
Statement of Jon Cameron, City Administrator, Valley City........    15
    Prepared Statement...........................................    16
Statement of Wei Lin, Associate Professor, Department of Civil 
  Engineering, North Dakota State University.....................    17
    Prepared Statement...........................................    19
Statement of Jim Stevens, People to Save the Sheyenne River......    21
    Prepared Statement...........................................    22
State Officials Not Dealing Truthfully When it Comes to Devils 
  Lake Outlet....................................................    23
``Sign of Hope: Dorgan Speaks on Devils Lake''...................    25
Increased River Flow Needs Study.................................    25
Devils Lake Study Must Come First................................    26
Letters to the Editor............................................    26
Statement of Joe Belford, Chairman, Ramsey County Commission.....    34
Statement of Madeline Luke, Physician, Valley City...............    36
    Prepared Statement...........................................    39
Statement of Leroy Triebold, Valley City.........................    40
Statement of Bob Werkhoven, Retired District Engineer, Department 
  of Transportation, Valley City District........................    41
Additional Committee Questions...................................    46
Questions Submitted to L. David Glatt............................    46
Questions Submitted by Byron L. Dorgan...........................    46
Maximum Sulfate Limit of the Sheyenne River Supporting Analysis..    47
Appendix A--Intradepartmental Memorandum.........................    51
Stochastic Simulations of Effects of 250 Cubic Feet Per Second 
  Devils Lake Outlet on Sulfate Concentrations in the Sheyenne 
  River..........................................................    53
Prepared Statement of Richard Betting, Valley City, North Dakota.    89
Prepared Statement of Gary L. Pearson, D.V.M.....................    90
Comments on the North Dakota Department of Health's July 15, 2009 
  Proposal to Adopt an Emergency Rule Adding a New Section to 
  North Dakota Administrative Code Chapter 33-16-02.1 Standards 
  of Quality for Waters of the State to Change the Classification 
  of the Upper Sheyenne River and Increase the Maximum Limit for 
  Sulfate in the River From 450 mg/L to 750 mg/L.................    97
Comments on the North Dakota State Water Commission's Application 
  No. 3457 to Drain Water From Devils Lake to the Sheyenne River 
  by Increasing the Capacity of the Existing Devils Lake Outlet 
  from 100 to 250 Cubic Feet Per Second..........................   118
Letters From Gary L. Pearson, D.V.M............................135, 136
State Officials Not Dealing Truthfully When it Comes to Devils 
  Lake Outlet....................................................   137
Prepared Statement of the City-County Health District, Valley 
  City, ND.......................................................   139
Prepared Statement of Joe Stickler, Valley City, ND..............   139
Prepared Statement of Sharon E. and James B. Buhr, MD, MeritCare 
  Clinic Valley City, ND.........................................   139
Resolution--District 24 Dem-NPL Party-February 28, 2010..........   140
Prepared Statement of Matthew Pedersen, Valley City, ND..........   141
Prepared Statement of Susan Kringlie, Valley City, ND............   141
Prepared Statement of Richard and Terry Lee, Adam and Annie 
  Johnson, Wanda Etzell, and Dennis and Bonnie Rowell, Valley 
  City, ND and Enderlin, ND......................................   142
Prepared Statement of Mary Ann Sheets-Hanson, Director, Asante 
  Network........................................................   143
Prepared Statement of the Peterson Coulee Outlet Association.....   143
Federal Lawsuit Filed in Huge Saltwater Spill....................   148
North Dakota--State De-ices Highways With Oil Well Saltwater.....   149
What's Ugly, Smells, Kills Dogs? Blue-Green Algae................   158
Pepared Statement of Leon Pytlik, Valley City, ND................   162
Prepared Statement of Alice Beauchman, Valley City, ND...........   163
Prepared Statement of the North Dakota Chapter of The Wildlife 
  Society........................................................   163
Prepared Statement of Andre DeLorme, Valley City, ND.............   164
Prepared Statement of William Moore, Rogers, ND..................   165

 
 CHANGE PROPOSED BY THE NORTH DAKOTA DEPARTMENT OF HEALTH TO INCREASE 
             ALLOWABLE SULFATE LEVELS IN THE SHEYENNE RIVER

                              ----------                              


                       FRIDAY, FEBRUARY 19, 2010

                               U.S. Senate,
      Subcommittee on Energy and Water Development,
                               Committee on Appropriations,
                                                    West Fargo, ND.
    The subcommittee met at 10 a.m., in West Fargo City 
Commission Chambers, Hon. Byron Dorgan (chairman) presiding.
    Present: Senator Dorgan.


              opening statement of senator byron l. dorgan


    Senator Dorgan. Ladies and gentlemen, we're going to begin. 
I'm Senator Byron Dorgan chairman of the Energy and Water and 
Appropriations Subcommittee. This is a formal hearing of the 
subcommittee. We'll keep the record open for 2 weeks for anyone 
who wishes to submit formal comments for the hearing record. 
You can submit them to my office if you wish.
    The purpose of this hearing is to evaluate the change that 
is proposed by the North Dakota Department of Health to 
increase the allowable sulfate levels in the Sheyenne River. 
The State's Devils Lake outlet is scheduled to begin operating 
at a higher capacity sometime this summer, early summer, and I 
understand that that is the basis for the Department of 
Health's position to increase the sulfate levels.
    Let me say for the purposes of Devils Lake I support all 
the efforts that we can make to take water off of the lake as 
you know. I have funded proposals in the past to take water off 
for irrigation purposes. I have included, I think, the single 
largest appropriation that has ever been moved from our 
subcommittee, exclusive of the hurricane Katrina issues, to the 
Corps of Engineers some $90 plus million 1 year ago. I included 
that is now available and now being used to increase the levee 
at Devils Lake. That is the largest appropriation that I have 
ever made for one single project.
    So the question isn't does the delegation or do I support 
what is going on in Devils Lake. We have spent years and years 
raising roads, raising levees, and doing all the things to try 
to mitigate the flooding in Devils Lake. That includes 
supporting an outlet and it includes supporting the building of 
a State outlet.
    The question today is, with the proposal to increase the 
level of the outlet, which I believe will result in taking off 
somewhere around 3 to 4 inches from the lake a year if it's 
operated at what is expected to be the levels expected to 
operate. The question is, are there consequences to that? If 
so, what are the consequences? What should we understand about 
those consequences for others?
    It may be there are consequences, and we need to understand 
what they are in order to make judgments about them. So one of 
the reasons that I decided finally to hold a hearing is I had 
delivered to me a petition with some 700 names on it, residents 
of particularly Valley City but the surrounding region as well, 
indicating that not enough was known about this. They wanted to 
understand more.
    As I began to look into it, I agree. I don't understand all 
the consequences of it either. I think all of us need to 
understand what the risks are, if any. What are the 
consequences, if any, and that does not diminish our intent and 
interest in addressing the Devils Lake flooding issue. It is 
chronic flooding, and we've spent years of the State government 
and Federal Government working on this. We have spent a massive 
amount of money working on it, and yet the lake continues to 
rise.
    I have no interest nor would I expect other public 
officials to have an interest in transferring problems from one 
region of the State to another region of the State. If that 
were the case, that would be not be acceptable. I don't know 
that that's the case, but this hearing will provide us a basis 
of information with which to judge that.
    I want to thank all of you for being here. I know that you 
have prepared testimony that will be part of the permanent 
record as well.
    What I would like to do is call on the Governor and the 
health department first. I believe Mayor Walaker has to leave 
at some point during this hearing, and then we'll have 
statements from the witnesses. I will ask questions. Following 
which I will have an open microphone period, and we will ask if 
you have things you wish to say. Come and state your name and 
so that we have your name for the record.
    Again, I appreciate this opportunity, and I look forward to 
the testimony.
    Governor Hoeven.
STATEMENT OF HON. JOHN HOEVEN, GOVERNOR, STATE OF NORTH 
            DAKOTA
    Governor Hoeven. Senator, thank you, and it is good to be 
with you and certainly our mayors and everyone here present. We 
just had a media avail with Mayor Walaker, Mayor Mattern, and 
Mayor Fred Bott. Mayor Mary Lee Nielson of Valley City is 
actually on her way to Washington, DC so she wasn't able to 
join us otherwise would have been present with us as well. I 
think it really reflects the great joint effort and cooperation 
between the communities and the State of North Dakota. Because 
when it comes to water management and flood protection in the 
Red River Basin, it's very important we're all working together 
and that's exactly what's going on. And so I also appreciate 
your help and your support in this effort as you mention your 
support for the Devils Lake outlet and its operation. It's much 
appreciated and so I thank you for that.
    Of course, today we're talking about increasing the flows 
out of the outlet and what I need to emphasize right up front 
that is very much about protecting the downstream communities 
on the Sheyenne. It is very much about protecting the 
downstream communities on the Sheyenne both in terms of water 
quality and to prevent flooding as much as it is to help with 
Devils Lake and flooding in the lake region basin. And so we're 
going to go through that a little bit.
    We've got Dave Glatt here who is chief of the Environmental 
Section from the North Dakota Department of Health. He's going 
to go through in detail this is another good opportunity to do 
just what he's been doing, which is holding hearings in and 
around the basin and Devils Lake and Valley City and other 
places, not only to provide information but to hear from people 
as well, so this is an ongoing process both the Federal 
entities such as yourself and others, the A--U.S. Fish and 
Wildlife, and there's a long list, which I've included in my 
comments, but also the State agencies water commission, 
department of health, to really get information out there so 
people understand that this is an effort to protect upstream 
and downstream, and it's a cooperative effort in terms of water 
quality and flood prevention throughout the Red River Basin.
    Of course, what's necessitating increasing the flows out of 
Devils Lake is the rise in the lake level. Since 1993--and I 
know you are well aware of much of this, but since 1993 Devils 
Lake has risen 27 feet, 27 feet. It's now at lake elevation of 
more than 1,450, and they're talking about another 3 feet this 
year, and we're only 8 feet from the point where we have an 
uncontrolled spill out of the east end where we truly have 
water quality issues and, of course, that would create 
flooding.
    So even building some type of control structure over there 
still leaves us with the water quality issues. And as I say, 
we're only 8 feet away with potentially 3 feet of that 
occurring in the rise this year. So the effort is through the 
west-end outlet to increase the flows so that we prevent 
flooding. We don't have water coming out during the spring as 
now we're very concerned about flooding obviously throughout 
the basin, so it's both for flood protection and prevention. 
But then also to make sure that we manage the water quality, 
for example, its use of sulfates which has been a discussion in 
something that the health department is working on very 
carefully.
    There is no plan to change the sulfate standard essentially 
below Valley City or Lake--Baldhill Dam all the way down and 
through and past Fargo. There's no intent to change that 
sulfate standard. It would still be the stream standard of 450 
milligrams per liter, which is actually better than the 
Canadian drinking water standard, which is 500 parts--500 
milligrams per liter, so even untreated it's better than their 
drinking water standard.
    Making sure we cover all State health department 
requirements and EPA requirements, but even in addition to that 
to make sure that everybody's on board and that any and all 
concerns are addressed where all the State through the water 
commission is working with the communities along the Sheyenne 
to make sure that whatever water treatment plans and 
preparations they have both now and for the future that we're a 
partner with them. To have it set the way they want. Example, 
Valley City is in process of upgrading their water treatment 
plant because they need more capacity. That's a good thing, Jon 
Cameron sitting interviews here. He will speak to it. We 
partnered with them to add reverse osmosis, which will take 
sulfates out, so they're--actually their water quality will be 
better than it is now.
    Fargo and West Fargo are working together on water 
treatment options for the Fargo/West Fargo metro area. That's 
fantastic. I want to commend them for that joint effort. They 
don't currently draw water from the Sheyenne as their primary 
source, but they use it as a back-up source, and so as they 
look at water treatment development, same thing. We're going 
work--we're going--the State's going work with them to make 
sure that we partner with them in whatever solution they want 
be that reverse osmosis or whatever they may want or need to 
make sure that they have their treatment set the way they want 
it. And so that's the approach we're taking, but it's the 
approach we must take.
    Same thing with any erosion issues, I know there's been 
some discussion that the West Fargo diversion if there's more 
water coming through, more days when the water's coming through 
could create some erosion issues. We'll work with them to help 
them rip rap the West Fargo diversion. So really it's a kin to 
the same kind of work that we're undertaking with permanent 
flood protection for the region.
    This has to be a comprehensive approach. It has to be a 
basin-wide approach. It has to be a local, State, Federal 
approach. It's very important. And so I think to the extent we 
could really again discuss that today and continue to work 
together as we are that this is useful, and so it's good to be 
here, and I'll wrap up there.


                           prepared statement


    I know Dave's got some comments and also Mayor Walaker and 
then, of course, we do want to hear the update from the 
National Weather Service, which is coming out this morning as 
well on the flood.
    [The statement follows:]
                 Prepared Statement of Hon. John Hoeven
    Good morning Senator, good morning mayors, ladies and gentleman.
    I appreciate this opportunity to discuss the operation of the 
Devils Lake Outlet and its importance--not just to the community of 
Devils Lake and the Devils Lake area, but also to downstream interests.
    We have worked hard to provide information to all concerned 
regarding the operation of the Devils Lake Outlet, and I thank you, 
Senator Dorgan, for your support of the outlet. Attached to my 
testimony are three of your letters in support of operating the Devils 
Lake Outlet.
    First and foremost, I want to make clear that the State of North 
Dakota is committed to protecting the interests of Valley City, Lisbon, 
west Fargo, Fargo and other communities along the Sheyenne and Red 
River, as well as Devils Lake.
    In fact, operating the Devils Lake Outlet is as important to 
protecting downstream communities' water quality and preventing 
downstream flooding, as it is to helping mitigate flooding in the 
Devils Lake region.
    Rather than transferring any problem from one region of our State 
to another region of our State, operating the Devils Lake Outlet at up 
to 250 cfs is designed to protect water quality for communities 
downstream of Devils Lake.
    Since 1993, Devils Lake has risen by 27 feet and it is forecasted 
to set another record high this year.
    At a lake elevation of 1,450 feet, it is now only about 8 feet from 
an overflow out of Stump Lake on the east end.
    Such an overflow would initiate a discharge of the poorest quality, 
highest-sulfate water overland to the Sheyenne River.
    Therefore, instead of lower sulfate water at manageable levels, 
downstream communities--including Valley City, Lisbon, west Fargo, and 
Fargo--would receive high sulfate water at more than 2,200 milligrams 
per liter.
    The State's objective with the west-end outlet is to minimize or 
avoid the effects of a discharge from Devils Lake into the Sheyenne 
that would create problems downstream from either a flooding or water 
quality standpoint.
    We are absolutely committed to working with the downstream 
communities in that effort, just as we are working to mitigate flooding 
in the Devils Lake Basin.
    Dave Glatt, chief of the State's Environmental Health Division, is 
here to provide more specifics.
    He and our health department have been working with other agencies, 
including the U.S. Environmental Protection Agency, U.S. Department of 
State, U.S. Department of the Interior, U.S. Fish and Wildlife Service, 
the White House Council on Environmental Quality, Canadian officials, 
and as you know, your office as well, Senator Dorgan, to properly 
manage operation of the Devils Lake Outlet.
    At the local level, officials from the North Dakota Department of 
Health, the State Water Commission, and the Department of Game and Fish 
have also provided information to city representatives from Devils 
Lake, Valley City, Fargo and other communities.
    These officials have conducted well-attended public hearings in 
Devils Lake, Valley City and Bismarck; and, in addition, participated 
in a local public health board meeting and open public forum in Valley 
City.
    Information on the Devils Lake outlet, moreover, is readily 
available in great detail on the Department of Health and State Water 
Commission Web pages.
    I also want to underscore that the Outlet is just one part of a 
three part plan to address Devils Lake flooding. That effort includes 
mitigation (diking and raising roads); water retention; and the outlet.
    In terms of water retention, Devils Lake has grown from less than 
50,000 acres to more than 160,000 acres. Clearly there is a huge amount 
of water in essence stored in the Lake Region--more than 100,000 acres 
of water.
    Also, more than $500 million has been spent by local, State, and 
Federal entities to mitigate rising waters in the Devils Lake region, 
including raising roads and diking. An additional $150 million will be 
spent over the next 18 months.
    Certainly, the $90 million you secured recently will help raise 
dikes around the city of Devils Lake again, but it will not address the 
issue of an east-end overflow with its downstream impacts. That is why 
we must increase operation of the outlet in a controlled manner.
    To assist in the operation of the Devils Lake outlet, the North 
Dakota Legislature created a 10-member advisory committee, including 
State, county, and tribal members.
    Its management is not determined by any one individual, but rather 
to a group of concerned and involved citizens, each representing the 
interests and concerns of communities throughout the affected region.
    These committee members develop an annual operating plan, which 
considers factors such as spring runoff and flooding potential, as well 
as downstream impacts on water quality and stream bank erosion.
    We did not last year, and we will not, operate while downstream 
communities are facing flooding.
    In addition, the State also continues to conduct complete chemical 
analyses of Devils Lake and the Sheyenne and Red rivers on a regular 
schedule to ensure that they comply with all acceptable EPA and State 
standards.
    In regard to sulfates, the stream standard for the Sheyenne River 
below Baldhill Dam will remain 450 milligrams per liter, as it has 
always been. The State Water Commissions objective is to keep sulfates 
on the Sheyenne through downstream communities below that level.
    To put that in perspective, at 450 parts per million on the 
Sheyenne River, our stream sulfate standard at Valley City is in fact 
better than the Canadian drinking water standard, which is 500 parts 
per million.
    Although the scientific evidence indicates that we are well within 
acceptable levels, we want communities downstream to be assured of 
quality municipal water supplies and are doing what we can to help.
    To that end, the North Dakota Department of Health and the State 
Water Commission have been working closely with the community of Valley 
City, not just to mitigate the possibility of a major flood, but to 
improve Valley City's water supply system.
    To emphasize North Dakota's commitment to Valley City's interests, 
last summer the State awarded nearly $12 million in direct assistance 
for a new municipal water supply system.
    At present, the city's water is treated by a conventional lime-
softening treatment process that does not remove sulfates and minerals.
    The new facility, however, will remove sulfates and other dissolved 
minerals, resulting in significantly higher water quality than the 
community's existing water treatment plant now provides.
    Moreover, the new facility meets not only the city's immediate 
needs, but also its future needs as a growing North Dakota community.
    Similarly, we are committed to operating the outlet in a manner 
that manages sulfate levels in west Fargo and Fargo at levels well 
within the acceptable limit established by the EPA and the State of 
North Dakota.
    To that end, we were pleased to learn that Fargo and west Fargo are 
working together on water treatment for their growing communities, and 
we will do what we can to help them reach their goals, just as we are 
doing in Valley City.
    If they should need technical or financial assistance with their 
project, including reverse osmosis technology, we are committed to 
working with the cities to help. Likewise, we will help if additional 
rip rap is needed for the west Fargo diversion.
    Again, I want to underscore our commitment to protect the interests 
not only of Devils Lake, but of Valley City, Lisbon, Fargo, west Fargo, 
and all of our communities along the Sheyenne and Red Rivers.
    Working together, there is much we can, and will, accomplish.
    Thank you.

    Senator Dorgan. Governor, thank you very much. I'm going to 
call on Mayor Walaker before Mr. Glatt. I believe the mayor has 
to leave in 10 to 15 minutes. So, Mayor Walaker, thank you for 
being here.
STATEMENT OF DENNIS WALAKER, MAYOR, CITY OF FARGO
    Mayor Walaker. First of all, it's a privilege to be here, 
Senator Dorgan. The press conference in the--this coming from 
National Weather Service and we have to be there by 10:45.
    I'm Fargo Mayor Dennis Walaker, and I'd like to thank 
Senator Dorgan and the city of West Fargo for hosting this 
subcommittee hearing regarding the Emergency Rule action on the 
Sheyenne River.
    First, I think some background information would be helpful 
to understand Fargo's position on this matter. The city of 
Fargo utilizes both the Red and Sheyenne for its municipal 
water supply. We think having two surface water sources is a 
good water supply planning and historically, we've utilized 
them both independently and in combination for a variety of 
reasons related to water quality. And the Fargo water system 
presently provides drinking water to the city of Fargo and a 
significant user, the Cass County Rural Water Users District, 
serving a total population of approximately 120,000 people.
    In addition, we have recently begun discussions with the 
city of West Fargo to explore the possibility of a regional 
water supply solution, and it's my understanding that's moving 
forward. There's a possibility that we could treat water and 
serve the city of West Fargo and have maybe a process where we 
could work together that would benefit both cities and that 
seems to be very important to us and very important to them 
because the cost of doing the other part of the process is 
extremely expensive and basically redundant.
    Our water treatment plant was constructed in 1997 with 
treatment technologies that were selected based on historic 
water quality in the Red and Sheyenne Rivers. As far back as 
1975, the USGS historic water quality data on the Sheyenne 
River at West Fargo shows an average sulfate concentration 
around 200 milligrams per liter with an occasional peak of 300. 
The EPA secondary standard for sulfates in drinking water is 
250 milligrams per liter, and the North Dakota Department of 
Health's recommended upper limit for sulfates in drinking water 
is also 250 milligrams per liter. So based on historic water 
quality, it wasn't necessary for our treatment plant to include 
technologies for sulfate removal. And since the plant began 
operating in 1997, we've been able to routinely meet the EPA 
secondary standard and the North Dakota Department of Health's 
recommended upper limit for sulfate concentration in our 
drinking water.
    The Sheyenne River is a critical part of Fargo's water 
supply and drought mitigation plans. As such, we have two 
perfected permits, one for natural flows in the Sheyenne and 
one for stored water in Lake Ashtabula. In addition, Fargo is 
an active participant in the Red River Valley Water Supply 
Project to bring Missouri water to eastern North Dakota during 
periods of water shortages or drought. The preferred option 
utilizes Lake Ashtabula and the Sheyenne River. Fargo's 
participation is, in part, predicated on the water quality that 
allows us to continue to meet the EPA secondary standard and 
North Dakota Department of Health upper recommended limit for 
sulfates in drinking water with our current treatment 
technologies.
    I want to emphasize this is extremely important, and we 
need to emphasize the next statement I'm going to make. We 
certainly--Fargo recognizes the threat of flooding to the city 
of Devils Lake and surrounding areas. We also recognize the 
potential downstream impacts of an uncontrolled overflow from 
Devils Lake. So it is our desire to work cooperatively toward a 
mutually beneficial solution to address the flooding threat in 
Devils Lake and address the potential downstream water quality 
impacts on water systems that utilize the Sheyenne River as a 
water supply.
    The Emergency Rule increased the allowable sulfate 
concentration in the Sheyenne River, measured at a .01 miles 
downstream of Baldhill Dam, to 750 milligrams per liter. Our 
review of historic USGS water quality data indicates that there 
is little or no change in Sheyenne River sulfate concentrations 
between Baldhill Dam and West Fargo. However, it's important to 
note that the Emergency Rule did not change the stream standard 
and correspondingly allowable sulfate concentration in the 
Sheyenne River at West Fargo remains at 450 milligrams per 
liter.
    To that end, we have estimated the modifications necessary 
to our water treatment system to reduce the sulfate 
concentration from 450 milligrams per liter in the Sheyenne 
River to 250 milligrams per liter in our drinking water would 
cost upwards of $45 million.
    We'd hope that an operational strategy can be developed for 
the Emergency Outlet that can control the maximum sulfate 
concentration in the Sheyenne River at West Fargo to the 
historic maximum level around 300 milligrams per liter. If that 
isn't possible, we would like to see a financial assistance 
program to be applied equivalently to all downstream water 
systems for the additional treatment upgrades necessary to 
reduce sulfate concentrations in drinking water to meet the EPA 
secondary standard and that the North Dakota Department of 
Health's upper recommended limit.
    Once again, we want to thank you for the opportunity to 
present our concerns. We would be happy to answer questions--or 
somebody will be here to answer questions, and we also have 
staff present to address the technical matters.
    And, in summary, until we get some more information on what 
you consider, you know, 300 is a figure that--is it arbitrary? 
Yes. Does it create problems? Right now we have a--what we 
consider an extremely good water system in the city of Fargo 
and, of course, there is some fear about it changing, but we 
also want to be able to communicate to the general public 
exactly what they can look forward to or what's going to happen 
and so forth. But the bottom line is very simple; we will work 
with our communities together to come up with a solution to 
this problem. Thank you.
    Senator Dorgan. Mr. Mayor, thank you very much. I 
understand you do have to leave, and I'm sorry about that, but 
I understand your reasons for it so I appreciate your 
testimony. Is there someone here who can answer questions on 
your behalf?
    Mayor Walaker. Yes, Bruce Grubb is here. Matter of fact, I 
can put his up--since mine's on the floor. No. We thank--we 
thank you, Senator Dorgan, for this opportunity. We also fish 
up in Devils Lake. We understand that, you know, the whole 
process. I mean, it's an extremely huge problem. I mean, 
nobody--I repeat nobody--knew then where this was going in 
1993. They didn't have a clue and to go over that, and now it's 
probably got its own weather system right now as far as 
moisture is concerned.
    Senator Dorgan. Well, in 1991 they had a committee called 
the Lake Preservation Committee because there was too little 
water in Devils Lake and it's a big fishing industry.
    Mayor Walaker. Well, they're very appreciative of Jake.
    Governor Hoeven. Excuse me, Senator.
    Senator Dorgan. Yes.
    Governor Hoeven. I'll be going with Mayor Walaker to get 
the flood update, but you've got Dave Glatt here and others who 
can cover.
    Senator Dorgan. He will speak for you?
    Governor Hoeven. Yes.
    [The information follows:]
 North Dakota State Water Commission--North Dakota Department of Health
    The State of North Dakota wants to thank you for your long term 
support of the Devils Lake Outlet program. We hope this response 
answers any questions you may have about the present situation.
    As you know, Devils Lake has risen 27 feet since 1993. In terms of 
acreage, Devils Lake has increased from less than 50,000 acres to more 
than 160,000 acres during this time period. Available hydrologic 
outlooks suggest that water levels will continue to rise. That means 
more than 100,000 acres of land has been flooded. The National Weather 
Service Hydrology Outlook released on March 5, 2010 states that there 
is a 90 percent probability that Devils Lake will reach 1,452.1 feet by 
September 2010. The volume increase from the current elevation of 
1,450.1 feet to 1,452.1 feet is 346,500 acre-feet. An additional area 
of approximately 19,500 acres will be inundated. If an additional 1.6 
million acre-feet of water enters Devils Lake, water would overflow 
into Tolna Coulee. Coupling the prediction for this year with the fact 
that Devils Lake had an estimated inflow of 585,000 acre-feet in 2009, 
as well as inflows greater than 100,000 acre-feet in 2001, 2004, 2005, 
and 2006, suggests that water levels will continue to rise at a rapid 
pace, threatening overflow if no action is taken.
    The current elevation of Devils Lake is 1,450 feet mean sea level, 
only about 8 feet away from an overflow out of Stump Lake. If the rise 
of water into Devils Lake continues, spillover could occur through the 
Tolna Coulee into the Sheyenne River. The water involved in this 
discharge would constitute the poorest quality, highest sulfate water 
in the Devils Lake system. If this occurred, downstream communities, 
including Valley City, Lisbon, West Fargo, and Fargo, could receive a 
large volume of high sulfate water beginning at more than 2,200 
milligrams per liter. To prevent this potential outcome, we plan to use 
the Devils Outlet along with mitigation and water retention methods to 
reduce water levels in the Devils Lake Basin.
    Operation of the Devils Lake Outlet is the most manageable way for 
North Dakota to reduce the risk of the overflow of Devils Lake, and in 
doing so, protects downstream interests. If the Devils Lake Outlet were 
operated at 250 cubic feet per second for 210 days per year, 7.7 inches 
would be removed with a lake elevation of 1,450 feet mean sea level. 
The outlet can potentially remove 110,000 acre/feet of water annually. 
Per your request concerning how many inches of water the Devils Lake 
Outlet would remove if Devils Lake reached 1,455 feet mean sea level, 
5.8 inches would be removed with continuous operation. Although 
operational constraints could limit these amounts, this demonstrates 
the ability of the outlet to greatly reduce water levels in the Devils 
Lake Basin over time.
    One of the methods you suggest to reduce runoff into the Devils 
Lake Basin is landowner participation in a State program designed to 
pay landowners to retain water on their land. There are already several 
State and Federal programs serving this purpose including the State 
Water Commission's Extended Storage Acreage Program (ESAP), which pays 
landowners to store water that would otherwise have contributed to 
flooding around Devils Lake. Over the past 10 years, the ESAP program 
has been storing about 800 acre-feet at a cost of about $12,000 per 
year. Last August, the State Water Commission approved a 10 year 
extension of the ESAP program, allocating $142,250 in funds, 
Unfortunately for the region's agribusiness sector, there is already a 
great deal of involuntary storage of water on land throughout the 
Devils Lake Basin. An important factor worth noting is that farmers are 
often reluctant to flood portions of their fields, fearing inability to 
access the balance of their acreage, reduced crop yield, delayed 
planting, and long term negative impacts to the soil.
    There are already a number of ways in which water is being retained 
in the Devils Lake Basin. Devils Lake itself has increased 110,000 
acres since 1993, from 50,000 acres to 160,000 acres. Satellite imagery 
taken on November 4, 2009 showed that there are 112 square miles of 
surface water in the Devils Lake Basin not including Devils Lake and 
Stump Lake. In addition, the Fish and Wildlife Service has perpetual 
easements on 165,000 acres in five counties alone in the Devils Lake 
Basin. Prior to implementation of the Swampbuster program in 1986, 
farmers were allowed to use legal drains to drain wetland areas, often 
with Federal concurrence and cost-sharing, but since 1986 there has 
been little additional drainage of wetlands. The further retention of 
water on highly productive, valuable farmland would cause grave 
agricultural losses.
    In addition to potential economic, social, and legal barriers, many 
studies by third party experts have shown that use of even a massive 
water retention program would not have a substantial impact on reducing 
drainage into Devils Lake. As an example, a Devils Lake Upper Basin 
Storage Evaluation was conducted for the U.S. Army Corps of Engineers, 
St. Paul District, by WEST Consultants, an independent organization 
from California. This study, conducted in 2001, found that if all the 
depressions that were identified by WEST as possibly drained were 
restored for wetland storage, there would be 127,835 acre/feet of 
storage space available. Use of this potential space would result in a 
reduction of 23,841 acre-feet of runoff into Devils Lake. At present, a 
reduction in input of 23,841 acre-feet would result in a less than 2 
inch reduction in water levels. Wetland restoration is not a complete 
answer to this problem, and would be a costly step that would serve as 
only a small contributing factor to a larger solution. In response to 
your inquiry, we would not recommend that the State Legislature pursue 
measures that would force landowners within the Devils Lake Basin to 
retain more water on their productive farm land. We certainly 
appreciate further ideas from you concerning potential Federal 
participation to turn off the ``faucet'' of upper basin inflows.
    Weighing heavily in our decision to promote the greatest possible 
use of the State's Devils Lake outlet is the immediacy of potential 
overflow into the Tolna Coulee. The water level at which water from the 
Devils Lake basin could overflow into the Tolna Coulee is 1,458 feet. 
Using a United States Geological Service stochastic model which assumes 
that Devils Lake will reach 1,452 feet by June 30, there is a 10 
percent chance that Devils Lake will reach an elevation of 1,458.1 feet 
by 2019 if the outlet is not used. These numbers demonstrate the fact 
that there is a relatively large possibility that Devils Lake could 
overflow into the Tolna Coulee, and ultimately into the Sheyenne River 
within 10 years if no preventative steps are taken. Under the same 
United States Geological Service stochastic model which assumes that 
Devils Lake will reach 1,452 feet by June 20, 2010, if the outlet 
operates at 250 cubic feet per second, constrained to meet the 450 
milligram per liter sulfate level below Lake Ashtabula, there is a 5 
percent chance of the lake reaching 1,458.4 feet mean sea level in 
2019. Operation of the Devils Lake Outlet would reduce the risk of an 
overflow by approximately one-half, and would also reduce the volume 
and duration of a spill should one occur.
    Many factors have been considered with regards to implementation of 
the Devils Lake Outlet, one of the foremost being the maintenance of 
water quality standards. Ensuring appropriate sulfate levels is one of 
the most critical aspects to monitor during this process, and the State 
of North Dakota is working to take necessary steps to ensure that 
sulfate levels do not exceed maximum limits as a result of outlet 
operations. To ensure the 450 milligrams per liter limit below Lake 
Ashtabula, State agencies will conduct extensive monitoring and 
management of Devils Lake Outlet operations. Real time conductivity 
measurements will be recorded at the gage locations, and will be made 
continuously available to the public. These measurements will provide a 
real time estimate of the total dissolved solids and sulfate 
concentrations for operational decisions. During ice free conditions, 
water will be sampled for sulfates 4 days a week at the Devils Lake 
Outlet, and once a week along the Sheyenne River at locations near 
Warwick, Cooperstown, Lake Ashtabula, Valley City, Lisbon and Horace. 
The North Dakota State Water Commission, with review and input from the 
statutorily established Outlet Advisory Committee, will control the 
release of water to ensure that water quality standards are met. 
Moreover, the outlet will not be operated when the releases would 
contribute to flooding downstream in the Sheyenne or Red River.
    Since 2007, Valley City has been in the process of upgrading their 
35-year-old water treatment plant as part of an effort to meet a 2014 
EPA compliance deadline. Valley City officials approached the State of 
North Dakota with a request for assistance in meeting the EPA deadline, 
whereupon $12.5 million of loan and grant funds were provided for the 
project. The State of North Dakota has funded many cities with upgrades 
to satisfy EPA requirements and reduce the use of chemical additives 
during the treatment process. North Dakota is dedicated to providing 
its citizens with a high quality, of sufficient quantity water supply. 
The State will continue this effort with other cities, including West 
Fargo and Fargo, in dealing with water supply issues.
    In summary, there are no easy solutions for the flooding problem in 
the Devils Lake basin. Be assured, the State of North Dakota is taking 
all necessary and reasonable steps to implement the most effective and 
safe measures to reduce or eliminate this persistent, costly problem.

    Senator Dorgan. Let me ask you one question before you 
leave, however, if I might. It relates to the mayor's 
suggestion and the press thing that you referred to. If Fargo, 
for example, and others determine that they need for their own 
reasons to build a $45 million treatment plant, where would the 
money come from for that and is there a commitment from the 
State to fund that?
    Governor Hoeven. Really to be to add reverse osmosis to 
whatever they do and they've estimated roughly that could cost 
$45 million so we'd work with them to do that. Now, again, 
we're going to have to see what--we're not changing the stream 
standard, and Dave can talk to that, but we'll have to see what 
the sulfates are and if that's an issue, yes, then the State's 
going to work with them to do what they need to do whether it's 
reverse osmosis as an add to their treatment plant or whatever 
joint solution they're undertaking anyway then we'll partner 
with them.
    Senator Dorgan. I understand, but I think what the mayor 
was suggesting was if they feel as a result of the science and 
the understanding of the science that they need to do something 
here that he refers to as costing $45 million. One of the 
interests of this subcommittee, because we spend a lot of money 
on water issues around the country, is where will that funding 
come from?
    Governor Hoeven. Oh, we're going to work with them through 
the Water Commission, and we'd love some help from the Federal 
participation as well, but we're certainly going to stand with 
them because this is about making sure that we take a 
comprehensive approach to solving this issue not only for 
Devils Lake but all the communities, Fargo, West Fargo, Valley 
City as we were--have already done. So, yes, we're going to be 
there working with them, and we'd love to have you as a partner 
as well in that bonding effort depending on what it's going--
but if it's $45 million reverse osmosis, we're certainly going 
to work through the Water Commission help with that as we did 
in the past.
    Senator Dorgan. Well, I understand you have to leave and 
with your permission I'm going to send some written questions 
from the committee to you in those areas, but I appreciate very 
much your being here.
    Governor Hoeven. Yes. And, again, I appreciate your support 
in the Devils Lake outlet and this operation. Thank you.
    Senator Dorgan. Thank you. Mr. Glatt.
STATEMENT OF L. DAVID GLATT, CHIEF, ENVIRONMENTAL 
            HEALTH SECTION, NORTH DAKOTA DEPARTMENT OF 
            HEALTH
    Mr. Glatt. Good morning, Senator. Thank you for having this 
opportunity to talk to the subcommittee. It's nice to sit 
sometimes on this side of the hearing table as we go through 
this, but my name's Dave Glatt. I'm chief of the Environmental 
Health Section for the North Dakota Department of Health. Our 
department is responsible for many of the environmental 
protection programs implemented in the State. A number of these 
programs are provided through primacy agreements with and 
oversight by the U.S. Environmental Protection Agency. I'm here 
today to provide a brief overview of the current process 
associated with the water quality standards being proposed and 
considered by the department.
    The issue before the department today relates to the 
proposed change in the sulfate standards from 450 milligrams 
per liter to 750 milligrams per liter for a portion of the 
Sheyenne River from its headwaters to .1 miles downstream of 
Baldhill Dam. It is important to note that the proposed 
Sheyenne River sulfate standard change is part of a larger, 
EPA-required, triennial water quality standard review. The 
triennial review includes changes to the existing standards 
that reflect the current science and status of water quality 
throughout North Dakota. The department is currently in the 
middle of a required public review and comment period set to 
end on March 1, 2010. Upon completion of the comment period and 
prior to making a final decision regarding the proposed water 
quality standards change, the department is required to provide 
a written response to all comments. After the department has 
made a final determination regarding the standards, it must 
seek review and approval from the following: The North Dakota 
Water Pollution Control Board, which is comprised of 
representatives that include private citizens, municipalities, 
State agencies, Federal agencies, agriculture and industry.
    We're also required to get approval from the North Dakota 
State Health Council. Members include the medical committee, 
private citizens, municipalities and industry--industry as 
well.
    We're also required to go through the North Dakota Office 
of the Attorney General.
    We're also required to go through--get approval from the 
Administrative Rules Committee where basic--where they are 
comprised of legislators on that committee.
    And, finally, after that then we are required to go to the 
U.S. Department of Protection Agency, which they review our 
response to comments, the science, and determine whether or not 
those--our determinations can be supported or needs to be 
changed.
    It's important to note that the water quality standards 
will be considered finally--final only after review and 
approval by all of the previously mentioned agencies and 
boards.
    In formulating any proposed decision, whether it is 
concerning a permit or rule, the department must follow 
prescriptive legal requirements and applicable science. In the 
issue being discussed today, the department has evaluated and 
continues to evaluate the following: Historical and current 
water quality data. For several decades we have either 
conducted activities as part of department duties or partnered 
with other State and Federal agencies in the collection of 
water quality data from locations in Devils Lake, the Sheyenne 
River and the Red River to the Canadian border. This continuing 
effort includes the collection of samples for laboratory 
analysis.
    The State Water Commission and the department also have 
partnered with the U.S. Geological Survey to install gauging 
stations at seven locations from the headwaters of the Sheyenne 
River to below the Baldhill Dam, providing web-accessible data 
on a 24/7 basis. Additional USGS water quality and quantity 
stations are located along the Sheyenne and Red Rivers to the 
Canadian border. I also state that all our data, water quality 
data, is available on the Web page and is accessible to the 
public or they can just ask us for it. We will get it to them.
    We've also conducted biota surveys. The department has 
completed biological assessments either on its own or in 
cooperation with other State and Federal agencies. Of 
particular note are the first ones that count--the biota survey 
conducted by the Council on Environmental Quality directed--
they directed that study, a biological survey of Devils Lake 
and also a survey of several locations in the upper Sheyenne 
River conducted by a private consultant hired by the State 
Water Commission. Also a biological diversity assessment 
conducted by the department. And, again, also a survey 
conducted by the International Red River Board Parasite and 
Pathogen survey directed by representatives of the Bureau of 
Reclamation and Canada.
    We've also looked at other water quality standards. In 
evaluating the proposed sulfate change, the department also 
reviewed EPA-approved water quality standards from other States 
to ensure consistency in the standards and science. It's 
important to note that Minnesota has a sulfate standard of 400 
milligrams per liter in their drinking water primarily for 
infants and babies. South Dakota is looking at 500 not to be 
higher than 875, and they're also standards--because it's a 
secondary standard, is non-enforceable primarily because there 
isn't a concern relating to health, but it's more of an 
aesthetic issue. We have several communities in the State that 
drink considerably more than 250 and some above a thousand 
milligrams per liter with no observed health effects.
    Please note that the proposed change for the Sheyenne River 
applies only to the area previously identified and does not 
change any standard essentially downstream of Baldhill Dam or 
on the Red River. We are required as part of our annual review 
to commit and comply with all the existing water quality 
standards downstream, and in our proposed changes it does say 
that we will maintain compliance at 450 downstream and 250 in 
the Red River for sulfate.
    The department is also a strong advocate of the legislature 
authorized Outlet Advisory Committee to ensure that people 
impacted in the Devils Lake area and downstream of the outlet 
have a strong voice in the operation of the outlet.
    The department is keenly aware of its obligations to the 
citizens of the State and also to the EPA in the implementation 
of the Clean Water Act. We are bound by State and Federal law 
to thoroughly assess and evaluate each use and discharge into 
waters of the State for potential impacts on downstream 
designated uses. Potential impacts are evaluated for each 
specific discharge utilizing the best available science and 
applicable law. Discharges include those from point sources 
such as municipal/industrial wastewater systems and from 
agricultural operations.
    This concludes my testimony. I'd be happy to answer any 
questions you may have.
    Senator Dorgan. Mr. Glatt, thank you very much. We 
appreciate you being here. I do have a series of questions. 
Next Mayor Bott, the mayor of Devils Lake. We welcome you.
STATEMENT OF FRED BOTT, MAYOR, CITY OF DEVILS LAKE; 
            PRESIDENT, DEVILS LAKE CITY COMMISSION
    Mayor Bott. Good morning, Senator. Thank you for the 
opportunity to speak with you today regarding the current 
challenges facing the city of Devils Lake and surrounding area 
and the potential implications related to rising water levels 
within the lake. My name is Fred Bott. I'm President of the 
Devils Lake City Commission.
    As you are aware, the city of Devils Lake has faced a 
multitude of challenges resulting from fluctuating lake levels. 
Last year the city reluctantly agreed to enter into a Project 
Cooperative Agreement with the Corps of Engineers to increase 
the protection level of the embankment protecting the city and 
surrounding area. The city was extremely concerned about 
entering into this agreement because we felt that continued 
flooding and increasing lake elevations will have dire economic 
impacts to the city. We understood that if the lake continued 
to rise it would flood an additional 100,000 acres or more of 
prime farmland, flood countless homes, and be devastating to 
our neighboring communities. Therefore, the city of Devils Lake 
fully supports efforts from the North Dakota Department of 
Health and the North Dakota State Water Commission to remove 
additional water from the lake to reduce flood damages.
    With the drastic rise in Devils Lake again this--again last 
year and the continuing precipitation we've been receiving, we 
feel it is imperative that emergency measures be taken to 
address our continued flooding. The city of Devils Lake does 
not want to pass our problems along downstream, but it appears 
obvious to us that if adjustments to downstream water quality 
and quantity requirements are not made to allow increased flows 
from the lake, a natural overflow could result in extreme water 
quality and flooding impacts downstream in the future. Even 
with the expansion of the embankment protecting our area, it 
will not be able to contain the lake should it continue to 
rise. Therefore, working together now to develop effective 
flood relief measures rather than waiting to see if Mother 
Nature will address the issue on her own future is the most 
logical approach to solve this issue.
    On February 11, 2009, I had the honor to testify before 
you, Senator Dorgan, in Washington, DC. One of my statements 
was as follows: 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. By 
the end of February 2009, we knew something was coming. It was 
a rise of 3 feet 7 inches and 36 of those 43 inches remain on 
the lake. As of the morning of February 19, 2010, it appears 
there is a significant chance the lake will experience a 
dramatic rise this spring. Devils Lake is rapidly building to 
an overflow.
    The city of Devils Lake fully supports the proposed water 
quality adjustments within the Sheyenne River and feels 
necessary adjustments need to be made to allow larger amounts 
of water to be removed from the lake to prevent its continued 
rise.

                           PREPARED STATEMENT

    Again, Senator, 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 we are able to work 
together to find effective solutions.
    [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 surrounding area 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.
    As you are aware, the city of Devils Lake has faced a multitude of 
challenges resulting from fluctuating lake levels. Last year, the city 
reluctantly agreed to enter into a Project Cooperative Agreement with 
the Corps of Engineers to increase the protection level of the 
embankment protecting the city and surrounding area. The city was 
extremely concerned about entering into this agreement because we felt 
that continued flooding and increasing lake elevations will have dire 
economic impacts to the city. We understood that if the lake continued 
to rise, it could flood an additional 100,000 acres or more of prime 
farmland, flood countless homes and be devastating to our neighboring 
communities. Therefore, the city of Devils Lake fully supports efforts 
from the North Dakota Department of Health and the North Dakota State 
Water Commission to remove additional water from the lake to reduce 
flood damages.
    With the drastic rise in Devils Lake again last year and the 
continuing precipitation that we have been receiving, we feel that it 
is imperative that emergency measures be taken to address our continued 
flooding. The city of Devils Lake does not want to pass our problems 
along downstream, but it appears obvious to us that if adjustments to 
downstream water quality/quantity requirements are not made to allow 
increased flows from the lake, a natural overflow could result in 
extreme water quality and flooding impacts downstream in the future. 
Even with the expansion of the embankment protecting our area, it will 
not be able to contain the lake should it continue to rise. Therefore, 
working together now to develop effective flood relief measures, rather 
than waiting to see if Mother Nature will address the issue on her own 
in the future, is the most logical approach to solve this issue.
    On February 11, 2009, I had the honor to testify before you Senator 
Dorgan in Washington, DC. One of my statements was as follows: ``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.'' By the end of February 2009, we knew 
something was coming--it was a rise of 3 feet, 7 inches and 36 of those 
43 inches remain in the lake. As of the morning of February 19, 2010, 
it appears there is a significant chance the lake will experience a 
dramatic rise this spring. Devils Lake is rapidly building to an 
overflow.
    The city of Devils Lake fully supports the proposed water quality 
adjustments within the Sheyenne River and feels necessary adjustments 
need to be made to allow larger amounts of water to be removed from the 
lake to prevent its continued rise.
    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 we are able to work together to find effective solutions.

    Senator Dorgan. Mayor Bott, thank you very much. Jon 
Cameron is here on behalf of the mayor of Valley City. Mr. 
Cameron.
STATEMENT OF JON CAMERON, CITY ADMINISTRATOR, VALLEY 
            CITY
    Mr. Cameron. Good morning, Senator. Again, I'm Jon Cameron, 
City Administrator for Valley City, and I'm honored to be here 
today representing Mayor Mary Lee Nielson and the City 
Commission of Valley City. The stated purpose of the hearing 
today is to hear from multiple community officials about the 
impact of the increase in the allowable sulfate levels in the 
Sheyenne River that those will have on drinking water quality 
and those communities served by the Sheyenne River.
    A brief history of the Valley City water treatment plant 
will help clarify the overall understanding of this issue for 
our city. The plant in Valley City was constructed in 1972 and 
basically used a lime softener process for water treatment. 
There are currently two wild water sources utilized by the 
plant, surface water from the Sheyenne River and groundwater 
from the Valley City aquifer, which is under direct influence 
of the river. When the city is operating on 100 percent surface 
water, the plant produces approximately 3 million gallons per 
day. Due to operational limitations of the groundwater wells, 
the plant produces 2.2 million gallons per day running solely 
on the ground--groundwater. It is part of a plan plant upgrade 
program the city recently completed the chlorine chloramine 
contact basin project, which provides control of disinfection 
contact in order to meet Federal drinking water regulation.
    The next phase of our upgrade project was to create 
redundancy in the lime softener line feed system. Planning for 
this project was underway when proposed increase of the sulfate 
levels in Sheyenne River was announced last summer.
    We initiated contact immediately with officials of North 
Dakota Department of Health, State Water Commission, and the 
office of the Governor regarding potential impact of increased 
sulfates in the drinking water in Valley City. At the same time 
we had dialogue with Advanced Engineering and Environmental 
Services Incorporated to contract water engineering firms for 
Valley City. We determined at that time the best and most 
practical way to treat the surface water effectively was 
through the installation of reverse osmosis or membrane water 
treatment facility. The membrane facility would not only treat 
and filter the increased sulfates, but also be able to remove 
turbidity and soften the water.
    Through the efforts of our local elected officials funding 
assistance was obtained through the State Water Commission in 
the amount of $9.2 million. The new system is securing two 
$400,000 corporations for a total of $800,000. And finally $4.6 
million in funds were secured through ARRA, which consisted of 
$2.6 million forgivable loan and $2 million loan payable----
    Senator Dorgan. ARRA is the economic stimulus?
    Mr. Cameron. Yes, sir. That loan $2 million payable over 20 
years at 1 percent.

                           PREPARED STATEMENT

    Our design work is under way and construction should begin 
in late 2010 with a projected completion date of 2011. We in 
Valley City are appreciative of the divine efforts of you, 
Senator, and the State officials of North Dakota to help Valley 
City respond to the water treatment plant issues in a manner 
that will result in a treatment plant to meet all current and 
known future water treatment requirements while at the same 
time minimizing the long-term cost to our locals out there. 
Thank you again for the opportunity.
    [The statement follows:]

                   Prepared Statement of Jon Cameron

    Good morning. I am Jon Cameron, the city administrator in 
Valley City, North Dakota, and I am honored to be here today 
representing Mayor Mary Lee Nielson and the city commission of 
Valley City. The stated purpose of the hearing today is to hear 
from local community officials about the impact the increase in 
the allowable sulfate levels in the Sheyenne River will have on 
drinking water quality in those communities served by the 
Sheyenne River.
    A brief history of the Valley City Water Treatment Plant 
will help with the overall understanding of this issue for our 
city. The plant in Valley City was constructed in 1972 and 
basically uses a lime softening process for water treatment. 
There are currently two raw water sources utilized by the 
plant, surface water from the Sheyenne River and groundwater 
from the Valley City Aquifer which is under direct influence of 
the river. When the city is operating on 100 percent surface 
water, the plant produces approximately 3.0 MGD (2,080 gpm). 
Due to operational limitations of the city's groundwater wells, 
the plant typically produces approximately 2.2 MGD (1,500 gpm) 
when running solely on groundwater.
    As part of a planned plant upgrade program, the city 
recently completed a Chlorine/Chloramine Contact Basin Project 
which provides control of disinfection contact time in order to 
meet Federal drinking water regulations. The next phase of our 
upgrade project was to create redundancy in the lime softening 
and lime feed system. Planning for this project was underway 
when the proposed increase to the sulfate levels in the 
Sheyenne River was announced last summer.
    We initiated contact with officials from the North Dakota 
Department of Health, State Water Commission and the Office of 
the Governor regarding the potential impact of the increased 
sulfates on the drinking water in Valley City. At the same 
time, we had dialogue with Advanced Engineering & Environmental 
Services, Inc., the contracted water engineering firm for 
Valley City. It was determined that the best and most practical 
way to treat the surface water effectively was through the 
installation of a reverse osmosis or membrane water treatment 
facility. The membrane facility would not only treat and filter 
the increased sulfates but would also be able to remove 
turbidity, and soften the water.
    Through the efforts of our local elected officials, funding 
assistance was obtained through the State Water Commission in 
the amount of $9.2 million. Senator Dorgan assisted in securing 
two $400,000 appropriations for a total of $800,000. Finally, 
$4.6 million in funds were secured through ARRA, which 
consisted of a $2.6 million forgivable loan and a $2.0 million 
loan repayable over 20 years at 1 percent. Design work is 
underway and construction should begin in late 2010 with a 
projected completion at the end of 2011.
    We in Valley City are appreciative of the combined efforts 
of Senator Dorgan and State Officials in North Dakota to help 
Valley City respond to the water treatment plant issues in a 
manner that will result in a treatment plant that will meet all 
current and known future water treatment requirements while at 
the same time minimizing the long-term costs to the local 
taxpayers.

    Senator Dorgan. Mr. Cameron, thank you very much. Next, 
we'll hear from Dr. Wei Lin. Did I pronounce that correctly?
    Dr. Lin. Yes.
    Senator Dorgan. Dr. Lin is an associate professor of civil 
engineering at North Dakota State University.
STATEMENT OF WEI LIN, ASSOCIATE PROFESSOR, DEPARTMENT 
            OF CIVIL ENGINEERING, NORTH DAKOTA STATE 
            UNIVERSITY
    Dr. Lin. Good morning, Senator Dorgan. My name is Wei Lin. 
I'm an associate professor in the Department of Civil 
Engineering at North Dakota State University. I'm an 
environmental engineer and my specialty areas are water quality 
management and water in the wastewater treatment. I'm also a 
member of the North Dakota State Water Pollution Control Board. 
I am pleased to provide the following information on potential 
impact of sulfate on various water uses in reference to the 
proposed increase of allowable sulfate levels in the Sheyenne 
River.
    Sulfate is a commonly occurring negatively charged ion in 
natural waters. At high concentrations, sulfate may cause some 
adverse health and environment impacts including taste in 
drinking water and the laxative effects; increase of soil 
salinity and reduction in productivity; corrosion of water 
distribution network; and chemical reactions that affect lake 
water quality.
    Sulfate in drinking water has a secondary maximum 
contamination level of 250 milligrams per liter. A salty taste 
may be experienced when sulfate concentration exceeds 250 
milligrams per liter. Secondary drinking water standards are 
established for aesthetic considerations and are not 
enforceable by USEPA. However, taste and odors in drinking 
water are two of the top consumer complaints according to 
American Water Works Association, a professional organization 
of water industry. Taste in water may lead to consumers 
drinking less water and thus losing their appetite.
    Health concerns regarding sulfate in drinking water have 
been raised because laxative effect of sulfate on infant and 
transient populations. Diarrhea and dehydration conditions may 
be induced by sudden increase of sulfate level in drinking 
water. Infants receiving their first bottles containing tap 
water are more susceptible than adults to diarrheal water loss 
because of differences in gastrointestinal structure and 
function. As a precaution, Minnesota Department of Health 
recommends that water with a sulfate level exceeding 400 
milligrams per liter should not be used in the preparation of 
infant formula. Older children and adults become accustomed to 
higher sulfate levels after few days. Evidence indicates that 
people acclimate to presence of sulfate in drinking water. An 
earlier informal survey conducted by the North Dakota 
Department of Health--actually about 60 years ago, which has 
been often referenced as being a scientific literature, 
suggested that water sulfate level greater than 750 milligrams 
per liter was considered a laxative by most consumers. No 
chronic adverse health impact from exposure to sulfate in water 
has been reported. An expert panel assembled by Centers for 
Disease Control and Prevention recommended a health advisory in 
places where drinking water has sulfate levels greater than 500 
milligrams per liter. Animals are also found sensitive to high 
level of sulfate. In young animals, high level may be 
associated with severe diarrhea.
    High sulfate concentration in Devils Lake is associated 
with high salinity, which is often measured as electrical 
conductivity. Higher the sulfate concentration--or higher salt 
concentration, higher the electrical conductivity. Sulfate is a 
nutrient to plants at low concentrations. Present of sulfate as 
dissolved gypsum calcium sulfate may reduce sodium hazard by 
reducing sodium to calcium and magnesium ratio, called sodium 
adsorption ratio. However, high salinity is proven to have a 
negative impact on crop yield. A recent study conducted by NDSU 
researchers indicates potential accumulation of sulfate and 
increase of salinity in topsoil after irrigating a field with 
water containing relatively high sulfate and salinity.
    Now, I'd like to talk about the potential impact of sulfate 
on the aquatic ecosystem. We all know that under anaerobic 
conditions--that's conditions without oxygen--sulfate may be 
reduced to sulfide through microbial reactions. Hydrogen 
sulfide formed in these reactions gives a rotten egg smell of 
sewage. Sulfate reduction may also occur in organic rich 
sediments in lakes and slow moving rivers. In sediment, sulfate 
serves as an alternative of oxygen and stimulates the 
decomposition of organic matter. As organic matter is 
decomposed sulfate is reduced to sulfide at same time phosphate 
and ammonia is released from decomposed organic matter. Instead 
of forming hydrogen sulfide, sulfide ions in sediment have a 
tendency to bind with metals such as iron and aluminum and 
releasing phosphate that is originally associated with these 
metal ions. Scientists give this process a term internal 
eutrophication. Results from scientific studies show that an 
increase of sulfate concentration may cause more nitrogen and 
phosphorous release from sediments and therefore resulting in 
more algal growth in lakes.
    The importance of increased eutrophication on the aquatic 
ecosystem and--or the impact--I'm sorry. The impact of 
increased eutrophication on the aquatic system and the economy 
could be significant. Algal bloom will not only cause 
unpleasant conditions for recreational use of the lake, but 
blue-green algae may release toxins that make the water unsafe 
for human and animal consumption. Highly eutrophic lakes 
typically have low oxygen level near the bottom and experience 
strong daily oxygen variations in the top layer. Oxygen 
limitation will have adverse impact on the fish population. It 
will cause disappearance of game fish and encourage the growth 
of trash fish. Impact of the increased Sheyenne River sulfate 
level on Lake Ashtabula is not clear and it could be long term. 
Once a lake becomes eutrophic it is very difficult to reverse 
the process. I strongly support a comprehensive monitoring 
program on Lake Ashtabula to track the progression of sulfate 
level and the change in other water quality and ecological 
parameters. I would like to recommend establishment of a 
research program focusing on Lake Ashtabula water quality and 
its aquatic system. The research will include field sampling/
surveying, experimental studies, and model simulations to 
understand the impact of sulfate and other environmental 
stressors on lake chemistry and biological processes to predict 
short-and long-term effects on water quality and ecosystem, and 
to study potential socio-economical impact to the region.
    Sulfates are important in both public and industrial water 
supplies because of the tendency of water containing high 
amounts of sulfates to form hard scales in boilers and heat 
exchangers. Sulfate cannot be removed by conventional water 
treatment process as earlier speakers already mentioned. 
Therefore, high sulfate level in source water will result in 
high sulfate concentration in drinking water unless advanced 
treatment methods are employed in the water treatment plan. 
Effective advanced water treatment methods for sulfate removal 
include reverse osmosis, ion exchange, and distillation.

                           PREPARED STATEMENT

    This ends my testimony. Thank you for your attention and 
opportunity.
    [The statement follows:]
                     Prepared Statement of Wei Lin
    My name is Wei Lin. I am an associate professor in the Department 
of Civil Engineering at North Dakota State University (NDSU). I am an 
environmental engineer and my specialty areas are water quality 
management, and water/wastewater treatment. I am also a member of the 
North Dakota State Water Pollution Control Board. I am pleased to 
provide the following information on potential impact of sulfate on 
various water uses in reference to proposed increase of allowable 
sulfate levels in the Sheyenne River.
    Sulfate (SO22-) is a commonly occurring 
negatively charged ion (anion) in natural waters. At high 
concentrations, sulfate may cause some adverse health and environmental 
impacts, including: taste in drinking water and laxative effects; 
increase of soil salinity and reduction in productivity; corrosion of 
water distribution network; and chemical reactions that affect lake 
water quality.
    Sulfate in drinking water has a secondary maximum contaminant level 
(SMCL) of 250 mg/L. A salty taste may be experienced when sulfate 
concentration exceeds 250 mg/L. Secondary drinking water standards are 
established for aesthetic considerations and are not enforced by USEPA. 
However, tastes and odors in drinking water are one of the top customer 
complaints according to American Water Works Association, a 
professional organization of the water industry. Taste in tap water may 
lead to consumers drinking less water and losing their appetite.
    Health concerns regarding sulfate in drinking water have been 
raised because laxative effects of sulfate on infants and transient 
populations (USEPA, 1999a). Diarrhea and dehydration conditions may be 
induced by a sudden increase of sulfate levels in drinking water. 
Infants receiving their first bottles containing tap water are more 
susceptible than adults to diarrheal water loss because of differences 
in gastrointestinal structure and function (USEPA, 2003). As a 
precaution, Minnesota Department of Health (2006) recommends that water 
with a sulfate level exceeding 400 mg/L should not be used in the 
preparation of infant formula. Older children and adults become 
accustomed to high sulfated levels after a few days. Evidence indicates 
that people acclimated to the presence of sulfate in drinking water. An 
informal survey conducted by the North Dakota Department of Health 
suggested that water sulfate levels greater than 750 mg/L was 
considered laxative by most consumers. No chronic adverse health impact 
from exposure to sulfate in water has been reported (USEPA, 1994). An 
expert panel assembled by the Center for Disease Control and Prevention 
recommended a health advisory in places where drinking water has 
sulfate levels greater than 500 mg/L (USEPA, 1999b). Animals are also 
found sensitive to high levels of sulfate. In young animals, high 
levels may be associated with severe diarrhea.
    High sulfate concentration in Devils Lake is associated with high 
salinity, which is often measured as electrical conductivity. Higher 
the salt concentration, higher the electrical conductivity. Sulfate is 
a nutrient to plants at low concentrations. Present of sulfate as 
dissolved gypsum (calcium sulfate) may reduce sodium hazard by reducing 
sodium to calcium and magnesium ratio, called sodium adsorption ratio 
(SAR). However, high salinity is proven to have a negative impact on 
crop yield. A recent study conducted by NDSU researchers indicates 
potential accumulation of sulfate in the topsoil after irrigating with 
water containing relatively high sulfate and salinity.
    Now, I'd like to talk about the potential impact of sulfate on the 
aquatic ecosystem. We all know that under anaerobic (without oxygen) 
conditions, sulfate may be reduced to sulfide through microbial 
reactions. Hydrogen sulfide formed in these reactions gives a ``rotten 
egg smell'' of sewage. Sulfate reduction may also occur in organic rich 
sediments in lakes and slow moving rivers. In sediment, sulfate serves 
as an alternative of oxygen and stimulates the decomposition of organic 
matter. As organic matter is decomposed sulfate is reduced to sulfide. 
Phosphate and ammonia are released from decomposed organic matter. 
Instead of forming hydrogen sulfide, sulfide ions in sediment have a 
tendency to bind with metals such as iron and aluminum and releasing 
phosphate that is originally associated with these metal ions (Smolders 
et al., 2006). Scientists give this process a term ``internal 
eutrophication''. Results from scientific studies, show that an 
increase of sulfate concentration may cause more N and P release from 
sediments and therefore result in more algal growth in lakes.
    The impact of increased eutrophication on the aquatic ecosystem and 
the economy could be significant. Algal bloom will not only cause 
unpleasant conditions for recreational use of a lake, but blue-green 
algae may release toxins that makes water unsafe for human and animal 
consumption. Highly eutrophic lakes typically have low oxygen level 
near the bottom and experience strong daily oxygen variations in the 
top layer. Oxygen limitation will have adverse impact on the fish 
population. It will cause disappearance of game fish and encourage the 
growth of trash fish. Impact of the increased Sheyenne River sulfate 
level on Lake Ashtabula is not clear and could be long term. Once a 
lake becomes eutrophic it is very difficult to reverse the process. I 
strongly support a comprehensive monitoring program on Lake Ashtabula 
to track the progression of sulfate level and changes in other water 
quality and ecological parameters. I would like to recommend 
establishment of a research program focusing on Lake Ashtabula water 
quality and its aquatic ecosystem. The research will be include field 
sampling/surveying, experimental studies, and model simulations to 
understand the impact of sulfate and other environmental stressors on 
lake chemistry and biological processes, to predict short and long-term 
effects on water quality and ecosystem, and to study potential socio-
economical impacts to the region.
    Sulfates are important in both public and industrial water supplies 
because of the tendency of waters containing appreciable amounts to 
form hard scales in boilers and heat exchangers. Sulfate cannot be 
removed by conventional water treatment processes. Therefore, high 
sulfate level in source water will result in high sulfate concentration 
in drinking water unless advanced treatment methods are employed in the 
water treatment process. Effective advanced water treatment methods 
include: reverse osmosis, ion exchange, and distillation.
    Thank you for your attention and the opportunity.
                               reference:
    Minnesota Department of Health (2006) Well Management, Sulfate In 
Well Water, www.health.state.mn.us/divs/eh/wells/sulfate.html.
    Smolders, A.J.P., Lamers, L.P.M, Lucassen, E.C.H.E.T., Van der 
Velde, G., and Roelofs, J.G.M. (2006) Internal eutrophication: How it 
works and what to do about it--a review, Chemistry and Ecology, 22, 2, 
93-111.
    U.S. Environmental Protection Agency (USEPA) (1994) Fact Sheet--
Sulfate, Office of Water 4603, EPA 811-F94-006, November 1994.
    USEPA (1999a) Health Effects from Exposure to High Levels of 
Sulfate in Drinking Water Supply, EPA 815-R-99-001, January 1999.
    USEPA (1999b) Health Effects from Exposure to High Levels of 
Sulfate in Drinking Water Workshop, EPA 815-R-99-002, January 1999.
    USEPA (2003) Drinking Water Advisory: Consumer Acceptability Advice 
and Health Effects Analysis on Sulfate, EPA 822-R-03-007, February 
2003.

    Senator Dorgan. Dr. Lin, thank you very much. We appreciate 
you being here, and next Mr. Jim Stevens, who represents the 
organization People to Save the Sheyenne River.
STATEMENT OF JIM STEVENS, PEOPLE TO SAVE THE SHEYENNE 
            RIVER
    Mr. Stevens. Thank you, Senator. I feel honored to be here 
today. I did explain to Justin when he called me that I am a 
past president of that organization, but I would have to be 
speaking today as an individual who lives in rural North Dakota 
along the Sheyenne River. My family goes back over 130 years in 
that area, and my great-grandfather homesteaded parts of what 
we have right now and my grandchildren will be the sixth 
generation on this land.
    We are very concerned about the--any added Devils Lake 
water to our river. We've experienced many floods over the 
years and any additional water from Devils Lake can spill out 
onto the fields and up and down the valley, not just our land, 
but down the whole valley and sit on these fields for weeks on 
end, and with the added sulfate levels, could be detrimental to 
our soil.
    In past years the Sheyenne River has decreased to less than 
50 cfs and the banks get a chance to re-vegetate and heal for 
the next flood, which seems to come more often each year. We in 
1993 had a severe summer flood when we got 10 to 12 inches of 
rain in our area and within 24 hours we had a major flood. They 
can't shut down the Devils Lake outlet to help in a situation 
like that. That extra flow could be catastrophe for many local 
citizens and the towns of Fort Ransom, Lisbon, Enderlin, on 
down to the Red River Valley area.
    The State Water Commission and the State Health Department 
have claimed that these high sulfates will only reach a little 
bit below Baldhill Dam and Lake Ashtabula. I wonder if they 
have done enough studies. What is it going to do to Baldhill 
Dam? And it would be hard for me to believe that it will not 
gradually go further down over a number of years. They might be 
looking at the first year. What about 5, 10 years down the 
road? The city of Devils Lake has purchased land in the Tolna 
Coulee and already lowered it 1 foot. They would like to lower 
it another 5 feet. Any farmer cutting a drain would be in deep 
trouble if he tried that, but it seems like the Governor goes 
under him or above the law.
    I know an older gentleman from east of New Rockford who was 
at meetings decades ago when they were planning to increase 
draining in the upper basin to bring water to the salt plat of 
Devils Lake. A man of knowledge stood up and told them if 
you're planning this amount of draining, you better have a plan 
in place when you get too much water, and no one believed him.
    I do not believe that they have done a sufficient amount of 
controlling the water coming into Devils Lake. As long as 
they're ungated, manmade drains coming into that area, they are 
not doing what they should to prevent the flood. It has been 
stated by officials from Devils Lake that they do not want the 
lake to go below 1,446 because it's been very good for their 
economy. They want to turn this into a river and then have your 
Devils Lake outlet. But as was said earlier, the Devils Lake 
outlet would take up to 3 to 4 inches off the lake a year if 
it's increased to this level. Before when they set up the 4 
inches, it took a fraction of an inch. That would never prevent 
a natural overflow anyway. You have to do other measures to 
prevent the natural overflow. If it's going to increase 3 feet 
with all that rain coming into Devils Lake, 4 inches is not 
going to help.

                           PREPARED STATEMENT

    Thank you very much for your time, Senator, and I'm honored 
to be here.
    [The statement follows:]
                   Prepared Statement of Jim Stevens
    In his announcement of the February 19, 2010 hearing in west Fargo, 
North Dakota, to take testimony on the Devils Lake Outlet Project, 
Senator Byron Dorgan made it clear that he believed that ``transferring 
water problems from one region of North Dakota to another'' was not 
acceptable.
    People to Save the Sheyenne agree with Senator Dorgan's assessment 
and wish to add this information as part of the record objecting to the 
construction and operation of the Devils Lake Outlet as a method of 
dealing with excess water on Devils Lake, North Dakota.
    The Main Point of Contention.--What are the chief causes of the 
rise of Devils Lake over the past 25 years and what is the best method 
of dealing with that situation? Officials have not yet considered 
seriously the restoration of upper basin drained wetlands which would 
result in more acres of storage. Since over 350,000 acres of upper 
basin wetlands have been drained, it stands to reason that those 
drained acres contribute to higher levels on Devils Lake.
    Here's What Needs To Be Done First.--A complete and objective 
scientific study by outside experts of the hydrology of the entire 
Devils Lake Basin to determine the extent of the drainage and the 
amount of water that drainage has produced on Devils Lake.
    The North Dakota State Water Commission built its outlet from 
Devils Lake into the Sheyenne River in 2005. The original permit 
limited sulfate levels in the Sheyenne River to 300 milligrams per 
liter. The North Dakota Department of Health increased that limit in 
2008 to 450 mg/L. On July 15, 2009, Governor John Hoeven, using 
Emergency Rules, voided the original permit and approved an increase in 
the sulfate limit in the upper Sheyenne River to 750 mg/L, a move that 
would allow almost unlimited pumping of Devils Lake water into the 
Sheyenne. The SWC is planning to increase the flow of water from Devils 
Lake into the river this year from 100 cubic feet per second to 250 
cfs. Such an increase will result in serious degradation of the water 
quality in the river, turning it into a miniature Devils Lake ditch.
    No scientific, objective studies of the results of adding more 
Devils Lake water to the river have been done. Instead, both the North 
Dakota Department of Health and the SWC have stated that such an 
increase of Devils Lake water would not change the usefulness of 
Sheyenne River water.
    The Governor made his decision without scientific study and without 
consultation with those who will be affected by increased flows of 
Devils Lake water into the Sheyenne River.
    Who should have been involved in making the decision to void the 
original outlet permit? Well, besides Valley City and Barnes County, 
North Dakota, here are a few:
  --The U.S. Fish Hatchery.--Can 50 species of fish (and 9 species of 
        mussels) hatch, survive and thrive in Devils Lake water at the 
        Valley City National Fish Hatchery? If fish (and mussels) 
        reproduce naturally in Devils Lake water, why is Devils Lake 
        still being stocked? How many species live, reproduce and 
        thrive in Devils Lake water?
  --The North Dakota Game and Fish Department.--What will 100,000 acre/
        feet of Devils Lake water do to Lake Ashtabula? What is the 
        North Dakota Game and Fish response to the change in water 
        quality, to what those changes will do to recreation on the 
        lake? What about cabin owners around the lake?
  --The U.S. Army Corps of Engineers.--What changes will the U.S. Army 
        Corps of Engineers make to its operational plan for Lake 
        Ashtabula as a result of 250 cfs additional water for 7 months 
        of the year? Will there be an earlier and deeper spring 
        drawdown? Who has jurisdiction, the Corps or the North Dakota 
        State Water Commission, when it comes to deciding when and how 
        much water to release? What happens when the sulfate level in 
        the lake rises above 450 mg/L? What happens when that water is 
        released downstream into the river?
  --Landowners Along the Sheyenne River.--What will happen to the 
        Sheyenne River between Devils Lake and Lake Ashtabula, once 
        sulfate-and-other-contaminant-laden Devils Lake water becomes 
        80 or 90 percent of the total water in the river? The Sheyenne 
        River between Devils Lake and Lake Ashtabula will contain 
        almost 700 mg/L sulfate. What will that do to the ecology of 
        the river? To livestock?
  --Cities Such as Fargo and West Fargo.--How will the Sheyenne 
        Diversion around west Fargo be impacted by continuously higher 
        flows? More erosion? That's what will occur in the entire 
        Sheyenne River. What difference will higher flows of 
        contaminated Devils Lake water do to Fargo water supply when it 
        draws water from the Sheyenne?
  --Canada.--Have Canadian concerns about biota transfer been 
        adequately addressed? The FEIS of the Corps' Outlet Project 
        seem to indicate that they have not. And what about added 
        levels of contaminated Devils Lake water in general? What about 
        using the International Joint Commission to mediate?
  --The U.S. Bureau of Reclamation.--Where are the studies showing the 
        effects of Devils Lake water on the RRBWSP? Has the Red River 
        Basin Water Supply Project taken Devils Lake water into 
        consideration? If so, what are the ramifications of more Devils 
        Lake water in the Sheyenne? Where are the studies showing the 
        impacts? Is Devils Lake water part of the plan to get Missouri 
        River water to Fargo?
    When the SWC pumps 250 cubic feet per second Devils Lake water into 
the river and the RRVWSP adds another 125 cfs, what will the effects be 
on erosion and flooding along the Sheyenne River? When the river flows 
at less than 50 cfs in the fall of the year, what will adding 600 
percent more water do?
    All of these affected parties should have facts and scientific 
data--not just verbal assurances--to reveal the effects of adding 250 
cfs Devils Lake water to the Sheyenne River.
    But when Governor Hoeven on July 15, 2009 signed the letter 
allowing the use of Emergency Rules to void the permit to drain and 
replace it with a plan that will allow degradation of the Sheyenne 
River, none of these constituents had any voice in the matter. An 
arbitrary and capricious act replaced science, common sense and 
community involvement.
    People to Save the Sheyenne requests U.S. Senate Appropriations 
Subcommittee on Energy and Water Development withhold Federal funding 
for Devils Lake projects, including money to be spent on 
infrastructure, until a complete, comprehensive hydrologic study of the 
entire Devils Lake Basin, including causes of the rise of Devils Lake 
and methods of dealing with the problems, has been authorized and 
initiated.
                                 ______
                                 

               [From the Times-Record, February 15, 2010]

  State Officials Not Dealing Truthfully When it Comes to Devils Lake 
                                 Outlet
    North Dakota Department of Health Administrator Dr. Terry Dwelle, 
Environmental Health Section Chief L. David Glatt and Assistant State 
Engineer Todd Sando's February 8 letter responding to the Times-
Record's February 2 editorial on the Devils Lake outlet warrants a 
factual response.
    They claim State agencies have informed numerous Federal agencies, 
including the U.S. Environmental Protection Agency, U.S. Fish and 
Wildlife Service, U.S. Department of State, the White House Council on 
Environmental Quality and Canadian officials about flooding at Devils 
Lake and operation of the outlet. What they fail to say is that much of 
the information they have provided to Federal agencies, Canadian 
officials and the public regarding the operation of the outlet has been 
incomplete, misleading and frequently deliberately false.
    For example, based on information provided by North Dakota 
agencies, Senators Byron Dorgan and Kent Conrad and Congressman Earl 
Pomeroy told U.S. Department of State officials on July 12, 2005 that 
it was imperative to disregard the concerns of Canadian officials and 
allow immediate operation of the outlet because: ``The longer we 
postpone the solution to this flooding crisis, the more danger North 
Dakota, Canada, and surrounding areas will face. The Devils Lake outlet 
project needs to be in full operation as soon as possible.''
    By 2008, the $28 million outlet had removed the equivalent of one-
tenth of an inch of water from the lake at an annual operating cost of 
over a quarter of a million dollars, and by 2009 the lake was 10 inches 
higher than it was before the outlet began operation.
    They neglect to mention that State Engineer Dale Frink made 
deliberately false statements regarding the operation and efficacy of 
the outlet in his August 30, 2002, application for a North Dakota 
Pollution Discharge Elimination System permit for the project, or that 
the Department of Health knew the statements were false but approved 
the permit anyway.
    The statement that, ``More than $800 million of State and Federal 
funds have been spent in recent years on storing more water in the 
upper basin, raising and protecting infrastructure, and building an 
outlet'' is seriously misleading. Most of the $800 million that have 
been spent dealing with the rising level of Devils Lake have been 
Federal taxpayer funds. From 1996 to 1999, while inflows to Devils Lake 
were averaging 317,000 acre-feet per year, the State spent $3.5 million 
annually to store an average of only 17,345 acre-feet of water per 
year. By 2009, when record inflows occurred to Devils Lake, the State's 
upper basin water storage program was down 769 acre-feet.
    Dwelle, Sando and Glatt also neglect to mention the $1.5 million 
U.S. taxpayer dollars that the State squandered on an experimental 
irrigation project to utilize water in the upper basin that anyone with 
a $4.95 calculator could see would be worthless in lowering the lake.
    They ignore the contribution of the drainage of 358,000 acres of 
wetlands in the Upper Devils Lake Basin--condoned and frequently 
promoted by the State engineer--to the rise of Devils Lake. Because 
wetlands in the Devils Lake Basin have the capacity to store an average 
of 1.7 feet of water and because the area had been in a drought for 4 
years, 623,500 acre-feet of storage were no longer available as a 
result of wetland drainage when high levels of precipitation hit the 
area in 1993. The drainage of those 358,000 acres of wetlands has 
reduced the net loss of water in the Upper Basin through evaporation by 
another 239,000 acre-feet per year, indicating that as much as 75 
percent of the inflows from 1993 to 1999--and 40 percent of the record 
inflows in 2009--were the result of the loss of evaporation capacity 
from drained wetlands.
    They say that Devils Lake is ``within just 8 feet of an 
uncontrolled release of the poorest quality, high-sulfate water from 
the east end,'' but they neglect to mention that it would take another 
1.9 million acre-feet of water to raise Devils Lake to its natural 
overflow elevation of 1,459 feet, and by that time, evaporation would 
be removing over 700,000 acre-feet per year--seven times what the 
outlet operating at 250 cubic feet per second for 7 months would 
remove. They also do not mention that it would take 6 years for the 
outlet operating at 250 cfs just to remove last spring's inflows.
    They claim that their objective is to avoid a catastrophic 
uncontrolled overflow from Devils Lake, but by not taking action to 
prevent the city of Devils Lake from lowering the natural outlet to 
1,458 feet, they have actually doubled the chance (from 3.2 to 6.1 
percent) of a major uncontrolled overflow (where the discharge would 
exceed those of the State's 250 cfs outlet by another 50 cfs) to the 
Sheyenne River within 10 years. Lowering the outlet to 1,458 feet means 
that an additional 269,000 acre-feet of poor quality Devils Lake water 
would be discharged initially into the Sheyenne River as a result of 
lost storage if the lake should rise to its overflow elevation, and the 
discharge would be increased by 23,000 acre-feet every year as a result 
of lost evaporation from the lake because of its smaller surface area.
    They claim that the proposed increase of the sulfate limit in the 
Sheyenne River to 750 parts per million ``is protective of aquatic 
life, as well as recreational and agricultural uses,'' but they ignore 
the numerous serious adverse impacts to aquatic life and recreational 
and agricultural use of the Sheyenne River identified by the U.S. Army 
Corps of Engineers for an outlet constrained by a much lower 300 ppm 
sulfate limit in the Sheyenne River.
    They neglect to mention that data from the State Water Commission 
show that the 450 ppm sulfate limit originally established by the 
Department of Health for the Sheyenne River was never reached in the 
area downstream from the outlet before operation of the outlet began. 
Nor do they mention that the department's own regulations require it to 
maintain water quality in streams when it is better than the 
established standards.
    They say that the awarding of $12 million to incorporate reverse 
osmosis in Valley City's new water treatment plant in order to remove 
sulfates and other minerals ``is a clear signal from the State that the 
interests of Valley City are important and will be protected.'' They do 
not mention that the reason a reverse osmosis system is necessary is to 
treat the increased levels of sulfates and other minerals from the 
Devils Lake outlet. Nor do they mention that the Corps of Engineers has 
determined that operation of an outlet constrained by a much lower 300 
ppm sulfate limit in the Sheyenne River would increase downstream water 
treatment costs by $1.7 to $3.3 million annually. Governor John Hoeven 
appointed the administrator of the Health Department and, as chairman 
of the State Water Commission, he was instrumental in appointing the 
State engineer and is responsible for oversight of the State engineer 
and his staff. It is time for State officials to start dealing 
responsibly and truthfully with the problem of rising water levels at 
Devils Lake.

                                              Gary Pearson,
                                           Jamestown, North Dakota.
                                 ______
                                 

               [From the Times-Record, February 2, 2010]

             ``Sign of Hope: Dorgan Speaks on Devils Lake''
     For the first time since July, there's hope that the imminent 
increase of chemical-laden Devils Lake waters into the Sheyenne River 
might be stopped.
    In a conference call with news media last week, Senator Byron 
Dorgan said he wanted to examine effects of Devils Lake water on 
downstream communities, including Fargo and Valley City. Since July, 
when the North Dakota Department of Health allowed higher sulfate 
levels into the Sheyenne, it's the first time a State leader has talked 
publicly about concerns over the issue. This is big news.
    ``I am not interested in transferring the problems from one region 
of our State to another,'' Dorgan said, as reported in The Forum of 
Fargo-Moorhead.
    The sulfate level threatens the health of residents in Valley City, 
which gets its drinking water from the Sheyenne. Indeed, the sulfates 
put at risk all who rely on the river for farming, recreation or 
living.
    And at little gain. The State has been installing pumps at Devils 
Lake to increase the flow into the Sheyenne from 100 to 250 cubic feet 
per second. At the higher rate, only 6 inches of water will come off 
the lake a year, according to Dave Glatt of the Health Department. 
Unless something is done, the pumps will start up this summer.
    Glatt doesn't care that Valley City and other communities are at 
risk. Neither, apparently, does Governor John Hoeven, who heads the 
State Water Commission and approved the increased levels.
    Other chemicals, which the State doesn't measure--including 
arsenic--will flow with the sulfates. The threat to the public is 
clear.
    And yet until Dorgan spoke up, no State official had said anything. 
Not even a petition signed by 700 Valley City residents last fall 
calling for a study of the increased chemicals' effects generated a 
word from the Health Department or the State Water Commission. Where is 
Hoeven?
    We hope Dorgan can do something. A yet-to-be-installed reverse 
osmosis water system in Valley City hardly justifies ruining a river.
    The Senator will host a field hearing of the Senate's Subcommittee 
on Energy and Water Development on February 19. As The Forum reported, 
the meeting will look at the release of water from Devils Lake on 
downstream communities.
    The first thing that should be done is an independent agency should 
conduct a comprehensive assessment on the effects of sulfate and other 
chemicals in the river. That's the right thing to do.
                                   Lee Morris, News Editor,
                           Times-Record, Valley City, North Dakota.
                                 ______
                                 

               [From the Times-Record, January 25, 2010]

                    Increased River Flow Needs Study
    Lee Morris' editorial in the Valley City Times Record on January 8 
related to the increased sulfate levels in the Sheyenne River was 
comprehensive and accurate. Valley City is a lovely town and we must 
all work to protect it and its residents. Increased flows in the river 
increase the risk of flooding and cause health concerns.
    The North Dakota Department of Health is holding a hearing on 
February 17 on increasing the flow out of Devils Lake thereby 
increasing the sulfate levels in our river. They will decide on the 
allowable sulfate level. The State Water Commission will decide on how 
much water is allowed to flow out of Devils Lake into the Sheyenne 
River.
    Before any water is allowed to flow from Devils Lake into the 
Sheyenne River from either the east or the west end, a comprehensive 
study, including an environmental impact study, and expert hydrological 
assessment must be done by an external agency (i.e., an organization 
not connected to the State of North Dakota). Over 700 people in Valley 
City signed such a petition with signatures collected in a very few 
days. We hope our State agencies will listen.
                                               Sharon Buhr,
                                         Valley City, North Dakota.
                                 ______
                                 

                [From the Times-Record February 4, 2010]

                   Devils Lake Study Must Come First
    It was somewhat heartening to read the article in The Forum on 
January 29 quoting Senator Byron Dorgan, D-N.D., in regard to flooding 
in the Devils Lake basin: ``. . . I have always insisted, I am not 
interested in transferring the problems from one region of our state to 
another.''
    I wish Governor John Hoeven and the State's water and health 
commissions felt the same. Particularly alarming is the fact that the 
Governor and his commissions continue to press for increased flows into 
the Sheyenne River from the Devils Lake outlet without a thorough study 
of the environmental impact downstream.
    Obviously, such a study should have been done years ago, before the 
outlet was built. But it is still not too late for that to happen, 
especially since it has been shown that increasing flows into the 
Sheyenne will have very little impact on the water level in the Devils 
Lake Basin, but once that water, high in sulfates and other 
contaminants, is in Lake Ashtabula and the Sheyenne River, the damage 
could be significant.
    The damage could be even greater than what Dave Glatt of the State 
Department of Health talks about: ``diarrhea in small animals and 
intestinal problems for transient populations.'' For Valley City, those 
``transient populations'' include university students, hospital and 
care center patients, tourists, visiting sports teams and other 
visitors.
    And it is important to keep in mind that Devils Lake does not get 
its drinking water from the lake, but Valley City does take its 
municipal water from the Sheyenne. Important, too, is the increased 
flooding downstream and very likely harm from other contaminants.
    We could easily be, in Dorgan's words, ``transferring problems from 
one region to another.'' Let's not transfer anything until we are sure 
what we are doing.

                                              Kay Kringlie,
                                         Valley City, North Dakota.
                                 ______
                                 

               [From the Times-Record, February 8, 2010]

                         Letters to the Editor
    About a month ago a regional gossip column took issue with folks 
who opposed degrading the Sheyenne River with water from Devils Lake. 
The writer called those who criticized the Devils Lake outlet ``a 
handful of prevaricators.'' He went on to say that the outlet has not 
had ``any discernable effect'' on the river.
    No ``discernable effect''? Since when does glancing at the Sheyenne 
River tell you about water quality?
    Let's assume that one ``lie'' might be that Devils Lake water will 
degrade the Sheyenne River. If that is false, why is the North Dakota 
State Water Commission helping pay for a new Valley City water 
treatment plant, one that will help deal with the increase in sulfates 
from Devils Lake? Even the North Dakota Department of Health admits 
that water high in sulfates will taste bad, though that's merely an 
``aesthetic'' issue, they claimed.
    More serious than aesthetics are the other contaminants in Devils 
Lake water. Higher levels of phosphates, nitrates, chlorides and total 
dissolved solids, among others. Don't forget the arsenic, which will 
increase from about 5 milligrams per liter in the river to 12-15 mgl 
with Devils Lake water. Devils Lake doesn't use water from Devils Lake 
(See www.nd.water.usgs.gov/devilslake/science/hydrology.html).
    The ground water wells from which Valley City gets its water are 
recharged from the Sheyenne River. What happens to the river happens to 
the city's drinking water.
    When the outlet is pumped at 250 cfs, it could remove about 100,000 
acre-feet per year from the lake. About 7-8 inches. Since Lake 
Ashtabula holds about 70,000 acre-feet, all of the water in the lake 
will be replaced every year with that from Devils Lake. Where are the 
studies that show the effects on the hydrology and the ecology of the 
river and the lake?
    How many fish species will remain, how many mussels, and how that 
water will affect cattle? Who is responsible for the extra bank erosion 
and flooding that the added 250 cubic feet per second water flow will 
produce?
    Where are the studies that describe all of these effects?
    As Senator Dorgan said when he scheduled a February 19 hearing on 
the Devils Lake water issue, he was ``not interested in transferring 
the problem from one region of our state to another.'' And that's 
exactly what outlet operation has done and will continue to do.
    It's time to separate the prevarication from the facts so that 
North Dakotans can make responsible, long-term decisions about the best 
ways of dealing with Devils Lake water.
    Taste tests prior to the river becoming contaminated with Devils 
Lake water don't count.
                                           Richard Betting,
                                         Valley City, North Dakota.

    Senator Dorgan. Mr. Stevens, thank you very much. I 
appreciate your testimony.
    Let me ask a series of questions and then I will open it up 
for others who wish to testify.
    Mr. Grubb, do you want to take a chair up here and be 
available for questions?
    Mr. Glatt, I don't know that you're the one who asked this, 
but if the outlet is increased to 250 cfs, what is the period 
of time that you estimate it will operate during the year? If 
it operates during that period of time, how much will it take 
off the lake?
    Mr. Glatt. Senator, how much it operates will depend a lot 
about on what the conditions are and how much additional water 
will be in the river. As we stand today, we are constrained by 
water quality standards so that will dictate how long that 
outlet will actually operate and at what level. I don't have 
exact numbers in front of me today. It could operate at 250 csf 
for a period of time, but that is going to be constrained about 
that water quality and the backdrop and not to exceed the 
limits that we put----
    Senator Dorgan. But you must be modeling what you could 
achieve with this and so----
    Mr. Glatt. Yes. Yes. At maximum level--that's correct. It 
has maximum amount of--if we went to a period of operation, ice 
free conditions, it's my understanding if we went to 250 cfs it 
would take off about 6 inches off the lake.
    Senator Dorgan. But what does your modeling expect you to 
be able to take off the lake at this point given what you 
expect to be able to operate at?
    Mr. Glatt. Senator, what I can tell you is from past 
experience and what we saw last year was about 2 inches, with 
the amount that was taken off would be somewhere between like 2 
inches and 6 inches depending on the natural conditions and how 
much water is actually flowing.
    Senator Dorgan. At 2 inches is at 100 cfs?
    Mr. Glatt. That's at 100 cfs, that's correct.
    Senator Dorgan. And you would probably average 175 cfs. 
You're not going to be able to run at 250. You could but you 
can't do that continually----
    Mr. Glatt. Right
    Senator Dorgan [continuing]. So you're talking 3 or 4 
inches off the lake?
    Mr. Glatt. That's about roughly my position, sir.
    Senator Dorgan. The testimony of the mayor in Fargo, and I 
suspect that the concern of Valley City and probably West 
Fargo, about the issue of treatment is because from their 
perspective they anticipate that there will be higher levels of 
sulfates reaching their communities, which would require them 
to have more effective treatment.
    The question I would ask, Mr. Glatt, is if you were the 
mayor of West Fargo or Valley City and anticipating what you 
are planning to do, would you want and insist on additional 
treatment plans for your water?
    Mr. Glatt. First of all, I don't know if I could handle a 
mayor's job but----
    Senator Dorgan. Could you put the microphone a bit closer 
for me.
    Mr. Glatt. Sure.
    Senator Dorgan. Thank you.
    Mr. Glatt. What clearly, Senator, that--when we're--a 
couple things here. First of all, the standards for the stream, 
the portion that flows by West Fargo that flows into the Red 
River, those standards stay the same, but clearly then the 
water quality is going to shift. There will be a shift in the 
sulfate concentration. We do have systems in the State that 
drink significantly higher than the 450. It comes down to a 
policy decision what the city is willing to deal with, what 
they've seen in the past as ranges of sulfate concentration, 
and that will be a local decision. Some cities obviously have 
said that is not a problem for them. They can deal with the 
higher levels. Other ones obviously have said, no, we're 
concerned----
    Senator Dorgan. Which cities have said the former?
    Mr. Glatt. Well, that--we have cities--several of them. I 
can get you that list of the cities that drink significantly 
higher than 250, significantly higher than 500.
    Senator Dorgan. On the Sheyenne?
    Mr. Glatt. Not on the Sheyenne. These are public water----
    Senator Dorgan. We're just talking at this point about 
communities on the Sheyenne.
    Mr. Glatt. On the Sheyenne I have not heard that because 
really at this point in time the water quality hasn't impacted 
them to that level. We're just starting the operation of the 
outlet at 100 cfs.
    Senator Dorgan. Let me ask you as well, I have the new 
National Weather Service forecast that was just released, and 
they're talking about the current lake level outlook surpassing 
something just less than a 2 foot rise this spring, slightly 
less than they predicted last fall, but then the fact is nobody 
knows. We have had 1 percent occurrences predicted, and we've 
met them.
    Assume for a moment that Devils Lake goes from 1,450 to 
let's say 1,455, at that level because this is a bowl and it 
takes massive amounts of water to fill the top of the bowl as 
does the bottom of the bowl, at 1,455, 1,456 we're getting 
close to an overflow, but at that point, what does a 250 cfs 
running on average 175 a year take off the lake? Because the 
lake is much broader, much larger, much more water, and my 
guess is you're going down from 3 inches to substantially less 
than that; is that correct?
    Mr. Glatt. I think that essentially is correct. I would 
refer those questions to the State Water Commission. They deal 
more with the water quantity issues, and we deal with the 
quality, but clearly as you have more surface area you'll have 
more chance for evaporation and it doesn't come up quite as 
high. I will say we were hopeful last year for a fair amount of 
evaporation and that did not occur and the water level did not 
drop as much as we were hoping for.
    Senator Dorgan. Is the State Water Commission here or 
someone from the State Water Commission?
    Mr. Frink. Yes.
    Senator Dorgan. Let's assume that lake is at 1,455, which 
spreads dramatically from its current level and consumes far 
more acreage and so on, and you're operating an average 175 
cfs. At that point how many inches are you taking off the lake 
in a year without them in operation?
    Mr. Frink. Senator Dorgan, I'm Dale Frink with the State 
Water Commission, and I think the 3 to 4 inches--or 4 inches is 
probably a realistic number off the lake. We know that we 
cannot take 250 cfs off the lake. The 2 inches we took off last 
year also we could have pumped another month. So even at a 
hundred cfs it wouldn't have been more than 2 inches maybe 2\1/
2\ to 3 inches if we would just turn that on. But we--it's--
what we're really dealing with is it's somewhat what I call 
risk management and that, you know, we're taking it off the 
west side. One advantage of doing that is it's a pump, which 
means there's a switch, and by closely monitoring the situation 
downstream and we do have--we have some control.
    On the other hand, if we just sit and do nothing, there's a 
chance it's coming out the east end, and that is much more 
water, and you don't have certainly the control. You don't have 
a switch on the east end. So what we're trying to do is trying 
to manage a very difficult situation here, but we--we 
understand you just can't--we're not going to be able to turn 
on the 250 and just leave it.
    Senator Dorgan. But my question is different than that. My 
question is, assuming the lake is higher than current level, 
it's at 1,455, which means it's much, much broader and there's 
far more water, I believe that in order to get to the spillover 
it would take about 40 percent more water than now exists in 
the entire lake. If that is the case, what I'm trying to 
understand is what is the margin of safety you get from these 
increases when you get a lake at 1,455? It is not 3 or 4 inches 
a year then. It is, I would guess, essentially less than that. 
I'm just trying to understand if someone has modeled that?
    Mr. Frink. We have those numbers. I don't necessarily have 
them, but if we could take off 4 inches now, we'd probably take 
off 3. One advantage we do have when it goes to 1,455 is that 
we're dealing with a little bit better water in Devils Lake, 
which means you would probably be able to pump a little more 
water out and still meet those standards.
    Senator Dorgan. All right. Thanks for being available. I 
have a couple of other questions as well, but, Bruce, if Mr. 
Glatt says your standards are going to remain stable in Fargo, 
why would you be interested and why would you need additional 
treatment options?
    Mr. Grubb. Well, we certainly recognize that the stream 
standard is not changing at West Fargo where our intake is 
located. That stream standard will remain at 450 milligrams per 
liter. I think really from Fargo's perspective it's more of a 
historic water quality issue on the Sheyenne River as the mayor 
mentioned. Historic records that we've looked at the USGS have 
indicated that over the past 50 years sulfate levels in the 
Sheyenne River have been on average in that 200 milligram per 
liter range. Seen occasional spikes where it's gotten up in the 
300 milligram per liter range. Thus, we designed another 
surface water treatment plant to utilize both the Red and the 
Sheyenne Rivers, and we designed around that quality of water. 
That being said, since our plant has been in operation, we've 
been able to deliver to our customers a sulfate concentration 
that meets both the EPA secondary standard----
    Senator Dorgan. Which is?
    Mr. Grubb [continuing]. Of 250 milligrams per liter. And 
the North Dakota Department of Health's upper recommended 
public standard of 250 milligrams per liter. We'd like to be 
able to continue participating with the Devils Lake outlet.
    Senator Dorgan. Why is it important that you continue that?
    Mr. Grubb. Well, I think two things. It's the public 
standards. I think that most water systems not unlike ourselves 
are proud of our ability to deliver water quality, even though 
these aren't enforceable standards, that we can meet that. We'd 
like to continue to do that. We've established that history 
with our customers.
    Senator Dorgan. You could not continue to do that if the 
sulfate levels----
    Mr. Grubb. Well, the comment was made about our use of the 
Sheyenne River. I mean, obviously we think it was good water 
planning, secure two water sources, the Red and the Sheyenne 
River. Over the past 5 years, we have used water from the 
Sheyenne exclusively a low 18 percent of the time in 2005. The 
very next year, the prior year 2006, we used it 55 percent of 
the time. So we do rely on the Sheyenne River as part of our 
water management and drought mitigation plan. So if we are 
exclusively utilizing water from the Sheyenne River and it 
achieved the current stream standard of 450 milligrams per 
liter, in order for us to be able to treat that so that the 
drinking water that we put out meets that 250 milligram per 
liter level that we prided ourselves in, we think we would need 
reverse osmosis treatment and that's what the mayor referred 
to----
    Senator Dorgan. That would cost you $45 million?
    Mr. Grubb. Yes. We've looked at a sulfate concentration in 
the Sheyenne River that meets that current stream standard of 
450 milligrams per liter. We use an average of 12 million 
gallons a day. We think that we'd have to treat up to 8 million 
gallons of that and then we would reblend those sources back 
and we'd be able to achieve our 250 milligrams per liter 
number.
    Senator Dorgan. Mr. Cameron, with respect to Valley City, 
your desire and determination to have a reverse osmosis 
treatment was predicated on what basis?
    Mr. Cameron. It's predicated basically on the worst case 
scenario of sulfate levels reaching the 450 and potential of a 
catastrophic effect of an overflow from the eastern end of the 
lake as well.
    Senator Dorgan. Mayor Bott, help me understand something. I 
know there was great controversy in Devils Lake about the issue 
of raising the levee. I didn't quite understand that because it 
seemed to me that protecting the city in the face of the kinds 
of projections that were out there, rising lake levels, was 
essentially necessary. Probably not particularly today, but can 
you tell me as we talk about a range of issues here--I've 
talked about the $90 million that I was able to achieve for the 
Federal share of that--please describe the context of raising 
levees and running an outlet and doing things to try to protect 
roads and keep the economy working. What was the controversy in 
respect to raising the levee?
    Mayor Bott. I think part of the controversy was that it 
took place in 2008--or I should say in the summer of 2008. It 
took place before the prediction came out in February of last 
year that the lake was going to be coming up and it already 
came up 3 feet. We hadn't had 2 years where there was minimal 
rise in the lake. In fact, it was noticeable that it hadn't 
gone down, and hope springs eternal then, we really kind of 
hoped maybe this was over. Even though there were predictions 
that the wet cycle wasn't over but, you know, it was more than 
a year it was noticeable. And to raise and extend what is now 
the embankment to impact more property owners, to impact the 
community financially because you know about the local match, 
there was a feeling of some that if the lake isn't going to 
come up, why do we need to do this? Why do we need to spend the 
money? Why impact the property? We'll take our chances that 
it's done coming up. Well, unfortunately, it did come up and 
now we're back in that situation. So I can't speak for those 
people, but now they would maybe fatalistically accept that 
that was the right plan. It's not over yet. We still meet that 
potential.
    Senator Dorgan. Mr. Glatt, Mr. Stevens raised the question 
and I think Dr. Lin raised the question of the effect of higher 
sulfates on productive cropland. Have you modeled that and 
studied that?
    Mr. Glatt. We've done some work on that. Looking at what 
the board put together, and I don't have that information with 
us, but that's something that will be addressed as part of our 
public comment review hearing.
    Senator Dorgan. Dr. Lin, you described circumstances in 
which productivity of land that is widely receptive to higher 
sulfate levels could have decreased productivity. Is that a 
significant concern or is it an insignificant concern?
    Dr. Lin. I talked with our agriculture and soil scientist 
on this issue and in conducting research by using coulee water. 
I don't remember which coulee, but the water for testing in the 
Devils Lake area and therefore the results show the top layer 
was increased in sulfate concentrations. They're still working 
on their report so I cannot report to you what would be the 
impact on yield at this time, but based on knowledge from soil 
scientists and agriculture experts the higher salt 
concentration will have an impact on crops, but the impact--how 
big the impact will be--depends on the type of crops and also 
the type of soil.
    Senator Dorgan. Mr. Stevens, Mr. Glatt I know has held a 
number of regional meetings and perhaps hearings on these 
issues. Have you attended any of those?
    Mr. Stevens. Yes, I have.
    Senator Dorgan. Have you requested information and received 
information that responds to some of your interests and 
concerns?
    Mr. Stevens. A few years back I did when I was more 
involved in the--this group that you mentioned. I haven't in 
recent years, but we do not believe in our area that enough 
studies have been done as to what's going to happen down the 
road. They're looking at the first year. If they're going to 
run this for a number of years, apparently, I hope it's going 
to settle out in Ashtabula, but if it does not, in 5 or 10 
years down the road or even maybe less, how are they going to 
restore the damage that they've done? I mean, they're not 
getting enough benefit. As you mentioned earlier when this gets 
up and spreads out, you asked these questions on how much it's 
going to take off the lake and they're very iffy about it as 
you noted.
    Senator Dorgan. Mr. Glatt, how far out are you modeling? 
What kind of modeling are you doing?
    Mr. Glatt. Well, Senator, there's been extensive work done 
to--before it comes to modeling. Currently the USGS is doing 
additional modeling as it relates to water quality impact 
downstream under various scenarios and various lake levels. In 
addition to that we've got an extensive water quality data base 
working on water quality in Devils Lake and the Sheyenne prior 
to the outlet, during the outlet operation, and then after the 
outlet, and we've seen how the river responds and what we can 
expect and anticipate in water quality changes. That has been 
done and continues to be done today. So a lot of that data is 
available and is being done, and we do anticipate ongoing 
monitoring. Just because a standard's changed, doesn't mean we 
stop. I mean, we will continue to monitor. Monitoring goes on 
every 2 weeks collecting natural water quality samples. It goes 
on throughout the year and on top of that we still have the 
USGS stations that provide us 24/7 so----
    Senator Dorgan. Were you with the Health Department when 
the outlet was built?
    Mr. Glatt. Yes.
    Senator Dorgan. But when the outlet was built, there were 
projections I know from the Water Commission and the Health 
Department in terms of how it would operate and then it didn't 
operate for some significant amount of time, and I never quite 
understood whether they just missed the understanding of what 
the sulfates would be or that they would exceed standards. Can 
you describe a bit of what happened at the origin of that 
because, there are questions about whether or not these 
estimates will work the way you anticipated?
    Now, going back to the origin of this, what happened that 
caused that to be built and then not used for so long?
    Mr. Glatt. Well, clearly there are a lot of different--it's 
a balancing act, and there's a lot of different--I won't say 
competing interest but--interests in how things should be 
operated. Those in Devils Lake area feel that as much water as 
you can get out as quickly as possible is the way to go, and 
then we have the concerns downstream.
    The agency I'm involved with it's always been about water 
quality from day one, and I will tell you that if you go back 
and look through the history that outlet has been constrained, 
not because of engineering, because they have the ability to 
pump the water, but due to concerns downstream. That has been 
constrained in the beginning, and as we gain additional 
information relating water quality impacts downstream, we felt 
comfortable with allowing a little bit more water out, still 
looking at constraints and concerns downstream and that 
continues on today.
    So from the beginning it was about the need to get water 
out, but also balancing that with water quality downstream. And 
that's my understanding how the outlet was operated. And I will 
say that I think it's extremely important that the Outlet 
Advisory Committee get more active because you need to have 
everybody sitting at the table downstream and for the people in 
Devils Lake. They all have issues here, and they need to come 
to the table in what makes sense as far as how the outlet 
should be operated. I believe it should come from them.
    Senator Dorgan. Is it your notion at this point that 
because of the way you've operated the outlet that there are 
perhaps some risks but the risk of higher sulfates is offset by 
the release of water? Is your notion of risk relative to the 
interests of downstream communities what you measure in terms 
of your new standard in the amount of increased releases?
    Mr. Glatt. Senator, clearly we're trying to find that 
balance and between the need to get water and the major issues 
that are going on with the flooding from the basin and the 
potential impacts downstream. What we have to defer to is what 
we know as the water quality from the monitoring and also what 
has been approved by EPA as being safe in other States. We 
aren't developing new standards. These are standards that have 
been evaluated by the Environmental Protection Agency, proposed 
by other States, and approved by the EPA, and so we defer to a 
lot of that science as well saying that this--these levels will 
be protective of aquatic life, recreational uses, agricultural 
uses that are currently established by the EPA.
    Senator Dorgan. All right. Well, I have some other 
questions, but I want other people in the room to have an 
opportunity to comment.
    I have not and should have introduced Roger Cockrell, who 
is a professional staff person on my subcommittee and is 
responsible for water issues, and Justin Schardin, who is my 
current staff member working on water issues, and both of them 
do excellent work and I appreciate both of them being here.
    Let me ask the witnesses to remain, I have other questions 
as well with your permission. Let me ask those who come to the 
podium to state your name, and if you can, make your statements 
reasonably brief so that we can hear as many as possible. How 
many of you would like to say something today? The rest are all 
Lutherans. I welcome anyone who wishes--I'm a Lutheran so I'm 
just kidding--pretty nonverbal. Let me welcome anyone who 
wishes to come up and state your name and proceed, Joe, thank 
you for all of your work.
STATEMENT OF JOE BELFORD, CHAIRMAN, RAMSEY COUNTY 
            COMMISSION
    Mr. Belford. Thank you, Senator, for holding this hearing 
today. I am Joe Belford. I'm chairman of the Ramsey County 
Commission. I have been twenty-second year of commissioner. I'm 
working with you, through your ears, and one of the guys who 
started the Lake Preservation Coalition. I was too dumb to get 
a job. But I do have a prepared statement and I want to begin 
by saying everything possible must be done to reduce the ever 
increasing flood damages plaguing the Devils Lake region. 
Increasing the capacity of the State's outlet and moving more 
water out of Devils Lake is critical not only for those of us 
living near the lake but the thousands of North Dakota citizens 
who live downstream along the Sheyenne and Red River.
    We have no desire to reduce our flooding problems by 
passing them downstream, but the fact is that Devils Lake 
continues to rise. Consequences of a natural overflow of 
several thousand acre feet per second and the exact number the 
Corps has done is approximately 12,000 acre feet if it breaks 
out on its own for 96 days. That will vastly greatly impact of 
the increasing of the State's outlet capacity to 250 cfs per 
second.
    Since it's beginning of the raise in 1993, Devils Lake has 
reached an elevation on precedence of settlement that now 
stands 1.6 million acre feet from reaching the natural overflow 
elevation. Just three more springs--spring and flows like 
Devils Lake saw in 2009 would lead to Devils Lake pouring 
through the Tolna Coulee dirty water four times higher in 
sulfates than the State outlet, proposed of up to 24 times 
greater into the Sheyenne River.
    As we discuss this issue, Devils Lake has even had more 
moisture in the upper basin than it did at the same time in 
2009. We are getting more and more worried that we could see a 
record lake elevation of 1,453 this year, just short about 5 
feet from the overflow. At that point one bad summer storm 
could make this discussion moot. The time is becoming very 
short but designing friendly and infrastructural measure to 
address the natural overflow scenario.
    A change in the stream down--streams down from the Sheyenne 
River means that the outlet will have the potential to operate 
at stoop capacity of 250 cfs. Every acre foot that Devils Lake 
outlet pumps out now is one that we do not have to worry about 
spilling through in the route of the Tulna Coulee where it will 
have no control over timing, quality, or the amount of water.
    Of course, Devils Lake region already has experienced a 
great deal of damage from the flooding. The high water has 
caused $600 to $800 million of Federal work that's projected to 
happen this year or next year in direct expenditures. It does 
not include the 17 years of lost agricultural production at its 
peak last summer. The Devils Lake flood was about 300 square 
miles in 1993 when the current flood started Devils Lake and 
Stump Lake covering just 84 square miles.
    Everyone must understand that the next 8 feet of lake rise 
the entire State will be seriously affected with the boast of 
major roads, such as Highway 2, a diversion of rail traffic. 
If--in fact, Amtrak is getting ready once again now to 
discontinue using that route through Churches Ferry because of 
the high waters. As I referred before, this says nothing of the 
damages that would be realized downstream. In flooding in 
Valley City was nearly catastrophic--can't do it--this spring. 
Now, imagine that flooding with a thousand of cubic feet per 
second from the Tolna Coulee overflow.
    Everyone must understand that while the economic caused the 
public investment resulted in Devils Lake flooding is enormous, 
but terrific impact upon our communities social fabric has been 
imaginable--unimaginable. We have already lost one whole town, 
Churches Ferry. The city of Minnewauken is in serious jeopardy. 
And without its levee system, the city of Devils Lake would 
have been flooded out years ago. The personal cost in dollars 
to relocate and the emotional challenges from being uprooted 
are not measured in the publics--economic cost.
    My friends and neighbors have struggled in this flood for 
17 years. Unlike the river flood, where flooded properties and 
where people must evacuate for a few days or weeks, the people 
around Devils Lake must evacuate for years, perhaps for a 
generation or more. Once the lake comes up and floods you out, 
you have no way of knowing when or if you will ever see your 
property again. I think the worse part of all this is the 
uncertainty of not knowing how high the Devils Lake will 
ultimately raise.
    The changes have been proposed by the sulfate standards in 
the Sheyenne River above Valley City but not below. We'll still 
protect the human and wildlife uses but the river historically 
has seen. Let us not forget Devils Lake has overflowed several 
times since the ice age, and all of the creatures that lived in 
the Sheyenne River have experienced sulfate levels many times 
higher than the State's outlet will continue.
    Also, the communication for Valley City downstream will 
still have their drinking water supply protected with a maximum 
of 450 parts of sulfates in levels seen naturally exceed 
without the outlet of previous years. We know the increase 
flows in Devils Lake outlet will cause hardship for our 
neighbors downstream. I wish that wasn't the case, but I 
believe the State is taking every due caution to keep these 
impacts to a minimum. Everyone must look at the big picture. If 
Devils Lake does not continue to rise and natural spills out to 
Sheyenne River--Sheyenne the impacts downstream will be many 
times greater than what will occur with the State's outlet. If 
thousands of cubic feet per seconds of water is added to 
Sheyenne River, then maybe what it--maybe that when Valley City 
and Lisbon folks have to evacuate it won't be for a few days or 
first few weeks, it will likely be for a few months.
    I want to add to that. We talked just a little bit about 
agriculture. Agriculture is much more severe. In fact, I have 
the US--the NDSU Lake group--Lake Region College and the county 
agent ran some numbers for me, and this last year the 
agricultural loss in the Devils Lake Basin was $22,716,000 
because the land was not able to be farmed. In the compound 
that eventually three and a half times, it's a pretty 
significant amount. Now, they ran some estimates of the--
since--of the last 5 years, and it's approximately $83 million 
with agriculture loss. You know, we've got farmers out there 
who have 10 feet of water on their land. We have to talk about 
that, but we need to talk more about that because we've not 
came up with a solution to help those fellows as well.
    And I'm going to conclude by adding our opinion of the 
Fargo Forum. The Lake that spilled into the river, I'm just 
going to read the, say, first paragraph. The hearing today in 
West Fargo regarding problems associated with Devils Lake will 
provide useful only if downstream residents recognize it is in 
their best interest to endorse a controlled drawdown of the 
ever-rising, ever-expanding lake. The largest natural lake in 
North Dakota has risen 27 feet in slightly more than a decade. 
It has nearly tripled its surface area.
    So with that, Senator, we have a lot of work ahead of us. 
We have to operate as a team. This thing could come out on it 
is own. We do not know the elevation. It might break out, but 
we have people at home that have been fighting this for years. 
Thank you for being here.
    Senator Dorgan. Mr. Belford, thank you very much. We 
appreciate your testimony, anyone else?
STATEMENT OF MADELINE LUKE, PHYSICIAN, VALLEY CITY
    Dr. Luke. Thank you, Senator Dorgan, for allowing me to 
speak. Some of the figures I'll mention are rough but I believe 
that there are others who are concerned in Valley City that 
will provide by Internet better numbers if someone is 
interested in. Thank you for holding this hearing and allowing 
me to speak.
    My name is Madeline Luke. I'm a physician in Valley City. I 
have practiced medicine and lived next to the river for 25 
years. About 3 months ago 722 people who live or work in Valley 
City spoke, which is their right, by signing a petition 
requesting for a nonbiased, expert, comprehensive evaluation of 
the rise in Devils Lake water situation. We hoped that this 
would guide our State government into actions that would be 
effective in giving the people up there some real relief, while 
being cost efficient and environmentally sensitive. The 
petition was triggered by the State department of health 
requesting a change in the maximum sulfate level.
    In taking the petition around I and others heard various 
concerns. The increased risk of flooding, decreased drinking 
water quality, increased water cost, increased erosion with 
loss of land, degradation of the beauty of the Sheyenne River. 
We are designated--or recreational trail I believe, Loss of 
wildlife and habitat, and salinization of flooded land. Yes, 
the State Water Commission has contributed $9.2 million on 
reverse osmosis plant, which will be very effective in 
filtering out all contaminants, but we still don't know how 
much it's going to cost to operate. Reverse osmosis is an 
energy intensive way of removing contaminants. Also we have 
concerns that the water could come down before the plan is 
completed. As Mayor Walaker mentioned Fargo also uses Sheyenne 
River water when the Red is insufficient or too dirty so their 
municipal water supply is at risk as well. Governor Hoeven made 
and the State department has made comments that in other places 
in North Dakota the levels of sulfates are allowable by their 
local municipal policies. Yes, it is a policy issue, but it's 
also a health issue. I think that when sulfate levels get up 
into the higher levels there is a real quality issue and people 
don't drink water. I've lived all over the United States and 
traveled all over the world and when water quality is not good, 
people don't drink the water or they have to buy it. We've been 
blessed in Valley City that we have a good water supply. I 
think that most people in North Dakota feel that is one of the 
advantages of living here.
    None of the other issues that people have concerns about 
have been addressed. The signers are not insensitive to the 
impact of the high water on people living around the lake but 
more important finding the cause of the high water and 
addressing it instead of just sending it downstream with its 
attendant effects.
    The State government has talked about handling the Devils 
Lake situation in three ways; infrastructure protection, 
removal of water via an outlet, and upper basin management.
    Roads, highways, and the city of Devils Lake have been 
protected by mostly Federal funds totaling about $800 million 
and the same amount is contemplated for the Fargo diversion. 
This does not solve the problem though, it just buys time.
    Earlier this year--earlier North Dakota constructed an 
outlet costing $28 million and now wants to add another set of 
pumps at $16.2 million and it takes about $250,000 a year to 
operate. Unlike the Pelican Lake outlet that the Army 
Corporation proposed in 2003 they didn't plan on any money for 
mitigation. And as a side as a physician I find it irritating 
that a lot of this money has come from State tobacco money. Our 
population is aging. Money from the tobacco settlement issue is 
for health care, not for water projects.
    So what do we get for this money? We must keep in mind that 
evaporation can take up to 30 inches per year. In June 2003 the 
State Water Commission engineers stated that a 100 cfs outlet 
would remove 2 to 4 inches yearly. In 2005 they said they could 
take out 4 inches in 7 months. In reality a bit over .1 inches 
was removed from 2005 to 2008. Now the State engineer says that 
250 cfs outlet will remove over 6 inches annually if it were to 
operate continuously over 5.5 months. How reliable is this 
estimate? Consider the water from the west bay, which is better 
quality water, is 6 to 700 milligrams per liter sulfates. 
Operation of the outlet at 250 cfs would replace the 69,000 
acre foot volume at the top of Ashtabula in 4.2 months. Once 
the 450 milligrams per liter level is reached in Ashtabula, 
further flows would be limited again as the sulfate limit is 
still 450 milligrams per liter in the lower Sheyenne. That 
would be after the first drop, the levels would flow from 
there. I don't think there's any way that you can get from 4--
750 to 450 in .1 mile. This is a simplification, the numbers 
may be rough, but emphasizes the importance of doing a thorough 
hydrological evaluation. On the negative side, the Corps cited 
the following downstream effects for a 300 cfs outlet from 
Pelican Lake, which is actually cleaner water.
    A 15 percent increase in sodium, chloride and sulfate in 
the Sheyenne, over 15 percent increase in chloride, nitrates, 
phosphorus, sodium, sulfates in the Red River, increased 
mercury in the Red River. Possible increase methyl mercury, a 
potent neurotoxin, in Lake Ashtabula and that goes to Dr. Wei 
Lin's comments about usual recreation.
    Five to ten fold increase in summer/fall flows through the 
Sheyenne causing an increase in erosion, sedimentation, and 
flood risk. And, again, that goes back to 2002, I was there. We 
had no warning. Valley City was a mess.
    Increasing ground water affecting access to the river, tree 
survival, increasing soil salinity in 6,300 acres along the 
Sheyenne, and soil salinization on 430 acres irrigated along 
the Sheyenne, the risk of biota transfer. I should comment that 
the Corps project had a sand filter that was designed to filter 
out biota from Devils Lake. The present outlet has no sand 
filter. And has impacts on the fish hatchery.
    This past fall, the city of Devils Lake cleaned out 1 foot 
of sediment at the Tolna Coulee and reportedly plans on taking 
4 more feet out. This drops the natural overflow of the lake 
from 1,459 to 1,454. This action actually increases the risk of 
uncontrolled flow of the worst qualities of Devils Lake water 
into the Sheyenne River and that's the very eventuality the 
west bay outlet was supposed to protect us from. Furthermore, I 
don't see any modeling that shows how that water will come down 
should it overflow naturally. Actions which will lower the 
natural overflow need to be stopped immediately and the State 
has not commented on that.
    As a physician I'm always amazed at how well the human body 
can adapt to severe stresses as long as there's time for 
healing. I think of the natural world in this manner as well. I 
believe that the Devils Lake basin has been subjected to 
numerous amounts of water coming in from many years and I think 
you're seeing the reflection of that now. I believe that the 
constant flow of poor quality Devils Lake water will cause 
irreparable damage to the Sheyenne without significantly 
altering the situation in Devils Lake.
    Upper basin storage has never been instituted in a 
meaningful fashion. Less than 1,000 acres are in easement 
presently. The lake is currently about 134,000 acres. A 100 cfs 
outlet could take up to 40,000 acre feet annually. The 250 cfs 
outlet could take up to 100,000 acre feet and operate 
continuously. The Devils Lake upper basin storage evaluation of 
2001 states that drained wetlands could contain 132,000 acres 
of water. The authors themselves state that this is an 
underestimation and figures of 250,000 to 358,000 acres have 
been stated by the Fish and Wildlife service. The recent LIDAR 
flight authorized by you will be an invaluable tool in locating 
and qualifying wetlands. Wetland restoration has no bad 
downstream effects; wetlands are crucial to improving wildlife 
habitat, and recharging groundwater supplies.
    I would ask the subcommittee to use its influences and 
resources to ensure that an expert, nonbiased study be done to 
address the Devils Lake situation and that further actions be 
guided by such a study. Furthermore, while the study is 
underway, the subcommittee uses its influences and resources to 
institute even this winter an upper basin storage which is fair 
and accessible to the farmer.

                           PREPARED STATEMENT

    I recently heard that the Emergency Rule has been delayed 
until August. The lake is getting better every year. The lake 
rises and it becomes that much more difficult to get water off 
and that is why I ask for the initiation of upper basin storage 
this year. Thank you.
    [The statement follows:]
                  Prepared Statement of Madeline Luke
    Senator Dorgan, thank you for holding this hearing and allowing me 
to speak. About 3 months ago 722 people who live or work in VC spoke by 
signing a petition requesting a non biased, expert, comprehensive 
evaluation of the rising Devils Lake water. We hoped this would guide 
our State government into actions that would be effective in giving the 
people up there real relief while being cost efficient and 
environmentally sensitive. The petition was triggered by the State of 
North Dakota requesting a change in maximum sulfate level in the 
Sheyenne from 450 to 750 mg/liter in order to increase the flow of 
water from the West Bay of Devils Lake to the Sheyenne River from 100 
to 250 CFS.
    I heard various concerns: increased risk of flooding, decreased 
drinking water quality, increased water costs, increased erosion with 
loss of land, degradation of the beauty of the Sheyenne, loss of 
wildlife habitat, salinization of flooded land. Yes, the State Water 
Commission is contributing $9.2 million toward a reverse osmosis plant 
which will be very effective in filtering out all contaminants, but we 
still do not know how much it will cost to operate, nor do we know if 
it will be completed before the higher flows occur. Fargo also uses 
Sheyenne River water when the Red is too dirty, so their municipal 
water supply is at risk as well.
    None of the other issues have been addressed. The signers were not 
insensitive to the impact of the high water on people living around the 
lake, but thought it quite reasonable to find out the cause of the high 
water and addressing it instead of just sending it downstream with its 
attendant effects.
    The State government has talked about handling the Devils Lake 
situation in 3 ways--infrastructure protection, removal of water via an 
outlet and upper basin management.
    Roads, highways and the town of Devils Lake have been protected by 
mostly Federal funds, totaling about $800 million--the same amount as 
contemplated for the Fargo diversion. This does not solve the problem, 
just buys time.
    The State of North Dakota constructed an outlet costing $28 
million, wants to add another set of pumps at $16.2 million which takes 
$250,000/year to operate. Unlike the Pelican Lake, outlet the Army 
Corps of Engineers proposed in 2003, the State has no money for 
mitigation of downstream effects. What do we get for this? Please keep 
in mind that evaporation can take off up 30 inches/year. In June 2003, 
the State Water Commission engineers stated a 100 cfs outlet would 
remove 2-4 inches yearly. In 2005, they said they could take off 4 
inches in 7 months. In reality, a bit over .1 inches was removed from 
2005-2008. Now, the State engineers say that a 250 cfs flow will remove 
over 6 inches annually if it were to operate continuously over 5.5 
months. How reliable is this estimate?
    Water from the West Bay is 600-700 mg/liter sulfates. Operation of 
the outlet at 250 cfs would replace the 69,000 acre foot volume at the 
top of Ashtabula in 4.2 months. Once the 450 mg/liter level is reached 
in Ashtabula, further flows would be limited again as the sulfate limit 
is still 450 mg/liter in the lower Sheyenne. This is a simplification 
but emphasizes the importance of doing a thorough hydrological 
evaluation.
    On the negative side, the Corps cited the following downstream 
effects for a 300 cfs outlet from Pelican Lake which is cleaner water 
than the West Bay water.
  --Over 15 percent increase in sodium, chloride and sulfate in the 
        Sheyenne, over 15 percent increase in chloride, nitrates, 
        phosphorus, sodium, sulfates in the Red River, increased 
        mercury in the Red River.
  --Increased methyl mercury, a potent neurotoxin, in Lake Ashtabula.
  --Five to tenfold increase in the summer/fall flows through the 
        Sheyenne causing an increase in erosion and sedimentation, 
        flood risk.
  --Decrease in diverse and intensity of aquatic species in the 
        Sheyenne River.
  --Increasing ground water affecting access to the river, tree 
        survival, increasing soil salinity in 6,300 acres along the 
        Sheyenne.
  --Soil salinization on 430 acres irrigated along the Sheyenne.
  --Risk of biota transfer.
  --Effects on Valley City Fish Hatchery: Increased TDS may have 
        effects on fish rearing, increased corrosion of iron pipes, 
        affect ability to drain rearing ponds.
    This past fall, The city of Devils Lake cleaned out 1 foot of 
sediment at Tolna coulee and reportedly plans on taking 4 more feet 
out. This drops the overflow of the lake from 1,459 to 1,454 feet. This 
action increases the risk of uncontrolled flow of the worst quality 
Devils Lake water into the Sheyenne, the very eventuality the West Bay 
outlet was supposed to protect us from. Actions which will lower the 
natural outflow need to be stopped immediately.
    As a physician, I am always amazed at how well the human body can 
adapt to severe stresses as long as there is time for healing. I think 
of the natural world in this manner as well. I believe that the 
constant, chronic flow of Devils Lake water will cause irreparable 
damage to the Sheyenne without significantly altering the situation in 
Devils Lake.
    Upper basin storage has never been instituted in a meaningful 
fashion. Less than 1,000 acres are in easement presently. The lake is 
currently about 134,000 acres. A 100 cfs outflow could take up to 
40,000 acre feet annually, a 250 cfs outlet could take up to 100,000 
acre feet. The DL upper basin storage evaluation of 2001 states that 
drained wetlands could contain 132,729 acre feet of water. The authors 
state this is likely an underestimation and figures of 250,000 to 
358,000 acres have been stated by the Fish and Wildlife service. The 
recent LIDAR flight authorized by the Senator will be an invaluable 
tool in locating the wetlands. Wetland restoration has no bad 
downstream effects; wetlands are crucial to improving wildlife habitat, 
and recharging groundwater supplies.
    I would ask the subcommittee to use its influence and resources to 
ensure that an expert, non biased study be done to address the Devils 
Lake situation and that further actions be guided by such a study. 
Furthermore, while the study is underway, the subcommittee use its 
influence and resources to institute even this winter an upper basin 
storage which is fair and accessible to the farmer.

    Senator Dorgan. Thank you very much, others? Yes, sir.
STATEMENT OF LEROY TRIEBOLD, VALLEY CITY
    Mr. Triebold. Good morning, Senator, and other 
distinguished guests. My name is Leroy Triebold from Valley 
City, and I've made about 13 trips up there this last summer 
observing the Devils Lake issues and Stump Lake issues, and I 
think that we are closer to an uncontrolled overflow than 
anyone has even addressed here today.
    I've got some pictures of this Tolna Coulee that shows 
Stump Lake back here and it's up into Coulee. Well, up into 
those cattails already. And another picture I have shows the 
shoreline of Stump Lake and the water here is only like maybe 
50 or a 100 feet from this shoreline right here. And I would 
predict that if that level--or Stump Lake comes up about 30 
inches it will be from that point, and at that time it will be 
up on that shoreline that is very visible all the way around 
Stump Lake and all the way around east Devils Lake, that tells 
me that that's as deep as the water gets, because for some 
reason it's going somewhere at that point. If it got to 1,458, 
there would be another shoreline up there at 8 feet higher than 
the water level is today.
    I have this report of findings number 100 that was done by 
the State geologist in 1997. He was in the Coulee on March 
1997, and he did a cross section of the Coulee. And it shows 
here that at 1,453 approximately, which would be about 3 feet 
above where the water level is today, there is a layer of peat 
and that indicates to me at one time there was a lot of 
vegetative growth there for many years and that created that 
peat and then after that sand and gravel was deposited on top 
of that.
    Well, how is that put in there? Well, my--my theory is that 
it was pushed in there by either wave action or ice action in 
the spring or whatever, but that 4 to 5 feet of sand and gravel 
is definitely not suitable dike or barrier from that water to 
come out of Stump Lake, and if we allow that water to get up on 
there and then that blows out, we got 3 feet of water off Stump 
Lake in Devils Lake. That's the equivalent of about 500,000 
acre feet of water that's going to come down the Sheyenne 
River.
    So like I say, I was up there 13 times this summer 
observing that, and I don't think that anyone else in the room 
today has brought those issues to light like the pictures that 
I have in my possession could. So I want to thank you for your 
time.
    Senator Dorgan. Will you share those photographs with us?
    Mr. Triebold. Sure will.
    Senator Dorgan. Okay, thank you, Mr. Triebold, others?
STATEMENT OF BOB WERKHOVEN, RETIRED DISTRICT ENGINEER, 
            DEPARTMENT OF TRANSPORTATION, VALLEY CITY 
            DISTRICT
    Mr. Werkhoven. It's a pleasure to have you back in State, 
Senator. My name's Bob Werkhoven. I'm a retired district 
engineer with the DOT at Valley City District, and I could 
attest to what Mr. Stevens was talking about. We don't need any 
more water in Valley City. Last year he was using the tractor 
to get in and out of his farm buildings and taking care of his 
cattle. I was a few miles north going in and out of a home by 
boat, and we were sandbagging there for the better part of 2 
weeks.
    But I do have a couple of questions and concerns and I'm 
wondering about if there are any aquifers and if my memory 
serves me right the city of Cooperstown draws their water from 
an aquifer under the Sheyenne River east of Cooperstown just 
off of Highway 200, and I'm wondering what impact this 
sulfate--increase in sulfates will have in recharging that 
aquifer? I'm assuming that it's recharged by the Sheyenne River 
because the well pumps are right there. Maybe Mr. Glatt can 
straighten me out on that.
    Then I'm always a little puzzled as I listened to him at 
Valley City Commission meeting Tuesday night. We were talking 
about the 1,000 yards downstream from the Baldhill Dam. The 
standard now will be 450 milligrams per liter. That's the 
standard. Does that mean that magically it's going to stay at 
that or is it going to increase? I'm convinced that the water 
quality of the Sheyenne River's going to change, and then we 
continue to talk about the Tolna Coulee. As I've been up there 
a few times too, not doing what Leroy was doing, I had a 
fishing pole in the back of my car and was up to Devils Lake, 
but it seems to me we built the Jamestown reservoir and earth 
dam. The Pipestem Dam is an earth dam. The Baldhill Dam is an 
earth dam with a concrete downstream face on it. I was involved 
with the dam west of Ellendale earth dam, and it seems to me 
with all the diking we ought to have a lot of expertise in 
that. If we're really concerned about that blowout at the Tulna 
Coulee, let's trench through that thing and put a clay core in 
there and then put a dike across it.
    And I thank you for your time.
    Senator Dorgan. All right. Thank you very much, anyone 
else?
    Let me ask you, I referred to this earlier but I didn't get 
an answer and perhaps the water commissioner will know, what 
additional water will it take into the lake to overflow?
    I'm not talking about any number of feet. I'm talking about 
the quantity of water. Would it take about 40 percent of the 
water that now exists, another increase of 40 percent?
    Mr. Frink. Senator Dorgan, I'm Dale Frink, I believe the 
number--Todd, is it 1.5 million acre feet left?
    Mr. Sando. About 1.5.
    Mr. Frink. About 1.5 million acre feet left in that 8 feet.
    Senator Dorgan. Could you give me the percentage? How does 
that relate to the water that now exists, what percent?
    Mr. Frink. Yes. I think we're in--we're over 300--we're 
over 3 million. Last year we had 600,000 acre feet go into the 
lake, so 2\1/2\ times what we had last year. 600,000 is a lot 
of water. They're predicting something, you know, in the 
300,000 to 400,000 acre feet this year.
    Senator Dorgan. What kind of ongoing effort exists?
    I'm going to make a comment. First of all, there's going to 
be an outlet that is operated. Water is going to leave Devils 
Lake. I don't think anybody in this room believes or 
understands that this outlet that exists is not going to 
release some water. The question is how much? What are the 
consequences, for whom?
    Having said that, if you're going to move water out then 
the question is how do you retard water coming in? So what kind 
of effort is currently underway with respect to water retention 
in the basin in trying to prevent additional water from coming 
in? What efforts are underway? Who is involved in the efforts? 
What kind of planning exists, and so on?
    Mr. Frink. Senator, the State Water Commission is funding a 
program to restore wetlands. We do pay the landowners money. It 
is a voluntarily program I believe. You know, it isn't--we 
don't get as much as interest as we would like, but we do have 
a program we fund the restoration of some wetlands. We also--
even like some of the larger lakes with water more to the 
previous landowners a certain amount of money each year to 
raise that about 6 inches each year. So it----
    Senator Dorgan. Let me make a point. It seems to me if 
you've got a bathtub that's full and you're working on the 
drain to let some water out you need to work on the faucet to 
stop some coming in. So I'm trying to understand what you're 
doing with the faucet. How extensive is your program?
    Mr. Frink. We do not have the ability to force landowners 
at this time to flood land--to flood water on it without a 
significant amount of compensation, and we haven't gotten into 
the non-voluntary type of arrangements for wetland restoration.
    Senator Dorgan. Well, I guess the question is why not? If 
the release of the outlet in Devils Lake moves water from the 
lake and increases sulfate levels and so on, whatever the 
consequences of that are, why would there not be at this point 
or moving forward some effort that is beyond voluntary with 
respect to the connection of the storage of water to try to 
protect Devils Lake?
    Mr. Frink. Well, if the legislature directs us to do that, 
we will.
    Senator Dorgan. Have you recommended it to the legislature?
    Mr. Frink. I haven't recommended it to the legislature. I 
have been in discussion with several people in the basin in 
terms of modification in channel A, channel A and things like 
that. It's a difficult situation to make it happen.
    Senator Dorgan. I understand but, you know, as I said it 
was just about 15 months ago that I stuck $90 million in to 
increase that levee.
    Mr. Frink. And we stuck in about $3 million.
    Senator Dorgan. That's correct. But that's on top of 
massive amounts of money, hundreds of millions of dollars, for 
raising roads and doing all these things, and I'm just asking 
the question. In addition today's hearing is about the drain. I 
understand that. How much water's going to be let out in order 
to try to take some pressure off the lake, but the faucet is 
also very important, and I'm trying to evaluate whether there's 
anything being done or anything planned. Does the 
administration here have any plans to ask the legislature for 
something beyond voluntary cooperation with respect to the 
government?
    Mr. Frink. Not that I know of.
    Senator Dorgan. Do you think they should?
    Mr. Frink. Well, first of all, Devils Lake is very close to 
its elevation today as 1830. Devils Lake is going up and down.
    Senator Dorgan. I wasn't around for it by the way----
    Mr. Frink. But it has gone up and down. It has flowed out 
that Stump Lake outlet before. It probably will today--or 
again. So to say that you can restore all of the wetlands and 
then solve the problem, is not true, because we know in 1830--
and it's probably due to the 1825 and 1826 floods that we do 
have documentation of it at Winnipeg. The lake got to where it 
is now all by--with all the wetlands in place. Now the wetlands 
have been drained, and we spent a lot of Federal dollars on 
draining as we all know, and drain before all of our times. It 
does not help. And I wish they were more and more in place, but 
Devils Lake still has over half of the wetlands in place and so 
if you fly over it, there's clearly a lot of wetland storage 
still available and still in the Devils Lake basin. It's not 
like the Red River Valley where you have to find--go look for a 
wetland. Devils Lake has a lot of existing storage, and there 
is--but there is a tremendous amount of opposition of trying to 
go into that basin, of course, and force----
    Senator Dorgan. Yes, but that would not be an excuse for 
not availing yourselves of part of the solution to this 
problem. I happen to agree with Joe and you and others--that 
the potential of coming over the divide naturally has 
devastating consequences to a lot of the downstream areas, so 
we want to try to prevent that. Preventing that means releasing 
some waters. The question is what's the impact on the 
community? What are the consequences?
    One of the interests of this subcommittee is that as the 
Governor implied this morning they would welcome some financial 
commitment for treatment plants that the cities believe are 
necessary because they don't want to degrade water quality. I 
want to understand what are the consequences and who might be 
asking for money and why later on. The same is true with 
respect to storage. I mean, on the faucet side of this, and I 
understand nobody would want to have somebody come to them and 
say, we'd like you to store some of this water rather than let 
it run into the lake.
    On the other hand, if you're going to do the range of 
things in the toolbox, why would one just take out one tool and 
leave another effective tool? So the question is who has 
studied retention capability in the upper basin that is at this 
point available but not yet used? Mr. Glatt, do you have any 
information about that or, Mr. Frink, do you?
    Mr. Glatt. No.
    Mr. Frink. I've done studies back in the 1980s. Yes, there 
are. There are certain capabilities to store more water. Will 
it solve all of the problems, no, but there is like I said, I 
wish a lot of those wetlands that have been drained were still 
in place but they are not.
    Senator Dorgan. Dr. Luke, you raised your hand----
    Dr. Luke. Yes.
    Senator Dorgan. But you said when you started your 
testimony that you weren't sure of the numbers so----
    Dr. Luke. The Army Corps of Engineer did a study, did a set 
of analysis I think that impacted analysis taken into problem 
with a wet scenario, and under the wet scenario say cost 
benefit analysis for various options including doing 
infrastructure versus upper basin versus the various outlets. 
The basis of their analysis was a west study that was 
commissioned by the Corps in 2001 upper basin management came 
up with a very conservative figure of whatever it was I said 
and they said it was very conservative. They needed to compare 
with their pictures from 1940. So with the very conservative 
number of wetlands and numbers and then just restoring half of 
them, the cost benefit analysis was 1.2 and that is----
    Senator Dorgan. But I'm interested in more than the cost 
benefit. I'm interested in the quantity of water to be 
developed, is that----
    Dr. Luke. I believe 132,000 and that's very conservative, 
really round. Like I said, with LIDAR you would know more.
    Senator Dorgan. Well, the LIDAR is going to be an 
unbelievably important tool.
    Dr. Luke. Yes.
    Senator Dorgan. I funded that and it is now going to be 
ready and available and it's going to give us very substantial 
capabilities here in the Valley and Devils Lake that we've 
never before had in terms of more storage. It's capable of 
being done. I mean, let me just digress for a moment to say 
that the LIDAR imagery has been useful in the Red River Valley 
as well while we were working very hard on the Fargo/Moorhead 
Flood Control Project. I do not think it is sufficient for the 
Red River Valley. It will only protect the discrete population 
surface. Flooding occurs in a chronic way across the valley, 
and I have the announcement this morning from the National 
Weather Service about what they expect to happen in the Red 
River Valley in the coming months.
    What I'm very interested in doing is making certain that 
water retention is considered up and down the Valley for farms 
and small towns beyond the three major population centers. When 
Fargo and Moorhead is complete we will have three major flood 
control projects done. But I believe up and down the Valley for 
other areas we're going to need to have some sort of basinwide 
authority that exists to do more comprehensive water retention 
planning. This does not exist now and in my judgment it should, 
and I'll be making recommendation on that. Yes, sir.
    Mr. Triebold. I did make this one little point because she 
talked about 130,000 acre feet. That would be less than 1 foot 
of water on Devils Lake and Stump Lake.
    Dr. Luke. That's more than 6 inches----
    Senator Dorgan. Well, let me say this. My interest and the 
subcommittee's interest and the interest of the Congress in 
this is because we've spent a boatload of money, a lot of 
money, and have been involved all of the years that Joe and you 
and the mayor and others have talked about. We've held hearing 
after hearing up there. We've had task forces of all the 
Federal agencies and joint task forces with State and local 
folks and Mayor Bott and you have been involved in this for a 
long, long, long time.
    As I said when I started, I had committees coming to me to 
say we've got to save the lake because there's not enough 
water. It's going to kill us up here. It's going to hurt the 
economy, kill the fish, and we've got major problems and so the 
first committee was to try to preserve the lake to get more 
water there. Then, of course, the chronic flooding entwisted, 
and our country has very little experience except perhaps for 
the Great Salt Lake and now Devils Lake with lake flooding. 
What we have experience with is seeing a television shot of 
river flooding, where the river gorges and forces and takes 
homes and things with it and then you see very quickly and 
there's a calm and there's a clean up, but lake flooding that 
is chronic and comes and stays and is very unusual for our 
country to try to deal with. No one has been able to deal with 
this very successfully. Except I would say this, all of the 
money that has been spent has been spent to move structures, 
raise roads, and do a range of things, but it has also been 
very protective of the major population center. I know there's 
been a controversy about raising the levee, but I assume now 
with the most two recent forecasts that the people of Devils 
Lake are going to be mighty happy that that levee increase is 
going to exist and funding for it is all available. It does not 
need to be obtained later. It's all available now.
    The issue of this hearing was the State's plan for this 
outlet. In my judgment the outlet will run. It's built. It's 
going operate. The question is under what conditions will it 
operate? What are the consequences of those conditions for 
others? I think my interest is in finding out with this kind of 
a hearing, what are the issues to be considered? What kind of 
additional information is necessary, Mr. Glatt, to fully 
understand the consequences? I think we've begun some of that 
accomplishment today. I am going to submit questions to a 
number of witnesses because there's additional information that 
I want to have. I know that ultimately the EPA will also be 
involved in raising these issues, and then as, Bruce, you 
indicated and others, some of the downstream cities. I assume 
Lisbon in addition to Valley City, West Fargo, and Fargo are 
the ones being involved to evaluate what this means, in terms 
of the kind of water we're going to provide to citizens in the 
future. So this has been informative for me. I hope it has been 
for you as well.

                     ADDITIONAL COMMITTEE QUESTIONS

    I'm going to submit a list of additional questions and then 
create a committee report. I appreciate the time many of you 
have taken to be here today to be a part of this.
    [The following questions were not asked at the hearing, but 
were submitted to the witnesses for response subsequent to the 
hearing:]
                 Questions Submitted to L. David Glatt
                 Questions Submitted by Byron L. Dorgan
    Question. What will higher sulfate levels mean for animals and 
other biota in and near the Sheyenne River?
    Answer. Based on the known natural sulfate concentrations monitored 
in the Sheyenne River and Devils Lake, and the toxicological expertise 
of the U.S. Environmental Protection Agency (EPA), the aquatic and 
terrestrial wildlife will be protected. The North Dakota Department of 
Health supportive analysis (Attachment 1) provides a scientific 
rationale for increased sulfate concentrations to a maximum of 750 
milligrams per liter for the defined portion of the Sheyenne River. The 
supportive analysis uses extensive water quality monitoring results 
from the Sheyenne River and Devils Lake, along with the scientific 
expertise of the EPA, to identify environmental compound concentrations 
protective of designated uses. This analysis procedure, which has been 
used by other States and endorsed by the EPA, demonstrates that the 
increase of sulfate is protective of aquatic life. In fact, based on 
calculations from the EPA-approved formula, the department is very 
conservative in identifying the maximum sulfate concentration for the 
Sheyenne River (note graphed sulfate concentration representations in 
the supporting analysis (Attachment 1) and the February 25, 2010 letter 
from the Environmental Protection Agency Region VIII (Attachment 4)). 
This supportive analysis also shows that the sulfate concentration of 
2,000 milligrams per liter is protective of agricultural use, including 
livestock watering. It is important to note that in the upper Sheyenne 
River at the Flora site (upstream from the Devils Lake Outlet), 42 of 
565 samples taken from 2005 to July 2009 naturally exceeded 750 
milligrams per liter sulfate. Sulfate concentrations gradually 
attenuate downstream from the outlet (Attachment 2).
    Question. What impact will higher pollutant levels from Devils Lake 
have on agriculture along the Sheyenne River?
    Answer. All constituents identified in Devils Lake are naturally 
occurring compounds found throughout water bodies in the State, 
including the Sheyenne River. It is true that the concentration of some 
constituents will temporarily increase in the Sheyenne River as a 
result of the operation of the Devils Lake Outlet, however, all will be 
at concentrations below established water quality standards identified 
for the Sheyenne River. The degree to which each constituent will 
increase is a function of outlet operation and natural flow and 
background concentrations found in the river. In any event, water 
discharged from the Devils Lake west outlet will not result in the 
exceeding of approved water quality standards for the Sheyenne River. 
Agriculture is one of the designated beneficial uses in this reach of 
the Sheyenne River. Water quality standards protective of agricultural 
activities have been approved by EPA and established for the Sheyenne 
River.
    Question. What risks are posed by pollutants other than sulfates 
that are found in the greater amounts of water that will be coming from 
Devils Lake?
    Answer. Our approach is to monitor the water quality in west bay of 
Devils Lake and then compare the results with numeric criteria found in 
the State water quality standards. A comparison of parameters of 
concern demonstrates that aquatic life is protected. These include, but 
are not limited to, major inorganic ions, trace metals and nutrients. 
Parameters of interest for municipal water use are compared to the Safe 
Drinking Water Act maximum contaminant level (MCL) for human 
consumption. The established beneficial municipal water supply uses are 
maintained for the Sheyenne River downstream from Baldhill Dam.
    Question. How thoroughly have the risks of these extra pollutants 
been studied?
    Answer. North Dakota water quality standards contain/delineate the 
numeric criteria for protection of aquatic life and the MCL for 
protection of human health. The standards reflect the best available 
science for the protection of the beneficial uses of the water. On a 
State level, these standards are reviewed by the North Dakota Water 
Pollution Control Board, the State Health Council and the public at 
large. The EPA must approve the North Dakota standards, thereby 
affirming that the numeric and narrative criteria to protect beneficial 
uses are maintained. The water quality standards established for the 
Sheyenne River are protective of aquatic life, agriculture and human 
consumptive use. In addition, the department continues to maintain an 
extensive water quality data base reflecting the routine monitoring of 
the Sheyenne and Red Rivers.
    Question. How far downstream have you modeled the potential effects 
of the rule change?
    Answer. In cooperation with the North Dakota State Water 
Commission, the U.S. Geological Survey is modeling the Sheyenne River 
to its confluence with the Red River. The modeling results are 
preliminary and have not been released. The modeling effort involves 
stochastic simulation of the effects of a 250-cubic-feet-per-second 
discharge from the Devils Lake Outlet on sulfate concentrations in the 
Sheyenne River (Attachment 3). Another effort is to develop a real-time 
hydrodynamic and water quality model for Lake Ashtabula. The purpose of 
the model is to estimate the impact of discharge water from Devils Lake 
under various hydrologic conditions. This information will be used to 
address appropriate outlet operation to ensure compliance with 
downstream standards. The constraint that will limit the amount of 
water discharged is the State water quality standard specifying a 
maximum of 450 milligrams per liter sulfate below Baldhill Dam. More 
important than the modeling will be the routine water quality 
monitoring data collected from the Sheyenne River, Lake Ashtabula and 
the Red River. This data will also be used to determine changes in 
water quality and influence the operation plan to ensure compliance 
with downstream standards. In the final analysis, nothing surpasses 
empirical water quality data input for making informed management 
decisions.
    Question. Will your long-term monitoring program for Lake Ashtabula 
include monitoring the accumulation of sulfates in the sediments of the 
lake and how they could affect future downstream water quality?
    Answer. The water column will be monitored, and in the unlikely 
event a significant flux of sulfate occurs, the operating plan can be 
adjusted accordingly.
                              Attachment 1
    maximum sulfate limit of the sheyenne river supporting analysis
    The Sheyenne River is a Class IA stream in North Dakota. The 
quality of the waters in this class shall be the same as the quality of 
a Class I stream except that treatment for municipal use may also 
require softening to meet the drinking water requirements of the 
department.
    Under the proposed change, the Sheyenne River will remain a Class 
IA stream but a segment of the river will be subject to a different 
criterion for sulfate than is normally applied to Class IA streams. The 
proposed change allows the maximum sulfate (total) concentration of 750 
mg/L (30-day arithmetic average) from the headwaters of the Sheyenne 
River to 0.1 miles downstream of Baldhill Dam.
    The Sheyenne River sulfate concentrations are largely influenced by 
natural conditions. Runoff from precipitation and snow melt generally 
decrease sulfate concentrations whereas low flows are dominated by 
groundwater discharge. Groundwater is more mineralized and contains 
much higher sulfate concentrations.
    From 2005 to present; 565 samples were taken at the Flora site. Of 
these 167 had a higher sulfate concentration than 450 mg/L; 80 had a 
higher concentration than 600 mg/L; 45 had a higher concentration than 
700 mg/L; and 42 had a higher concentration than 750 mg/L.
    This demonstrates that the criterion for sulfate of 450 mg/L is 
inappropriate because at the time the standard was established the 
natural background condition was not considered. There is one permitted 
discharger under section 402 of the Clean Water Act located on the main 
stem of the river upstream from the Flora site. This municipal 
discharger with a population of less than 2,000 has low sulfate 
drinking water and, therefore, has an inconsequential effect on sulfate 
concentrations at Flora.
    There are no municipal, rural water districts, or industrial uses 
of the Sheyenne River from its headwaters to 0.1 miles downstream of 
Baldhill Dam. This department is not aware of any plans, preliminary 
plans or intent in using the Sheyenne River in this reach for these 
purposes. (Memo, D. Wayne Kern, Appendix A) The department intends to 
remove the municipal use designation from this reach of the river 
during the next triennial water quality review process.
    The North Dakota State Water Commission reports there are no 
applications for water appropriation permits on this reach of river. An 
appropriation of greater than 12.5 acre feet of water requires a 
permit.
    Agriculture use on this reach of the Sheyenne River is mostly 
livestock watering and a small number of irrigators. North Dakota 
designates Class III streams as suitable for agriculture use but does 
not delineate numeric criteria to support that use. Class III streams 
have a maximum limit of 750 mg/L of sulfate (total) 30-day arithmetic 
average. The State of Illinois has numeric limits of 2,000 mg/L of 
sulfate for livestock watering.
    North Dakota State University Extension suggests that concentration 
of 1,000 mg/L to 1,500 mg/L is protective for most classes of grazing 
livestock.
    This reach of Sheyenne River is designated suitable for the 
propagation or protection or both of resident fish species and other 
aquatic biotic.
    The State of Illinois developed sulfate criteria for protection of 
aquatic life (See Ill. Admin. Code tit. 35, Sec. 302.208).
    The Environmental Protection Agency (EPA) approved Illinois Water 
Quality Standards including the permissible sulfate concentrations.
    The Illinois' sulfate criteria, which is located in Ill. Admin. 
Code tit. 35, Sec. 302.208(h), states:
    The following concentrations for sulfate must not be exceeded 
except in receiving waters for which mixing is allowed pursuant to 
section 302.102:
  --At any point where water is withdrawn or accessed for purposes of 
        livestock watering, the average of sulfate concentrations must 
        not exceed 2,000 mg/L when measured at a representative 
        frequency over a 30 day period.
  --The results of the following equations provide sulfate water 
        quality standards in mg/L for the specified ranges of hardness 
        (in mg/L as CaCO3) and chloride (in mg/L) and must 
        be met at all times:
    --If the hardness concentration of receiving waters is greater than 
            or equal to 100 mg/L but less than or equal to 500 mg/L, 
            and if the chloride concentration of waters is greater than 
            or equal to 25 mg/L but less than or equal to 500 mg/L 
            then: C = [1276.7 + 5.508 (hardness)-1.457 (chloride)] 
            *0.65 where, C = sulfate concentration
    --If the hardness concentration of waters is greater than or equal 
            to 100 mg/L but less than or equal to 500 mg/L, and if the 
            chloride concentration of waters is greater than or equal 
            to 5 mg/L but less than 25 mg/L, then: C = [-57.478 + 5.79 
            (hardness) + 54.163 (chloride)] *0.65 where C = sulfate 
            concentration
  --The following sulfate standards must be met at all times when 
        hardness (in mg/L as CaCO3) and chloride (in mg/L) 
        concentrations other than specified in (h)(2) are present:
    --If the hardness concentration of waters is less than 100 mg/L or 
            chloride concentration of waters is less than 5 mg/L, the 
            sulfate standard is 500 mg/L.
    --If the hardness concentration of waters is greater than 500 mg/L 
            and the chloride concentration of waters is 5 mg/L or 
            greater, the sulfate standard is 2,000 mg/L.
    --If the combination of hardness and chloride concentrations of 
            existing waters are not reflected in subsection (h)(3)(A) 
            or (B), the sulfate standard may be determined in a site-
            specific rulemaking pursuant to section 303(c) of the 
            Federal Water Pollution Control Act of 1972 (Clean Water 
            Act), 33 U.S.C. 1313, and Federal Regulations at 40 CFR 
            131.10(j)(2).
    The Illinois' method for determining permissible sulfate 
concentrations supports our conclusion that 750 milligrams per liter 
sulfate (total) is not only protective but more than adequate to 
protect aquatic life.
    Data from April 2008 to July 2009 from the Sheyenne River near 
Flora, Bremen, Cooperstown, below Baldhill Dam and the Devils Lake 
outlet were used to calculate sulfate concentrations that are 
protective of aquatic life (Table 1).

                                                                         TABLE 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Chloride                            Hardness                                 Sulfate Criterion (mg/L)
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Site                 Min      Max      Mean    Median     Min      Max      Mean    Median       N       (min H & min CI)  (min H & max CI)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Devils Lake State Outlet......     10.9    103.0     86.0     96.2       202      658      551      562         20                1106              1455
Sheyenne River Below Baldhill       6.8     22.4     15.3     16.3       227      537      349      337         39                1057              1605
 Dam..........................
Sheyenne River Near Bremen....     12.7     44.8     25.6     24.95      281      547      432      439         38                1467              1793
Sheyenne River Near                11.7     40.8     19.5     17.4       292      478      400      417         39                1473              1836
 Cooperstown..................
Sheyenne River Near Flora.....      9.6     27.2     18.8     19.25      183      565      407      417         38                 988              1459
--------------------------------------------------------------------------------------------------------------------------------------------------------
Location Map--Appendix B.

    The formula found in the Illinois Water Quality Standards where 
chloride concentration in mg/L, and hardness concentration (in mg/L as 
calcium carbonate) was used to calculate the sulfate criteria. The data 
expressed in minimum, maximum, mean, and median concentrations 
unequivocally support the proposed 750 mg/L criterion for sulfate.
    The formula is presented in a different way (table 2) which 
provides an alternative more user friendly method for determining 
protective aquatic life criterion. In addition to the formula and 
tabular method, the calculations are also provided in graphic form 
(Figure 1).

                                                                                             TABLE 2
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Hardness = 500:
    Chloride..................................................          5            6           13           15           24           25           50          100          200          500
    sulfate...................................................       2020         2055         2302         2372         2689         2596         2572         2525         2430         2146
Hardness = 400:
    Chloride..................................................          5            6           13           15           24           25           50          100          200          500
    sulfate...................................................       1644         1679         1925         1996         2313         2238         2214         2167         2072         1788
Hardness = 300:
    Chloride..................................................          5            6           13           15           24           25           50          100          200          500
    sulfate...................................................       1267         1302         1549         1619         1936         1880         1856         1809         1714         1430
Hardness = 200:
    Chloride..................................................          5            6           13           15           24           25           50          100          200          500
    sulfate...................................................        891          926         1173         1243         1560         1522         1498         1451         1356         1072
Hardness = 100:
    Chloride..................................................          5            6           13           15           24           25           50          100          200          500
    sulfate...................................................        515          550          796          867         1183         1164         1140         1093          998          714
Ag Use:
    sulfate...................................................       2000         2000         2000         2000         2000         2000         2000         2000         2000         2000
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
If hardness is<100 mg/L or chloride is< 5 mg/L, the sulfate std = 500 mg/L.
If hardness is > 500 and chloride is > or equal to 5 mg/L then the sulfate standard is 2000 mg/L.




                Appendix A--Intradepartmental Memorandum
TO: L. David Glatt, P.E., Chief, Environmental Health Section.
FROM: D. Wayne Kern, P.E., Director, Division of Municipal Facilities.
RE: Use of Sheyenne River Upstream of Lake Ashtabula as a Drinking 
        Water Source.
DATE: September 2, 2009.
    This concerns the above-referenced matter. Presently, there are no 
public water systems (PWSs) that use the Sheyenne River upstream of 
Lake Ashtabula as a drinking water source. I am also not aware of any 
plans on the part of PWSs to utilize this stretch of the Sheyenne River 
as a drinking water source.
    PWSs that utilize surface water are subject to strict treatment and 
monitoring requirements under the Federal Safe Drinking Water Act 
(SDWA) and its implementing regulations. Private water supplies are not 
subject to the SDWA. However, whether for public or private use, 
surface water must undergo substantial treatment to render it safe and 
aesthetically acceptable for drinking water purposes.
    Please contact me if you have questions or need additional 
information on this matter.
                                                       DWK.



                              Attachment 2

                              Attachment 3
 stochastic simulations of effects of 250 cubic feet per second devils 
      lake outlet on sulfate concentrations in the sheyenne river
PRESENTATION OUTLINE
    Part 1 (Included in this file)
  --Describe calibration and verification of ambient (without outlet) 
        statistical flow and sulfate routing model for Sheyenne River
  --Show effects of Devils Lake outlet on downstream sulfate 
        concentrations for historical scenarios
    Part 2 (In progress)
  --Show potential effects of outlet for future years using stochastic 
        simulations
  --Evaluate potential adverse effects of future spills and ability of 
        outlet to reduce or eliminate adverse effects
Part 1.--Statistical Flow and Sulfate Routing Model for Sheyenne River
    Uses a 5-day time step (smoothes noise in daily data, easier to 
route flow and sulfate)
    Calibrated and verified using flow and sulfate concentration data 
for 1980-2009 (homogenous climatic period)
    Primary simulation locations
  --05056000 Sheyenne R. nr. Warwick
  --05057200 Baldhill Cr. nr. Dazey
  --05057000 Sheyenne R. nr. Cooperstown
  --05058000 Sheyenne R. blw. Baldhill Dam
  --05058700 Sheyenne R. at Lisbon
  --05059000 Sheyenne R. nr. Kindred
    Secondary locations
  --05055400 Sheyenne R. nr. Bremen
  --05059300 Shey. R. abv. Div. nr. Horace
  --Start with flow for Sheyenne R. nr. Warwick and Baldhill Cr. nr. 
        Dazey (either use historical values or simulated values from 
        stochastic model)
  --Use flows for Warwick and Dazey to simulate sulfate concentrations 
        for both sites
  --Use flows and sulfate concentrations for Warwick and Dazey to 
        simulate flows and sulfate concentrations for Cooperstown
  --Use Cooperstown and Dazey flows and sulfate concentrations and Lake 
        Ashtabula simulation model to simulate flows and sulfate 
        concentrations blw. Baldhill Dam
  --Use flows and sulfate concentrations blw. Baldhill Dam and 
        estimated intervening flows and sulfate concentrations to 
        simulate flows and sulfate concentrations at Lisbon and Kindred
        
        
        
            Simulated Effect of 250 cfs Outlet for Historical Scenarios
    What if the proposed outlet (250 cfs, April-Nov operation, 600 cfs 
channel capacity constraint) were in operation during 2004-2009?
    Assume 3 different sulfate constraints for outflow from Baldhill 
Dam: unconstrained, 400 mg/L, and 375 mg/L
    Assume sulfate concentration from the outlet is 575 mg/L (actual 
concentration of West Bay in October 2009)
    What are the potential effects on the amount of water that can be 
discharged from the outlet and on sulfate concentrations at Lisbon and 
Kindred?




    Looks like, to maintain max 350 mg/L sulfate concentration at 
Kindred, outflow from Baldhill Dam will need to be constrained to about 
375 mg/L
    Note that concentrations during winter ice cover may be higher
    For the current Devils Lake sulfate concentration (575 mg/L), the 
outlet discharge (on average) would be about 50,000 acre-ft per year 
(less than one-half the discharge with no sulfate constraint)
    What if Devils Lake continues to rise and sulfate concentration 
decreases to 475 mg/L? As indicated in the next slide, the outlet 
discharge would increase to about 66,000 acre-ft per year


Part 2.--Devils Lake/Sheyenne River Stochastic Flow and Sulfate 
        Simulation Model
  --Couples Devils Lake ``5-Box'' simulation model with Sheyenne River 
        downstream flow and sulfate routing model
  --Changes to ``5-Box'' model (still in progress):
    --Update sulfate model parameters for Devils Lake (sulfate loads 
            for inflows, mixing coefficients between boxes, sediment 
            flux coefficients, etc.) using most recent (2002-09) 
            sulfate concentration data
    --Generate future sequences of ambient flows and sulfate 
            concentrations for Sheyenne R. (including incremental flows 
            and concentrations) that are in ``lock-step'' with Devils 
            Lake
            Assumptions Used for the Following Simulations
  --Lake level of Devils Lake on June 30, 2010 is 1,452.0
  --Climatic conditions for the future (i.e., the next 10-20 years) are 
        similar to 1980-2009
  --Higher ambient sulfate concentrations in the Sheyenne R. observed 
        since 2000 (especially for Warwick) are assumed to persist into 
        the future (but not get worse!)
  --State outlet capacity is 100 cfs until June 30, 2010, and then 
        increases to 250 cfs on July 1, 2010
  --Outlet operates April 1 to Nov. 30, when lake level exceeds 1446.0
  --Outlet discharge reduced if needed to maintain max 600 cfs flow at 
        Bremen
  --Outlet discharge constrained to maintain max sulfate concentration 
        blw. Baldhill Dam (Lisbon and Kindred not yet included)
            Simulated Traces Generated for 4 Conditions
  --Ambient (no outlet discharge)
  --P250-S400 (250 cfs outlet, 400 mg/L sulfate constraint blw. 
        Baldhill)
  --P250-S450 (250 cfs outlet, 450 mg/L sulfate constraint blw. 
        Baldhill)
  --P250-S500 (250 cfs outlet, 500 mg/L sulfate constraint blw. 
        Baldhill)
    Note.--These constraints to not include ice effects on lake 
ashtabula, so concentrations may be higher in winter




          ESTIMATED PROBABILITIES OF EXCEEDING CRITICAL LAKE LEVELS WITHIN THE NEXT 20 YEARS (BY 2029)
----------------------------------------------------------------------------------------------------------------
                                                             Percent chance of exceedance by 2029 for
                      Level                      ---------------------------------------------------------------
                                                      No pump        P250-S400       P250-S450       P250-S500
----------------------------------------------------------------------------------------------------------------
1,454...........................................            47.2            33.4            28.4            26.4
1,456...........................................            27.4            17.9            14.5            13.3
1,458...........................................            14.6             8.8             6.9             6.5
1,460...........................................             7.2             4.0             3.2             3.0
----------------------------------------------------------------------------------------------------------------

                              Attachment 4
     United States Environmental Protection Agency,
                             Region 8, 1595 Wynkoop Street,
                                     Denver, CO, February 25, 2010.
Mr. Dennis R. Fewless,
Director, Division of Water Quality,
North Dakota Department of Health,
Bismarck, ND 58501-1947.
Subject: Triennial Review of Water Quality Standards.

    Dear Mr. Fewless: The purpose of this letter is to provide the 
comments of the U.S. EPA Region 8 Water Quality Unit on the proposed 
revisions to Standards of Quality for Waters of the State, N.D. 
Administrative Code Chapter 33-16-02.1. The proposal was made available 
with a public notice dated December 22, 2009. Our review addressed the 
information and supporting analysis made available to the public in 
support of the proposed revision.
    Please note that the positions described in our comments, regarding 
both existing and proposed water quality standards, are preliminary in 
nature and should not be interpreted as final EPA decisions under CWA 
Sec. 303(c). EPA Region 8 approval/disapproval decisions will be made 
following adoption of new/revised water quality standards and submittal 
to EPA. Such decisions will be made considering all pertinent evidence 
available to the Region, including the comments and information 
submitted in response to the State's proposal.
    requirements for class 1a streams [section 33-16-02.1-09(1)(b)]
    The proposed revision would clarify that for Class 1A streams where 
natural conditions do not satisfy Class 1 water quality criteria for 
municipal and domestic use, the availability of softening or other 
treatment methods may be considered in determining whether ambient 
water quality meets the requirements of the department. This revision 
allows the department to consider the availability of treatment 
processes such as ion exchange, reverse osmosis, or electrodialysis in 
determining whether streams with naturally elevated ambient conditions 
meet Class 1A requirements for protection of municipal and domestic 
use. We recognize there may be circumstances where streams with 
naturally high concentrations of certain parameters are used as water 
supplies, and that advanced drinking water treatment processes may be 
available that are capable of delivering the removal efficiencies 
necessary to achieve protective post-treatment concentrations. We also 
recognize that the proposed language is specific to streams where 
elevated concentrations are due to natural causes. Accordingly, our 
perspective is that the proposal would result in a useful clarification 
regarding streams where adoption of a Class 1A use classification is 
appropriate, and we support adoption of the proposal.
                 sheyenne river water quality standards
Site-Specific Criteria Proposal
    The department proposed a site-specific total sulfate criterion of 
750 mg/L (as a 30-day average) for the Sheyenne River from headwaters 
to 0.1 mile downstream from the Baldhill Dam. The site-specific 
criterion would be included in section 33-16-02.1-09(3)(b). A related 
proposal would remove the municipal and domestic water supply 
designated use from this same segment (discussed separately below). 
Because the water supply-based sulfate criteria for the next downstream 
segment of the Sheyenne River (450 mg/L) and the Red River (250 mg/L) 
are more stringent than the proposed site-specific criterion, the 
department also proposed adoption of a site-specific narrative 
provision to require that the more stringent downstream criteria must 
continue to be maintained.
    We concur that a maximum sulfate limit at 750 mg/L is adequately 
protective of the aquatic life and agriculture uses that would be 
designated for this portion of the Sheyenne River. Using the EPA-
approved aquatic life criterion adopted by Illinois as a benchmark, the 
department's supporting analysis shows that a maximum sulfate 
concentration of 750 mg/L is protective of aquatic life. Note that the 
Illinois aquatic life criterion is a maximum limit and is expressed as 
a function of the ambient hardness and chloride concentration. Even at 
the most stringent hardness and chloride concentrations observed at 
four different locations on the Sheyenne River for the period April 
2008 to July 2009, the supporting analysis demonstrates that a fixed 
maximum limit of 750 mg/L is more protective than the Illinois 
criterion. See Table 1. Based on evidence that agriculture uses are 
protected at a sulfate concentration of 2,000 mg/L, a maximum limit at 
750 mg/L is also well below levels necessary to protect agriculture 
uses. Although we concur that a maximum limit of 750 mg/L is 
protective, below we have described a concern about the proposed 30-day 
averaging period.

      TABLE 1.--COMPARISON OF PROPOSED SHEYENNE RIVER SULFATE CRITERION TO EPA-APPROVED ILLINOIS CRITERION
----------------------------------------------------------------------------------------------------------------
                                                                           Illinois Aq. Life   Illinois Aq. Life
                                                          Proposed ND     Criterion (mg/L) @  Criterion (mg/L) @
               Sheyenne River Location                 Sulfate Criterion    Most Stringent      Median Ambient
                                                            (mg/L)         Ambient Hardness      Hardness and
                                                                           and Chloride \1\      Chloride \1\
----------------------------------------------------------------------------------------------------------------
Flora...............................................                 750                 988                2212
Near Cooperstown....................................                 750                1473                2145
Near Bremen.........................................                 750                1467                2495
Below Baldhill Dam..................................                 750                1106                1805
----------------------------------------------------------------------------------------------------------------
\1\ Based on observed ambient hardness and chloride concentrations for April 2008 to July 2009

    We recommend that the department consider whether the site-specific 
criterion should be expressed as a maximum value that must be met at 
all times. The department's supporting analysis uses the EPA-approved 
aquatic life criterion adopted by Illinois as a benchmark for 
evaluating whether the site-specific criterion would protect aquatic 
life. Note that the Illinois criterion is a maximum value that is never 
to be exceeded. By contrast, the proposed revision to section 33-16-
02.1-09(3)(b) describes the site-specific criterion as a 30-day 
average. Because of variability, during periods when the average 
sulfate concentration is near 750 mg/L, individual samples would exceed 
750 mg/L. We are concerned that the supporting analysis does not 
evaluate what maximum values would be observed during periods when the 
30-day average concentration is 750 mg/L, and does not demonstrate that 
a 30-day average concentration at 750 mg/L would be protective of 
aquatic life. Absent a demonstration that 750 mg/L as a 30-day average 
would be protective, we recommend adoption of the 750 mg/L site-
specific criterion as a maximum value that must be met at all times.
    We support adoption of the proposed site-specific narrative 
provision requiring attainment and maintenance of the sulfate criteria 
for downstream waters. The proposed narrative provision is consistent 
with the Federal requirement (40 CFR section 131.10(b)) to consider the 
water quality standards of downstream waters and provide for the 
attainment and maintenance of such standards.
Municipal and Domestic Use Proposal
    The department also proposed a site-specific change to the uses 
designated for the Sheyenne River. The proposal would specify that the 
Sheyenne River from its headwaters to 0.1 mile downstream from Baldhill 
Dam is not classified for municipal or domestic use.
    Although water supply uses are not one of the uses identified in 
the Clean Water Act section 101(a)(2) goal, it is nevertheless 
important for the State to provide a supporting rationale for any 
proposal to remove a water supply designated use, and to allow for 
public review and comment.
    The supporting analysis that was made available for public review 
includes information indicating that there are no municipal, rural 
water district, or industrial uses, nor are there plans, preliminary 
plans or intent to divert water for these purposes in this stretch of 
the Sheyenne River. Based on our review of the department's supporting 
rationale, our current thinking is that the proposed change to the 
designated uses for the upper portion of the Sheyenne River is 
reasonable and consistent with current and anticipated uses. In 
addition, it is consistent with the EPA requirement to designate 
appropriate water uses to be achieved and protected. See 40 CFR section 
131.10(a).
       requirements for reservoirs [section 33-16-02.1-09(3)(e)]
    The proposed revision would clarify that reservoirs located on 
Class 1A, Class II, or Class III streams shall have the parameter 
limitations for that class stream. This would be a refinement to the 
current requirement, which applies Class 1 stream parameter limitations 
to all reservoirs, even if the reservoir is located on a Class 1A, 
Class II, or Class III stream. The list of parameters where limitations 
would be modified includes chloride, sodium, sulfate, and pH. For 
chloride and sulfate, our understanding is that the Class 1A, Class II, 
and Class III limits are based on concentrations observed in Class 1A, 
Class II, and Class III streams under undisturbed natural conditions. 
In addition, for all four parameters, the reservoir limitations that 
would now apply have been approved by EPA previously as appropriate for 
the protection of Class 1A, Class II, and Class III streams. 
Accordingly, our current thinking is that the proposed revision is 
reasonable and appropriate, and that for chloride and sulfate, it is 
consistent with the protection of uses that are attainable under 
natural conditions.
                   fecal coliform criteria (table 1)
    The department proposed deletion of the fecal coliform criteria in 
table 1. However, the E. coli criteria adopted previously, and approved 
by EPA previously, would be retained for the protection of recreation 
uses. As discussed in the 1986 criteria document for bacteria, 
epidemiological studies conducted by EPA at fresh water sites did not 
find a statistical relationship between fecal coliform densities and 
risk of illness in swimmers. By contrast, such a statistical 
relationship was found for E. coli, demonstrating that E. coli is a 
better indicator of the health risks associated with recreational 
uses.\1\ Based on these data, and EPA's analysis of these data (see the 
EPA criteria document), we support the department's proposal to delete 
the fecal coliform criteria in table 1.
---------------------------------------------------------------------------
    \1\ As presented in table 2 of the 1986 criteria document, 
correlation coefficients for swimming-associated gastroenteritis rates 
against mean indicator densities were 0.80 and 0.08 for E. coli and 
fecal coliforms, respectively, at fresh water swimming beaches.
---------------------------------------------------------------------------
             revisions to water quality criteria (table 2)
    New acute and chronic aquatic life criteria were proposed for 
chlorpyrifos, tributyltin, and parathion consistent with criteria 
recommendations issued by EPA pursuant to CWA section 304(a). Revised 
human health criteria were proposed for acrolein and phenol consistent 
with recently issued changes to the EPA criteria recommendations for 
those parameters.
    We support adoption of these proposed new/revised criteria as 
consistent with the EPA requirement to consider new scientific 
information and adopt revisions to water quality criteria as 
appropriate. See 40 CFR section 131.11 and 131.20(a).
                  requirements for lakes (appendix ii)
    The proposed revision would clarify that for lakes not specifically 
named in Appendix II, a Class 4 classification applies by default. We 
view this proposal as important and necessary to ensure that water 
quality standards are identified for all lakes in North Dakota (i.e., 
not only those lakes specifically named in Appendix II). Accordingly, 
we support adoption of the proposed revision.
                               conclusion
    We hope these comments are helpful to the department. If there are 
questions concerning our comments, the most knowledgeable person on my 
staff is David Moon, and he can be reached at (303) 312-6833.
            Sincerely,
                                     Karen Hamilton, Chief,
                                                Water Quality Unit.

    Senator Dorgan. Yes?
    Mr. Belford. Senator, the one issue that's not surfaced 
today is very, very private matter it's groundwater. And I'm 
not just sure how you handle groundwater because it's coming 
from the upper regions from the land. Most of the homes in 
Devils Lake have sump pumps and lots of them. I have three in 
my home.

                         CONCLUSION OF HEARING

    Senator Dorgan. All right. Well, thank you very much. I 
appreciate all of you being here. This hearing is recessed.
    [Whereupon, at 11:57 a.m., Friday, February 19, the hearing 
was concluded, and the subcommittee was recessed, to reconvene 
subject to the call of the Chair.]


              MATERIAL SUBMITTED SUBSEQUENT TO THE HEARING

    [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.]
    Prepared Statement of Richard Betting, Valley City, North Dakota
                              main points
  -- The ND SWC Outlet from Devils Lake will not prevent Devils Lake 
        from rising;
  --Pumping the Devils Lake Outlet will violate State statues 
        protecting beneficial uses of the Sheyenne River for downstream 
        water users, including municipal and individual uses, aquatic 
        life, recreation and irrigation;
  --Governor Hoeven's decision (July 15, 2009) to void the original 
        permit to drain was made without consultation with downstream 
        entities and individuals who would be negatively affected by 
        North Dakota Health Department action to increase sulfate 
        levels in the Sheyenne from 450 mg/L to 750 mg/L. The action 
        was also arbitrary and capricious and made without supporting 
        scientific documentation of the effects of outlet operation on 
        the aquatic life or the hydrology of the Sheyenne River.
    Here are some of those who should have been involved in making any 
decision before Governor Hoeven voided the original outlet permit and 
allowed increased pumping of the Devils Lake outlet from 100 cubic feet 
per second to 250 cfs.
  --Barnes County and Valley City Commissions.--Valley City uses river 
        water for drinking.
  --The U.S. Fish Hatchery.--Can hatchery fish survive in Devils Lake 
        water?
  --The North Dakota Game and Fish Department.--What will 100,000 acre/
        feet of Devils Lake water do to Lake Ashtabula?
  --The U.S. Army Corps of Engineers.--Who controls Baldhill Dam?
  --Landowners along the Sheyenne River.--I am one of them.
  --Fargo and West Fargo.--They will be affected by Devils Lake water.
  --Canada.--Have Canadian concerns about biota transfer been 
        adequately addressed? The FEIS of the Corps' Outlet Project 
        seem to indicate that they have not. And what about added 
        levels of contaminated Devils Lake water in general? What about 
        taking the issue to the International Joint Commission for 
        mediation?
  --The U.S. Bureau of Reclamation.--Where are the studies showing the 
        effects of Devils Lake water on the Red River Basin Water 
        Supply Project? Has the RRBWSP taken Devils Lake water into 
        consideration? If so, what are the ramifications of more Devils 
        Lake water in the Sheyenne?
    All of these affected parties should have facts and scientific 
data--not just verbal assurances--to reveal the effects of adding 250 
cfs Devils Lake water to the Sheyenne River.
    But when Governor Hoeven on July 15, 2009, signed the letter 
allowing the use of Emergency Rules to void the permit to drain and 
replace it with a plan that will allow degradation of the Sheyenne 
River, none of these constituents had any voice in the matter. An 
arbitrary and capricious act replaced science, common sense and 
community involvement.
    Scientific studies should be done before any decision is made to 
allow the Devils Lake outlet to continue pumping contaminated water 
into the Sheyenne River.
    I live along the Sheyenne River south of Valley City, North Dakota, 
and whatever happens to the river affects me and impacts the ways I and 
hundreds of others are able to use the river. For the State of North 
Dakota to add degraded Devils Lake water to the Sheyenne River is a 
violation of all property owners' rights because in one way or another 
contaminating river water reduces its beneficial uses. The more 
contaminated the water becomes, the fewer uses, and contrary to what 
the North Dakota Department of Health says, all of the beneficial uses 
of the river cannot be maintained when large quantities of Devils Lake 
water are dumped into the river. That is, the river cannot maintain the 
number of fish and mussel species it now contains, cannot be used for 
recreational purposes that are now enjoyed and cannot be used for 
public consumption.
    Devils Lake has been rising since the 1950s. Higher water on the 
lake is not new and this is not an emergency. The only way to prevent 
water from reaching the lake is to turn off the faucet, just as you 
would if it were a bathtub. During the past 50 years over 350,000 acres 
of wetlands in the upper Devils Lake basin were drained. In the spring 
of 2009, for example, over 550,000 acre-feet of water drained from 
those acres into Devils Lake from the upper basin. The lake rose 3\1/2\ 
feet.
    How can those living around Devils Lake deal with rising water? 
Evapotranspiration will remove over 30 inches each year, but the Devils 
Lake outlet--removing about 3-4 inches per year--cannot keep up with 
that kind of annual inflow. Rather than draining the tub, stop the 
inflows
    It makes no sense to discharge polluted Devils Lake water into the 
Sheyenne River when the faucet that keeps the tub full is left on. Turn 
off the faucet.
                                 ______
                                 
             Prepared Statement of Gary L. Pearson, D.V.M.
    In the January 29, 2010, news story announcing the Senate Committee 
on Appropriations Subcommittee on Energy and Water Developments' 
February 19, 2010, field hearing on the release of water from Devils 
Lake and the potential impact on downstream communities, Subcommittee 
Chairman Senator Byron Dorgan of North Dakota was quoted as saying:

    ``We have made all kinds of efforts . . . to help provide the 
funding necessary to mitigate the damages of flooding at Devils Lake. 
But I have always insisted, I am not interested in transferring the 
problem from one region of our State to another.'' (Daum, 2010)

    Transferring problems from one region of the State to another--and 
to other States and provinces--has been a cornerstone of water 
management in North Dakota for nearly a century. Indeed, by definition, 
wetland drainage is the epitome of transferring a problem from one area 
to another.
    the contribution of wetland drainage to flooding in north dakota
    North Dakota originally had an estimated 5,000,000 acres of 
wetlands, but by 1984, 3,000,000 acres of those wetlands had been lost 
(Tiner, 1984). Most of those wetlands occurred in the Red River Valley, 
the Drift Prairie and the Missouri Coteau in the eastern half of 
Dakota. Wetland drainage in the James River Basin has contributed to 
flooding at Jamestown and other areas along the James River in North 
Dakota and South Dakota where just a dozen drainage projects in two 
counties contributed 5 feet to the record flood crest at Jamestown 
Reservoir in 2009 (See Pearson, 2009a, Attached). Wetland drainage in 
the Souris River Basin, where 220,000 acres of wetlands had been 
drained by 1980, has contributed to flooding at Minot and other areas 
along the Souris River. (Pearson, 1985)
                          the red river basin
    Most of the rest of North Dakota's 3,000,000 acres of drained 
wetlands and 2,000,000 acres of remaining wetlands were or are located 
within the Red River Basin in watersheds of tributaries to the Red 
River of the North, such as the Sheyenne, the Wild Rice, the Maple, the 
Rush, the Elm, the Goose, the Turtle, the Forest, the Park and the 
Pembina rivers. With the construction of the Devils Lake outlet to the 
Sheyenne River by the North Dakota State Water Commission, wetland 
drainage in the 3,814 square-mile Devils Lake Subbasin also has been 
contributing water to the Red River since 2005.
    North Dakota Century Code  61-32-03 specifies that:

    ``Any person, before draining a pond, slough, lake, or sheetwater, 
or any series thereof, which has a watershed comprising 80 acres (32.37 
hectares) or more, shall first secure a permit to do so . . . A permit 
may not be granted until an investigation discloses that the quantity 
of water which will be drained from the pond, slough, lake, or 
sheetwater, or any series thereof, will not flood or adversely affect 
downstream lands.''

    However, the North Dakota State Engineer and local water resource 
districts rarely conduct the required investigations to document the 
acreage of wetlands destroyed by drainage projects, the volume of water 
contributed from the drained wetlands, or the effects of the drainage 
on downstream lands. In fact, the statute is routinely circumvented by 
the very agencies that are supposed to enforce it by:
  --Initiating action only if formal complaints are filed by the 
        public.
  --Determining that the watershed involved is less than 80 acres in 
        size, either by an arbitrary decision unsupported by evidence 
        or by the expedient of two or more ditches being used to drain 
        the watershed.
  --Arbitrarily and without evidence determining that the drainage 
        involves ``cleanout'' of an existing drain.
  --Arbitrarily denying, in the face of unequivocal evidence to the 
        contrary, that drainage has occurred.
  --Issuing drainage permits after the fact without conducting the 
        required investigations. (Pearson, 1985)
    Because the State Water Commission has not compiled information on 
wetland drainage in the State, it is difficult to determine the exact 
extent to which wetland drainage has contributed to flooding in eastern 
North Dakota; however, it clearly is in the millions of acre-feet of 
water in periods of high precipitation.
    Nearly three decades ago, in a report on ``Stream Flow Changes in 
the Southern Red River Valley of North Dakota,'' investigators at the 
North Dakota State University determined that:

    ``. . . The analysis indicates that approximately 50 percent of the 
increase in predicted mean annual flow [in the Maple and Goose rivers], 
36 percent of the increase in predicted maximum daily flow, and 70 
percent of the increase in predicted mean spring flow is due to 
increased drainage area. (Emphasis added) (Brun, et al., 1981)
    ``The current drainage upstream from Mapleton was estimated to be 
64 percent greater than the natural drainage, while the current 
drainage upstream from Hillsboro was estimated to be 180 per cent 
greater [than] the natural drainage.'' (Brun, et al., 1981)

    The investigators concluded that:

    ``Significant increases in flow on the Maple, Wild Rice and Goose 
Rivers have occurred over the last 30 to 40 years. Flow rates were 
shown to be related to climate (precipitation); however, there appears 
to be no change in precipitation patterns to account for the increase 
in flow rates. Predicted flow rates were shown to be closely related to 
changes in basin size due to land drainage in the Maple River and Goose 
River basins. It appears that land drainage is a factor aggravating the 
flooding problem in eastern North Dakota . . . '' (Emphasis added) 
(Brun, et al., 1981).

    Wetland drainage also has contributed significantly to flooding on 
the Pembina River at the Canadian Border (See Pearson, 2009b, 
Attached).
    Five years ago, in a study of ``Changes in Fish Assemblage 
Structure of the Red River of the North,'' investigators reported that:

    ``Watershed changes such as conversion of grassland to intensive 
row crop agriculture, wetland drainage, and channelization of 
tributaries may have affected species richness by increasing hydrologic 
variability. Climatic and hydrologic records over the past 120 years 
suggest wet periods in the late 1800s to early 1900s and the late 1900s 
to present separated by a dry period that included the drought of the 
1930s. While the 40-year periods from 1882 to 1921 and 1962 to 2001 had 
similar precipitation averages, peak flows at Grand Forks have averaged 
60 percent higher in the latter time period.'' (Emphasis added) 
(Aadland, et al., 2005)

    The contribution of wetland drainage is becoming widely recognized 
across the country. For example:

    ``. . . According to the Army Corps of Engineers, 111 million acre-
feet of water passed St. Louis during the 80 days of flooding in 1993 
(citation omitted). Given that, at this location on the river, the 
bank-full discharge is 450,000 cubic feet per second, the volume of 
water in excess of this discharge for the 80-day flood period was 
approximately 40 million acre-feet. Distributed at a 3-foot depth (the 
approximate depth of a deep marsh), these waters would have covered a 
little more than 13 million acres. The 26 million acres of wetlands 
eliminated (in the upper Mississippi Basin) since 1780 could have 
easily accommodated this volume . . .'' (Hey and Philippi, 1995)

    Although the contribution of the drainage of some 2,000,000 acres 
of wetlands in the Red River Basin to the 8 of the 10 worst floods in 
history that have occurred on the Red River in the last 30 years is 
difficult to quantify specifically, there can be no doubt that it has 
been a significant factor. And now taxpayers in North Dakota, Minnesota 
and across the country are faced with spending up to $1.3 billion 
dollars to protect just Fargo, North Dakota, and Moorhead, Minnesota, 
from flooding on the Red River--while increasing flooding downstream. 
(The Forum, 2010)
    It is in this context that the impacts of the drainage of water 
from Devils Lake on downstream communities must be considered.
The Devils Lake Subbasin
    In his Fifth Biennial Report to the Governor for 1911-1912, the 
North Dakota State Engineer noted that:

    ``The water level of any lake possessing no outlet depends on the 
amount of evaporation, seepage, rainfall and the 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.'' (North Dakota State Engineer, 
1911-1912)

    As is the case in the Red River Valley, no comprehensive and 
objective studies have been done on the contribution of wetland 
drainage in the Devils Lake Basin to the rise of Devils Lake. In fact, 
there is no agreement on the number of acres of wetlands that have been 
drained in the Devils Lake Basin. For example, the Devils Lake Basin 
Advisory Committee, established by the North Dakota Legislative 
Assembly in 1975 to develop long-term water resource policies for the 
Devils Lake Basin, estimated that 569,000 acres of wetlands originally 
were present in the Basin and that approximately 75,000 acres of 
wetlands had been drained by 1976 (Devils Lake Basin Advisory 
Committee, 1976). Using topographical maps of 1.45 percent of the 
Devils Lake Basin, a 1983 report estimated that 412,000 acres of 
drained and undrained wetlands were present in the Devils Lake Basin 
(Ludden, et al., 1983). Based on aerial photography, the North Dakota 
State Engineer and the U.S. Fish and Wildlife Service estimated in 1997 
that 189,000 acres of wetlands had been drained in the Devils Lake 
Basin (Sprynczynatyk and Sapa, 1997). Using a Digital Elevation Model, 
West Consultants, Inc., estimated that 92,429 acres of wetlands had 
been drained in 68 percent of the Devils Lake Basin (West Consultants, 
Inc., 2001), but the modeling technique used in the study is not an 
accurate method for delineating drained prairie wetlands. (Johnson, 
2001)
    The primary problem in basing estimates of the acreage of drained 
wetlands on the identification of drained wetland basins and drainage 
ditches is that after a few years of tillage and siltation many of the 
basins and drains no longer can be identified. It is similar to 
attempting to determine the number of bison that once roamed the 
prairies by counting the number of bison skulls that can be found. 
There is, however, one significant difference: the ``skeletons'' of 
drained wetlands still remain buried on the prairie in the form of 
hydric soils, i.e., soils that developed over thousands of years under 
wetland conditions. Consequently, the most reliable way to determine 
how many acres of wetlands have been drained in an area is to count the 
acres of remaining wetlands, which can be done quite readily, and 
subtract that number from the acres of hydric soils in the area.
    In 1998, the North Dakota State Water Commission estimated 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.'' (Hovde, 1998)

    Subtracting the 211,000 acres of wetlands remaining in the Devils 
Lake Basin in 1998 from the 569,000 acres of wetlands originally 
estimated to have been in the Basin by the Devils Lake Basin Advisory 
Committee (1976) would indicate that 358,000 acres of wetlands have 
been drained in the Devils Lake Basin. However, there are an estimated 
588,917 acres of hydric soils in the Devils Lake Basin (U.S. Fish and 
Wildlife Service, 1997), so the acreage of wetlands that have been 
drained in the Devils Lake Basin actually is closer to (589,000 - 
211,000 =) 378,000 acres.
    Wetlands in the Devils Lake Basin have the capacity to store an 
average of 18.5 inches (1.54 feet) of water in a 100-year runoff event 
and they have an average maximum storage capacity of 20.9 inches (1.74 
feet) of water (Ludden, et al., 1983). Runoff in the Devils Lake Basin 
since 1993 frequently has exceeded the 100-year frequency run-off, so 
this means that the drainage of 378,000 acres of wetlands in the Devils 
Lake Basin eliminated some 657,000 acre-feet of storage in the Basin. 
Therefore, because the Devils Lake Basin had been in a 5-year drought 
since 1988 so wetland basins were largely dry, an additional 657,000 
acre-feet of water may have entered Devils Lake from those drained 
wetland basins when high levels of precipitation occurred in 1993. In 
addition, because evaporation in the Devils Lake Basin exceeds 
precipitation by an average of 12.8 inches per year, and because 
evaporation exceeded precipitation by an average of 8 inches per year 
even during the especially wet years from 1993 to 1999 (West 
Consultants, Inc., 2001), as much 253,000 acre-feet of water may have 
entered Devils Lake every year since 1993 as a result of lost 
evaporation capacity from those drained wetlands. Consequently, as much 
as 80 percent of the average 317,000 acre-feet of inflows to Devils 
Lake from 1993 to 1999--and as much as 43 percent of the record 587,000 
acre-feet of inflows in the spring of 2009--may have been the result of 
the loss of evaporation capacity from drained wetlands.
    Of course, it would not be realistic to suggest that all of the 
3,000,000 million acres of drained wetlands in North Dakota, or the 
378,000 acres of drained wetlands in the Devils Lake Basin, could be 
restored. However, what is clear is that further wetland drainage in 
North Dakota, and particularly in the Red River Basin and the Devils 
Lake Basin, should be strictly prohibited except in the most critical 
situations and where the hydrologic and ecologic functions of the 
drained wetlands are fully replaced within the watershed. In addition, 
a comprehensive, long-term program to restore wetlands wherever 
possible should be implemented.
   impacts of the discharge of water from the devils lake outlet on 
                         downstream communities
    In 2004, the North Dakota Department of Health issued a North 
Dakota Pollution Discharge Elimination System permit, under the section 
402 of the Federal Clean Water Act, for the North Dakota State Water 
Commission's Devils Lake outlet. The permit, which was to expire on 
June 30, 2008, constrained operation of the outlet by (1) a 100 cubic 
feet per second (cfs) maximum discharge, (2) limiting operation of the 
outlet from May through November, (3) limiting maximum daily Total 
Suspended Solids to 100 mg/L, (4) limiting the total combined discharge 
from the outlet and natural flows in the Sheyenne River to 600 cfs, (5) 
and a 300 milligrams per liter (mg/L) maximum sulfate level in the 
Sheyenne River. Constrained by these conditions, the outlet removed a 
total of 38.46 acre-feet of water from Devils Lake in 2005 and it did 
not operate at all in 2006. (See Pearson 2009c, Attached)
    Two years later on August 16, 2006, the North Dakota Department of 
Health modified the permit for the outlet by (1) removing the 
restriction on operation of the outlet from May through November, (2) 
removing the 100 mg/L maximum daily Total Dissolved Solids restriction, 
and (3) increasing the maximum sulfate limit in the Sheyenne River to 
450 mg/L. Operating under these modified permit conditions, the outlet 
removed a total of 298.18 acre-feet of water from Devils Lake in 2007, 
and it removed a total of 1,241 acre-feet in 2008. At the current lake 
elevation of 1,450 feet and surface area of 163,000 acres, that is 
equivalent to a 0.01 foot (0.12 inch) reduction in the level of Devils 
Lake. (See Pearson 2009c, Attached)
    In July 2009, the North Dakota Department of Health vacated the 
Clean Water Act section 402 permit it had issued for the Devils Lake 
outlet, implemented an interim emergency rule raising the maximum 
sulfate level in the Upper Sheyenne River to 750 mg/L, and proposed the 
addition of a new section to the Department's administrative rules 
permanently raising the sulfate limit in the Upper Sheyenne River to 
750 mg/L. Then in December 2009 the North Dakota State Water Commission 
submitted an application for a permit to increase the capacity of the 
Devils Lake outlet from 100 cfs to 250 cfs. Because sulfate levels in 
West Bay of Devils Lake are at 600 to 700 mg/L and discharges would no 
longer be constrained by the capacity of the channel of the Sheyenne 
River, the only restriction on operation of the outlet would be the 
capacity of the pumps. (See Pearson, 2009c and 2010a, Attached)
    No studies have been done to identify the impacts on downstream 
communities of the operation of a 250 cfs Devils Lake outlet limited 
only by a 750 mg/L maximum sulfate limit in the Sheyenne River (See 
Pearson, 2010, p. 6, Attached), but the U.S. Army Corps of Engineers 
has identified a number of significant adverse impacts to the Sheyenne 
River and downstream communities resulting from the operation of a 300 
cfs Devils Lake outlet constrained by total combined flows of 600 cfs 
and a much lower 300 mg/L sulfate limit in the Sheyenne River (U.S. 
Army Corps of Engineers, 2003). Those impacts identified by the U.S. 
Army Corps of Engineers include:
  --Accelerated erosion along the Sheyenne River.
  --Exacerbated flooding in the Sheyenne River.
  --Substantial change in the flow regime of the Sheyenne River, 
        including a five to tenfold increase in summer and fall flow.
  --Changes in habitat conditions and availability resulting in changes 
        in aquatic species composition and abundance in the Sheyenne 
        River, including lost year classes of fish and declines in 
        invertebrate populations.
  --Increased nutrient loading of Lake Ashtabula.
  --The shifting of a large portion of the riparian vegetation along 
        the Sheyenne River from woods to a more open community type, 
        resulting in concurrent changes in animal species composition 
        along the river.
  --Reduced agricultural production on irrigated lands along the 
        Sheyenne and Red rivers.
  --Increased salinity hazards associated with use of river water for 
        irrigation.
  --Diminished property values along the Sheyenne River.
  --Induced salt loading to floodplain soils along the Sheyenne River.
  --Increased annualized downstream water treatment costs ranging from 
        $1,757,000 to $3,304,400 per year.
    For additional information on these and other impacts of the Devils 
Lake outlet on the Sheyenne River and downstream communities, see 
Pearson 2009c and 2010a (Attached).
    Because sulfate levels in West Bay of Devils Lake are at 600 to 700 
mg/L, the State Water Commission's 250 cfs Devils Lake outlet would be 
limited only by the capacity of the pumps, so the short term impacts of 
the increased flows and higher levels of contaminants (sulfates, TDS, 
phosphorus, hardness, chloride, mercury, arsenic, etc.) from the Devils 
Lake water could be significantly more severe than those identified by 
the Corps of Engineers for a 300 cfs outlet constrained by 600 cfs 
total flows and a 300 mg/L sulfate limit in the Sheyenne River.
   efficacy of a 250 cfs devils lake outlet in lowering the level of 
                              devils lake
    A 250 cfs Devils Lake outlet is unlikely to be substantially more 
effective in lowering the level of Devils Lake than the State Water 
Commission's demonstrably ineffective 100 cfs outlet because, under the 
North Dakota Department of Health's proposed amendment of its 
administrative rules, the sulfate limit in the Lower Sheyenne River 
downstream from Lake Ashtabula would remain at 450 mg/L (See Pearson, 
2009c, 2010a, Attached).
    Assistant North Dakota State Engineer Todd Sando claims that 
increasing the capacity of the Devils Lake outlet from 100 cfs to 250 
cfs:

    ``. . . could remove more than 6 inches of water annually from the 
lake.'' (MacPherson, 2009)

    At Devils Lake's current surface area of 163,000 acres, the outlet 
would have to discharge 81,500 acre-feet per year in order to remove 6 
inches of water from the lake. However, with sulfate levels in West Bay 
ranging from 600 to 700 mg/L, operation of the outlet at 250 cfs would 
replace the entire 69,000 acre-feet volume at the top Lake Ashtabula's 
conservation pool with Devils Lake water in just 4.2 months, at which 
time operation of the outlet would have to be suspended because 
releases of water with 600 to 700 mg/L of sulfate could not be made 
from Lake Ashtabula without violating the 450 mg/L sulfate limit in the 
Sheyenne River beginning 0.1 mile downstream from Baldhill Dam. What 
this means is that, once the sulfate level reaches 450 mg/L in Lake 
Ashtabula, subsequent discharges from the outlet would be limited by 
dilution of sulfate levels in the reservoir by natural flows in the 
Sheyenne River and management of the reservoir for flood control, 
downstream municipal water supplies and recreation. Of course, 
increasing the concentration of sulfates and other contaminants in the 
water released from Lake Ashtabula will increase water treatment costs 
for downstream communities. Consequently, it is unlikely that the 250 
cfs outlet would remove more than an inch or so of water from the lake 
per year. To put this in perspective, Devils Lake rose 3.8 feet in the 
spring of 2009--but only 1.5 feet above the previous high on May 9, 
2006--and it would take 5.6 years for the outlet operating at 250 cfs 
for 7 months every year to remove just last spring's record 587,000 
acre-feet of inflows. (See Pearson, 2010a, pp. 10-14, Attached)
                               conclusion
    On February 10, 2010, North Dakota Congressman Earl Pomeroy visited 
Devils Lake and was reported as saying:

    ``The thing that really gets me about all the work we've done is we 
have another lake rise of 2-3 feet bringing a new host of problems that 
only get more difficult.'' (Bodakowski, 2010)

    And Ramsey County Commissioner and the State's Devils Lake Outlet 
Downstream Acceptance Coordinator Joe Belford was reported as saying:

    ``I know congressman Pomeroy and the Government have been working 
hard and will continue to, but its not helping, we're losing the 
battle.''

    If, as State officials say, more than $800 million has been spent 
dealing with the rising water level at Devils Lake (Dwelle, et al., 
2010) and the problems are only getting more difficult and we are 
losing the battle, then perhaps it is time to do something 
different.\1\
---------------------------------------------------------------------------
    \1\ At its natural overflow elevation of 1,459 feet, evaporation 
from Devils Lake would be over 700,000 acre-feet per year--220 percent 
of the 1993-1999 annual average 317,000 acre feet of inflows, 20 
percent more than 2009's record 587,000 acre-feet of inflows, and seven 
times what the outlet would remove operating at its maximum 250 cfs 
capacity for 7 months.
---------------------------------------------------------------------------
    Instead of attempting to remove water after it already is in Devils 
Lake and after it has already caused damage, perhaps it is time to 
consider doing something to reduce the amount of water entering the 
lake in the first place. Nothing can be done about the weather, but 
something certainly could be done to reduce the runoff from the 378,000 
acres of drained wetlands in the Devils Lake Basin. In my February 10, 
2009 letter to the Senate Subcommittee on Energy and Water Development 
Chairman Byron Dorgan submitted as outside testimony for the record of 
the subcommittee's February 11, 2009 field hearing on ``Determining 
what action must be taken to protect residents of the Devils Lake 
region from rising waters,'' I recommended 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.'' (Pearson 
2009d)

    I would like to reiterate that recommendation and add the U.S. 
Geological Survey to the list of Federal agencies that should be 
enlisted to prepare a wetland restoration program for the Devils Lake 
Basin.
    The subcommittee should also ask the U.S. Environmental Protection 
Agency what it is going to do to assure that water quality is protected 
in the Sheyenne River with the North Dakota Department of Health's 
proposal to increase the maximum sulfate limit in the Upper Sheyenne 
River from 450 mg/L to 750 mg/L and the North Dakota State Water 
Commission's plan to increase discharges from the Devils Lake outlet 
from 100 cfs to 250 cfs.
    In the meantime, continued expenditures on infrastructure 
protection requiring additional hundreds of millions of taxpayer 
dollars may be necessary because North Dakota State officials have 
refused for decades to address the problem of rising water levels in 
Devils Lake responsibly and truthfully (Pearson, 1985; 2010b, 
Attached).
                               references
    Aadland, Luther P., Todd M. Koel, William F. Franzin, Kenneth W. 
Stewart and Patrick Nelson. 2005. Changes in Fish Assemblage Structure 
of the Red River of the North. American Fisheries Society. American 
Fisheries Society Symposium 454:293-321.
    Bodakowski, Steve. 2010. WDAZ Television. Grand Forks, North 
Dakota. February 11.
    Brun, L.J., J.L. Richardson, J.W. Enz and J.K. Larsen. Stream Flow 
Changes in the Southern Red River Valley of North Dakota. North Dakota 
Farm Research. 38(5): 11-14.
    Daum, Kristen. 2010. Dorgan to weigh F-M options. The Forum. Fargo, 
North Dakota. January 29.
    Devils Lake Basin Advisory Committee. 1976. The Devils Lake Basin 
Study, Study Report, Volume 1. 235 pp.
    Dwelle, Terry, Todd Sando and L. David Glatt. 2010. State agencies 
working to protect Valley City as Well as Devils Lake. The Valley City 
Times-Record, Valley City, North Dakota. February 8.
    Hey, Donald L. and Nancy S. Phillippi. 1995. Flood Reduction 
through Wetland Restoration: The Upper Mississippi River Basin as a 
Case History. Restoration Ecology 3(1): 4-17.
    Hovde, Brett. 1998. Letter from Environmental Scientist, North 
Dakota State Water Commission, Bismarck, North Dakota, to Robert J. 
Whiting, Environmental Resources Section, St. Paul District, U.S. Army 
Corps of Engineers, St. Paul, Minnesota. 4 pp. District, U. S. Army C.
    Johnson, Rex. 2001. Evaluation of alternative techniques for 
delineating restorable depressional Wetlands in the prairie pothole 
region and prairie parklands of Minnesota. A report Prepared for the 
Restorable Wetlands Working Group.
    Ludden, Albert P., Dale L. Frink and Douglas H. Johnson. 1983. 
Water storage capacity of natural wetland depressions in the Devils 
Lake Basin of North Dakota. Journal of Soil and Water Conservation. 
38(1):45-48.
    MacPherson, James. 2009. North Dakota water panel approves Devils 
Lake project. Associated Press. August 19.
    North Dakota State Engineer. 1911-1912. Fifth Biennial Report of 
the State Engineer to the Governor of North Dakota For the Years 1911-
1912. Knight Printing Company, State Printers. Fargo.
    Pearson, Gary L. 1985. Draining the Great Marsh. USA Today. 
November, pp. 83-89.
    Pearson, Gary L. 2009a. (Attached) Letter to the Editor, Kathy 
Steiner. The Jamestown Sun. April 29. 2 pp.
    Pearson, Gary L. 2009b. (Attached) (Letter to U.S. Secretary of 
State Hillary Clinton, Washington, DC July 13. 3 pp.
    Pearson, Gary L. 2009c. (Attached) Comments on the North Dakota 
Department of Health's July 15, 2009, Proposal to Adopt an Emergency 
Rule Adding a New Section to North Dakota Administrative Code Chapter 
33-16-02.1 Standards of Quality for Waters of the State to Change the 
Classification of the Upper Sheyenne River and Increase the Maximum 
Limit for Sulfate in the River from 450 mg/L to 750 mg/L. 34 pp.
    Pearson, Gary L. 2009d. Letter to the Honorable Senator Byron 
Dorgan, Chairman, Senate Subcommittee on Energy and Water Development, 
Dirksen Senate Office Building, Attn. Mr. Roger Cockrell, Senate 
Appropriations Committee, United States Senate. Washington, DC 2 pp.
    Pearson, Gary L. 2010a. (Attached) Comments on the North Dakota 
State Water Commission's Application No. 3457 to Drain Water from 
Devils Lake to the Sheyenne River by Increasing the Capacity of the 
Existing Devils Lake Outlet from 100 to 250 cubic feet per second. 27 
pp.
    Pearson, Gary L. 2010b. (Attached) State officials not dealing 
truthfully when it comes to Devils Lake outlet. The Valley City Times-
Record. February 15.
    Spyrnczynatyk, David A. and Allyn J. Sapa. Letter from North Dakota 
State Engineer and Field Supervisor, U.S. Fish and Wildlife Service, to 
Steve Blomeke, Director, National Wildlife Federation, Bismarck, North 
Dakota, and Roger Beaver, Vice Chairman, Devils Lake Basin Joint Water 
Resource Board, Devils Lake, North Dakota. 8 pp. w/encl.
    The Forum. 2010. UPDATED: New corps report shows North Dakota, 
Minnesota diversions meet cost-benefit analysis, all Red River options 
raise downstream levels. Forum staff report. Fargo, North Dakota. 
February 1.
    Tiner, Ralpy W., Jr. 1984. National Wetlands Inventory, Wetlands of 
the United States: Current Status and Recent Trends. U.S. Department of 
the Interior, Fish and Wildlife Service. 59 pp.
    U.S. Army Corps of Engineers. 2003. Final Devils Lake, North 
Dakota, Integrated Planning Report and Environmental Impact Statement.
    U.S. Fish and Wildlife Service. 1997. Devils Lake Feasibility 
Study, Lake Stabilization, Devils Lake, North Dakota. Planning Aid 
Letter and Substantiating Report. Prepared by North Dakota Field 
Office, Bismarck, North Dakota. 46 pp. w/appendices.
    West Consultants, Inc. 2001. Final Report, Devils Lake Upper Basin 
Storage Evaluation. Prepared for the St. District, U.S. Army Corps of 
Engineers. 78 pp.
                                 ______
                                 
   Comments on the North Dakota Department of Health's July 15, 2009 
   Proposal to Adopt an Emergency Rule Adding a New Section to North 
Dakota Administrative Code Chapter 33-16-02.1 Standards of Quality for 
Waters of the State to Change the Classification of the Upper Sheyenne 
River and Increase the Maximum Limit for Sulfate in the River From 450 
                            mg/L to 750 mg/L
                              introduction
    On July 15, 2009, the North Dakota Department of Health (Department 
of Health, Department) issued a ``Notice of Intent to Adopt 
Administrative Rule'' relating to ``the Standards of Quality for Waters 
of the State, ND Admin Code ch. 33-16-02.1'' (Glatt, 2009a). According 
to the Notice of Intent:

    ``The purpose of the proposed rule is to change the maximum level 
of sulfate in a segment of the Sheyenne River. The rule will change the 
maximum level of sulfate in the segment of the Sheyenne River that runs 
from its headwaters to 0.1 mile downstream from Baldhill Dam, including 
Lake Ashtabula, from 450 mg/L to 750 mg/L . . .'' (Glatt, 2009a)

    The Department of Health is proposing to add a new section to North 
Dakota Administrative Code Chapter 33-16-02.1 dealing specifically and 
exclusively with the ``Maximum Sulfate Limit of Sheyenne River.'' The 
proposed new section would provide that:

    ``The quality of water in the Sheyenne River shall be that of a 
Class 1A stream except that the maximum limit of sulfate in the segment 
of the Sheyenne River that runs from its headwaters to 0.1 mile 
downstream from Baldhill Dam, including Lake Ashtabula, shall be 750 
mg/L.''

    The sole reason and justification cited in the Department of 
Health's July 15, 2009 ``Finding and Statement of Reason of the North 
Dakota Department of Health Regarding Proposed Rule Relating to Water 
Quality Standards'' for permanently increasing the sulfate limit in the 
Upper Sheyenne River from 450 milligrams per liter (mg/L) to 750 mg/L 
is that Devils Lake rose a foot-and-a-half this spring from its 
previous high 3 years ago of 1,449.2 feet above mean sea level (msl) 
(Glatt, 2009b), and the Department is proposing:

    ``. . . to initiate immediate action to address the situation by 
increasing flow from the Devils Lake outlet.'' (Glatt, 2009c)

    The Department is proposing to accomplish this rule change under 
the authority of the emergency rules section of the Administrative 
Agencies Practice Act, North Dakota Century Code  28-32-03 (Glatt, 
2009c).
    North Dakota Administrative Code Chapter 33-16-02.1 establishes 
``Standards of Quality for Waters of the State,'' and NDAC  33-16-
02.1-02 states:

    ``The purposes of this chapter are to establish a system for 
classifying waters of the State; provide standards of water quality for 
waters of the State; and protect existing and potential beneficial uses 
of waters of the State.
    ``The State and public policy is to maintain or improve, or both, 
the quality of the waters of the State and to maintain and protect 
existing uses. Classifications and standards are established for the 
protection of public health and environmental resources and for the 
enjoyment of these waters, to ensure the propagation and well-being of 
resident fish, wildlife, and all biota associated or dependent upon 
these waters, and to safeguard social, economical, and industrial 
development. Waters not being put to use shall be protected for all 
reasonable uses for which these waters are suitable. All known and 
reasonable methods to control and prevent pollution of the waters of 
this State are required, including improvement in quality of these 
waters, when feasible.
      ``The `quality of the waters' shall be the quality of record 
        existing at the time the first standards were established in 
        1967, or later records if these indicate improved quality. 
        Waters with existing quality that is higher than established 
        standards will be maintained at the higher quality unless 
        affirmatively demonstrated, after full satisfaction of the 
        intergovernmental coordination and public participation 
        provisions of the continuing planning process, that a change in 
        water quality is necessary to accommodate important social or 
        economic development in the area in which the waters are 
        located. In allowing the lowering of existing quality, the 
        department shall assure that existing uses are fully protected 
        and that the highest statutory and regulatory requirements for 
        all point sources and cost-effective and reasonable best 
        management practices for nonpoint sources are achieved.
      ``Waters of the State having unique or high quality 
        characteristics that may constitute an outstanding State 
        resource shall be maintained and protected.
      ``Any public or private project or development which constitutes 
        a source of pollution shall provide the best degree of 
        treatment as designated by the department in the North Dakota 
        pollutant discharge elimination system. If review of data and 
        public input indicates any detrimental water quality changes, 
        appropriate actions will be taken by the department following 
        procedures approved by the environmental protection agency. 
        (North Dakota Antidegradation Implementation Procedure, 
        Appendix IV.)''
    On August 30, 2002, North Dakota State Engineer Dale Frink 
submitted an application to the North Dakota Department of Health, 
under section 402 of the Clean Water Act, for a North Dakota Pollutant 
Discharge Elimination System Permit for the North Dakota State Water 
Commission's outlet from Devils Lake to the Sheyenne River (Frink, 
2002a, 2002b). On the first U.S. Environmental Protection Agency form 
that he signed, Mr. Frink averred that:

    ``I certify under penalty of law that I have personally examined 
and am familiar with the information submitted in this application and 
all attachments and that, based on my inquiry of those persons 
immediately responsible for obtaining the information contained in the 
application, I believe that the information is true, accurate and 
complete. I am aware that there are significant penalties for 
submitting false information, including the possibility of fine and 
imprisonment.'' (Frink, 2002a)

    On the second form signed by Mr. Frink, he averred that:

    ``I certify under penalty of law that this document and all 
attachments were prepared under my direction or supervision in 
accordance with a system designed to assure that qualified personnel 
properly gather and evaluate the information submitted. Based on my 
inquiry of the person or persons who manage the system, or those 
persons directly responsible for gathering the information, the 
information submitted is, to the best of my knowledge and belief, true, 
accurate, and complete. I am aware that there are significant penalties 
for submitting false information, including the possibility of fine and 
imprisonment for knowing violations.'' (Frink, 2002b)

    In support of his application for a Clean Water Act section 402 
permit for the State Water Commission's Devils Lake outlet, State 
Engineer Dale Frink submitted to the Department of Health a ``State of 
North Dakota Water Quality Report for the Devils Lake Outlet Project.'' 
The only information submitted by Mr. Frink in support of his 
application dealing with the need to degrade water quality in the 
Sheyenne River by operation of the outlet in order to accommodate 
social or economic development was one cursory and unsubstantiated 
paragraph in the Water Quality Report for the Devils Lake outlet 
Project stating that:

    ``An outlet, if built and operated, reduces the chance of a natural 
overflow. This type of benefit could easily outweigh the cost of 
building and operating an outlet project. Under a wet scenario, if a 
State 100 cfs outlet project were to operate for 10 years, it will 
remove approximately 171,000 acre-feet of water. At elevation 1,447, 
that is approximately 17 inches off of Devils Lake. If the State's 
project has a cost estimate of $20-25 million, that would be enough of 
a reduction to pay for the project.'' (North Dakota State Water 
Commission, 2002)

    Nevertheless, in conducting its antidegradation review for Mr. 
Frink's application, the Department answered, ``Yes'' to the question, 
``Has the applicant demonstrated that the proposed activity will 
provide important socioeconomic development in the area in which the 
affected waters are located?''
    In its ``Response to Comments for the Devils Lake Outlet Project,'' 
the department stated:

    ``In making a preliminary determination of socio-economic 
importance, the division will rely primarily on the demonstration by 
the applicant.'' (North Dakota Department of Health, 2003b)

    However, Mr. Frink knew before he submitted the Water Quality 
Report on the Devils Lake Outlet Project to the Department of Health in 
support of his application for a Clean Water Act section 402 permit 
that the outlet operating for 10 years under a wet scenario would not 
remove 17 inches off the lake, that it would lower the level of the 
lake by only 4.8 inches, that it would not reduce the chance of a 
natural overflow, and that the reduction in the lake level would not 
pay for the project (Reinartz, 2002; Lee, 2007a, 2007b). Consequently 
Mr. Frink knowingly submitted deliberately false information in support 
of his application for a Clean Water Act section 402 permit for the 
outlet.
    On August 22, 2003, North Dakota Department of Health Division of 
Water Quality Director Dennis R. Fewless approved North Dakota 
Pollutant Discharge Elimination System Permit ND-0026247 for the State 
Water Commission's Devils Lake outlet authorizing the intermittent 
discharge of surface water from Devils Lake to the Sheyenne River. The 
Department's issuance of a North Dakota Pollutant Discharge Elimination 
System permit for the outlet was based substantially on the 
deliberately false information submitted by Mr. Frink.
    Following receipt of requests to reconsider the Department's 
approval of the permit, North Dakota Department of Health Environmental 
Health Section Chief L. David Glatt stated on January 28, 2004, that:

    ``Based on the additional comments received by this department, no 
changes are proposed for the Devils Lake Outlet Permit No. ND-
0026247.'' (Glatt, 2004)

    Under the conditions of the permit, which were designed to protect 
water quality in the Sheyenne River and preserve beneficial uses of the 
water (North Dakota Department of Health, 2003a), discharges from the 
outlet were limited to (1) May through November, (2) 100 cubic feet per 
second (cfs) or total flows in the Sheyenne River of 600 cfs, (3) 
maximum 7-day average sulfate concentrations in the Sheyenne River 
immediately downstream from the outlet of 300 mg/L, and (4) a maximum 
daily Total Suspended Solids level of 100 mg/L. The permit would expire 
on June 30, 2008. Constrained by those criteria, the outlet removed a 
total of 38.46 acre-feet of water from Devils Lake in 2005 (Frink, 
2005) and it did not operate at all in 2006 (Frink, 2006).
    On May 25, 2006, the North Dakota Department of Health issued a 
``Public Notice to Modify NDPDES Permit, Notice of Public Hearing on 
NDPDES Permit Modification'' announcing a public hearing June 26, 2006, 
on a request from the North Dakota State Water Commission for 
modification of the permit to discharge Devils Lake surface water into 
the Sheyenne River (North Dakota Department of Health, 2006). The 
department proposed to modify the North Dakota Pollutant Discharge 
Elimination System permit that had been issued for the Devils Lake 
outlet on January 28, 2004, to:
  --Remove the limitation on operation of the outlet from May through 
        November and replace it with a limitation to operation when the 
        Sheyenne River is not ice-covered.
  --Remove the 100 mg/L maximum daily Total Suspended Solids limitation 
        and replace it with a requirement that the outlet ``shall be 
        operated and maintained in accordance with sound engineering 
        practices to minimize the contribution of suspended solids to 
        the Sheyenne River.''
  --Replace the downstream monitoring location on the Sheyenne River at 
        a point ``immediately downstream of the outlet'' with the 
        Bremen site approximately 15 miles downstream of the outlet.
  --Remove the 300 mg/L instream sulfate limitation at the monitoring 
        location immediately downstream of the outlet and replace it 
        with sulfate limitations in the Sheyenne River at Bremen of:
    --300 mg/L when background sulfate concentrations in the river are 
            < 260 mg/L.
    --1.15 times the background sulfate concentrations when background 
            sulfate concentrations in the river are  1260 mg/L and  
            390 mg/L.
    --450 mg/L when background sulfate concentrations in the river are 
            > 390 mg/L.
    The department approved these permit modifications on August 16, 
2006.
    Operating under these modified permit conditions, the outlet 
removed a total of 298.18 acre-feet of water from Devils Lake in 2007, 
and it removed a total of 1,241 acre-feet in 2008. Therefore, the total 
amount of water removed from Devils Lake by the outlet operating under 
the conditions of the North Dakota Pollutant Discharge Elimination 
System permit issued and then modified by the Department of Health from 
2005 through 2008 was 1,577.64 acre-feet. At a lake elevation of 1,450 
feet and surface area of 163,000 acres, that is equivalent to a 0.01 
foot (0.12 inch) reduction in the level of Devils Lake.
    In June 2009, the North Dakota Department of Health vacated the 
North Dakota Pollutant Discharge Elimination System permit it had 
issued for the Devils Lake outlet (Anonymous, 2009a) and implemented an 
interim emergency rule raising the maximum sulfate level in the 
Sheyenne River to 750 mg/L (Glatt, 2009c; Browne, 2009).
    The department is now proposing to add a new section to North 
Dakota Administrative Code  36-16-02.1 to raise the maximum sulfate 
limit in the Upper Sheyenne River permanently to 750 mg/L in order to 
permit increased discharges from the Devils Lake outlet.
 reasons for the proposed emergency rule and the department's findings 
                             are not valid
    According to the ``Statement of Reason'' section of the 
department's July 15, 2009, ``Finding and Statement of Reason:''

    ``The probability of a natural water discharge from the east end of 
Devils Lake has increased substantially over the last year.'' (Glatt, 
2009b)

    U.S. Geological Survey data based on stochastic simulation computer 
model runs show that the probability of Devils Lake exceeding its 
natural overflow elevation of 1,459 feet within 10 years increased from 
2.1 percent in October 2007 to 5.6 percent in May 2009. However, the 
department's ``Statement of Reason'' fails to address two important and 
relevant points regarding the probability of a natural overflow 
occurring. First, Devils Lake would have to rise to an elevation of 
1,460 feet before the volume of the discharge would reach 300 cfs, and 
the probability of that occurring was 2 percent less than the 
probability of the lake reaching 1,459 feet (U.S. Army Corps of 
Engineers, 2002). In other words, the lake would have to rise a foot 
above its natural overflow elevation before the discharge would exceed 
the downstream water quantity impacts of the 250 cfs planned discharge 
of the State Water Commission's outlet. Second, the U.S. Army Corps of 
Engineers determined that there still would be a 4.6 percent chance of 
Devils Lake reaching its natural overflow elevation with its proposed 
300 cfs Pelican Lake outlet in operation (U.S. Army Corps of Engineers, 
2003). The Department claims that the probability of a natural 
discharge occurring from the east end of Devils Lake has increased 
substantially over the last year but it cites no data to demonstrate 
that operation of the State Water Commission's outlet under the 
proposed emergency rule would substantially reduce that probability.
    In his July 13, 2009, letter to the chief of the department's 
Environmental Health Section regarding the Devils lake outlet, North 
Dakota State Engineer Dale Frink said:

    ``USGS studies indicate that the Devils Lake basin is currently in 
a wet cycle and has a 5 percent chance of overflowing to the Sheyenne 
River in the next 5 years or a 1 percent chance of overflowing by 
2011.'' (Frink, 2009)

    Mr. Frink's statement that Devils Lake currently is in a wet cycle 
is refuted by an April 23, 2008, Associated Press story reporting that:

    ``The past 6 months have been the direst on record in North Dakota, 
with the parched western part of the State suffering the most, the 
State climatologist says.
    ``Through Monday, the statewide average precipitation for the past 
180 days was only 1.59 inches, or 39 percent of normal, and the direst 
since record keeping began 113 years ago, said Adam Akuza, the State 
climatologist.
    ``The latest U.S. Drought Monitor shows the western half of the 
State in moderate to extreme drought, with the eastern half listed as 
abnormally dry.'' (Associated Press, 2008)

and by an August 8, 2009 story in The Jamestown Sun reporting that:

    `` `We have the start of a mild El Nino now,' says Klaus Wolter, 
climatologist with the University of Colorado at Boulder and the 
National Oceanic and Atmospheric Administration. `In short, just 
looking at winter weather, El Nino weather tends to be a bit warmer, 
dryer and less windy on the northern plains.' '' (Norman, 2009)

    Mr. Frink stated in his July 13, 2009 letter that:

    ``USGS studies indicate that [Devils Lake] . . . has a 5 percent 
chance of overflowing into the Sheyenne River in the next 5 years or a 
1 percent chance of overflowing by 2011.''

    The U.S. Geological Survey's 2008 ``Climate Simulation and Flood 
Risk Analysis for 2008-40 for Devils Lake, North Dakota'' stated that:

    ``The generated traces were used to compute cumulative flood 
elevations for 2008-40 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 it will not rise above 1,450 
feet (less than 1 foot above the historical record level of 1,449.2 
feet set in 2006) anytime during 2008-40.'' (Emphasis added) (Vecchia, 
2008)

    The U.S. Geological Survey's more recent data on cumulative 
exceedance probabilities based on stochastic simulation model runs show 
that the chance of Devils Lake exceeding its natural overflow elevation 
of 1,459 feet by 2010 is 0.2 percent and the chance of it exceeding 
1,459 feet by 2014 is 3.2 percent.
    It is instructive to note that the U.S. Geological Survey's recent 
cumulative exceedance probability data show that there is a 5.1 percent 
chance that Devils Lake will exceed elevation 1,458 feet by 2014 but 
the chance of it exceeding its natural overflow elevation of 1,459 feet 
by 2014 is only 3.2 percent. However, neither the State Water 
Commission nor the Governor, nor the Department of Health has taken any 
action to prevent the city of Devils Lake from pursuing a project to 
excavate one foot from the Tolna Coulee, the natural outlet from Devils 
Lake, to lower it from 1,459 feet to 1,458 feet (Associated Press, 
2009; Oleson, 2009a, 2009b, 2009c, 2009d). What both Mr. Frink and the 
department fail to disclose is that the 5 percent chance of Devils Lake 
overflowing into the Sheyenne River in the next 5 years and the 1 
percent chance of its overflowing by 2011 are the result of their 
failure to take action to prevent the excavation of a foot from the 
natural outlet, rather than the probability of the lake rising. By 
allowing the natural outlet to be lowered from 1,459 feet to 1,458 
feet, the State Water Commission, the Governor and the Department of 
Health have deliberately tripled the probability of Devils Lake 
overflowing by 2011 from 0.2 to 0.6 percent, and they have increased 
the likelihood of Devils Lake overflowing by 2014 by 1.6 times from 3.2 
percent to 5.1 percent.
    The department's ``Statement of Reason'' states that:

    ``Just since the spring, Devils Lake has risen 3.8 feet to a record 
1,450.7 feet, which is just 7 feet from an uncontrolled spill (at the 
recently excavated outlet elevation of 1,458 feet) into the Sheyenne 
and eventually the Red Rivers.'' (Glatt, 2009b)

    From 1997 until 2008, the level of Devils Lake ranged between 
1,446.4 feet (October 11, 2003) and 1,449.2 feet (May 9, 2006), a 
fluctuation of 2.8 feet, and the level has averaged about 1,447.6 feet. 
This spring, the lake rose 3.1 feet above the previous 10-year average 
but only 1.5 feet above the previous high--a fact pointed out by State 
Engineer Dale Frink in the first sentence of his July 13, 2009, letter 
to Department of Health Environmental Health Section Chief L. David 
Glatt (Frink, 2009).
    As the area of the lake increases, the volume of water required for 
each incremental increase in its elevation also increases dramatically. 
As the U.S. Army Corps of Engineers and the North Dakota State Water 
Commission pointed out earlier this year:

    ``. . . The lake currently covers 210 square miles. At an elevation 
of 1,459, it would be double in size and cover 423 square miles. It 
would take a large volume of water to reach this elevation. For 
comparison, to raise the lake from its current elevation of 1,446.8 to 
1,450, would require 436,000 acre-feet of water. The 1997 flood was 
522,000 acre-feet in volume. The lake volume increased approximately 
1.9 million acre-feet between 1993 and 1999. To raise the lake to an 
elevation of 1,454 would require 1.15 million acre feet or more than 
double the volume of the flood of 1997.'' (U.S. Army Corps of Engineers 
and North Dakota State Water Commission, 2009)

    In other words, to raise the level of the lake 3.8 feet from its 
current elevation would require more than twice as much water as was 
needed to raise it 3.8 feet from its 2008 elevation. Of course, it is 
true that inflows this spring exceeded those in 1997, but it also is 
true that to raise the lake to an elevation of 1,459 feet would require 
the addition of another 1.9 million acre-feet of water. This means that 
for the lake to reach its natural overflow elevation by 2011, as much 
water would have to enter the lake in the next 2 years as entered in 
the 7 years from 1993 to 1999. In the meantime, natural evaporation 
from the lake would increase from 424,000 acre-feet per year at its 
current area of 163,000 acres to 704,000 acre-feet per year at an area 
of 270,000 acres. That is 20 percent more than this year's record 
inflow.
    It is instructive to note in this context that neither the 
Department of Health, nor the State Water Commission, nor the Governor 
has taken any action to prevent the city of Devils Lake from excavating 
a foot from the Tolna Coulee in order to lower the elevation at which 
Devils Lake would overflow to the Sheyenne River from 1,459 feet to 
1,458 feet (Associated Press, 2009; Oleson, 2009a, 2009b, 2009c, 
2009d). The city of Devils Lake already is protected to a lake elation 
of 1,455 feet by a $54 million dike built at public expense and which 
may be raised another 5 to 10 feet at an additional $73 million to $150 
million in largely Federal funds (Bonham, 2009a; Nicholson, 2009), so 
it is clear that the city is not acting on its own. The failure of the 
Department of Health, the State Water Commission, the State Engineer or 
State Water Commission Chairman Governor John Hoeven to take action to 
prevent the lowering of the natural outlet from Devils Lake from 1,459 
feet to 1,458 feet confirms the hypocrisy of their alleged concern 
about the ``catastrophic impacts'' of a natural overflow to the 
Sheyenne River (Glatt, 2009b) and of the justification offered for 
department's proposed emergency rule.
    Mr. Frink states in his July 13, 2009, letter that:

    ``Although the probability of having 3 consecutive years with 
precipitation similar to 2008 may be low, it is apparent that a wet 
cycle increasing lake levels can be expected to occur.'' (Frink 2009)

    However, with peak levels of Devils Lake declining from 2006 to 
2008, and with the probability of 3 consecutive years with 
precipitation similar to 2008 being low, there is no evidence to 
support Mr. Frink's claim that a ``wet cycle increasing lake levels can 
be expected to occur.''
    In order to overflow to the Sheyenne River at the excavated outlet 
elevation of 1,458 feet, the combined Devils Lake/Stump Lake would have 
to rise another 7.3 feet from this year's high of 1,450.7 feet, 
increase another 1.5 million acre-feet in volume, and increase 115,000 
acres in area to 261,000 acres. The reason the probability of this 
occurring is so low is that evaporation in the Devils Lake area 
averages 30.9 inches (2.6 feet) per year and during the period of high 
precipitation in the Devils Lake Basin from 1993 to 1999, inflows to 
Devils Lake averaged 317,000 acre-feet per year (U.S. Army Corps of 
Engineers, 2002) with a high of 522,000 acre-feet in 1997 (U.S. Army 
Corps of Engineers and North Dakota State Water Commission, 2008). At 
elevation 1,458 feet and an area of 261,000 acres, evaporation would 
remove 678,600 acre-feet of water per year from Devils Lake.
    The department's ``Statement of Reason'' states that:

    ``A natural water discharge from the east end of the lake has the 
real potential of causing catastrophic impacts to downstream users due 
to the documented poorer water quality in the east end of Devils 
Lake.'' (Glatt, 2009b)

    However, the department fails to weigh the one to 5 percent chance 
of adverse impacts to downstream users occurring as a result of a 
natural overflow against the 100 percent chance of adverse impacts to 
downstream users and the Sheyenne River occurring as a result of 
increasing the maximum allowable sulfate level in the Sheyenne River 
from 450 mg/L to 750 mg/L (U.S. Army Corps of Engineers, 2003).
    The department's ``Statement of Reason'' states that:

    ``In less than 5 months, Devils Lake has flooded an additional 
40,000 acres, which includes roads, businesses, homes, farmsteads and 
high quality agricultural land.'' (Glatt, 2009b)

    The department cites no data to substantiate or quantify the 
statement and the statement is misleading because it fails to consider 
that only approximately 13,000 additional acres have been flooded since 
the lake's previous high of 1,449.2 feet in 2006, and it fails to 
mention that all of the land that has been flood since 1993 still is 
within the historic lake bed of Devils Lake.
    The department's ``Statement of Reason'' states that:

    ``Devils Lake is expected to continue to rise, placing land, 
buildings and infrastructure and livelihoods in immediate danger of 
inundation.'' (Glatt, 2009b)

    The statement is, again, unsubstantiated and speculative. The U.S. 
Geological Survey concluded in its 2008 flood risk analysis for Devils 
Lake:

    ``. . . there is a 1-percent chance of Devils Lake exceeding 
1,459.9 feet (0.9 foot above the natural spillway elevation), a 5-
percent chance of exceeding 1,455.7 feet, and a 10-percent chance of 
exceeding 1,453.8 feet sometime between 2009 and 2015.'' (Vecchia, 
2008)

    The U.S. Geological Survey's more recent cumulative exceedance 
probability data show that there is a 45.2 percent probability that the 
lake will not exceed elevation 1,452 feet in 5 years, a 74.4 percent 
probability that it will not exceed elevation 1,454 feet in 5 years, an 
87.8 percent probability that it will not exceed 1,456 feet in 5 years, 
a 94.9 percent probability that it will not exceed elevation 1,458 feet 
in 5 years and a 96.8 percent probability that it will not exceed 1,459 
feet in 5 years.
    The department has cited no data to substantiate its claim that the 
lake is expected to continue to rise, or to identify or quantify which 
and how much land, buildings and infrastructure would be placed in 
immediate danger of inundation. It also does not specify how 
livelihoods would be ``inundated.''
    The department's ``Statement of Reason'' states that:

    ``Rising lake levels are stressing the capacity of existing dike 
systems, roads acting as dikes and other structures not designed to 
retain water. Their failure would result in additional flooding of 
cities and rural areas, impacting land productivity as well as 
municipal and rural infrastructure.'' (Glatt, 2009b)

    The dike protecting the city of Devils Lake is built to an 
elevation of 1,460 feet and is designed to provide protection to a lake 
elevation of 1,455 feet, with 5 feet of freeboard. Devils Lake 
currently is at an elevation of 1,450 feet. Clearly, the capacity of 
the existing dike system is not being stressed by a lake level 5 feet 
below its design capacity and 10 feet below its crest. Nevertheless, 
the U.S. Army Corps of Engineers currently is evaluating options for 
raising the crest of the dike protecting the city of Devils Lake by 5 
to 10 feet to an elevation of 1,465 to 1,470 feet to provide protection 
to a lake level of 1,459 feet with 5 to 10 feet of freeboard (Bonham, 
2009a, Nicholson, 2009).
    The department also neglects to mention that the Devils Lake Daily 
Journals reported on May 26, 2009, that:

    ``Senators Kent Conrad and Byron Dorgan announced last week that 
they have successfully secured emergency funding to shore up roads in 
the Devils Lake basin. The $40 million in Federal funding approved by 
Congress will be used to strengthen and raise the roads acting as dams 
in the Devils Lake basin.
    ``The funding announced today is in addition to the $42 million in 
Federal assistance the delegation announced on April 30 from the 
Emergency Relief for Federally-Owned Roads (ERFO) program. That funding 
was specifically targeted to repair and raise Bureau of Indian Affairs 
(BIA) roads . . .'' (Anonymous, 2009b)

    The Department of Health and Environmental Health section chief L. 
David Glatt obviously were fully aware that measures to address the 
Devils Lake Dike and roads acting as dikes already were underway more 
than a month before they released their ``Finding and Statement of 
Reason,'' and that raising the specter of their failure was a 
deliberate fabrication designed to justify increasing the discharge 
from the Devils Lake outlet and degrading water quality in the Sheyenne 
River.
    The department's ``Statement of Reason'' states that:

    ``Spring runoff added an additional 600,000 acre-feet of water to 
Devils Lake. Stabilizing the increasing lake levels may take several 
years to be effective, requiring the State to initiate immediate action 
to counteract the record volume increase.'' (Glatt, 2009b)

    With the sulfate level at 700 mg/L in West Bay of Devils Lake and 
the department's proposal to raise the maximum sulfate level in the 
Sheyenne River to 750 mg/L, there would be no limit on the amount of 
water that could be discharged from the State Water Commission's Devils 
Lake outlet. Operating at its current 100 cfs maximum capacity from May 
through November, the outlet theoretically would be able to remove 
41,650 acre-feet of water per year from Devils Lake, which means that 
it would take 14 years for the outlet to remove the 600,000 acre-feet 
of water from this spring's runoff. With the State Water Commission's 
plan to increase the capacity of the outlet to 250 cfs (MacPherson, 
2009), it would take 5.6 years to remove the 600,000 acre-feet of water 
from this spring's runoff. However, the department's justification for 
increasing the maximum sulfate limit in the Sheyenne River so the 
outlet can discharge more water is not based on just this spring's 
runoff, which already is in the lake, but it is based on the 
unsubstantiated claim that ``Devils Lake is projected to continue to 
rise.'' But, with 5.6 to 14 years required just to remove this spring's 
runoff, it is clear that the outlet will do little to ``stabilize the 
increasing lake levels'' or ``counteract the record volume increase.'' 
On the other hand, natural evaporation from the expanding surface area 
of the lake will be far more effective in stabilizing and eventually 
lowering the lake while avoiding the costs (increasing pumping capacity 
and operating costs and increased downstream water treatment costs) and 
adverse downstream environmental impacts associated with the 
Department's proposal to increase the maximum sulfate limit in the 
Upper Sheyenne River from 450 mg/L to 750 mg/L.
    North Dakota Department of Health Environmental Health Section 
Chief L. David Glatt states in his ``Finding'' that:

    ``I find that emergency rulemaking to adopt a rule relating to the 
Standards of Quality for Waters of the State, ND Admin Code ch 33-16-
02.1, was necessary because imminent peril threatened public health, 
safety, or welfare, which could be abated by emergency effectiveness.'' 
(Glatt, 2009b)

but nowhere in his ``Statement of Reason'' does Mr. Glatt cite any 
substantive evidence to support his finding that the rising level of 
Devils Lake threatens public health, safety or welfare or that the 
alleged threats could be abated by increasing the maximum level of 
sulfates in the Sheyenne River from 450 mg/L to 750 mg/L in order to 
permit increased discharges from the Devils Lake outlet. Mr. Glatt's 
``Finding and Statement of Reason'' are not only devoid of substance 
and substantiation, but they are refuted by the facts.
the department's finding that emergency rulemaking is necessary is not 
                     substantiated and is not valid
    North Dakota Department of Health Environmental Health Section 
Chief L. David Glatt states in his July 15, 2009, letter to North 
Dakota Governor John Hoeven that:

    ``In an effort to address the widespread flooding impacts in the 
Devils Lake region, the department finds that emergency rule making is 
necessary and is requesting the authority to implement interim 
emergency rules to reclassify stream water quality standards in a 
portion of the Sheyenne River. This action would allow an immediate 
increase of discharge from the west end of Devils Lake in an effort to 
stabilize or decrease lake levels, thus reducing the impact of 
flooding. Under the authority of NDCC  28-32-03, emergency rules are 
appropriate if an imminent peril threatens public health, safety or 
welfare which would be abated by emergency effectiveness. With your 
approval, the Department of Health has the authority to determine that 
emergency rule-making is necessary. As part of the authority provided 
under NDCC 28-32-03, we must declare that the proposed rule be an 
interim final rule. It must be filed with the Legislative Council to be 
valid and finalized within 6 months after the completion of an 
appropriate public participation process.'' (Glatt, 2009c)

    However, in the opening paragraph of his July 15, 2009, letter to 
the Governor, Mr. Glatt states:

    ``The North Dakota Department of Health recently received letters 
from the North Dakota State Water Commission and the city of Devils 
Lake describing widespread flood impacts affecting the environment, 
economic stability and public health in the Devils Lake region . . . 
The letters describe the need for an emergency response to flood 
conditions and request the department to initiate immediate action to 
address the situation by increasing flow from the Devils Lake outlet.
    The following issues are of concern:'' (Glatt, 2009c)

    The issues of concern which Mr. Glatt says were raised in the 
letters from the State Water Commission and the city of Devils Lake and 
which he listed in his July 15, 2009, letter to the Governor are 
exactly the same, word for word, as the reasons listed in Mr. Glatt's 
July 15, 2009, ``Findings and Statement of Reason for the North Dakota 
Department of Health Regarding Proposed Rule Relating to Water Quality 
Standards'' discussed above. It is evident, therefore, that Mr. Glatt's 
July 15, 2009, finding ``that emergency rulemaking to adopt a rule 
relating to the Standards of Quality of Waters of the State, ND Admin 
Code ch 33-16-02.1, was necessary because imminent peril threatened 
public health, safety, or welfare, which could be abated by emergency 
effectiveness'' was not based on an independent analysis by the 
department of the evidence, but was based simply on a reiteration of 
the unsubstantiated claims of parties with a vested interest in the 
Devils Lake outlet.
    It is instructive to note in this context that neither the July 7, 
2009, letter to Mr. Glatt from the city of Devils Lake (Bott, 2009), 
nor the July 15, 2009, letter from the State Water Commission (Frink, 
2009) cites any credible evidence that ``imminent peril threatened 
public health, safety or welfare'' as a result of the 3.8 feet rise in 
Devils Lake this spring, or that if an ``imminent peril'' did exist, it 
could be abated by the proposed rule to raise the maximum sulfate level 
in the Sheyenne River from 450 mg/L to 750 mg/L.
    The 587,000 acre-feet of increased volume in Devils Lake and Stump 
resulting from this past spring's runoff cited in Mr. Frink's letter 
(Frink, 2009) already is in the lake, so it is too late to abate any 
``imminent peril,'' if one existed, from those inflows. And even if 
there were ``imminent peril'' from those inflows, it would take 14 
years operating at 100 cfs, or 5.6 years operating at 250 cfs, for the 
outlet to remove those in 587,000 acre-feet of water.
    Mr. Bott states in his July 7, 2009, letter that:

    ``. . . we are concerned about the economic vitality of the area 
should the lake continue to rise and inundate additional farmland and 
homes.'' (Bott, 2009)

    However, his concern about the ``economic vitality of the area'' is 
not based on any ``imminent peril,'' but on unfounded speculation about 
the lake continuing to rise. It is relevant to note in this context 
that the influx of some $600 million of primarily Federal funds into 
the Devils Lake area since 1993 has ``provided a significant boost to 
some elements of the local economy'' (U.S. Army Corps of Engineers, 
2002). It is not surprising, therefore, that the Devils Lake Daily 
Journal quoted Devils Lake Economic Director Jim Dahlen in 2000 as 
saying:

    ``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 department's proposed emergency rule is improper and contrary to 
                                  law
The Emergency Rule Does Not Comply With the Administrative Agencies 
        Practices Act
    The department cites North Dakota Century Code Chapter 28-32, the 
Administrative Agencies Practice Act, as the authority ``to implement 
interim emergency rules to reclassify stream water quality for a 
portion of the Sheyenne River'' and states that:

    ``Under authority of NDCC  28-32-03, emergency rules are 
appropriate if an imminent peril threatens public health, safety and 
welfare which would be abated by emergency effectiveness.'' (Glatt, 
2009c)

    However, as discussed above, neither the North Department of 
Health, nor the North Dakota State Water Commission, nor the city of 
Devils Lake has cited any evidence that ``an imminent peril threatens 
public health, safety and welfare'' at Devils Lake, or that any peril 
that might exist would be abated by the proposed emergency rule.
The Emergency Rule Violates North Dakota Administrative Code  33-16-
        02.1-02
    NDAC  33-16-02.1-02 specifies that:

    ``The purposes of this chapter are to establish a system for 
classifying waters of the State; provide standards of water quality for 
waters of the State; and protect existing beneficial uses of waters of 
the State.
    ``The State and public policy is to maintain or improve, or both, 
the quality of the waters of the State and to maintain and protect 
existing uses. Classifications and standards are established for the 
protection of public health and environmental resources and for the 
enjoyment of these waters, to ensure the propagation and well-being of 
resident fish, wildlife and all biota associated or dependent upon 
these waters, and to safeguard social, economical, and industrial 
development. Waters not being put to use shall be protected for all 
reasonable uses for which these waters are suitable. All known and 
reasonable methods to control and prevent pollution of the waters of 
this State are required, including improvement in quality of these 
waters, when feasible.''

            Violation of State and Public Policy
    The proposed emergency rule to increase the maximum level of 
sulfate in the Upper Sheyenne River from 450 mg/L to 750 mg/L clearly 
violates the State and public policy to maintain or improve, or both, 
the quality of the waters of the State.
            Failure to Maintain and Protect Existing Uses and Safeguard 
                    Social, Economic and Industrial Development
    The Department of Health stated in its 2003 ``Statement of Basis, 
Devils Lake Outlet ND-0026247'' for the issuance of a North Dakota 
Pollutant Discharge Elimination System Permit for the State Water 
Commission's Devils Lake outlet, that the U.S. Army Corps of Engineers' 
Final Devils Lake, North Dakota, Integrated Planning Report and 
Environmental Impact Statement:

    ``. . . includes background information on hydrology, natural 
resources and other evaluations that are relevant to the consideration 
of this discharge permit.''

and:

    ``A primary consideration when evaluating any outlet option has 
been the potential to degrade water quality in the Sheyenne River, Lake 
Ashtabula and the Red River. To consider the numerous variables and 
contributing factors governing the quality of water bodies extending 
across a large area, computer based models become a necessary tool. The 
Corps has developed a modeling system to evaluate Devils Lake outlet 
options. The model considerations and techniques are described in 
Appendix A of the Integrated Planning Report and Environmental Impact 
Statement for Devils Lake, North Dakota. The applicant, State Water 
Commission, provided the Corps model output specific to their outlet 
project as part of the permit application. The modeling results were 
considered by the department in selecting parameters for limiting and 
monitoring the permit.'' (North Dakota Department of Health, 2003a)

    The department's proposed emergency rule would allow the Devils 
Lake outlet to operate at its planned maximum capacity of 250 cfs with 
discharges constrained only by a 750 mg/L maximum sulfate limit in the 
Sheyenne River. The U.S. Army Corps of Engineers' Final Devils Lake, 
North Dakota, Integrated Planning Report and Environmental Impact 
Statement (FEIS) did not evaluate the impacts of a 250 cfs West Bay 
outlet constrained only by a 750 mg/L sulfate limit in the Sheyenne 
River, but it did examine the impacts of a 300 cfs Pelican Lake outlet 
constrained by a 300 mg/L limit in the Sheyenne River. Water quantity 
impacts of a State Water Commission West Bay outlet operating at 250 
cfs under a 750 mg/L sulfate limit in the Sheyenne River would be 
significantly greater than those of a 300 cfs Pelican Lake outlet 
constrained by a 300 mg/L sulfate limit because, with sulfate in the 
West Bay at around 700 mg/L, the operation of the State outlet would be 
unrestricted, but the Pelican Lake outlet would be restricted by the 
300 mg/L sulfate limit to discharges of 0 to 100 cfs for 3 months of 
the 7 month operating season (U.S. Army Corps of Engineers, 2002). The 
acute water quality impacts of the State Water Commission's West Bay 
outlet constrained only by a 750 mg/L sulfate limit in the Sheyenne 
River would be proportionately (up to 250 percent) more severe than a 
Pelican Lake outlet constrained by a 300 mg/L limit in the Sheyenne 
River, and the cumulative impacts (pollutant loading) would be much 
more severe. It is instructive to note, therefore, that the impacts on 
existing uses of the Sheyenne River identified by the Corps for a 300 
cfs Pelican Lake Outlet constrained by a 300 mg/L sulfate limit in the 
Sheyenne River include:

  --``An outlet to the Sheyenne River could also affect recreation 
        along the river by increasing flows and perhaps hazardous 
        condition for canoeists and swimmers. It could also reduce the 
        aesthetics of the riparian zone by accelerating erosion-
        deposition processes along the river or by affecting vegetation 
        with higher ambient salinity levels. (FEIS, p. 6-47)
  --``. . . an outlet could exacerbate flooding along the Sheyenne 
        River with consequent damage to transportation infrastructure, 
        including roads and bridges. (FEIS p. 6-49)
  --``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 . . .  (FEIS p. 6-49)
  --``An outlet from Devils Lake could diminish property values along 
        the Sheyenne River. The potential adverse impacts to property 
        values would be based on damage in the riparian zone, 
        exacerbated flood risks, and reduced water quality for 
        agriculture or recreation.
  --``Based on analysis of the available data regarding the operations 
        of the eight affected municipal water treatment facilities, a 
        computer spreadsheet model was developed to estimate the annual 
        increase in cost that can be expected at each facility due to 
        the change in water quality. Hardness was identified as the 
        major water user concern associated with an outlet. Ion 
        exchange would be needed to treat sulfates but, due to the 
        limited water quality effects resulting from a 300 mg/L sulfate 
        constrained outlet, it was determined that softening was 
        adequate treatment for water users. Cost increases would result 
        from increased softening costs (due to increased chemical feed 
        rates and increases in sludge handling and disposal), and 
        increased capital and operations costs if treatment or an 
        alternative water supply is required to restore the treatment 
        facility finished water quality to without-outlet conditions.
  --``Modeling showed the total annualized costs for increased 
        softening would range from $25,000 per year to $56,000 per 
        year, depending on the modeled water quality future. The total 
        annualized cost for capital improvements or alternate source 
        water development required to bring the with-outlet product 
        water to the water quality of without-outlet product water 
        ranged from $1,757,000 per year to $3,304,000 per year. Sulfate 
        concentration is not a major concern along the Sheyenne or Red 
        Rivers with the Pelican Lake outlet.\1\ In most cases, 
        treatment by ion exchange was found to be the least-cost 
        alternative if without-outlet product water is required. (FEIS 
        p. 6-51)
---------------------------------------------------------------------------
    \1\ However, sulfate concentration in the Sheyenne River under the 
Department's emergency rule increasing the maximum level to 750 mg/L is 
a major concern. (Browne, 2009; MacPherson, 2009)
---------------------------------------------------------------------------
  --``Interviews were conducted with all of the industrial river water 
        users along the Sheyenne River and the Red River of the North. 
        Two were expected to incur increased costs as a result of the 
        Devils Lake outlet operations. The sugar beet processing 
        facility is expected to have increased lime softening costs as 
        a result of the outlet. The coal-fired power plant's increased 
        costs relate to additional need for ion exchange water 
        purification for boiler water. On the basis of one of the 
        sample water quality data sets, annualized costs would be 
        expected to be $1,200 per year for the sugar beet processing 
        facility and $30,700 per year for the power plant. (FEIS p. 6-
        52)
  --``Extended high flows from Baldhill Dam may result in problems 
        related to the ability to drain the fish ponds at Baldhill Dam 
        and Valley City National Fish Hatcheries. Flows around 700 to 
        800 cfs will prevent the ponds from being drained. (FEIS p. 6-
        52)
  --``Induced floodplain salinization resulting from the rising water 
        tables of floodplain and adjacent soils in the Sheyenne River 
        valley above a `critical depth.' (FEIS p. 6-67)
  --``Additional salt loading to the floodplain could result from both 
        overbank flooding with mixed Devils Lake/Sheyenne River water 
        and intrusion of this water into adjacent floodplain soils as 
        infiltrated floodwater and groundwater flow. Seepage outflow of 
        mixed Devils Lake/Sheyenne River water could produce additional 
        salt loading to adjacent floodplain soils during periods when 
        the river is contained within the channel. (FEIS p. 6-67)
  --``The outlet would result in increased salinity hazards associated 
        with use of the water for irrigation purposes.'' (FEIS p. 6-72)

    Of course, increasing the costs of maintaining existing uses does 
not protect those uses. And, the Department of Health has cited no 
evidence to demonstrate that its proposed emergency rule to increase 
the maximum level of sulfates in the Sheyenne River to from 450 mg/L to 
750 mg/L in order to permit higher discharges from the Devils Lake 
outlet will not result in even more severe adverse impacts to existing 
uses of the Sheyenne River and Red River than those identified by the 
U.S. Army Corps of Engineers for a 300 cfs Pelican Lake outlet 
constrained by a 300 mg/L sulfate limit in the Sheyenne River.
            Failure to Ensure Propagation and Well-being of Resident 
                    Fish, Wildlife and Biota
    In its Final Devils Lake, North Dakota, Integrated Planning Report 
and Environmental Impact Statement, the U.S. Army Corps of Engineers 
identified the following adverse impacts on fish, wildlife and biota 
resulting from the operation of a 300 cfs Pelican Lake outlet 
constrained by a 300 mg/L sulfate limit in the Sheyenne River.

  --``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 result in a five to tenfold increase in summer/fall flows 
        along the Sheyenne River. Increased flows throughout the summer 
        would result in changes in river stage on the Sheyenne and Red 
        Rivers. (FEIS p. 6-56)
  --``. . . the outlet could result in up and down flows with sudden 
        and extreme fluctuations in flow for much of a 50-year period 
        of operation. These are the types of situations that make it 
        difficult for species to adapt to habitat conditions. (FEIS p. 
        6-56)
  --``Operation of a Pelican Lake outlet would affect both the water 
        quality aspects and the physical characteristics of aquatic 
        habitat on the Sheyenne River. While water quality constituents 
        would not exceed tolerance levels for aquatic fauna in the 
        Sheyenne or Red River, many constituent levels would be 
        dramatically increased over baseline conditions. Water quality 
        modeling indicates that the level of these constituents would 
        increase as much as 100 percent during pumping. (FEIS p. 6-57)
  --``Changes in habitat composition and availability would result in 
        changes in species composition and abundance. There may be some 
        lost year classes of fish and declines in invertebrate 
        populations. (FEIS p. 6-59)
  --``The changes on the Sheyenne River in water quality, hydrology, 
        geomorphology, and habitat could result in substantial changes 
        in or stress to aquatic biota . . . The outlet operation would 
        also cause loss of spawning and nursery habitat, increased 
        erosion, and changes in channel morphology. Increases in 
        channel width may result in less available habitat once outlet 
        operation ceases. (FEIS p, 6-59)
  --``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 and 
        quantity changes associated with outlet operation may adversely 
        influence fish reproduction and result in lost-year classes. 
        The threshold chloride levels for some aquatic species, such as 
        mussels, would be approached with operation of an outlet; 
        however, no direct effects due to increased chloride levels are 
        anticipated. The cumulative result of all of these changes 
        would be a decrease in diversity of aquatic species in the 
        Sheyenne River. (FEIS p. 6-59)
  --``With the increase in flow, some change is expected in width and 
        depth, and erosion would probably increase. Expected habitat 
        changes include a decline of shallow pool, shallow riffle, and 
        medium pool habitats, and an increase in fast riffle, raceway, 
        and deep pool habitats in spring, summer and fall. Increases in 
        summer and fall discharges reduce the slower flowing fish 
        nursery habitat (slow riffle, shallow and medium pool guilds.) 
        (FEIS p. 6-59)
  --``Monthly discharge would be highly altered during summer and fall, 
        and then decline dramatically in winter . . . Fish would be 
        affected by the change to deep/fast less usable habitat in all 
        seasons, and the loss of summer and fall habitat for shallow, 
        medium and deep pool guilds. Unionids and other invertebrates 
        would be affected by the decrease in moderately flowing 
        habitat. The increase in raceway and fast riffle habitat may 
        benefit the tricopteran guild, but overall invertebrate 
        diversity (low gradient guild) would be negatively affected. 
        Macrophytes, although not common in this reach of the river, 
        probably would be scoured by high flows. Unionids would most 
        likely be affected by the dramatic decline between fall and 
        winter flows. Many unionids would not survive these changes 
        during outlet operation. (FEIS p. 6-60)
  --``Effects in Lake Ashtabula include reduced retention time, 
        increased nutrient loading, increased movement of fish out of 
        the lake, increased salinity, and increased storage of water. 
        The outlet would reduce the storage time in Lake Ashtabula and 
        increase turnover rate. This could affect walleye production 
        and increased movement of some fish out of Lake Ashtabula and 
        into downstream habitats . . . (FEIS p. 6-60)
  --``The operation of an outlet would affect river stages, groundwater 
        levels near the river, erosion, availability of aquatic 
        habitat, river access, and river crossings. (FEIS p. 6-60)
  --``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. (FEIS p. 6-
        61, 6-62)
  --``After outlet operation ceases, slower flowing, shallow habitats 
        would return and the upper reach would return to less 
        hydrologically stable condition. In addition, after a number of 
        years of outlet operation the channel would have changed, 
        becoming wider and deeper, such that the reduced water levels 
        would result in less available wetted habitat (and higher 
        temperatures) during low flow conditions. The increased flow 
        associated with the operation of an outlet would also alter 
        habitat distribution and probably result in some erosion and 
        deposition. These changes would affect habitat conditions and 
        availability when the outlet ceases operation. Only a few small 
        permanent tributaries drain into the upper Sheyenne River, and 
        their suitability as unionid refugia is not known. Fish hosts 
        are prevented from carrying glochidia upstream past Baldhill 
        Dam. Unless unionid refugia occur in the small tributaries, 
        fauna is unlikely to recolonize to pre-project conditions. Fish 
        species that benefited from increased spawning and nursery 
        habitat associated with higher flow would be negatively 
        affected by the lack of those habitats with lower flows. 
        Invertebrate fauna may recover over time. However, species 
        composition would probably differ from pre-pumping conditions. 
        (FEIS p. 6-62)
  --``Vegetation in the riparian corridor may be affected by changes in 
        groundwater elevation and quality, changes in frequency and 
        duration of flooding and induced erosion associated with 
        increased flows. Based on the assumption of a one-quarter mile 
        area of influence, groundwater changes could potentially affect 
        about 112,000 acres of riparian lands along the Sheyenne River 
        . . . In rare instances, there could be overbank flooding due 
        to unforeseen rainstorms and the inability to turn the outlet 
        off in time. (FEIS p. 6-63)
  --``. . . it is likely that a large portion of the riparian 
        vegetation would shift from woods to a more open community 
        type, resulting in a concurrent change in animal species 
        composition along the river. Changes in water quality to a more 
        saline condition could also influence the amount and type of 
        vegetation along the river. Some of the larger overstory forest 
        trees may survive a year or longer, but with reduced vigor. 
        Once the outlet operation is completed, recovery of these areas 
        through succession would occur, which could take decades in 
        some areas.'' (FEIS p[. 6-65)
    The Department of Health has cited no evidence that the adverse 
impacts on fish and wildlife and biota resulting from its emergency 
rule to raise the maximum level of sulfate in the Sheyenne River to 750 
mg/L will not be even more severe than these identified by the U.S. 
Army Corps of Engineers for a Devils Lake outlet operating under a 300 
mg/L sulfate constraint in the Sheyenne River.
            Failure to Maintain and Protect Waters of the State Having 
                    Unique or High Quality Characteristics
    North Dakota Administrative Code  33-16-02.1-02 requires that:

    ``Waters of the State having unique or high quality characteristics 
that may constitute an outstanding State resource shall be maintained 
and protected.''

    The U.S. Army Corps of Engineers' Final Devils Lake, North Dakota, 
Integrated Planning Report and Environmental Impact Statement describes 
the natural resource characteristics of the Sheyenne River as follows:

    ``The Sheyenne River provides spawning habitat and nursery areas 
for forage fish, as well as a migrational avenue for sport fish, 
including channel catfish, northern pike, walleye, bass, and crappie 
especially during high water conditions. The Sheyenne River contains 
more species of fish than any other North Dakota tributary, with over 
50 identified. The river itself and a number of small reservoirs 
created by low-head dams provide fishing opportunities for nearby 
residents. About 3 percent of the angler-days of fishing in North 
Dakota are spent on the Sheyenne River. Commonly harvested fish include 
northern pike, walleye, channel catfish, black bullhead, yellow perch, 
and bluegill. Baldhill Creek, a tributary to the Sheyenne River, 
contains the only known population of trout perch in North Dakota. 
There are nine species of freshwater mussels inhabiting the Sheyenne 
River.
    ``The riparian areas along the Sheyenne River provide valuable 
habitat for a variety of wildlife species. Game species found along the 
river's riparian corridor and adjacent uplands include white-tailed 
deer, moose, wood duck, dabbling duck, pheasant, greater prairie 
chicken, turkey, squirrels and rabbits. Furbearing species and 
migratory non-game birds use the river corridor for breeding, feeding, 
and migration.
    ``In summary, the Sheyenne River provides significant and unique 
aquatic and terrestrial resources. It is one of the most heavily wooded 
areas of the State and contains one of the largest and most diverse 
fisheries.'' (Emphasis added) (U.S. Army Corps of Engineers, 2003)

    However, the Department of Health summarily dismissed the 
overwhelming and unequivocal evidence that the Sheyenne River 
constitutes an outstanding State resource in its 2003 ``Response to 
Comments for the Devils Lake Outlet Project'' with the arbitrary and 
irrelevant assertion that:

    ``The Sheyenne River is not a designated outstanding State resource 
as defined in Appendix IV procedures for Category 3 Waters of the North 
Dakota Water Quality Standards. This section delineates the specific 
process which must be followed for a water body to be designated as 
outstanding.'' (Emphasis added) (North Dakota Department of Health, 
2003b)

    However, the requirements of NDAC  33-16-02.1-02 para. 2c are not 
limited to waters of the State that have been ``designated'' as an 
outstanding State resource, but they apply to any waters that ``may 
constitute'' an outstanding State resource. The Department has cited no 
evidence what-so-ever to refute the information from the U.S. Army 
Corps of Engineers' Final Devils Lake, North Dakota, Integrated 
Planning Report and Environmental Impact Statement documenting the 
Sheyenne River's unique and high quality characteristics and the clear 
and overwhelming evidence that those unique and high quality 
characteristics will not maintained and protected under the 
department's proposed emergency rule.
            An Emergency Rule is Not the Proper Procedure for Modifying 
                    Water Quality Standards
    North Dakota Administrative Code  33-16-02.1-02 states that:

    ``The State and public policy is to maintain or improve, or both, 
the quality of the waters of the State and to maintain and protect 
existing uses. Classifications and standards are established for the 
protection of public health and environmental resources and for the 
enjoyment of these waters, to ensure the propagation and well-being of 
resident fish, wildlife and all biota associated or dependent upon 
these waters, and to safeguard social, economical, and industrial 
development . . .''

    NDAC  33-16-02.1-09, ``Surface water classifications, mixing zones 
and number standards,'' then establishes six classifications for 
surface waters of the State, including Class I, Class IA, Class II, and 
Class III streams, Wetlands and Lakes. The principal difference between 
Class I and Class IA streams is that, in addition to coagulation, 
settling, filtration and chlorination, Class IA streams ``may also 
require softening to meet the drinking water requirements of the 
department.'' For Class I streams, the maximum limit for chlorides is 
100 mg/L and the maximum limit for sulfate is 250 mg/L. For Class IA 
streams, the maximum limit for chlorides is 175 mg/L and the maximum 
limit for sulfate is 450 mg/L. The standards for Class II streams are 
the same as for Class IA streams except the maximum limit for chlorides 
is 250 mg/L, and for Class III streams the maximum limit for sulfate is 
750 mg/L. No exemptions from these standards are listed for any stream 
in the State. The Sheyenne River is classified as a Class IA stream 
throughout its length.
    It clearly is not sound public policy to establish water quality 
standards for the classification of streams in the State, and then add 
sections to the rules to provide piecemeal exceptions to those 
standards. However, the proposed emergency rule to raise the maximum 
sulfate limit for the Class 1A segment of Sheyenne River above Baldhill 
Dam and 0.1 mile below the dam to that of a Class III stream while 
leaving the rest of the river beginning 0.1 mile below the dam to its 
terminus at the Red River a Class IA stream is not simply bad public 
policy, but it is a scientific impossibility and regulatory nonsense 
because there is no way suddenly to lower the sulfate level in the 
river 0.1 mile below Baldhill Dam from 750 mg/L to 450 mg/L. 
Consequently, although the emergency rule applies only to the Upper 
Sheyenne River, it would result in automatic violation of the standard 
on the Lower Sheyenne River as well.
    North Dakota Administrative Code  33-16-02.1-07, ``Classification 
of waters of the State,'' states that:

    ``Classification of waters of the State shall be used to maintain 
and protect the present and future beneficial uses of these waters. 
Classification of waters of the State shall be made whenever new or 
additional data warrant the classification or a change of an existing 
classification.'' (Emphasis added)

    The language is clear that the purpose of the classification of 
waters of the State is to maintain and protect present and future 
beneficial uses of those waters, and there is no provision for changing 
the classification for reasons other than to maintain and protect those 
uses. Notably, there is no provision for changing the classification to 
permit degradation of the quality of the waters of the State. Moreover, 
the department has cited no new or additional data to warrant a change 
in the existing classification of the Upper Sheyenne River. Indeed, the 
only basis cited for the emergency rule to raise the maximum sulfate 
limit of the Upper Sheyenne River from 450 mg/L to 750 mg/L is requests 
from the State Water Commission and the city of Devils Lake to raise 
the sulfate limit in order to permit increased discharges from the 
Devils Lake outlet. There are no new or additional data on water 
quality constituents in the Upper Sheyenne River to warrant a change in 
its existing classification.
    Further evidence that NDAC Chapter 33-16-02.1 does not provide for 
changing the classification of streams to permit degradation of water 
quality is found in NDAC  33-16-02.1-05, which includes a specific 
provision for ``Variances'' and states:

    ``Upon written application by the responsible discharger, the 
department finds that by reason of substantial and widespread economic 
and social impacts the strict enforcement of State water quality 
criteria is not feasible, the department can permit a variance to the 
water quality standard for the affected segment. The department can set 
conditions and time limitations with the intent that progress toward 
improvements in water quality will be made. This can include interim 
criteria which must be reviewed at least once every 3 years. A variance 
will be granted only after fulfillment of public participation 
requirements and environmental protection agency approval. A variance 
will not preclude any existing use.''

    Clearly, instead of adopting an emergency rule permanently to 
increase the maximum sulfate level in the Upper Sheyenne River from 450 
mg/L to 750 mg/L, the proper procedure would be for the responsible 
discharger, the State Water Commission, to submit a written application 
to the department for a variance of the water quality criteria for the 
affected segment of the Sheyenne River, and then for the department to 
set conditions and time limitations to assure progress toward 
improvements in the water quality in the river. It was improper for the 
department to propose the emergency rule to amend NDAC Chapter 33-16-
02.1 when NDAC Chapter 33-16-02.1 already contains a specific provision 
for addressing the subject of the emergency rule. Indeed, the emergency 
rule appears to be deliberately designed to circumvent NDAC  33-16-
02.1-05 in order to permit permanent degradation of water quality in 
the Sheyenne River.
 the department's assertion that a regulatory analysis is not required 
                              is erroneous
    The new section of North Dakota Administrative Code Chapter 33-16-
01.1 that the department is proposing to adopt through emergency 
rulemaking deals with the ``Maximum Sulfate Limit of Sheyenne River'' 
and provides:

    ``The quality of water in the Sheyenne River shall be that of a 
Class 1A stream, except the maximum limit of sulfate in the segment of 
the Sheyenne River that runs from its headwaters to 0.1 mile downstream 
from Baldhill Dam, including Lake Ashtabula, shall be 750 mg/L.''

    However, no means is specified, and none is available, for reducing 
a maximum sulfate level of 750 mg/L in the Sheyenne River 0.1 mile 
downstream from Baldhill Dam to a maximum of 450 mg/L 0.2 mile 
downstream from Baldhill Dam. Indeed, the sulfate level in the Upper 
Sheyenne River and Lake Ashtabula will determine the sulfate level in 
the entire reach of the Lower Sheyenne River from Baldhill Dam to the 
Red River.
    The department states in its ``Notice of Intent to Adopt 
Administrative Rule'' signed by Mr. Glatt on July 15, 2009, that:

    ``The proposed rule is not expected to have an impact on the 
regulated community in excess of $50,000, so a regulatory analysis was 
not required.'' (Glatt, 2009a)

    The statement that the proposed rule is not expected to have an 
impact on the regulated community in excess of $50,000 not only is 
unsubstantiated, but it is demonstrably false.
    The Notice does not identify the ``regulated community,'' but any 
rational interpretation would have to include the community affected by 
the adoption of the proposed administrative rule, i.e., the Upper 
Sheyenne River, Lake Ashtabula, the Lower Sheyenne River downstream 
from Lake Ashtabula to the Red River of the North, the Red River from 
Fargo to Winnipeg, and Lake Winnipeg.
    The sole purpose of the adoption of the department's proposed 
administrative rule to raise the maximum level of sulfates in the 
Sheyenne River from 450 mg/L to 750 mg/L is to permit ``increasing flow 
from the Devils Lake outlet'' (Glatt, 2009a). Therefore, additional 
costs associated with increasing the flows from the Devils Lake outlet 
will be a direct result of the adoption of the proposed rule. These 
costs include increased operation, maintenance and replacement costs 
which, in themselves, will exceed $50,000 by at least an order of 
magnitude within a few years.
    On August 19, 2009, the North Dakota State Water Commission 
approved a $16.5 million project to increase the pumping capacity of 
the Devils Lake outlet from 100 cfs to 250 cfs (MacPherson, 2009). The 
primary purpose of the proposed rule change is to make possible the 
expenditure of $16.5 million to increase the capacity of the outlet to 
discharge water into the Sheyenne River (Glatt, 2009c). Therefore, it 
would be ludicrous to suggest that the expenditure of $16.5 million to 
increase the discharge of water from the Devils Lake outlet to the 
Sheyenne River does not have an impact on the regulated community.
    On August 10, 2009, the Valley City Times Record reported that:

    ``News from the North Dakota Health Department has caused the 
Valley City Commission to suspend the design phase of a Water Plant 
expansion and consider new options.
    `` `A couple of weeks ago we got a call from the State Department 
of Health about an emergency rule change,' said City Administrator Jon 
Cameron on Thursday at a meeting regarding the change.
    ``The Health Department's 6-month emergency rule allows an increase 
in the level of sulfate that can enter the Sheyenne River from Devils 
Lake, from 450 milligrams per liter to 750 milligrams per liter. After 
6 months, time in which the Health Department is taking public comments 
on the change, the change may be made permanent.'' (Browne, 2009)

    The costs for redesigning the expansion of the Valley City water 
treatment plant are a direct result of the Department's proposed 
emergency rule change and those costs alone will exceed $50,000.
    The Associated Press reported on August 19, 2009, that:

    ``Officials in Valley City, downstream of Devils Lake, have worried 
about the increased sulfate levels in that city's water supply. The 
Water Commission on Tuesday also agreed to provide $9.2 million for 
that city's new water treatment facility, which can lower sulfate 
levels through reverse osmosis. The State Health Department already has 
committed more than $2 million for the $15.6 million project.'' 
(MacPherson, 2009)

    The $9.2 million approved by the State Water Commission to pay for 
a reverse osmosis system for the Valley City water treatment plant to 
lower sulfate levels is a direct impact of the department's interim 
emergency rule and its proposal to adopt a new administrative rule 
permanently increasing the maximum allowable level of sulfate in the 
Sheyenne River from 450 mg/L to 750 mg/L.
    The U.S. Army Corps of Engineers has determined that the operation 
of a 300 cfs Pelican Lake outlet constrained by a 300 mg/L sulfate 
limit in the Sheyenne River would result in significantly increase 
costs for eight affected downstream water treatment facilities. 
Hardness was identified as the major concern and ion exchange would be 
needed to treat sulfate levels of 300 mg/L (U.S. Army Corps of 
Engineers, 2003). According to the Corps' analysis:

    ``Modeling showed the total annualized cost for increased softening 
would range from $25,000 per year to $56,000 per year, depending on the 
modeled water quality future. The total annualized cost for capital 
improvements or alternate source water development required to bring 
the with-outlet product water to the water quality of without-project 
water ranged from $1,757,000 per year to $3,304,000 per year . . .'' 
(FEIS p. 6-15)

    The increased costs to downstream municipal water users resulting 
from the proposed emergency rule allowing increased discharges from the 
State Water Commission's West Bay Devils Lake outlet will be 
substantially greater than those identified by the Corps of Engineers 
for a 300 cfs Pelican Lake outlet constrained by a 300 mg/L sulfate 
limit in the Sheyenne River.
    The U.S. Army Corps of Engineers has determined that the operation 
of a 300 cfs Pelican Lake outlet constrained by a 300 mg/L sulfate 
limit in the Sheyenne River would result in a $32,000 annual increase 
in costs to downstream industrial water users (U.S. Army Corps of 
Engineers, 2003). The increased costs to downstream industrial water 
users resulting from the proposed emergency rule allowing increased 
discharges from the State Water Commission's West Bay Devils Lake 
outlet will be substantially greater than those identified by the U.S. 
Army Corps of Engineers for a 300 cfs Pelican Lake outlet constrained 
by a 300 mg/L sulfate limit in the Sheyenne River.
    The 300 mg/L sulfate constraint in the Sheyenne River would have 
limited the discharge from a 300 cfs Pelican Lake outlet to 0 to 100 
cfs for 3 months of the 7-month operating season (U.S. Army Corps of 
Engineers, 2002). However, because sulfate levels in West Bay are about 
700 mg/L, the State Water Commission's West Bay outlet will not be 
constrained by the 750 mg/L maximum sulfate limit in the Sheyenne River 
under the proposed emergency rule, so it will be able to operate at its 
planned full 250 cfs capacity and discharge much poorer quality water 
throughout the entire ice-free season. Consequently, it will have 
significantly more severe adverse impacts on downstream water quality 
and water treatment costs than those identified by the U.S. Army Corps 
of Engineers for its Pelican Lake outlet.
    The U.S. Army Corps of Engineers' Final Devils Lake, North Dakota, 
Integrated Planning Report and Environmental Impact Statement 
determined that, with a Pelican Lake outlet operating under a 300 mg/L 
sulfate constraint in the Sheyenne River:

    ``The annual phosphorus load to Lake Ashtabula would increase by 40 
metric tons (88,000 pounds) per year during the first 10 years of 
operation, which is variably a 60 to 100-percent increase over base 
conditions.'' (FEIS p., 5-83)

    In its June 2003 ``Response to Comments for the Devils Lake Outlet 
Project,'' the North Dakota Department of Health stated that the State 
Water Commission's 100 cfs West Bay Devils Lake outlet operating under 
a maximum a sulfate constraint of 300 mg/L in the Sheyenne River would 
export an average of 8,000 pounds of phosphorus and 40,000 pounds of 
nitrogen per year to the Sheyenne River, and:

    ``. . . the annual phosphorus load will increase; however, its 
impact on the Sheyenne River and Lake Ashtabula will likely be minimal. 
Primary productivity is largely controlled by a limiting substance 
which, in this situation, is likely to be nitrogen.'' (North Dakota 
Department of Health, 2003)

    The department's assumption that nitrogen will be the limiting 
substance for primary productivity in Lake Ashtabula erroneously fails 
to consider that, as the Devils Lake Biota Transfer Study pointed out:

    ``Cyanobacteria often comprise a large and important group of 
primary producers in aquatic ecosystems, but usually are viewed 
negatively because algae blooms are linked to eutrophication of water 
bodies, and cyanobacter account for more than 98 percent of algal 
blooms in some waters (citations omitted). Eutrophication results from 
the enrichment of water bodies with limiting nutrients, usually 
nitrogen and phosphorus. Cyanobacter blooms are often a response to 
nutrient loading, but some species are especially responsive to excess 
phosphorus. This is because, unlike the vast majority of organisms, 
many cyanobacter can exploit (`fix') atmospheric nitrogen as a 
nutrient. When phosphorus becomes over-abundant, most species increase 
growth and reproduction until the next most-limiting nutrient, usually 
nitrogen, becomes scarce. In such an environment, nitrogen-fixers have 
an advantage so they soon outcompete other species and dominate the 
community. Human activity tends to increase the availability of 
nitrogen and phosphorus in ecosystems, thus increasing the frequency of 
cyanobacterial blooms.'' (Peterson Environmental Consulting, Inc., 
2002)

    With the Devils Lake outlet operating at the planned capacity of 
250 cfs and with no effective sulfate constraint in Sheyenne River 
(sulfate levels in West Bay are in the range of 700 mg/L), the amount 
of nitrogen and phosphorous exported to the Sheyenne River and Lake 
Ashtabula will be substantially greater than under the Corps' 300 cfs 
Pelican Lake outlet or the State Water Commission's West Bay outlet 
operating under a 300 mg/L sulfate constraint. This means that Lake 
Ashtabula, which already is euthophic, will become a nutrient sink with 
even more severe and extensive algal blooms than already occur, 
resulting in decreased recreational use of the reservoir and 
corresponding negative economic impacts in the area.
    It is clear from just these few documented examples of the economic 
impacts of the emergency rule that the department's unsubstantiated 
claim that:

    ``The proposed rule is not expected to have an impact on the 
regulated community in excess of $50,000, so a regulatory review is not 
required.'' (Glatt, 2009a)

is patently preposterous.
   antidegradation review is required for the proposed emergency rule
    North Dakota Administrative Code  33-16-02.1-01, para. 2c, 
specifies that:

    ``Any public or private project or development which constitutes a 
source of pollution shall provide the best degree of treatment as 
designated by the department in the North Dakota pollutant discharge 
elimination system. If review of data and public input indicates any 
detrimental water quality changes, appropriate actions will be taken 
following procedures approved by the environmental protection agency. 
(North Dakota Antidegradation Implementation Procedure, Appendix IV.)''

    It is important to note that this requirement of NDAC  33-16-02.1-
01 dealing with Standards of Quality for Waters of the State is 
independent, separate and distinct from the requirements of NDAC 
Chapter 33-16-01 dealing with the North Dakota Pollutant Discharge 
Elimination System, and it applies to any public or private project or 
development that results in detrimental water quality changes.
    Appendix IV of the North Dakota Antidegradation Procedure states:

    ``Under this implementation procedure, all waters of the State are 
afforded one of three different levels of antidegradation protection. 
All existing uses, and the water quality necessary for those uses, 
shall be maintained and protected. Antidegradation requirements are 
necessary whenever a regulated activity is proposed that may have some 
effect on water quality. Regulated actions include permits issued under 
section 402 (NDPDES) and 404 (Dredge and Fill) of the Clean Water Act, 
and any other activity requiring section 401 water quality 
certification . . .''

    It is important to note that:

    ``Antidegradation requirements are necessary whenever a regulated 
activity is proposed that may have some effect on water quality.''

    Clearly, modifying water quality standards for the Sheyenne River 
to raise the maximum sulfate level from 450 mg/L to 750 mg/L 
constitutes ``a regulated activity'' that will have a significant 
effect on water quality.
    It also is important to note that the next sentence:

    ``Regulated actions include permits issued under section 402 
(NDPDES) and 404 (Dredge and Fill) of the Clean Water Act, and any 
other activity requiring section 401 certification.''

is inclusive and not exclusive, i.e., regulated actions include permits 
issued under sections 402 and 404 of the Clean Water Act and 
certifications under section 401, but are not limited to those actions 
and do not exclude other regulated actions.
    Section III of Appendix IV describes the Antidegradation Review 
Procedure and states, in part:

    ``The department will complete an antidegradation review for all 
proposed regulated activities. The findings of these reviews will be 
summarized using an antidegradation worksheet. A statement of basis for 
all conclusions will be attached to the completed worksheet. The level 
of detail of the review will depend upon the antidergradation 
protection applicable to the various classes of water.''

    Section III goes on to state:

    ``The level of antidegradation protection afforded each body of 
water in the State is consistent with beneficial uses of those water 
bodies. Appendix I and Appendix II of the Standards of Water Quality 
for the State of North Dakota identify rivers, streams, and lakes in 
the State with their classification. The classification shall be 
consistent with the following categories:
    ``Category 1--.Very high level of protection that automatically 
applies to Class I and Class IA streams and Class I, II, and III lakes, 
and wetlands that are functioning at their optimal level . . .''

    The Procedures for Category 1 Waters specify that:

    ``Regulated activities that result in a new or expanded source of 
pollutants to this category of water are subject to the review process, 
unless the source would have no significant effect on the quality and 
beneficial uses of those waters, or if the effects will be 
appropriately minimized and temporary.''

and:

    ``The applicant may be required to provide available data or other 
information about the affected water body and/or proposed activity to 
help determine the significance of the proposed degradation for 
specific parameters. The information includes recent ambient chemical, 
physical, or biological monitoring data sufficient to characterize, 
during the appropriate conditions, the spatial and temporal variability 
of existing background quality of the segment for the parameters that 
would be affected by the proposed activity. The information would also 
describe the water quality that would result if the proposed activity 
were authorized.''

    The Department of Health has already confirmed that discharges from 
the North Dakota State Water Commission's Devils Lake outlet meet the 
requirements for antidegradation review as is documented by its 
preparation of an Antidegradation Review Worksheet for the outlet on 
March 20, 2003 (Sauer, 2003). The Antidegradation Review Worksheet 
identifies the receiving water as the Sheyenne River and describes the 
proposed activity as:

    ``A temporary discharge of a maximum 100 cfs from West Bay of 
Devils Lake to the Sheyenne River. The discharge will be constrained to 
300 mg/L sulfate at the point of insertion. The stated purpose is to 
reduce the potential for flooding.'' (Sauer, 2003)

    In answer to the question, ``Will the proposed activity result in 
significant degradation?,'' the reviewer indicates, ``Yes.'' (Sauer, 
2003)
    Clearly, if discharges from the outlet limited to a maximum of 100 
cfs and constrained to 300 mg/L of sulfate in the Sheyenne River would 
result in significant degradation, raising the sulfate limit in the 
Sheyenne River to 750 mg/L in order to increase the discharge from the 
outlet to 250 cfs also would result in significant degradation.
   the department may not permit degradation of water quality in the 
  sheyenne river absent an affirmative determination of necessity to 
          accommodate important social or economic development
    North Dakota Administrative Code  33-16-02.1-02 explicitly and 
unequivocally specifies that:

    ``The `quality of the waters' shall be the quality of record 
existing at the time the first standards were established in 1967, or 
later records if these indicate an improved quality. Waters with 
existing quality that is higher than established standards will be 
maintained at the higher quality unless affirmatively demonstrated, 
after full satisfaction of the intergovernmental coordination and 
public participation provisions of the continuing planning process, 
that a change in quality is necessary to accommodate important social 
or economic development in the area in which the waters are located . . 
.'' (Emphasis added).

    The Sheyenne River is classified as a Class IA stream and the 
current water quality standard for Class IA streams establishes a 
maximum sulfate limit of 450 mg/L. The March 2006 report prepared for 
the North Dakota State Water Commission by Schuh and Hove on Sources 
and Processes Affecting Dissolved Sulfate Concentrations in the Upper 
Sheyenne River states:

    ``The percentage distribution of data in Fig. 13 includes 
additional Health Department data at Warwick. The distribution 
indicates that sulfate samples at Warwick never exceeded 300 mg/L 
before 2,000 and did so only about 25 percent of the time after 2000. 
Harvey samples, however, exceeded 300 mg/L about 40 percent of the time 
during the 1990s, and were below 300 mg/L only three times following 
the year 2000. This would indicate that concentrations at the Warwick 
gauge are fairly robust with respect to the 300 mg/L standard. In fact, 
during the wet period they were below 250 mg/L 80 percent of the time 
and below 220 mg/L half the time.'' (Emphasis added) (Schuh and Hove, 
2006)

    The data in Figure 13 of the report show the maximum sulfate level 
in the Sheyenne River downstream from the Devils Lake outlet at Warwick 
before 2000 at 230 mg/L and after 2000 at 307 mg/L (Schuh and Hove, 
2006). Clearly, therefore, the quality of the water in the Sheyenne 
River in the segment affected by proposed emergency rule is higher than 
the established 450 mg/L maximum sulfate limit for Class IA streams. 
Consequently, the department must maintain the water quality in the 
Sheyenne River at the existing quality that is higher than the 
established standard unless it is affirmatively demonstrated that a 
change in quality is necessary to accommodate important social or 
economic development in the area in which the Sheyenne River is 
located.
    Neither the State Water Commission nor the Department of Health has 
cited any evidence that the proposed emergency rule is necessary to 
accommodate important social or economic development in the area of the 
Sheyenne River, and, indeed, none exists. In fact, the evidence cited 
above overwhelmingly demonstrates that the proposed emergency rule will 
adversely affect social and economic development in the area.
    The department's July 15, 2009, letter to Governor Hoven states 
that the July 7, 2009, letter from the city of Devils Lake (Bott, 2009) 
and the July 13, 2009, letter from the State Water Commission (Frink, 
2009):

    ``. . . describe the need for an emergency response to flood 
conditions . . . to address the situation by increasing flow from the 
Devils Lake outlet.'' (Glatt, 2009c)

    The only information contained in the July 7, 2009 letter to the 
department from the president of the Devils Lake City Commission even 
remotely related to a need for adopting the proposed emergency rule in 
order to accommodate social or economic development are the statements 
that:

    ``. . . we will remain concerned about the economic vitality of the 
area should the lake continue to rise and inundate additional farmland 
and homes.'' (Bott, 2009)

and:

    ``. . . a natural overflow could result in future EXTREME water 
quality and flooding impacts downstream.'' (Bott, 2009)

    Both statements are hypothetical and speculative and are not 
supported by data or information on probability of occurrence or the 
severity of impacts to social or economic development.
    The July 13, 2009 letter to the department from the State Engineer 
contains even less information related to the need for adopting the 
proposed emergency rule in order to accommodate social or economic 
development. In fact, the only information contained in the State 
Engineer's letter that could be construed to relate to social or 
economic development are the unsubstantiated statements that:

    ``This (an overflow of Devils Lake to the Sheyenne River) would 
have major downstream consequences.'' (Frink, 2009)

and:

    ``The continual flooding of Devils Lake and Stump Lake constitutes 
an emergency condition, and the increasing outflows from the outlet is 
needed to assist in responding to the flooding. Operation of the outlet 
at its maximum capacity can provide an increase in water removed from 
Devils Lake reducing the risk of future flooding.'' (Frink, 2009)

    The statements are unsubstantiated and speculative. No data are 
provided to demonstrate that the consequences of a natural overflow 
from Devils Lake would be any more ``major'' than those from the 
proposed emergency rule allowing the outlet to operate at 250 cfs with 
a 750 mg/L sulfate limit in the Sheyenne River. No information is 
provided to support the assertion that the flooding at Devils Lake 
constitutes an ``emergency'' or to indicate the severity of the alleged 
emergency. And, no data are provided to show exactly how much operation 
of the outlet under a maximum sulfate limit of 750 mg/L in the Sheyenne 
River and would reduce the risk of future flooding.
    Neither the letter from the city of Devils Lake (Bott, 2009) nor 
the letter from the State Engineer (Frink, 2009) addresses the fact the 
city of Devils Lake has been unable to show that the flooding has had 
an adverse economic impact. As the Devils Lake Daily Journal reported 
in 2000, the city's economic director was quoted as saying:

    ``The challenge we have is statistically the (flooding) impact 
doesn't show up real well in areas of taxable sales and services. Our 
employment 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)

    It is even more difficult to show that the proposed emergency rule 
to increase the maximum limit of sulfate in the Sheyenne River from 450 
mg/L to 750/mg/L would result in any significant social or economic 
development. The Associated Press reported 3 weeks after the department 
vacated the North Dakota Pollutant Elimination System permit it had 
issued for the outlet that even an engineer from the North Dakota State 
Water Commission acknowledged that the outlet was ``expected to remove 
only a few inches of water this year.'' In fact, operating at its 
current maximum capacity of 100 cfs from July to the end of November 
with the Department's North Dakota Pollutant Discharge Elimination 
System permit vacated and the maximum sulfate limit in the Sheyenne 
River raised to 750 mg/L, the outlet would remove about 30,000 acre-
feet of water, which is equivalent to about a 2 inch reduction in the 
level of the lake at its current area of 163,000 acres. As pointed out 
above, operating at a maximum capacity of 250 cfs for a 7-month period 
from May through November, it would take 5.6 years for the outlet to 
remove just the inflows from this spring. And because the outlet 
removes water only after it already is in Devils Lake, it does little 
to reduce the impacts of flooding. Indeed, if the high inflows of this 
past spring were to continue in future years, the outlet would only 
slightly delay an overflow to the Sheyenne River but would not prevent 
it. For example, the Corps of Engineers determined that, under a 
stochastic analysis, a 300 cfs Pelican Lake outlet would reduce the 
chance of an overflow to the Sheyenne River from 9.4 percent to 4.6 
percent (U.S. Army Corps of Engineers, 2003).
    It should be noted in this context that the influx of Federal funds 
into the Devils Lake area to deal with the rising level of the lake, 
coupled with the outstanding fishery that has developed as the lake has 
risen, have been a significant economic boon to the region (U.S. Army 
Corps of Engineers, 2003). Now the U.S. Army Corps of Engineers 
reportedly is considering two options for raising the dike protecting 
the city of Devils Lake. The option of raising the dike another 5 feet 
is estimated to cost $73,000,000 and the option of raising the dike 
another 10 feet is estimated to cost $150,000,000 (Bonham, 2009) with 
75 percent being paid by Federal funds (Nicholson, 2009). Ironically, 
therefore, to whatever extent the outlet operating under the proposed 
emergency rule might lower the level of Devils Lake, it could 
potentially reduce the influx of Federal funds into the area by 
$54,750,000 to as much as $112,500,000, thereby resulting in 
significant adverse impacts on social and economic development.
    In any event, it is clear that no substantive or credible evidence 
exists to support an affirmative determination that the emergency rule 
is necessary to accommodate important social or economic in the area.
                               references
    Anonymous. 2000. City sponsors impact report. Devils Lake Daily 
Journal. March 28.
    Anonymous. 2009a. Permit requirement dropped for Devils Lake 
outlet. The Grand Forks Herald. Grand Forks, North Dakota. June 26.
    Anonymous. 2009b. Senators secure funding to fight Devils Lake 
flood: Feds will release $40 million to DOT in effort to protect 
communities. Devils Lake Daily Journal. Devils Lake, North Dakota. May 
26.
    Associated Press. 2008. Past 6 months driest on record in thirsty 
ND Bismarck, North Dakota. April 23.
    Associated Press. 2009. Gov. agrees with Devils Lake Land decision. 
Devils Lake, North Dakota. April 23.
    Bonham, Kevin. 2009a. NWS: Devils Lake likely will reach all-time 
high this year. The Grand Forks Herald, Grand Forks, North Dakota. 
February 11.
    Bonham, Kevin. 2009b. Devils Lake gets good news for dike system. 
The Grand Forks Herald. Grand Forks, North Dakota. June 12.
    Bott, Fred. 2009. Letter to Dave Glatt, North Dakota Department of 
Health, Bismarck, North Dakotafrom President, Devils Lake City 
Commission, Devils Lake, North Dakota. July 7. 1 p.
    Browne, Steve. 2009. Back to the drawing board. Valley City Times 
Record. August 10.
    Frink, Dale. 2002a. U.S. Environmental Protection Agency, General 
Information, Consolidated Permits Program. EPA Form 3510-1 (8-90). 2 
pp. w/Attach.
    Frink, Dale. 2002b. EPA New Sources and New Discharges, Application 
for Permit to Discharge Process Wastewater. Form 2D NPDES. EPA Form 
3510-2d (Rev. 8-90). 5 pp.
    Frink, Dale L. 2005. Letter to Gary Pearson, Jamestown, North 
Dakota, from State Engineer, North Dakota State Water Commission, 
Bismarck, North Dakota. November 2, 1 p. w/attach.
    Frink, Dale. 2006. Memorandum to Governor John Hoeven and State 
Water Commission Members. Subject: Devils Lake Outlet Project Update. 
November 20. 1 p.
    Frink, Dale. 2009. Letter to L. David Glatt, Chief, Environmental 
Health Section, North Dakota Department of Health, Bismarck, North 
Dakota from State Engineer, North Dakota State Water Commission, 
Bismarck, North Dakota. July 13. 1 p.
    Glatt, L. David. 2004. Letter to Gary L. Pearson, Jamestown, North 
Dakota, from Chief, Environmental Health Section, North Dakota 
Department of Health, Bismarck, North Dakota. January 28. 2 pp.
    Glatt, L. David. 2009a. Notice of Intent to Adopt Administrative 
Rule. July 15. 1 p.
    Glatt, L. David. 2009b. Finding and Statement of Reason of the 
North Dakota Department of Health Regarding Proposed Rule Relating to 
Water Quality Standards. Environmental Chief. July 15. 1 p.
    Glatt, L. David. 2009c. Letter to The Honorable John Hoven, 
Governor of North Dakota, Bismarck, North Dakota, from L. David Glatt, 
Chief, Environmental Health Section, North Dakota Department of Health, 
Bismarck, North Dakota. July 15. 2 pp.
    Lee, Yankyoung. 2007a. Herald Exclusive: Exaggerated effectiveness. 
The Grand Forks Herald. Grand Forks, North Dakota. August 26.
    Lee, Yankyoung. 2007b. By the numbers. The Grand Forks Herald. 
Grand Forks, North Dakota. August 26.
    MacPherson, James. 2009. ND water panel approves Devils Lake 
projects. Associated Press. Bismarck, North Dakota. August 19.
    Nicholson, Blake. 2009. North Dakota approves money for Devils Lake 
levee. Associated Press. Bismarck, North Dakota. September 2.
    Norman, Keith. 2009. El Nino could cause milder ND winter. The 
Jamestown Sun. August 8.
    North Dakota Department of Health. 2003a. Statement of Basis, 
Devils Lake Outlet, ND 0026347. 12 pp.
    North Dakota Department of Health. 2003b. Response to Comments for 
the Devils Lake Outlet, ND-0026247. 12 pp.
    North Dakota Department of Health. 2006. North Dakota Department of 
Health Public Notice to Modify NDPDES Permit, Notice of Public Hearing 
on NDPDES Permit Modification. Public Notice Number ND-2006-026. 2 pp.
    North Dakota State Water Commission. 2002. State of North Dakota 
Water Quality Report for the Devils Lake Outlet Project. 7 pp.
    Oleson, Louise. 2009a. Tolna Coulee cleanout could be accomplished 
soon if all goes as Planned. Devils Lake Daily Journal. Devils Lake, 
North Dakota. August 5.
    Oleson, Louise. 2009b. Update on the Tolna Coulee cleanout project. 
Devils Lake Daily Journal. Devils Lake, North Dakota. August 6.
    Oleson, Louise. 2009c State flood meeting yields few answers. 
Devils Lake Daily Journal. Devils Lake, North Dakota. August 6.
    Oleson, Louise. 2009d. Devils Lake officials vote to go ahead with 
land purchase. Devils Lake Daily Journal. Devils Lake, North Dakota. 
August 21.
    Peterson Environmental Consulting, Inc. 2002. Biota Transfer Study: 
Devils Lake Flood Damage Reduction Alternatives. Prepared for the St. 
Paul District, U.S. Army Corps of Engineers.
    Reinartz, Daniel. 2002. Email to [email protected] on 
FW: Outlet Pumping Profiles. September 25. w/Attach.
    Sauer, Michael T. 2003. Antidegradation Review Worksheet (Sheyenne 
River). 3 pp. w/attach.
    Schuh, W. M. and M. H. Rove. 2006. Sources and Processes Affecting 
Dissolved Sulfate//Concentrations in the Upper Sheyenne River. 53 pp.
    U.S. Army Corps of Engineers. 2002. Draft Devils Lake, North 
Dakota, Integrated Planning Report and Environmental Impact Statement.
    U.S. Army Corps of Engineers. 2003. Final Devils Lake, North 
Dakota, Integrated Planning Report and Environmental Impact Statement.
    U.S. Army Corps of Engineers and North Dakota State Water 
Commission. 2008. Devils Lake Study Newsletter. Issue#1, March. 4 pp.
    Vecchia, Aldo V. 2008. Climate Simulation and Flood Risk Analysis 
for 2008-40 for Devils Lake, North Dakota. U.S. Department of the 
Interior, U.S. Geological Survey Scientific Investigations Report 2008-
5011. 28 pp.
    West Consultants, Inc. 2001. Final Report, Devils Lake Upper Basin 
Storage Evaluation. Prepared for: St. Paul District, U.S. Army Corps of 
Engineers. 78 pp.
                                 ______
                                 
 Comments on the North Dakota State Water Commission's Application No. 
     3457 to Drain Water From Devils Lake to the Sheyenne River by 
Increasing the Capacity of the Existing Devils Lake Outlet from 100 to 
                       250 Cubic Feet Per Second
                              introduction
    On July 13, 2009, North Dakota State Engineer Dale Frink sent a 
letter to North Dakota Department of Health (NDDH, department), 
Environmental Health Section Chief L. David Glatt stating:

    ``The continual flooding of Devils Lake and Stump Lake constitutes 
an emergency condition, and the increasing of outflows from the outlet 
is needed to assist in responding to the flooding. Operation of the 
outlet at its maximum capacity can provide an increase in water removed 
from Devils Lake reducing the risk of future flooding.'' (Frink, 2009)

    On July 15, 2009, NDDH Environmental Health Section Chief L. David 
Glatt sent a letter to North Dakota Governor John Hoeven requesting 
authority for the department ``to implement interim emergency rules to 
reclassify stream water quality standards for a portion of the Sheyenne 
River'' in order to ``allow an immediate increase of discharge from the 
east end of Devils Lake in an effort to stabilize or decrease lake 
levels, thus reducing the impact of flooding.'' Mr. Glatt went on to 
explain that:

    ``As part of the authority provided under NDCC 28-32-03, we must 
declare that the proposed rule be an interim final rule. It must be 
filed with the Legislative Council to be valid and finalized within 6 
months after the completion of an appropriate public participation 
process.'' (Glatt, 2009a)

    The department's July 15, 2009, NOTICE OF INTENT TO ADOPT 
ADMINISTRATIVE RULE--issued the same day as Mr. Glatt's letter to the 
Governor--stated that:

    ``The purpose of the proposed rule is to change the maximum limit 
of sulfate in a segment of the Sheyenne River. The rule will change the 
maximum level of sulfate in the segment of the Sheyenne River that runs 
from its headwaters to 0.1 mile downstream from the Baldhill Dam, 
including Lake Ashtabula, from 450 mg/L to 750 mg/L . . .'' (Glatt, 
2009b)

    On August 19, 2009, the Associated Press reported that:

    ``The North Dakota Water Commission has approved a $16.5 million 
project aimed at controlling the level of swollen Devils Lake.
    ``Assistant Water Commission Engineer Todd Sando said the project 
involves installing additional pumps along the Devils Lake outlet that 
could remove more than 6 inches of water annually from the lake. The 
upgrade would boost the outlet's pumping capacity from 100 cubic feet 
per second to 250 cubic feet per second.'' (MacPherson, 2009)

    Office of the State Engineer Water Development Division Application 
to Drain No. 3457 was signed by North Dakota Governor and State Water 
Commission Chairman John Hoeven and was received by the State Water 
Commission on October 26, 2009. The purpose of the project stated on 
the application is:

    ``Upgrade of existing drain to address continue [sic] lake rise.''

    The Project Description, Devils Lake Outlet Upgrade, Drain Permit 
Application No. 3457, accompanying the application states, regarding 
the Proposed Upgrade,'' that:

    ``In a July 7, 2009 letter, the Devils Lake City Commission 
requested that the NDDH and North Dakota State Water Commission (NDSWC) 
`work together to identify means of removing additional water from 
Devils Lake to reduce flood damages.' Due to ongoing flooding and the 
potential for an uncontrolled overflow from the east end of the lake, 
the NDSWC responded by requesting the NDDH to implement emergency rules 
for the Sheyenne River to increase the amount of water discharged from 
the Devils Lake Outlet. The NDDH, on July 15, 2009, in accordance with 
North Dakota Century Code 28.32-02, implemented an emergency rule for 
a segment of the Sheyenne River. The NDDH amended the sulfate 
concentration level from 450 mg/L to 750 mg/L for the segment of the 
Sheyenne headwaters to a point just downstream of Baldhill Dam.
    ``The proposed upgrade involves increasing the capacity of the 
outlet from 100 cfs to 250 cfs. Two additional pumps are planned for 
the Round Lake pump station . . .''

    This is the only information provided by the applicant State Water 
Commission regarding the impacts of increasing the discharge of the 
Devils Lake outlet from 100 cfs to 250 cfs and the maximum 
concentration of sulfate in the Sheyenne River from 450 mg/L to 750 mg/
L.
    The Associated Press reported on January 2, 2010 that:

    ``Part of the Sheyenne River that has been used to drain 
floodwaters from Devils Lake would have too much sulfate to be used for 
municipal drinking water under rules of the state Health Department is 
proposing . . . 
    ``The proposed rule would allow sulfate levels in part of the 
Sheyenne River as high as 750 milligrams per liter of water. Until 
July, the limit was 450 milligrams per liter . . . 
    ``Glatt said the changes were being proposed to allow the Devils 
Lake outlet to move greater amounts of water into the Sheyenne.
    ``The outlet diverts water from Devils Lake's west end into the 
river. Last summer, it could move only 100 cubic feet of water per 
second, and its use was limited by sulfate standards until the ceiling 
was raised to 750 milligrams per liter.
    ``North Dakota's Water Commission is planning $15 million worth of 
improvements, including larger pumps and water filtering equipment, to 
upgrade the outlet's pumping capacity to 250 cubic feet per second.'' 
(Wetzel, 2010)

    It is clear, therefore, that the North Dakota Department of 
Health's proposed emergency rule to amend the Standards of Quality for 
Waters of the State to increase the maximum concentration of sulfate in 
the Sheyenne River from 450 mg/L to 750 mg/L is tied directly to the 
State Water Commission's application for a permit to increase the 
capacity of the Devils Lake outlet from 100 cfs to 250 cfs.
    According to the NOTICE OF HEARING ON APPLICATION TO DRAIN WATER 
FROM DEVILS LAKE TO THE SHEYENNE RIVER issued on December 30, 2009, by 
the Ramsey County Water Resource District:

    ``. . . the State Water Commission, 900 East Boulevard Avenue, 
Bismarck, ND 58505, has filed an application for a permit to drain 
water from Devils Lake to the Sheyenne River to address flooding 
impacts of the rising level of Devils Lake. The project involves 
upgrading the capacity of the existing Devils Lake Outlet from 100 cfs 
to 250 cfs . . . The application has been determined by the State 
engineer to be of statewide or interdistrict significance''

    Presumably, the application was submitted and is being considered 
under North Dakota Century Code  61-32-03 and North Dakota 
Administrative Code Chapter 89-02-01. NDCC  61-32-03 provides that:

    ``Any person, before draining a pond, slough, or lake, or 
sheetwater, or any series thereof, which has a watershed area 
comprising 80 acres (32.37 hectares) or more, shall first secure a 
permit to do so. The permit application must be submitted to the State 
engineer. The State engineer shall refer the application to the water 
resource districts within which is found a majority of the watershed or 
drainage area of the pond, slough, lake, or sheetwater for 
consideration and approval, but the State engineer may require that 
applications proposing drainage of statewide or interdistrict 
significance be returned to the State engineer for final approval. A 
permit may not be granted until an investigation discloses that the 
quantity of water which will be drained from the pond, slough, lake, or 
sheetwater, or any series thereof, will not flood or adversely affect 
downstream lands. If the investigation shows that the proposed drainage 
will flood or adversely affect lands of downstream landowners, the 
water resource board may not issue a permit until flowage easements are 
obtained. The flowage easements must be filed for record in the office 
of the recorder of the county or counties in which the lands are 
situated. An owner of land proposing to drain shall undertake and agree 
to pay the expenses incurred in making the required investigation . . 
.'' (Emphasis added)

    It is important to note that, in the case of the application cited 
in the above notice, NDCC  61-32-03 imposes an affirmative fiduciary 
duty on the State Water Commission to ``undertake and agree to pay the 
expenses incurred in making the required investigation'' to determine 
whether the quantify of water which will be drained from Devils Lake as 
a result of increasing the capacity of the State Water Commission's 
Devils Lake outlet from 100 cubic feet per second (cfs) to 250 cfs will 
``flood or adversely affect downstream lands.''
    It also is important to note that it is not sufficient under NDCC  
61-32-03 for the issuance of the permit to be based upon an absence of 
evidence that increasing the capacity of the outlet from 100 cfs to 250 
cfs will flood or adversely affect downstream lands, or upon a finding 
that the flooding or adverse effects on downstream lands are not 
significant or that they are necessary or justified in order to address 
flooding at Devils Lake. Nor are there any provisions under the statute 
for issuing a permit based upon speculative and unsubstantiated claims 
that flooding or other adverse effects can be avoided. NDCC  61-32-03 
explicitly requires that, before the permit may be granted, an 
investigation must have been conduced and the results of that 
investigation must affirmatively demonstrate that increasing the 
capacity of the State Water Commission's Devils Lake outlet from 100 
cfs to 250 cfs ``will not flood or adversely affect downstream lands.''
    Under NDAC  89-02-01-09.2, Evaluation of applications--Factors 
considered:

    ``The State engineer, for applications of statewide or 
interdistrict significance, and the board for all applications to 
drain, shall consider the following factors:
  --``The volume of water proposed to be drained and the impact of the 
        flow or quantity of this water upon the watercourse into which 
        the water will be drained.
  --``Adverse effects that may occur to the lands of lower proprietors. 
        This factor is limited to the project's hydraulic effects such 
        as erosion, duration of floods, impact of sustained flows, and 
        impact on the operation of downstream control devices.
  --``The engineering design and other physical aspects of the drain.
  --``The project's impact on flooding problems in the project 
        watershed.
  --``The project's impact on ponds, sloughs, streams or lakes having 
        recognized fish and wildlife values.
  --``The project's impact on agricultural lands.
  --``Whether easements are required.
  --``Other factors unique to the project.''
absence of investigations affirmatively demonstrating that the quantity 
  of water drained by the project will not flood or adversely affect 
                            downstream lands
    As noted above, NDCC  61-32-03, Permit to drain waters required--
Penalty, specifies that:

    ``A permit may not be granted until an investigation discloses that 
the quantity of water which will be drained from the pond, slough, 
lake, or sheetwater, or any series thereof, will not flood or adversely 
affect downstream lands.''

    The minutes of the December 8, 2009, meeting of the Devils Lake 
Outlet Monitoring Committee Modeling Subcommittee report that a 
simulation model is being developed by the U.S. Geological Survey to 
provide a ``Stochastic Analysis of Devils Lake Outlet and Sheyenne 
River Sulfate Concentrations'' and that plans are underway for linking 
the model with a deterministic model being developed by the U.S. 
Geological Survey and the North Dakota State Water Commission for 
``Monitoring and Modeling The Effects of Proposed Increase in Devils 
Lake Outlet Capacity on Future Flows and Sulfate Concentrations in 
Upper Sheyenne River and Lake Ashtabula'' and for extending the model 
downstream of Lake Ashtabula.
    The documented fact that the development of the stochastic 
simulation model for Devils Lake will not be completed until February 
2010 and the deterministic Upper Sheyenne River and Lake Ashtabula 
model will not be completed until May 2010 constitutes unequivocal 
proof that the investigations required by NDCC 61-32-03 to demonstrate 
that ``the quantity of water which will be drained from (Devils Lake by 
the expanded Devils Lake outlet) will not flood or adversely affect 
downstream lands'' have not been done. Consequently, on this basis 
alone, the Ramsey County and Towner County Water Resource Boards are 
prohibited by statute from approving the State Water Commission's 
application for a permit to upgrade the capacity of the existing Devils 
Lake outlet from 100 cfs to 250 cfs.
   the volume of water proposed to be drained and the impact on the 
                             sheyenne river
    The first factor that the Ramsey County and Towner County Water 
Resource Boards are required to consider under NDAC  89-02-01-09.2 in 
evaluating the State Water Commission's application for a permit to 
increase the capacity of its Devils Lake outlet from 100 cfs to 250 cfs 
is:

    ``The volume of water proposed to be drained and the impact of the 
flow or quantity of this water upon the watercourse into which the 
water will be drained.''

    Assistant North Dakota State Engineer Todd Sando claims that 
operation of the Devils Lake outlet at a capacity of 250 cfs ``could 
remove more than 6 inches of water annually from the lake'' 
(MacPherson, 2009).
    Application to Drain No. 3457 submitted by the State Water 
Commission lists the water area of Devils Lake at 163,000 acres. In 
order remove 6 inches of water from Devils Lake at an area of 163,000 
acres, it would be necessary remove of 81,500 acre-feet of water. 
Operating at 250 cfs, the Devils Lake outlet would remove 14,875 acre-
feet per month, so it would take 5.5 months for the outlet to remove 
81,500 acre-feet of water from the lake.
    Flows in the Sheyenne River flows averaged 36,000 acre-feet per 
year at Warwick from 1949-1971 (U.S. Bureau of Reclamation, 1974) and 
87,380 acre-feet per year below Baldhill Dam from 1950-1992 (U.S. 
Bureau of Reclamation, 1997). Increasing the annual flows of the 
Sheyenne River by 81,500 acre-feet as a result of operation of the 
Devils Lake outlet would increase the average annual flow at Warwick by 
226 percent, and it would increase the average annual flow at Baldhill 
Dam by 93 percent.
    The capacity of Lake Ashtabula at the top of the conservation pool 
is approximately 69,000 acre-feet (U.S. Bureau of Reclamation, 1999). 
Therefore, operation of the Devils Lake outlet at 250 cfs would replace 
the target volume of Lake Ashtabula with lower quality Devils Lake 
water every 4.6 months, or 1.2 times every 5.5 months.
    The applicant State Water Commission has cited no investigations of 
the impacts of an additional 81,500 acre-feet water from the Devils 
Lake outlet on the Sheyenne River and Lake Ashtabula.
    adverse effects that may occur to the lands of lower proprietors
    The second factor that the Ramsey County and Towner County Water 
Resource Boards are required to consider under NDAC 89-02-01-09.2 in 
evaluating the State Water Commission's application for a permit to 
increase the capacity of its Devils Lake outlet from 100 cfs to 250 cfs 
is:

    ``Adverse effects that may occur to the lands of lower proprietors. 
This factor is limited to the project's hydrologic effects such as 
erosion, duration of floods, impact of sustained flows, and impact on 
the operation of downstream water control devices.''

    The applicant State Water Commission has cited no investigations 
demonstrating that adverse effects will not occur to the lands of lower 
proprietors as a result of increasing the capacity of the Devils Lake 
outlet from 100 cfs to 250 cfs. However, other investigations indicate 
that the adverse effects to the lands of lower proprietors resulting 
from increasing the capacity of the outlet to 250 cfs will be severe.
    The North Dakota Department of Health stated in its 2003 
``Statement of Basis, Devils Lake Outlet ND-0026247'' for issuance of a 
North Dakota Pollution Discharge Elimination System Permit for the 
State Water Commission's Devils Lake outlet that the U.S. Army Corps of 
Engineers' April 2003 Final Devils Lake, North Dakota, Integrated 
Planning Report and Environmental Impact Statement:

    ``. . . includes background information on hydrology, natural 
resources and other evaluations that are relevant to the consideration 
of this discharge permit.'' (North Dakota Department of Health, 2003)

    The Corps of Engineers' April 2003 Final Devils Lake, North Dakota, 
Integrated Planning Report and Environmental Impact Statement (FEIS) 
(U.S. Army Corps of Engineers, 2003) did not evaluate the impacts of a 
250 cfs West Bay outlet constrained only by a 750 mg/L sulfate limit in 
the Sheyenne River, but it did evaluate the impacts of a 300 cfs 
Pelican Lake outlet constrained by a 300 mg/L sulfate limit and 600 cfs 
total flows in the Sheyenne River. However, the water quantity impacts 
of the State Water Commission's West Bay outlet operating at 250 cfs 
with a 750 mg/L sulfate limit in the Sheyenne River would be 
significantly greater than those of a 300 cfs Pelican Lake outlet 
because operation of the Pelican Lake outlet would be limited to 
discharges of 0 to 100 cfs for 3 months of its 7 month operating season 
(U.S. Army Corps of Engineers, 2002). Nevertheless, it is instructive 
to consider the hydrologic effects identified by the Corps for a 300 
cfs Pelican Lake outlet, recognizing that the effects of the State 
Water Commission's West Bay outlet operated at 250 cfs would be even 
more severe:
  --``An outlet to the Sheyenne River . . . could also reduce the 
        aesthetics of the riparian zone by accelerating erosion-
        deposition processes along the river . . . (Emphasis added) 
        (FEIS p. 6-47)
  --``. . . an outlet could exacerbate flooding along the Sheyenne 
        River with consequent damage to transportation infrastructure, 
        including roads and bridges. (Emphasis added) (FEIS p. 6.49)
  --``Exacerbated flooding in the Sheyenne River could damage 
        agricultural property, including lands, equipment and 
        structures. (Emphasis added) (FEIS p. 6-49)
  --``An outlet from Devils Lake could diminish property values along 
        the Sheyenne River. The potential adverse impact to property 
        values would be based on damage in the riparian zone, 
        exacerbated flood risks, and reduced water quality for 
        agriculture or recreation. (Emphasis added) (FEIS p. 6-50)
  --``Extended high flows from Baldhill Dam may result in problems 
        related to the ability to drain the fish ponds at Baldhill Dam 
        and Valley City National Fish Hatcheries. Flows around 700 to 
        800 cfs will prevent the ponds from being drained. (Emphasis 
        added) (FEIS p. 6-52)
  --``Operation of the Pelican Lake outlet would result in substantial 
        change in the flow regime of the Sheyenne River. Discharges of 
        up to 300 cfs over a major portion of the summer would result 
        in a five- to tenfold increase in summer/fall flows along the 
        Sheyenne River. Increased flows throughout the summer would 
        result in changes in river in river stage on the Sheyenne and 
        Red Rivers. (Emphasis added) (FEIS p. 6-56)
  --``With the increase in flow, some change is expected in width and 
        depth, and erosion would probably increase. (Emphasis added) 
        (FEIS p. 6-59)
  --``Effects in Lake Ashtabula include reduced retention time, 
        increased nutrient loading, increased movement of fish out of 
        the lake, and increased storage of water. The outlet would 
        reduce storage time in Lake Ashtabula and increase turnover 
        rate. (Emphasis added) (FEIS p. 6-60)
  --``The operation of the outlet would affect river stages, 
        groundwater levels near the river, erosion, availability of 
        aquatic habitat, river access, and river crossings. (FEIS p. 6-
        60)
  --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.\1\ Erosion will be greater . . .'' 
        (Emphasis added) (FEIS p. 6-60)
---------------------------------------------------------------------------
    \1\ Even larger quantities of water could be discharged by the 
Devils Lake outlet during both wet and dry periods because the 250 cfs 
discharge of water from West Bay with 600 mg/L to 700 mg/L of sulfate 
would not be constrained under the proposed 750 mg/L sulfate limit in 
the Sheyenne River.

    It is important to note that the analysis of the hydrologic impacts 
of the Corps of Engineers' 300 cfs Pelican Lake was based on the 
---------------------------------------------------------------------------
assumption that:

    ``The channel capacity (of the Sheyenne River) is estimated at 
about 600 cfs upstream of Lake Ashtabula.'' (FEIS p. 5-10)

    The State Water Commission's Project Description, Devils Lake 
Outlet Upgrade, Drain Permit Application No. 3457 also cites ``the 600 
cfs channel capacity of the Sheyenne River,'' so it is clear that any 
information from the State Water Commission regarding the hydrologic 
impacts of the outlet would be based on the assumption that the channel 
capacity of the Sheyenne River is 600 cfs.
    However, the channel capacity of the Sheyenne River at Warwick, 30 
miles downstream from the insertion point of the Devils Lake outlet, is 
only 300 cfs (U.S. Bureau of Reclamation, 2003) and the channel 
capacity upstream from Warwick is even less. Consequently, because the 
channel capacity of the Upper Sheyenne River downstream from the 
insertion point of the outlet is half or less than that assumed by the 
Corps, the hydrologic impacts of the Corps' 300 cfs Pelican Lake outlet 
would be far greater than indicated in the FEIS, and the impacts of 
increasing the capacity of the State Water Commission's Devils Lake 
outlet to 250 cfs would be significantly more severe than those for a 
300 cfs Pelican Lake outlet.
    Because the applicant has cited no investigations quantifying and 
qualifying the hydrologic effects such as erosion and flooding to the 
lands of lower proprietors resulting from increasing the capacity of 
the Devils Lake outlet to 250 cfs, and because the preponderance of the 
evidence unequivocally demonstrates that increasing the capacity of the 
State Water Commission's Devils Lake outlet to 250 cfs will flood and 
adversely affect downstream lands, the Ramsey County and Towner County 
Water Resource Boards may not issue the permit until the required 
investigations have been conducted and flowage easements have been 
obtained from all of the affected downstream landowners.
                       faulty engineering design
    The third factor that the Ramsey County and Towner County Water 
Resource Boards are required to consider under NDAC  89-02-01-09.2 in 
evaluating the State Water Commission's application for a permit to 
increase the capacity of its Devils Lake outlet from 100 cfs to 250 cfs 
is:

    ``The engineering design and other physical aspects of the drain.''

    The North Dakota State Water Commission's 2001 Devils Lake 
(Peterson Coulee) Outlet Request for Proposal stated explicitly that:

    ``. . . The State's primary goal is to have an outlet operating as 
quickly and at as low a cost as possible. Also, it is quite possible 
that the current wet cycle may end within the next 10 to 15 years at 
which point the outlet may no longer be operated. Therefore, the cost 
and efficiency of the pumps and short delivery time are more important 
than the reliability and long life span of the pumps . . .'' (Emphasis 
added)

    Because the State Water Commission's goal was to build an outlet at 
as low a cost as possible while compromising reliability, numerous 
problems have developed with operation of the outlet. For example, in a 
September 17, 2009, letter to the State Water Commission, the Benson 
County Water Resource Board outlined some of the problems resulting 
from the substandard engineering design and faulty construction of the 
outlet:

    ``Primarily what we speak of is what we have seen on how the water 
is leaching outside of the canal project and remaining on the adjacent 
farmland. Culverts have been installed to divert water, either directly 
into the pipeline project or under the pipeline project. However, the 
culverts remain plugged and water impounds on the farmers' fields. In 
addition, we believe that the canal project itself is allowing waters 
to leach out and salinize adjacent farmland. As a water resource board, 
we would ask that you take care of the existing problems which this 
project has either created, uncontrollably caused, or compounded prior 
to increasing the outflow of water down this unique project.'' (L. 
Olson, 2009)

    The applicant State Water Commission has cited no investigations of 
the design and construction deficiencies of the current Devils Lake 
outlet or how the problems caused by those deficiencies will be 
exacerbated when the capacity of the outlet is increased from 100 cfs 
to 250 cfs.
   the project's impact on flooding problems in the project watershed
    The fourth factor that Ramsey County and Towner County Water 
Resource Boards are required to consider under NDAC  89-02-01-09.2 in 
evaluating the State Water Commission's application for a permit to 
increase the capacity of its Devils Lake outlet from 100 cfs to 250 cfs 
is:

    ``The project's impact on flooding problems in the project 
watershed.''

    The applicant State Water Commission has neither submitted nor 
cited substantive information regarding the impact of increasing the 
capacity of the Devils Lake outlet from 100 cfs to 250 cfs on flooding 
problems in the project watershed, i.e., the 3,814 square mile Devils 
Lake Basin. The Application to Drain No. 3457 submitted by Governor and 
State Water Commission Chairman John Hoeven states, under Purpose, 
only:

    ``Upgrade of existing drain to address continue [sic] lake rise.''

and the only information regarding the impact on flooding problems in 
the project watershed contained in the State Water Commission's Project 
Description, Devils Lake Upgrade, Drain Permit Application No. 3457 
submitted with its application for the permit is the statement that:

    ``In a July 7, 2009, letter, the Devils Lake City Commission 
requested that the NDDH and North Dakota State Water Commission (NDSWC) 
`work together to identify means of removing additional water from 
Devils Lake to reduced flood damages.' ''

    The July 7, 2009, letter from the Devils Lake City Commission 
provided no information on the impact of the project on flooding in the 
project watershed. (Bott, 2009)
    The July 13, 2009, letter from State Engineer Dale Frink to the 
North Dakota Department of Health did not mention increasing the 
capacity of the Devils Lake outlet to 250 cfs and stated only that:

    ``Operation of the outlet at its maximum capacity can provide an 
increase in water removed from Devils Lake reducing the risk of future 
flooding.'' (Frink, 2009)

    The letter provides no information on how much water could be 
removed from Devils Lake by operating the outlet at its maximum 
capacity, which at the time was 100 cfs, or how much it would reduce 
the risk of future flooding.
    The only information regarding flooding in the watershed contained 
in NDDH Environmental Health Section Chief L. David Glatt's July 15, 
2009, letter to Governor Hoeven was the statement that:

    ``In an effort to address the widespread flood impacts in the 
Devils Lake region, the department finds that emergency rulemaking is 
necessary and is requesting the authority to implement interim 
emergency rules to reclassify stream water quality standards for a 
portion of the Sheyenne River. This action would allow an immediate 
increase of discharge from the west end of Devils Lake in an effort to 
stabilize or decrease levels, thus reducing the impact of flooding.'' 
(Glatt, 2009a)

    The letter does not mention increasing the capacity of the Devils 
Lake outlet from 100 cfs to 250 cfs nor does it provider any 
information regarding the actual effects of the proposed emergency 
rulemaking to reclassify stream water quality standards for a portion 
of the Sheyenne River in stabilizing or decreasing the levels of the 
lake or reducing the impact of flooding.
    The Finding and Statement of Reason of the North Dakota Department 
of Health Regarding Proposed Rule Relating to Water Quality Standards 
signed by NDDH Environmental Health Section Chief L. David Glatt on 
July 15, 2009, states only that emergency rulemaking ``was necessary 
because imminent peril threatened public health or safety, or welfare, 
which could be abated by emergency effectiveness,'' but it does not 
mention increasing the capacity of the Devils Lake outlet to 250 cfs, 
nor does it provide any information regarding the impact of the 
proposed emergency rule on flooding in the Devils Lake Basin, on the 
alleged imminent peril or on public health, safety or welfare (Glatt, 
2009c).
    Indeed, the only information on the impact of increasing the 
capacity of the Devils Lake outlet from 100 cfs to 250 cfs on flooding 
in the Devils Lake Basin appears to the unsubstantiated statement by 
Assistant State Engineer Todd Sando that it:

    ``. . . could remove more than 6 inches of water annually from the 
lake.'' (MacPherson, 2009)

    It is instructive to recall in this context that State Water 
Commission Water Resource Engineer Julie Prescott stated in her June 
26, 2003, memorandum on Application to Drain No. 2986--Devils Lake 
Outlet for a permit to construct the original outlet that:

    ``It has been estimated that a 100 cfs discharge could lower the 
current water surface of Devils Lake between 2 and 4 inches per year.''

    State Water Commission Devils Lake Outlet Project Engineer Bruce 
Engelhardt also was quoted on July 21, 2005, as stating that:

    ``If we could run at 100 cfs it would take 7 months to take 4 
inches off the lake.'' (Johnson, 2005)

    However, instead of lowering the lake between 8 to 16 inches (2-4 
inches per year) in the 4 years of operation from 2005 through 2008, 
the Devils Lake outlet removed the equivalent of just over one-tenth of 
an inch of water from the lake, and in 2009 the lake was 10 inches 
higher than it was before the outlet began operation.
    In fact, on September 24, 2002, Devils Lake Project Engineer Bruce 
Englehardt had submitted a request to the U.S. Army Corps of Engineers 
for the ``actual numbers'' used by the Corps in generating Devils Lake 
elevations with operation of the State Water Commission's Devils Lake 
outlet under three different (Moderate 1,450, Moderate 1,455 and Wet) 
lake level scenarios (Engelhardt, 2002). The next day, September 25, 
2002--15 months before SWC Water Resource Engineer Julie Prescott 
prepared her June 26, 2003, memorandum on the SWC's Application to 
Drain No. 2986 and 25 months before Mr. Englehardt told The Grand Forks 
Herald that the outlet would take 4 inches off the lake per year--Mr. 
Daniel Reinarts of the U.S. Army Corps of Engineers sent Mr. Engelhardt 
an e-mail stating, ``Attached are the lake level plots that you 
requested'' (Reinartz, 2002). The lake level plots provided to Mr. 
Engelhardt by the U.S. Army Corps of Engineers on September 25, 2002, 
show that after 10 years of operation under a Moderate 1,450 feet lake 
level scenario, the State Water Commission's Devils Lake outlet would 
lower the level of the lake by 2.4 inches, under a Moderate 1,455 feet 
lake level scenario, the outlet would lower the lake by 3.6 inches, and 
under a Wet scenario, the outlet would lower the level of the lake by 6 
inches. Of course, we now know that even the Corps of Engineers' 
projections grossly over-estimated the efficacy of the outlet.
    On August 27, 2007, The Grand Forks Herald reported the evidence 
confirming that North Dakota State Engineer Dale Frink and his staff 
knew before their Application to Drain No. 2986--Devils Lake Outlet was 
submitted to the Ramsey County and Towner County Water Resource 
Districts on April 11, 2003, that the State Water Commission's Devils 
Lake outlet would not remove 4 inches of water per year from the lake 
and that it would not have a significant impact on the level of the 
lake (Lee, 2007a, 2007b).
    Consequently, because of the marked disparity between the 
hypothetical and the actual operation of the outlet, and, indeed, 
between what the State Engineer and his staff knew about the lack of 
efficacy of the outlet and what they stated on their Application to 
Drain No. 2986--Devils Lake Outlet and what they told the public, it is 
appropriate to examine the Assistant State Engineer's current claim 
that increasing the capacity of the outlet to 250 cfs ``could remove 
more than 6 inches of water annually from the lake.''
    If the outlet were to operate at 250 cfs continuously for 5.5 
months, it would remove 81,500 acre-feet of water from Devils Lake, 
which would be equivalent to 6 inches at a lake area of 163,000 acres. 
However, removing the equivalent of 6 inches of water from the lake is 
not the same as lowering the level of the lake by 6 inches. For 
example, inflows to Devils Lake averaged 317,000 acre-feet per year 
from 1993 to 2000 (U.S. Army Corps of Engineers, 2002) and were 418,000 
acre-feet in 1997. In the spring of 2009 the inflows were a record 
587,000 acre-feet (Frink, 2009). At 81,500 acre-feet per year, it would 
take 7.2 years for the outlet operating at 250 cfs to remove just last 
spring's inflows. In the meantime, additional inflows would be 
occurring every year, so after 7 years of operation of the outlet at 
250 cfs the lake still would not necessarily be any lower, just as the 
lake was 10 inches higher in 2009 than it was before the outlet began 
operating in 2005. On the other hand evaporation in the Devils Lake 
area averages 30 inches per year, which is equivalent to the removal of 
407,000 acre-feet of water per year at a lake area of 163,000 acres--
five times the volume that would be removed by the outlet operating at 
250 cfs, and at no cost.
    It is important to recognize, however, that, just as with the 
previous claims about the outlet operating at 100 cfs being able to 
remove 4 inches of water annually from the lake, it is highly unlikely 
that the outlet would be able to operate continuously at 250 cfs for 8 
months from April through November or even for 5.5 months as Assistant 
State Engineer Todd Sando implies without violating the 450 mg/l 
sulfate limit on the Lower Sheyenne River.
    The North Dakota Department of Health's proposed emergency rule 
would:

    ``. . . change the maximum level of sulfate in the segment of the 
Sheyenne River that runs from its headwaters to 0.1 mile downstream 
from the Baldhill Dam from 450 mg/L to 750 mg/L.'' (Glatt, 2009b)

    Sulfate levels in West Bay of Devils Lake range between 600 mg/L 
and 700 mg/L. Operation of the outlet at 250 cfs would replace the 
69,000 acre-feet volume at the top of Lake Ashtabula's conservation 
pool with 600-700 mg/L sulfate Devils Lake water in just 4.2 months, at 
which time operation of the outlet would have to be suspended because 
releases of water with 600-700 mg/L of sulfate could not be made from 
Lake Ashtabula without violating the 450 mg/L sulfate limit in the 
Lower Sheyenne River beginning 0.1 mile downstream from Baldhill Dam. 
Consequently, once sulfate levels in Lake Ashtabula reached 450 mg/L, 
subsequent discharges from the outlet would be limited by dilution of 
sulfate levels in Lake Ashtabula by natural flows in the Sheyenne 
River, as well as by management of the reservoir for flood control, 
downstream municipal water supply and recreation.
    With discharges from the outlet running at 600-700 mg/L of sulfate 
and natural flows in the Sheyenne River at Warwick exceeding 300 mg/L 
of sulfate 25 percent of the time since 2000 (Schuh and Hove, 2006), it 
is apparent that Lake Ashtabula would reach 450 mg/L of sulfate long 
before 69,000 acre-feet of Devils Lake water were discharged from the 
outlet.
    Of course, flows and sulfate concentrations in the Sheyenne River, 
inflows to Lake Ashtabula and evaporation and releases from the 
reservoir occur in a dynamic state, so it is very difficult to balance 
all of the constantly changing variables in a simple calculation to 
show the impact of operating the outlet at 250 cfs on the level of 
Devils Lake. Nevertheless, it appears unlikely that the outlet would be 
able to remove the equivalent of more than an inch or two of water from 
Devils Lake in most years even with its capacity increased to 250 cfs.
    It is precisely because of the complexity of balancing natural 
flows in the Sheyenne River with discharges from the outlet and 
releases from Lake Ashtabula to maintain acceptable levels of sulfate 
in the Sheyenne River downstream from Baldhill Dam that the computer 
simulation models discussed at the December 8, 2009, Devils Lake Outlet 
Monitoring Committee Modeling Subcommittee meeting need to be developed 
before the amount of water that the outlet actually would be able to 
remove from Devils Lake can be determined.
    What is abundantly clear, however, is that the investigations 
required to evaluate objectively the impact of the proposed increase in 
the capacity of the Devils Lake outlet to 250 cfs on flooding in the 
Devils Lake Basin have not yet been done. Consequently, no objective 
evidence is available to demonstrate that increasing the capacity of 
the Devils Lake outlet to 250 cfs will have a significant impact on the 
level of Devils Lake, that it will stabilize the lake, that it will 
decrease lake levels, or that it will reduce the impact of flooding.
    For the State Water Commission to submit an application for a 
permit to increase the capacity of its Devils Lake outlet from 100 cfs 
to 250 cfs without having factual information available on the efficacy 
of the project is irresponsible. To do so after making deliberately 
misleading statements regarding the efficacy of its original 100 cfs 
outlet is inexcusable.
  the project's impact on streams or lakes having recognized fish and 
                            wildlife values
    The fifth factor that the Ramsey County and Towner County Water 
Resource Boards are required to consider under NDAC  89-02-01-09.2 in 
evaluating the State Water Commission's application for a permit to 
increase the capacity of its Devils Lake outlet from 100 cfs to 250 cfs 
is:

    ``The project's impact on ponds, sloughs, streams, or lakes having 
recognized fish and wildlife values.''

    The U.S. Army Corps of Engineers' Final Devils Lake, North Dakota, 
Integrated Planning Report and Environmental Impact Statement describes 
the fish and wildlife values of the Sheyenne River as follows:

    ``The Sheyenne River provides spawning habitat and nursery areas 
for forage fish, as well as a migrational avenue for sport fish, 
including channel catfish, northern pike, walleye, bass, and crappie 
especially during high water conditions. The Sheyenne River contains 
more species of fish than any other North Dakota tributary, with over 
50 identified. The river itself and a number of small reservoirs 
created by low-head dams provide fishing opportunities for nearby 
residents. About 3 percent of the angler-days of fishing in North 
Dakota are spent on the Sheyenne River. Commonly harvested fish include 
northern pike, walleye, channel catfish, black bullhead, yellow perch, 
and bluegill. Baldhill Creek, a tributary to the Sheyenne River, 
contains the only known population of trout perch in North Dakota. 
There are nine species of freshwater mussels inhabitating the Sheyenne 
River.
    ``The riparian areas along the Sheyenne River provide valuable 
habitat for a variety of wildlife species. Game species found along the 
river's riparian corridor and adjacent uplands include white-tailed 
deer, moose, wood duck, dabbling duck, pheasant, greater prairie 
chicken, turkey, squirrels and rabbits. Furbearing species and 
migratory non-game birds use the river corridor for breeding, feeding 
and migration.
    ``In summary, the Sheyenne River provides significant and unique 
aquatic and terrestrial resources. It is one of the most heavily wooded 
areas of the State and contains one of the largest and most diverse 
fisheries.'' (U.S. Army Corps of Engineers, 2003).

    The Corps of Engineers' FEIS did not evaluate the impacts on fish 
and wildlife of a 250 cfs West Bay outlet constrained only by a 750 mg/
L sulfate limit in the Sheyenne River, but it did evaluate the impacts 
of a 300 cfs Pelican Lake outlet constrained by a 300 mg/L sulfate 
limit and 600 cfs total flows in the Sheyenne River. As discussed 
above, the water quality and water quantity impacts of a 250 cfs West 
Bay outlet constrained only by a 750 mg/L sulfate limit in the Sheyenne 
River would potentially be significantly more severe than those of a 
300 cfs Pelican Lake outlet constrained by a 300 mg/L sulfate limit and 
600 cfs total flows in the Sheyenne River. The Corps identified the 
following impacts on fish and wildlife resources in the Sheyenne River 
resulting from the operation of a 300 cfs Pelican Lake outlet:

  --``Operation of the Pelican Lake outlet would result in substantial 
        change in the flow regime of the Sheyenne River. Discharges up 
        to 300 cfs over a major portion of the summer would result in a 
        five to tenfold increase in summer/fall flows along the 
        Sheyenne River. Increased flows throughout the summer would 
        result in changes in river stage on the Sheyenne and Red 
        Rivers. (FEIS p. 6-56)
  --``. . . the outlet could result in up and down flows with sudden 
        and extreme fluctuations in flow for much of the 50-year period 
        of operation. These are the types of situations that make it 
        difficult for species to adapt to habitat conditions. (FEIS p. 
        6-56)
  --``Operation of a Pelican Lake outlet would affect both the water 
        quality aspects and the physical characteristics of aquatic 
        habitat on the Sheyenne River. While water quality constituents 
        would not exceed tolerance levels for aquatic fauna in the 
        Sheyenne River, many constituent levels would be dramatically 
        increased over baseline conditions. Water quality modeling 
        indicates that the level of these constituents would increase 
        as much as 100 percent during pumping. (FEIS p. 6-57)
  --``Changes in habitat composition and availability would result in 
        changes in species composition and abundance. There may be some 
        lost year classes of fish and declines in invertebrate 
        populations. (FEIS p.6-59)
  --``The changes on the Sheyenne River in water quality, hydrology, 
        geomorphology, and habitat could result in substantial changes 
        in or stress to aquatic biota . . . The outlet operation would 
        also cause loss of spawning and nursery habitat, increased 
        erosion, and changes in channel morphology. Increases in 
        channel width may result in less available habitat once outlet 
        operation ceases. (FEIS p. 6-59)
  --``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 substantial changes in the aquatic community 
        present in the Sheyenne River. Projected water quality and 
        quantity changes associated with outlet operation may adversely 
        influence fish reproduction and result in lost-year classes. 
        The threshold chloride levels for some aquatic species, such as 
        mussels, would be approached with operation of an outlet; 
        however, no direct effects due to increased chloride levels are 
        anticipated. The cumulative result of all of these changes 
        would be a decrease in diversity of aquatic species in the 
        Sheyenne River. (FEIS p. 6.59)
  --``With the increase in flow, some change is expected in width and 
        depth, and erosion would probably increase. Expected habitat 
        changes include a decline of shallow pool, shallow riffle, and 
        medium pool habitats, and an increase in fast riffle, raceway, 
        and deep pool habitats in spring, summer and fall. Increases in 
        summer and fall discharges reduce the slower flowing fish 
        nursery habitat (slow riffle, shallow and medium pool guilds.) 
        (FEIS p. 6-59)
  --``Monthly discharge would be highly altered during summer and fall, 
        and then decline dramatically in winter . . . Fish would be 
        affected by the change to deep/fast less usable habitat in all 
        seasons, and the loss of summer and fall habitat for shallow, 
        medium and deep pool guilds. Unionids and other invertebrates 
        would be affected by the decrease in moderately flowing 
        habitat. The increase in raceway and fast riffle habitat may 
        benefit the tricopteran guild, but overall invertebrate 
        diversity (low gradient guild) would be negatively affected. 
        Macrophytes, although not common in this reach of the river, 
        probably would be scoured by high flows. Unionids would most 
        likely be affected by the dramatic decline between fall and 
        winter flows. Many unioids would not survive these changes 
        during outlet operation. (FEIS p. 6-60)
  --``Effects in Lake Ashtabula include reduced retention time, 
        increased nutrient loading, increased movement of fish out of 
        the lake, increased salinity, and increased storage of water. 
        The outlet would reduce the storage time in Lake Ashtabula and 
        increase turnover rate. This could affect walleye production 
        and increased movement of some fish out of Lake Ashtabula and 
        into downstream habitats . . . (FEIS p. 6-60)
  --``The operation of the outlet would affect river stages, 
        groundwater levels near the river, erosion, availability of 
        aquatic habitat, river access, and river crossings. (FEIS p. 6-
        60)
  --``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.\2\ 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. (FEIS pp. 6-
        61, 6-62)
---------------------------------------------------------------------------
    \2\ Or, in the case of the State Water Commission's West Bay 
outlet, as a result of lowering the water quality standard by raising 
the sulfate limit in the Sheyenne River from the 300 mg/L constraint 
for the Corps' Pelican Lake outlet to 750 mg/L under the North Dakota 
Department of Health's proposed emergency rule.
---------------------------------------------------------------------------
  --``After outlet operation ceases, slower flowing, shallow habitats 
        would return and the upper reach would return to less 
        hydrologically stable condition. In addition, after a number of 
        years of outlet operation the channel would have changed, 
        becoming wider and deeper, such that the reduced water levels 
        would result in less available wetted habitat (and higher 
        temperatures) during low flow conditions. The increased flow 
        associated with the operation of the outlet would also alter 
        habitat distribution and probably result in some erosion and 
        deposition. These changes would affect habitat conditions and 
        availability when the outlet ceases operation. Only a few small 
        permanent tributaries drain into the upper Sheyenne River, and 
        their suitability as unionid refugia is not known. Fish hosts 
        are prevented from carrying glochidia upstream past Baldhill 
        Dam. Unless unionid refugia occur in the small tributaries, 
        fauna is unlikely to recolonize to pre-project conditions. Fish 
        species that benefited from increased spawning and nursery 
        habitat associated with higher flow would be negatively 
        affected by the lack of those habitats with lower flows. 
        Invertebrate fauna may recover over time. However, species 
        composition would probably differ from pre-pumping conditions. 
        (FEIS p. 6-62)
  --``Vegetation in the riparian corridor may be affected by changes in 
        groundwater elevation and quality, changes in frequency and 
        duration of flooding and induced erosion associated with 
        increased flows. Based on the assumption of a one-quarter mile 
        area of influence, groundwater changes could potentially affect 
        about 112,000 acres of riparian lands along the Sheyenne River 
        . . . In rare instances, there could be overbank flooding due 
        to unforeseen rainstorms and the inability to turn the outlet 
        off in time. (FEIS p. 6-63)
  --``. . . it is likely that a large portion of the riparian 
        vegetation would shift form woods to a more open community 
        type, resulting in a concurrent change in animal species 
        composition along the river. Changes in water quality to a more 
        saline condition could also influence the amount and type of 
        vegetation along the river. Some of the larger overstory forest 
        trees may survive a year or longer, but with reduced vigor. 
        Once the outlet operation is completed, recovery of these areas 
        through succession would occur, which could take decades in 
        some areas.'' (FEIS p. 6-65)

    The U.S. Army Corps of Engineers' Final Devils Lake, North Dakota, 
Integrated Planning Report and Environmental Impact Statement 
determined that, with a 300 cfs Pelican Lake outlet operating under a 
300 mg/L sulfate constraint and total flows of 600 cfs in the Sheyenne 
River:

    ``The annual phosphorus load to Lake Ashtabula would increase by 40 
metric tons (88,000 pounds) per year during the first 10 years of 
operation, which is variably a 60 to 100 percent increase over base 
conditions.'' (FEIS, p. 5-83)

    The State Water Commission has provided no information on 
phosphorous loading of the Sheyenne River and Lake Ashtabula from its 
Devils Lake outlet discharging 250 cfs of West Bay water containing 600 
mg/L to 700 mg/L of sulfate and constrained only by a 750 mg/L sulfate 
limit on the Sheyenne River. However, it appears reasonable to assume 
that the phosphorous loading would be at least as great as, and 
probably greater than, from a 300 cfs Pelican Lake outlet constrained 
by a 300 mg/L sulfate limit and 600 cfs total flows in the Sheyenne 
River.
    In its June 2003 Response to Comments for the Devils Lake Outlet 
Project, the North Dakota Department of Health dismissed the 
contribution of a 100 cfs Devils Lake outlet constrained by a 300 mg/L 
limit and 600 cfs total flows in the Sheyenne River to eutrophication 
and algal blooms in Lake Ashtabula with the statement that:

    ``. . . the annual phosphorous load will increase; however, its 
impact on the Sheyenne River and Lake Ashtabula will likely be minimal. 
Primary productivity is largely controlled by a limiting substance 
which, in this situation, is likely to be nitrogen.'' (North Dakota 
Department of Health, 2003)

    The Department's assumption that nitrogen will be the limiting 
substance for primary productivity in Lake Ashtabula erroneously fails 
to recognize that, as the Devils Lake Biota Transfer Study pointed out:

    ``Cyanobacteria often comprise a large and important group of 
primary producers in aquatic ecosystems, but usually are viewed 
negatively because algal blooms are linked to eutrophication of water 
bodies, and cyanobacter account for more than 98 percent of algal 
blooms in some waters (citations omitted). Eutrophication results from 
the enrichment of water bodies with limiting nutrients, usually 
nitrogen and phosphorous. Cyanobacter blooms are often a response to 
nutrient loading, but some species are especially responsive to excess 
phosphorous. This is because, unlike the vast majority of organisms, 
many cyanobacter exploit (`fix') atmospheric nitrogen as a nutrient. 
When phosphorus becomes over-abundant, most species increase growth and 
reproduction until the next most-limiting nutrient, usually nitrogen, 
becomes scarce. In such an environment, nitrogen-fixers have an 
advantage so they soon outcompete other species and dominate the 
community. Human activity tends to increase the availability of 
nitrogen and phosphorus in ecosystems, thus increasing the frequency of 
cyanobacterial blooms.'' (Emphasis added) (Peterson Environmental 
Consulting, Inc., 2002)

    The State Water Commission has neither provided nor cited results 
of investigations of the impacts on the fish and wildlife values of the 
Sheyenne River of operation of the Devils Lake outlet at 250 cfs 
constrained only by a 750 mg/L sulfate limit in the river. Nor has the 
State Water Commission provided any evidence that those adverse impacts 
will not be even more severe than those identified by the U.S. Army 
Corps of Engineers for a 300 cfs Pelican Lake outlet constrained by a 
300 mg/L sulfate limit and 600 cfs total flows in the Sheyenne River. 
Indeed, the only way for the impacts of the State Water Commission's 
250 cfs outlet to be less severe would be if its operations were 
limited to the point where its effect on the level of Devils Lake would 
be virtually nil.
                      impact on agricultural lands
    The sixth factor that the Ramsey County and Towner County Water 
Resource Boards are required to consider under NDAC  89-02-01-09.2 
when evaluating the State Water Commission's application for a permit 
to increase the capacity of its Devils Lake outlet from 100 cfs to 250 
cfs is:

    ``The project's impact on agricultural lands.''

    Because the State Water Commission has neither provided nor cited 
results of investigations demonstrating that increasing the capacity of 
the Devils Lake outlet from 100 cfs to 250s cfs would have a 
significant effect in lowering the level of the lake, there is no 
evidence that it would have a positive impact on agricultural lands in 
the Devils Lake Basin. On the other hand, the U.S. Army Corps of 
Engineers' Final Devils Lake, North Dakota, Integrated Planning Report 
and Environmental Impact Statement has identified the following impacts 
to agricultural lands along the Sheyenne River resulting from operation 
of a 300 cfs Pelican Lake outlet constrained by a 300 mg/L sulfate 
limit and 600 cfs total flows in the Sheyenne River:

  --``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 . . . (FEIS p. 6-49)
  --``An outlet from Devils Lake could diminish property values along 
        the Sheyenne River. The potential adverse impacts to property 
        values would be based on damage in the riparian zone, 
        exacerbated flooding risks, and reduced water quality for 
        agriculture or recreation. (FEIS p. 6-49)
  --``Induced flood plain salinization resulting from the rising water 
        tables of floodplain and adjacent soils in the Sheyenne River 
        above a `critical depth.' (FEIS p. 6-67)
  --``Additional salt loading to the floodplain could result from both 
        overbank flooding with mixed Devils Lake/Sheyenne River water 
        and intrusion of this water into adjacent floodplain soils as 
        infiltrated floodwater and groundwater flow. Seepage outflow of 
        mixed Devils Lake/Sheyenne River water could produce additional 
        salt loading to adjacent floodplain soils during periods when 
        the river is contained within the channel. (FEIS p. 6-67)
  --``The outlet would result in increased salinity hazards associated 
        with use of the water for irrigation purposes.'' (FEIS p. 6-72)

    The impacts on agricultural lands along the Sheyenne River 
resulting from the operation of a 250 cfs Devils Lake outlet 
constrained only by a 750 mg/L limit in the Sheyenne River obviously 
would be much more severe than those of a 300 cfs Pelican Lake outlet 
constrained by a 300 mg/L sulfate limit and 600 cfs total flows in the 
Sheyenne River, but the State Water Commission has neither provided nor 
cited results of investigations qualifying and quantifying those 
impacts.
                       requirement for easements
    The seventh factor that the Ramsey County and Towner County Water 
Resource Boards are required to consider under NDAC  89-02-01-09.2 
when evaluating the State Water Commission's application for a permit 
to increase the capacity of its Devils Lake outlet from 100 cfs to 250 
cfs is:

    ``Whether easements are required.''

    Because the evidence is unequivocal and unrefuted that operation of 
the Devils Lake outlet at 250 cfs will flood and adversely affect 
downstream lands, it is instructive to note what the U.S. Army Corps of 
Engineers' Final Devils Lake, North Dakota, Integrated Planning Report 
and Environmental Impact Statement stated about the need for easements 
for a 300 cfs Pelican Lake outlet constrained by a 300 mg/L sulfate 
limit and 600 cfs total flows in the Sheyenne River:

    ``Exacerbated flooding along the Sheyenne River could damage 
agricultural property, including lands, equipment and structures; 
however, the purchase of flowage easements has been included in the 
project first cost to address these impacts. (FEIS p. 6-49)
    ``The outlet alternative identified may cause some induced flooding 
along the Sheyenne River. The selected plan involves a 300 cfs 
constrained flow. The channel capacity of the Sheyenne River between 
the outflow pipeline and Lake Ashtabula is generally 600 cfs. Below 
Lake Ashtabula, the channel capacity is approximately 2,000 cfs. Flows 
form the proposed outlet are not expected to induce flooding below Lake 
Ashtabula. At some areas on the upper Sheyenne River, 600 cfs would be 
out-of-bank. The NDSWC completed a channel capacity study in June 1997. 
This study identified some areas, through cross-sections, that were 
low. Most of the areas are old ox-bows and meander areas of the river. 
One area would be able to handle the 600 cfs flow if a set of culverts 
were removed or replaced with larger culverts. The report concluded: 
`Aerial photos of the channel from Maddock to the Warwick (sic) showed 
that 600 cfs to 700 cfs could be contained within the channel. 
Downstream of Warwick, the river meanders significantly, resulting in 
oxbow flooding at lower flows. In this reach, there is the potential 
for small, isolated over-bank flow at 600 cfs, mainly in the areas of 
marshy low lands that are not farmland.' Areas of over-bank flow at 600 
cfs have been identified, and flowage easements are proposed for those 
areas.
    ``The cost of easements along the upper Sheyenne River, sufficient 
to cover projected out-of-bank induced flooding between the outlet of 
the pipeline at Peterson Coulee and Lake Ashtabula, is estimated to be 
$3,810,000. Approximately 191 owners may be involved. These owners 
would include the Fort Totten Reservation and the State of North 
Dakota. Administrative costs appear high because of the large number of 
owners (191), and anticipated large number of condemnations, and a 
higher contingency because of the uncertainties in this project. 
Current data and projections indicate minimal to no appreciable impacts 
downstream of Lake Ashtabula; thus there is little to no discernable 
need for flowage easements in that section.'' (FEIS pp. 7-10, 7-11)

    The Corps' estimate of the need and costs for flowage easements is 
based on erroneous information from the State Water Commission in 1997 
indicating that the channel capacity of the Sheyenne River from Maddock 
to Warwick is 600 cfs to 700 cfs. However, the capacity of the channel 
was subsequently determined by the U.S. Bureau of Reclamation to be 300 
cfs at Warwick (U.S. Bureau of Reclamation, 2003) and the channel 
capacity of the 30 miles of the Sheyenne River upstream from Warwick is 
even less. Consequently, the $3,810,000 estimated by the U.S. Army 
Corps of Engineers in 2003 to be needed to acquire flowage easements 
from 191 landowners along the Upper Sheyenne River for its 300 cfs 
Pelican Lake outlet undoubtedly substantially underestimates both the 
number and the cost of flowage easements for a 250 cfs Devils Lake 
outlet.
    It is important to note again that under NDCC 61-32-03:

    ``. . . the water board may not issue a permit until flowage 
easements are obtained.'' (Emphasis added)

    However, the State Water Commission not only has not obtained 
flowage easements from the 191 landowners identified by the Corps of 
Engineers as being required for the operation of a 300 cfs Pelican Lake 
outlet constrained by a 300 mg/L sulfate limit and total flows of 600 
cfs in the Sheyenne River, but it has provided no information what-so-
ever on the number, extent or cost of flowage easements required for 
its 250 cfs Devils Lake outlet constrained only by a 750 mg/L sulfate 
on the Sheyenne River.
                  other factors unique to the project
    Finally, in evaluating the State Water Commission's application for 
a permit to increase the capacity of its Devils Lake outlet from 100 
cfs to 250 cfs, NDAC  89-02-01-09.2 requires the Ramsey County and 
Towner County Water Resource Boards to consider:

    ``Other factors unique to the project.''

    Certainly, one of the greatest concerns about increasing the 
capacity of the Devils Lake outlet to 250 cfs expressed by communities 
along the Sheyenne River downstream from the project has been the 
adverse impacts on water quality and the increased cost of water 
treatment for those utilizing the Sheyenne River for their municipal 
supplies (MacPherson, 2009; Oleson, 2009; Bonham, 2009; Associated 
Press, 2009a, 2009b, 2009c; D. Olson, 2009; Schmidt, 2009a, 2009b; 
Browne, 2009; Wetzel, 2010).
    It is both relevant and instructive, therefore, to consider what 
the U.S. Army Corps of Engineers concluded in its Final Devils Lake, 
North Dakota, Integrated Planning Report and Environmental Impact 
Statement regarding the impacts of a 300 cfs Pelican Lake outlet 
constrained by a 300 mg/L sulfate limit and 600 cfs total flows in the 
Sheyenne River on downstream municipal and industrial water supplies:

    ``Based on analysis of available date regarding the operations of 
the eight affected municipal water treatment facilities, a computer 
spreadsheet model was developed to estimate the annual increase in cost 
that can be expected at each facility due to the change in water 
quality. Hardness was identified as the major water user concern 
associated with an outlet. Ion exchange would be needed to treat 
sulfates but, due to the limited water quality effects resulting from a 
300 mg/L sulfate constrained outlet, it was determined that softening 
was adequate treatment for water users. Cost increases would result 
from increased softening costs (due to increased chemical feed rates 
and increases in sludge handling and disposal), and increased capital 
and operations costs if treatment or an alternative water supply is 
required to restore the treatment facility finished water quality to 
without-outlet conditions.
    ``Modeling showed the total annualized costs for increased 
softening would range from $25,000 per year to $56,000 per year, 
depending on the modeled water quality future. The total annualized 
cost for capital improvements or alternate source water development 
required to bring the with-outlet project water to the water quality of 
without-outlet product water ranged from $1,757,000 per year to 
$3,304,000 per year. Sulfate concentration is not a major concern along 
the Sheyenne or Red Rivers with the Pelican Lake outlet.\3\ In most 
cases, treatment by ion exchange was found to be the least-cost 
alternative if without-outlet water is required.'' (Emphasis added) 
(FEIS p. 6-51)
---------------------------------------------------------------------------
    \3\ Sulfate concentration is a major concern with a 250 cfs Devils 
Lake outlet constrained only by a 750 mg/L sulfate limit in the 
Sheyenne River (Browne, 2009; MacPherson, 2009; Wetzel, 2010), and the 
increased sulfate concentrations would be accompanied by higher levels 
other constituents, including TDS and hardness, thus increasing the 
water treatment costs estimated by the Corps for those constituents as 
well.

    However, it is just not municipal water supplies that are affected 
---------------------------------------------------------------------------
by operation of the Devils Lake outlet:

    ``Interviews were conducted with all of the industrial river water 
users along the Sheyenne River and Red River of the North. Two were 
expected to incur increased costs as a result of the Devils Lake outlet 
operations. The sugar beet processing facility is expected to have 
increased lime softening costs as a result of the outlet. The coal-
fired power plant's increased costs relate to additional need for ion 
exchange water purification for boiler water. On the basis of one of 
the sample water quality data sets, annualized costs would be expected 
to be $1,200 per year for the sugar beet processing facility and 
$30,700 per year for the power plant.\4\ (FEIS p. 6-52)
---------------------------------------------------------------------------
    \4\ These costs also would be increased as a result of further 
degradation of water quality caused by increased discharges from the 
outlet.

---------------------------------------------------------------------------
    On January 2, 2010, the Associated Press reported that:

    ``David Glatt, environmental health chief for the Department of 
Health, said no community along the affected stretch of the Sheyenne 
River currently uses it for drinking.
    `` `You could go to (750 milligrams per liter), but only if it's 
not designated as a municipal water supply,' Glatt said. `That stretch, 
there is no municipality pulling water out of the Sheyenne.'
    ``Glatt said that the higher sulfate levels should be safe for 
fish, livestock and riverbank vegetation. In any case, the upper 
Sheyenne River has naturally high sulfate levels that go above 450 
milligrams per liter in spots, he said.'' (Emphasis added) (Weixel, 
2010)

    At best, Mr. Glatt's statements constitute a deliberate 
misrepresentation of the facts in an attempt to obfuscate and evade 
addressing the impacts of a 250 cfs Devils Lake outlet on downstream 
municipal water users.
    First, as a fundamental consideration, it is important to note that 
North Dakota Administrative Code  33-16-02.1-02 dealing with Standards 
of Quality of Waters of the State states explicitly, in part, that:

    ``The State and public policy is to maintain or improve, or both, 
the quality of waters of the State and to maintain and protect existing 
uses . . . Waters not being put to use shall be protected for all 
reasonable uses for which these waters are suitable.'' (Emphasis added)

    Prior to operation of the Devils Lake outlet, the waters of the 
Sheyenne River downstream from the outlet were suitable for use as 
domestic or municipal water supplies, and they are being used as a 
municipal water supply by eight communities downstream from Baldhill 
Dam. By Mr. Glatt's own admission, increasing the level of sulfate in 
the Upper Sheyenne River as a result of operation of the outlet will 
cause those waters no longer to be suitable for domestic or municipal 
water supplies--a clear violation of State policy.
    Second, Mr. Glatt's statement that no community along the 
``affected stretch'' of the Sheyenne River currently uses it for 
drinking not only is demonstrably false, but also is deliberately 
misleading. In an attempt to evade the issue, Mr. Glatt apparently 
defines the ``affected stretch'' of the Sheyenne River as only the 
portion upstream from Baldhill Dam where the Department of Health is 
proposing permanently to increase the sulfate limit from 450 mg/L to 
750 mg/L. Although that may be the portion included in the Department 
of Health's proposed emergency rule, the entire length of the Sheyenne 
River, as well as the Red River, downstream from Baldhill Dam also will 
be ``affected'' by the increased load of sulfate and other pollutants 
resulting from the increasing the discharges of the Devils Lake outlet 
from 100 cfs to 250 cfs.
    Indeed, the fallacy of Mr. Glatt's claim that no community along 
the ``affected stretch'' of the Sheyenne River uses it for drinking is 
clearly demonstrated by the fact that his own agency has committed $2 
million--and the State Water Commission has committed another $9.2 
million--to install a reverse osmosis water treatment system in Valley 
City's new $15.6 million water treatment plant to reduce the high 
levels of sulfate in the Sheyenne River resulting from operation of the 
Devils Lake outlet (MacPherson, 2009). In addition, West Fargo 
estimates that installing a system to treat sulfates could add $14 
million to the cost of a new water treatment plant (Schmidt, 2009b) and 
Fargo will receive $9 million from the State to enhance treatment of 
sulfates in its new water treatment plant (Schmidt, 2009a). All of 
these additional water treatment expenditures are made necessary by the 
increased levels of sulfate in the Sheyenne River caused by operation 
of the Devils Lake outlet.
    Mr. Glatt's statement that the Upper Sheyenne River has naturally 
high sulfate levels that go above 450 mg/L ``in spots'' also is 
deliberately misleading and designed to obscure and misrepresent the 
facts. It is true that sulfate levels have occasionally exceeded 450 
mg/L in some ``spots'' in the Upper Sheyenne River, but most of those 
have been in the extreme Upper Sheyenne River above the Devils Lake 
outlet. For example, Schuh and Hove reported that:

    ``. . . sulfate samples at Warwick (30 miles downstream from the 
Devils Lake outlet) never exceeded 300 mg/L before 2,000 and did so 
only about 25 percent of the time after 2000. Harvey samples 
(approximately 30 miles upstream from the Devils Lake outlet), however, 
exceeded 300 mg/L about 40 percent of the time during the 1990s, and 
were below 300 mg/L only three times following the year 2000 . . .'' 
(Schuh and Hove, 2006)

    Data presented in their report show that the maximum levels of 
sulfate reached in the Sheyenne River at two Harvey sites were 480 mg/L 
and 610 mg/L, but the maximum levels reached at two Warwick sites were 
230 mg/L and 307 mg/L (Schuh and Rove, 2006). Of course, what Mr. Glatt 
did not say was that sulfate levels in the Sheyenne River downstream of 
the Devils Lake outlet never reached 450 mg/L before July 2009 when the 
North Dakota Department of Health vacated the North Dakota Pollution 
Discharge Elimination System permit it had issued for the outlet and 
implemented an emergency rule increasing the sulfate limit in the Upper 
Sheyenne River from 450 mg/L in order to allow the outlet to discharge 
100 cfs of water from West Bay containing 600-700 mg/L of sulfate. What 
Mr. Glatt also did say is that, by increasing the sulfate limit in the 
Upper Sheyenne River from 450 mg/L to 750 mg/L, the Department of 
Health is ensuring that sulfate levels, not just ``in spots,'' but in 
throughout the entire length of the Upper Sheyenne River from the 
outlet to Lake Ashtabula will exceed 450 mg/L when the outlet is 
operating, and they will increase from 300 mg/L or less to nearly 450 
mg/L in the Lower Sheyenne River.
                              conclusions
    North Dakota Governor and State Water Chairman John Hoeven has 
submitted Application to Drain No. 3457 to the Ramsey County and Towner 
County Water Resource Boards for a permit to increase the capacity of 
the Sate Water Commission's Devils Lake outlet from 100 cfs to 250 cfs. 
However, the State Water Commission has failed to provide or to cite 
the results of the investigations required by North Dakota Century Code 
 61-32-03 to disclose whether the quantity of water which will be 
drained from Devils Lake will flood or adversely affect lands of 
downstream landowners. The State Water Commission also has failed to 
obtain flowage easements from the downstream landowners whose lands 
will be adversely affected, as required by NDCC  61-32-03.
    The State Water Commission also has failed to provide any 
substantive information regarding the volume of water proposed to be 
drained as a result of increasing the capacity of the Devils Lake 
outlet from 100 cfs to 250 cfs, and the resulting impact on the 
Sheyenne River, regarding adverse impacts that may occur to the lands 
of lower proprietors, regarding the project's impact on flooding in the 
project watershed, regarding the project's impact on waters having 
recognized fish and wildlife values, regarding the project's impact on 
agricultural lands, regarding easements that will be required, and 
regarding other factors unique to the project that would permit the 
Ramsey County and Towner County Water Resource Boards to evaluate the 
application objectively under the provisions of North Dakota 
Administrative Code  89-02-01-09.2.
    Although the State Water Commission has failed to provide 
substantive information to enable the Ramsey County and Towner County 
Water Resource Boards to discharge their responsibilities in evaluating 
the application under NDCC  61-32-03 and NDAC  89-02-01-09.2, the 
preponderance the evidence available from investigations conducted by 
other agencies, notably the U.S. Army Corps of Engineers, unequivocally 
demonstrates that increasing the capacity of the Devils Lake outlet 
from 100 cfs to 250 cfs will adversely impact the Sheyenne River, flood 
and adversely affect the lands of lower proprietors, adversely impact 
fish and wildlife, adversely impact agricultural lands, require at 
least 191 flowage easements costing in excess of $3.8 million, increase 
downstream municipal water treatment costs by at least $1.7 to $3.3 
million per year, and will not have a significant effect in reducing 
flooding problems in the Devils Lake Basin.
    Because the State Water Commission has failed to conduct the 
investigations and to provide the information required under NDAC  61-
32-03 and NDAC  89-02-01-09.2 and because the available evidence 
overwhelmingly and unequivocally confirms that the State Water 
Commission's proposal to increase the capacity of its Devils Lake 
outlet from 100 cfs to 250 cfs is devoid of merit or justification, the 
Ramsey County and Towner County Water Resource Boards have no 
alternative under the applicable statutes and regulations except to 
deny the State Water Commission's Application to Drain No. 3457 for a 
permit to increase the capacity of its Devils Lake outlet to 250 cfs.
                               references
    Associated Press. 2009a. Hearing on Devils Lake draws questions. 
The Grand Forks Herald. Grand Forks, North Dakota. October 6.
    Associated Press. 2009b. ND studying comments on Devils Lake 
outlet. The Fargo Forum. Fargo, North Dakota. October 8.
    Associated Press. 2009c. Engineer: Devils Lake outlet could pump 
more water by June. The Grand Forks Herald. November 12.
    Bonham, Kevin. 2009. residents voice opposition to raising flow of 
Devils Lake. The Grand Forks Herald. Grand Forks, North Dakota. October 
6.
    Bott, Fred. 2009. Letter from President, Devils Lake City 
Commission, Devils Lake, North Dakota, to Dave Glatt, North Dakota 
Department of Health, Bismarck, North Dakota. July 7. 1 p.
    Browne, Steve. 2009. Outlet plan unchanged. Valley City Times 
Record. Valley City, North Dakota. November 24.
    Engelhardt, Bruce. 2002. Email from Bruce Engelhardt 
(mailto:[email protected]) To Loss, David C MVP; cc: 
[email protected]; [email protected]. Subject: RE Outlet 
Pumping Profiles. September 24, 10.57 a.m.
    Frink, Dale. 2009. Letter from State Engineer, North Dakota State 
Water Commission, Bismarck, North Dakota, to L. David Glatt, Chief, 
Environmental Health Section, North Dakota Department of Health, 
Bismarck, North Dakota. July 13. 1 p.
    Glatt, L. David. 2009a. Letter from Chief, Environmental Health 
Section, North Dakota Department of Health, Bismarck, North Dakota, to 
John Hoeven, Governor of North Dakota, Bismarck, North Dakota. July 15. 
2 pp.
    Glatt, L. David. 2009b. Notice of Intent to Adopt Administrative 
Rule. July 15. 1 p.
    Glatt, L. David. 2009c. Finding and Statement of Reason of the 
North Dakota Department of Health Regarding Proposed Rule Relating to 
Water Quality Standards. 1 p.
    Johnson, Rona K. 2005. Devils Lake outlet set to begin operation 
despite objections of neighbors. The Grand Forks Herald, Grand Forks, 
North Dakota. July 21.
    Lee, Yankyoung. 2007a. By the numbers. The Grand Forks Herald. 
Grand Forks, North Dakota. August 27.
    Lee, Yankyoung. 2007b. Herald Exclusive: Exaggerated effectiveness. 
The Grand Forks Herald. Grand Forks, North Dakota. August 27.
    MacPherson, James. 2009. ND water panel approves Devils Lake 
projects. Associated Press. August 19.
    Morris, Lee. 2009. Residents petition to stop flow. Valley City 
Times Record. Valley City, North Dakota. November 12.
    North Dakota Department of Health. 2003a. Statement of Basis, 
Devils Lake Outlet, ND 0026347. 12 pp.
    North Dakota Department of Health. 2003b. Response to Comments for 
the Devils Lake Outlet, ND-0026247. 12 pp.
    Oleson, Louise. 2009. Meetings set for public comments on changing 
Sheyenne River classification. Devils Lake Journal. Devils Lake, North 
Dakota. September 3.
    Olson, Dave. 2009. Unease on the Sheyenne. The Fargo Forum. Fargo, 
North Dakota. November 13.
    Olson, Jean. 2009. Letter signed by the Secretary, Benson County 
Water Resource Board, Minnewaukan, North Dakota, to the North Dakota 
State Water Commission, Bismarck, North Dakota. 1 p.
    Peterson Environmental Consulting, Inc. 2002. Biota Transfer Study: 
Devils Lake Flood Damage Reduction Alternatives. Prepared for the St. 
Paul District, U.S. Army Corps of Engineers.
    Reinartz, Daniel. 2002. Email from Reinartz, Daniel J. 
MVP([email protected]), To 
[email protected], Copies to ``Loss, David C MVP'' 
([email protected]. Subject: FW: Outlet Pumping 
Profiles. 25 Sep 08:46:20-0500.
    Schmidt, Helmut. 2009a. Rising sulfates could upset stomachs. The 
Fargo Forum. Fargo, North Dakota. November 19.
    Schmidt, Helmut. 2009b. West Fargo, Fargo plan talks on water. The 
Fargo Forum. Fargo, North Dakota. December 30.
    Schuh, W.M. and M.H. Hove. 2006. Sources and Processes Affecting 
Dissolved Sulfate Concentrations in the Upper Sheyenne River. 53 pp.
    U.S. Army Corps of Engineers. 2002. Draft Devils Lake, North 
Dakota, Integrated Planning Report and Environmental Impact Statement.
    U.S. Army Corps of Engineers. 2003. Final Devils Lake, North 
Dakota, Integrated Planning Report and Environmental Impact Statement.
    U.S. Bureau of Reclamation. 1974. Final Environmental Statement, 
Initial Stage Garrison Diversion Unit, Pick-Sloan Missouri Basin 
Program, North Dakota. Department of the Interior INT FES 74-3.
    U.S. Bureau of Reclamation. 1999. Red River Valley Water Needs 
Assessment Phases 1A and 2 Hydrology Appendix. Thomas R. Bellinger. 
Department of the Interior, Denver Technical Services Center, Water 
Resources Service, Water Supply, Use, and Conservation Group. Denver, 
Colorado.
    U.S. Bureau of Reclamation. 2003. Report on Red River Valley Water 
Supply Project Needs and Options. Bureau of Reclamation, Dakotas Area 
Office, Bismarck, North Dakota.
    Wetzel, Dale. 2010. Change would allow more sulfate in Sheyenne 
River. Associated Press. January 2, 2010.
                                 ______
                                 
                  Letter From Gary L. Pearson, D.V.M.
                                                    April 29, 2009.
Ms. Kathy Steiner,
Managing Editor, The Jamestown Sun, P.O. Box 1760, Jamestown, North 
        Dakota 58402-1760.
    To the Editor: With Jamestown and Pipestem reservoirs reaching 
record levels this spring, thousands of man-hours and millions of 
dollars are being expended in dealing with the flood. Although there is 
great concern about where all the water will go, it seems that little 
attention is being paid to where it came from.
    A 1981 study by scientists at North Dakota State University 
determined that wetland drainage had resulted in a 64-180 percent 
increase in the drainage areas of tributaries of the Red River and a 36 
percent increase in their maximum daily flows. The study concluded 
that, ``land drainage is a factor aggravating the flooding problem in 
eastern North Dakota.''
    In commenting in 1985 on the 37,000-acre Oak Creek Drain in Wells 
and Eddy counties, the U.S. Army Corps of Engineers stated specifically 
that, ``the cumulative effects of various drainage projects such as 
this would indeed have an adverse effect on the regulation of Jamestown 
Reservoir for flood control.''
    A dozen wetland drainage projects, including the Oak Creek drain, 
developed by the Wells County Water Resource Board and approved by the 
State Engineer drain some 200,000 acres into the James River. 
Additional tens of thousands of acres have been drained in other public 
and private projects throughout the Upper James River Watershed in 
Wells, Eddy, Foster and Stutsman counties, and that water also ends up 
in Jamestown Reservoir.
    Just how great is this ``adverse effect''? The water content of the 
snow in the Upper James River Watershed this spring was estimated at 4 
to 4.5 inches. The area of Jamestown Reservoir at elevation 1,454 feet 
is 13,206 acres. Four inches of runoff from 200,000 acres would 
contribute 66,667 acre-feet of water to the reservoir. This means that 
the drainage from just those 12 projects in Wells and Eddy counties may 
have increased the level of Jamestown Reservoir by over 5 feet, raising 
the crest from 1,449 feet to the top of the emergency spillway at 1,454 
feet. This also means that an additional 2.5 weeks of 1,800 cubic feet 
per second releases will be required to remove that additional water 
from the reservoir. Add in all of the other tens of thousands of acres 
that have been drained in the Upper James River Watershed and the 
cumulative effects on the regulation of Jamestown Reservoir for flood 
control are what Jamestown and those living downstream are dealing with 
right now.
            Sincerely,
                                                   Gary L. Pearson.
                                 ______
                                 
                  Letter From Gary L. Pearson, D.V.M.
                                                     July 13, 2009.
The Honorable Hillary Clinton,
Secretary of State,
Washington, DC 20520.
    Dear Secretary Clinton: According to information from North Dakota 
Senator Byron Dorgan's office:

    ``U.S. Senator Byron Dorgan (D-ND) said Thursday, July 9, 2009, 
that Secretary of State Hillary Clinton informed him she has initiated 
contacts with the Canadians about the dike on the U.S.-Canada border 
that has caused significant flooding in eastern North Dakota.
    ``Senator Dorgan talked to Secretary Clinton last evening about the 
issue. Dorgan had previously asked the Secretary of State to initiate 
contacts with the Canadian Government to resolve the dispute.
    ``Dorgan said he believes the dike on the northeastern border 
clearly violates the Boundary Waters Treaty . . .''

    Based on the information from Senator Dorgan's office, it appears 
that he may have neglected to mention additional relevant information 
regarding this Boundary Waters Treaty issue.
    For example, Senator Dorgan goes on to say:

    ``The desire of Canadians to protect themselves against flooding is 
understandable, but it is not understandable that they keep in place a 
barrier that maximizes flooding on the North Dakota side and minimizes 
flooding on the Canadian side. That is something that I believe 
violates the Boundary Waters Treaty and needs to be resolved in 
consultations between the U.S. State Department the Canadian 
government.''

    A fundamental fact of obvious importance is that the water that 
causes the flooding on the south side of the border comes from North 
Dakota, not Canada. However, Senator Dorgan also neglects to mention 
the significant contribution to the flooding on the North Dakota side 
of the border resulting from the drainage of tens of thousands of acres 
of wetlands throughout the Pembina River watershed in North Dakota over 
the past 50 years. Much of this drainage was done without permits or 
regulation so exact figures on the acreage of wetlands drained and 
resulting volume of water contributing to downstream flooding are not 
readily available. However, the drainage of Rush Lake in Cavalier 
County, North Dakota, provides one concrete example of the contribution 
of wetland drainage to the flooding on the North Dakota side of the 
border.
    Rush Lake is located in Cavalier County, North Dakota, 
approximately 6 miles south of the Canadian border at the headwaters of 
Snowflake Creek and West Snowflake Creek, which flow northeastward to 
join the Pembina River on the north side of the border in Canada. The 
Rush Lake wetland complex originally consisted of the 650-acre main 
lake and an additional 6,500 acres of adjacent wetlands. The lake was 
approximately 3.5 feet deep and the adjacent marshes had a depth of 
approximately 2.5-3 feet. The Rush Lake watershed included an 
additional 23,000 acres of non-contiguous wetlands.
    In the early 1960s, evidence of illegal wetland drainage into Rush 
Lake was reported by one of the adjacent landowners. However, instead 
of addressing this illegal drainage, the Cavalier County Water 
Management Board developed a plan in 1967 simply to pass the problem on 
downstream by draining most of the Rush Lake complex into Snowflake and 
West Snowflake Creeks. Since then, most of the 23,000 acres of 
additional non-contiguous wetlands in the Rush Lake watershed also have 
been drained into Rush Lake and then on into the Snowflake Creeks. The 
same thing has happened throughout the rest of Cavalier County and much 
of the Pembina River watershed in North Dakota.
    Because North Dakota water management agencies do not compile 
reliable data on wetland drainage, it is difficult to know the exact 
contribution of this one drainage project to the flooding problem at 
the border. However, if it is assumed that the 30,000 acres of wetlands 
drained in the Rush Lake watershed had an average maximum depth of 20 
inches (as in the Devils Lake Basin to the south), their drainage would 
contribute an additional 50,000 acre-feet of water to the flooding 
downstream at the Canadian border in years of high runoff such as this 
year. That is enough to cover an area of 78 square miles with another 
foot of water.
    Not only is it understandable that Canadians would have a desire to 
protect themselves against flooding, but they also arguably have a 
right to protect themselves against exacerbated flooding resulting from 
North Dakota's failure to regulate wetland drainage that contributes to 
that flooding.
    If Senator Dorgan is correct that the flooding at the Canadian 
border constitutes a violation of the Boundary Waters Treaty of 1909, 
then the violation is the result of North Dakota's failure to comply 
with the Treaty and with its own drainage regulations, which require 
consideration of:

    ``The volume of water proposed to be drained and the impact of the 
flow or quantity of this water upon the watercourse into which the 
water will be drained.
    ``Adverse effects that may occur to the lands of lower proprietors. 
This factor is limited to the project's hydraulic effects such as 
erosion, duration of floods, impact of sustained flows, and impact on 
the operation of downstream water control devices.
    ``The project's impact on flooding problems in the project 
watershed.'' (North Dakota Administrative Code  89-02-01-09.2)

    Consequently, I would encourage you, in your discussions with 
Canadian officials regarding this alleged violation of the Boundary 
Waters Treaty, to propose either referral of the issue to the 
International Joint Commission or the establishment of a bi-national 
panel with representatives of the U.S. Environmental Protection Agency 
and Environment Canada to conduct a comprehensive, scientific study of 
the contribution of wetland drainage in North Dakota to the flooding 
problem at the Canadian border.
            Sincerely,
                                                   Gary L. Pearson,
                                           Jamestown, North Dakota.
                                 ______
                                 

               [From the Times-Record, February 15, 2010]

  State Officials Not Dealing Truthfully When it Comes to Devils Lake 
                                 Outlet
    North Dakota Department of Health administrator Dr. Terry Dwelle, 
Environmental Health section chief L. David Glatt and assistant state 
engineer Todd Sando's February 8 letter responding to the Times-
Record's February 2 editorial on the Devils Lake outlet warrants a 
factual response.
    They claim State agencies have informed numerous Federal agencies, 
including the U.S. Environmental Protection Agency, U.S. Fish and 
Wildlife Service, U.S. Department of State, the White House Council on 
Environmental Quality and Canadian officials about flooding at Devils 
Lake and operation of the outlet. What they fail to say is that much of 
the information they have provided to Federal agencies, Canadian 
officials and the public regarding the operation of the outlet has been 
incomplete, misleading and frequently deliberately false.
    For example, based on information provided by North Dakota 
agencies, Senators Byron Dorgan and Kent Conrad and Congressman Earl 
Pomeroy told U.S. Department of State officials on July 12, 2005 that 
it was imperative to disregard the concerns of Canadian officials and 
allow immediate operation of the outlet because: ``The longer we 
postpone the solution to this flooding crisis, the more danger North 
Dakota, Canada, and surrounding areas will face. The Devils Lake outlet 
project needs to be in full operation as soon as possible.''
    By 2008, the $28 million outlet had removed the equivalent of one-
tenth of an inch of water from the lake at an annual operating cost of 
over a quarter of a million dollars, and by 2009 the lake was 10 inches 
higher than it was before the outlet began operation.
    They neglect to mention that State Engineer Dale Frink made 
deliberately false statements regarding the operation and efficacy of 
the outlet in his August 30, 2002 application for a North Dakota 
Pollution Discharge Elimination System permit for the project, or that 
the Department of Health knew the statements were false but approved 
the permit anyway.
    The statement that, ``More than $800 million of State and Federal 
funds have been spent in recent years on storing more water in the 
upper basin, raising and protecting infrastructure, and building an 
outlet'' is seriously misleading. Most of the $800 million that have 
been spent dealing with the rising level of Devils Lake have been 
Federal taxpayer funds. From 1996 to 1999, while inflows to Devils Lake 
were averaging 317,000 acre-feet per year, the State spent $3.5 million 
annually to store an average of only 17,345 acre-feet of water per 
year. By 2009, when record inflows occurred to Devils Lake, the State's 
upper basin water storage program was down 769 acre-feet.
    Dwelle, Sando and Glatt also neglect to mention the $1.5 million 
U.S. taxpayer dollars that the State squandered on an experimental 
irrigation project to utilize water in the upper basin that anyone with 
a $4.95 calculator could see would be worthless in lowering the lake.
    They ignore the contribution of the drainage of 358,000 acres of 
wetlands in the Upper Devils Lake Basin--condoned and frequently 
promoted by the State engineer--to the rise of Devils Lake. Because 
wetlands in the Devils Lake Basin have the capacity to store an average 
of 1.7 feet of water and because the area had been in a drought for 4 
years, 623,500 acre-feet of storage were no longer available as a 
result of wetland drainage when high levels of precipitation hit the 
area in 1993. The drainage of those 358,000 acres of wetlands has 
reduced the net loss of water in the Upper Basin through evaporation by 
another 239,000 acre-feet per year, indicating that as much as 75 
percent of the inflows from 1993 to 1999--and 40 percent of the record 
inflows in 2009--were the result of the loss of evaporation capacity 
from drained wetlands.
    They say that Devils Lake is ``within just 8 feet of an 
uncontrolled release of the poorest quality, high-sulfate water from 
the east end,'' but they neglect to mention that it would take another 
1.9 million acre-feet of water to raise Devils Lake to its natural 
overflow elevation of 1,459 feet, and by that time, evaporation would 
be removing over 700,000 acre-feet per year--seven times what the 
outlet operating at 250 cubic feet per second for 7 months would 
remove. They also do not mention that it would take 6 years for the 
outlet operating at 250 cfs just to remove last spring's inflows.
    They claim that their objective is to avoid a catastrophic 
uncontrolled overflow from Devils Lake, but by not taking action to 
prevent the city of Devils Lake from lowering the natural outlet to 
1,458 feet, they have actually doubled the chance (from 3.2 to 6.1 
percent) of a major uncontrolled overflow (where the discharge would 
exceed those of the State's 250 cfs outlet by another 50 cfs) to the 
Sheyenne River within 10 years. Lowering the outlet to 1,458 feet means 
that an additional 269,000 acre-feet of poor quality Devils Lake water 
would be discharged initially into the Sheyenne River as a result of 
lost storage if the lake should rise to its overflow elevation, and the 
discharge would be increased by 23,000 acre-feet every year as a result 
of lost evaporation from the lake because of its smaller surface area.
    They claim that the proposed increase of the sulfate limit in the 
Sheyenne River to 750 parts per million ``is protective of aquatic 
life, as well as recreational and agricultural uses,'' but they ignore 
the numerous serious adverse impacts to aquatic life and recreational 
and agricultural use of the Sheyenne River identified by the U.S. Army 
Corps of Engineers for an outlet constrained by a much lower 300 ppm 
sulfate limit in the Sheyenne River.
    They neglect to mention that data from the State Water Commission 
show that the 450 ppm sulfate limit originally established by the 
Department of Health for the Sheyenne River was never reached in the 
area downstream from the outlet before operation of the outlet began. 
Nor do they mention that the department's own regulations require it to 
maintain water quality in streams when it is better than the 
established standards.
    They say that the awarding of $12 million to incorporate reverse 
osmosis in Valley City's new water treatment plant in order to remove 
sulfates and other minerals ``is a clear signal from the State that the 
interests of Valley City are important and will be protected.'' They do 
not mention that the reason a reverse osmosis system is necessary is to 
treat the increased levels of sulfates and other minerals from the 
Devils Lake outlet. Nor do they mention that the Corps of Engineers has 
determined that operation of an outlet constrained by a much lower 300 
ppm sulfate limit in the Sheyenne River would increase downstream water 
treatment costs by $1.7 to $3.3 million annually.
    Governor John Hoeven appointed the administrator of the Health 
Department and, as chairman of the State Water Commission, he was 
instrumental in appointing the State engineer and is responsible for 
oversight of the State engineer and his staff. It is time for State 
officials to start dealing responsibly and truthfully with the problem 
of rising water levels at Devils Lake.
                                 ______
                                 
 Prepared Statement of the City-County Health District, Valley City, ND
    Senate Energy and Water Appropriations Subcommittee of the U.S. 
Senate: As the Health Board which governs City-County Health District, 
the public health unit for Barnes County and Valley City, we have 
several serious concerns regarding Devils Lake outlet water being 
pumped into the Sheyenne River and the implementation of an interim 
emergency rule (ND Century Code 28-32-03) allowing increased sulfate 
concentrations from the headwaters of the Sheyenne to 0.1 miles south 
of Baldhill Dam.
    We are primarily concerned about the lack of an environmental 
impact study. Even the most minor city or county projects require 
studies to determine the impact on the environment and/or 
anthropological artifacts. Yet this project, which will have an 
enormous impact on downstream users, lacks any kind of impact 
statement. We are concerned about, but not limited to the following:
  --The Ecology of the Sheyenne River;
  --The increase in contaminants in the Sheyenne coming from Devils 
        Lake which can affect people and animals;
  --Cost of treating the water in the Sheyenne with increased 
        contaminants;
  --Increase risk of flooding of the Sheyenne River;
  --Ineffective, costly attempts at solutions without thoroughly 
        evaluating the problem.
    The Sheyenne River, and hence, Valley City, currently has good 
water quality (with sulfates in the 200 mg/L range). We strongly urge a 
comprehensive, scientific study of both the root causes for the rising 
of Devils Lake and the impact on the Sheyenne River and those who come 
in contact with it. The study must be done by unbiased out-of-State 
professionals. It should include an expert hydrologic assessment of the 
entire Devils Lake and Sheyenne River areas, and the LIDAR flight study 
which has been authorized and appropriated by the Senate Energy and 
Water Appropriations Subcommittee.
    This is not just about an increase in sulfate levels--this is about 
the life of the Sheyenne River in the future and all those who depend 
on it, in Barnes County and those who live down stream.
                                 ______
                                 
          Prepared Statement of Joe Stickler, Valley City, ND
 devils lake outlet & upper basin storage and the need to prevent harm 
                         to the sheyenne river
    The Devils Lake outlet concept has never appeared like intelligent 
water management. The testimony to this assertion is voluminous and 
doesn't need to be detailed here. This is particularly alarming because 
water management is the one of the highest of priorities for human 
civilization. If this current wet cycle is a regional effect of global 
climate change, many more of area residents will realize they have 
properties too close to the waterways. Meager information of the impact 
on the environment exists. It's as if we're being told, ``It's OK 
nothing bad is going to happen, trust us.'' Most distressing is the 
plan (unless recently modified) does not include any component for 
ongoing study of the environment if the outlet flows are increased. 
There are some data bases on various components both inorganic and 
biological that are present in the Sheyenne River. Any plan should 
include funding for continued monitoring of these components. There 
should be prior agreements about what limits in various parameters (not 
just sulfate concentrations) would necessitate the closure of the 
outlet.
    Thank you for considering this testimony.
                                 ______
                                 
   Prepared Statement of Sharon E. and James B. Buhr, MD, MeritCare 
                        Clinic, Valley City, ND
    Chairman/Senator Dorgan and the U.S. Senate Energy and Water 
Appropriations Subcommittee: Thank you for allowing us to offer 
testimony by e-mail related to the 2-19-10 Hearing on Devils Lake 
Outlet that was held in West Fargo. As residents of Valley City we have 
grave concerns over the fact that North Dakota has not conducted a 
comprehensive study of the Devils Lake and Sheyenne River basins, not 
has a comprehensive plan been established.
    A great deal of money has been spent on trying to solve a problem 
without a comprehensive study. Dikes around Devils Lake ($800 million) 
have been built and $28 million has been spent building an outlet from 
the west end of Devils Lake into the Sheyenne, yet that has taken off 
only a miniscule amount of water. Neither of these so-called solutions 
have attacked the root problem: the water coming into the lake.
    We agree with what Senator Dorgan said at the February 19 hearing: 
``more work needs to be done to retain water in the upper Devils Lake 
basin.'' Wetlands restoration has always been a good idea for the 
benefits it provides for wildlife and the health of the environment. 
Now it seems imperative to avert a catastrophe.
    OUR REQUEST.--Before any additional Devils Lake water is discharged 
through the outlet, a comprehensive, scientific study of both the root 
causes of the rising lake level and all the impacts of Outlet water on 
the Sheyenne River must be conducted. This must be done in a swift 
manner, and the study conducted by outside, (out-of-State) independent 
experts who do not have any of the political pressures that dominate 
North Dakota water issues.
    As part of this study we ask that the soil in and around the area 
where the Tolna Coulee would overflow into the Sheyenne River be 
evaluated, to learn whether this area needs to be ``armored'', in order 
to avoid a devastating wash-out.
    We ask that this study along with the LIDAR technology that has 
been indicated would be also used for part of the assessment, would 
then be the basis for a strategic plan for Devils Lake and Sheyenne 
River areas.
    The North Dakota State Water Commission claims that they have done 
the necessary studies to evaluate these issues, but this is not true. 
We ask that this subcommittee provides oversight and funds to see that 
this study is conducted properly.
    Thank you for your interest and for allowing us to send you this 
testimony.
                                 ______
                                 
        Resolution--District 24 Dem-NPL Party--February 28, 2010
                    problems from devils lake outlet
    WHEREAS the North Dakota Department of Health recently proposed an 
emergency rule to permanently raise the maximum sulfate in the upper 
Sheyenne River from 450 mg/L to 750 mg/L in order to increase the 
amount of water being discharged from Devils Lake to the Sheyenne via 
the Outlet;
    WHEREAS the proposed increase in maximum sulfates in the Sheyenne 
would violate the Department of Health's statutory mandate to ``act in 
the public interest to protect, maintain, and improve the quality of 
the waters in the State'' (NDCC 61-28-01);
    WHEREAS incoming Devils Lake water, much more polluted than water 
in the Sheyenne River, contains twice the amount of phosphorous, 
nitrate, and arsenic as in the Sheyenne--along with 10 times the 
chloride and 4 times as much sulfate;
    WHEREAS the city of Devils Lake does NOT use lake water to drink, 
but Valley City would be forced to do so under the proposed rule 
change; and Valley City residents would have to bear substantial 
increases in water-treatment costs due to the much-higher levels of 
contaminants in incoming Devils Lake water;
    WHEREAS, while harming the Sheyenne and the people living along the 
river, the proposed rule change would not prevent Devils Lake from 
rising and, in fact, would further divert attention away from taking 
truly-effective preventative action by restoring many of the 358,000 
acres of wetlands that have been artificially drained INTO Devils Lake;
    WHEREAS the Sheyenne River contains more species of fish (50) than 
any other North Dakota tributary, but Devils Lake contains only 11 
species of fish; and the Sheyenne also contains critical water-
filtration species of mussels that cannot survive in Devils Lake; but 
as water in the Sheyenne becomes contaminated like that of Devils Lake, 
aquatic species will inevitably be lost from the Sheyenne;
    WHEREAS many downstream families were forced to evacuate their 
homes during the devastating flooding of the Sheyenne River last 
spring, and the impact of the proposed increase in water from the 
Devils Lake basin will worsen future flood events and riverbank 
erosion;
    WHEREAS, in 6 short days last fall, more than 700 people signed a 
petition asking for completion of a comprehensive environmental impact 
study;
    WHEREAS, it is unknown what impacts increasing the flow of 
contaminated Devils Lake water into the Sheyenne would impose: on the 
health of people who drink downstream water, on the costs downstream 
people pay for water treatment, on the health of the 50 fish species 
currently inhabiting the waters of the Sheyenne, on the severity of 
future downstream flooding, on the speed with which downstream 
riverbanks are eroding, on the tourism and recreational industries that 
currently flourish downstream, and on the magnificent beauty of the 
Sheyenne River;
    NOW, THEREFORE BE IT RESOLVED THAT District 24 of the North Dakota 
Dem-NPL Party calls on the State to refrain from discharging ANY 
additional water through the controversial Devils Lake Outlet until 
after an independent, outside body that is free of the political 
pressures that dominate North Dakota water issues has completed a 
comprehensive, scientific review of both the root causes of rising 
water on Devils Lake and all the effects of Outlet water on the 
Sheyenne River; and until the harms and problems thus documented have 
been completely removed.
                                 ______
                                 
        Prepared Statement of Matthew Pedersen, Valley City, ND
    Dear Senator Dorgan, I would like to first thank you and your staff 
for conducting the formal hearing in West Fargo to discuss the matters 
associated with the Devils Lake outlet and the associated chronic 
flooding.
    I am a resident of Valley City, North Dakota and I have grave 
concerns about the management of Devils Lake. My primary concern is 
that I don't feel we have a strategic plan on how to address the rising 
waters. I see absolutely no coordinated effort to develop a 
comprehensive plan of controlling the inflows or creatively and safely 
draining it. The $800 million spent on levees appears to be working 
properly and thanks for your efforts in this multi-year project. 
However, all of the other efforts appear to be tactical failures not 
aligned to a long-term strategy. The State Water Commission needs some 
additional leadership to drive the challenging conversations on options 
of controlling inflows and exploring additional outflow scenarios. The 
risks are too great not to act on stopping artificial drainage and 
working to reverse the negative results of such actions. This will 
require that the State Legislature and State Water Commission 
demonstrate a new level of leadership and bi-partisanship.
    I am a firm believer in external consultants to infuse some fresh 
perspective into an organization. I believe the State Water Commission 
is in dire need of a comprehensive hydrological assessment of the 
Devils Lake and Sheyenne River basins. Hopefully this study can also 
take advantage of your LIDAR technology. The core objective of this 
external, scientific-facts based study would be to develop the 
strategic plan for Devils Lake with tactical, yearly solutions/
approaches that map to the overall strategy. The plan would identify 
the triggers that would initiate a certain pre-planned tactic to 
address the matter at hand. This study would need to be a collaborative 
effort of communities at risk of Devils Lake and Sheyenne River 
flooding. The impacted communities would be part of the planning 
process and the triggers driving certain courses of action would be 
widely known and agreed upon by these communities.
    The timing of this study is immediate as I feel the State Water 
Commission has a horrible natural (plus human influenced) disaster on 
their hands. In parallel to this strategic planning and comprehensive 
study, swift action is necessary to stop additional dredging of the 
Tolna Coulee and equally important evaluations should be conducted on 
the stability of the soil in this Tolna Coulee and need for armoring it 
to avoid a catastrophic wash-out flooding the entire Sheyenne River 
valley destroying historic communities like Valley City in its horrific 
path.
    I thought it was embarrassing and pathetic that the State Water 
Commission could not answer fundamental questions posed to them by 
yourself as well as members of the audience. I unfortunately have no 
faith in the leadership of the State Water Commission or their problem-
solving abilities and I urge you to secure funds for this comprehensive 
study to develop a strategic plan to instill some direction and 
leadership into the State Water Commission. I also urge you to lobby 
for an immediate assessment of the vulnerabilities lying under the 
surface of the Tolna Coulee as I feel immense armoring of this area to 
be required in 2010 to avoid a horrible wash-out and further 
embarrassment to the State Water Commission.
    Thank you Senator Dorgan and your colleagues on the Senate Energy 
and Water Appropriations Subcommittee for the opportunity to provide my 
testimony.
                                 ______
                                 
         Prepared Statement of Susan Kringlie, Valley City, ND
    Dear Senate Energy and Water Appropriations Subcommittee, I 
strongly believe that before any additional Devils Lake water is 
discharged through the outlet, independent, outside experts must 
complete a comprehensive, scientific study of both the root causes of 
rising lake level and all the impacts of Outlet water on the Sheyenne 
River. This study must include an expert hydrologic assessment of the 
entire Devils Lake and Sheyenne River areas, and the LIDAR flight study 
which has been authorized and appropriated by Senate Energy and Water 
Appropriations Subcommittee. This study must be carried out by out-of-
State professionals who are free of the political pressures that 
dominate North Dakota water issues. These are the following valid 
points of discussion from my hometown, Valley City, North Dakota.
  --The Outlet is Not Effective.--North Dakota constructed an outlet 
        costing $28 million, and wants to add another set of pumps at a 
        cost of $16.2 million. Its basic operating cost comes to 
        $250,000 per year. Yet from 2005-2008, pumping at 100 cfs, this 
        outlet removed only a bit over 0.1 inch from the lake. By 2009 
        the lake was 10 inches higher than it was before the outlet 
        began operation.
  --It is Time to Prevent the Lake From Continuing to Rise.--So far, at 
        least $800 million in taxpayer funds have been spent trying to 
        deal with the results of the rising level of Devils Lake--not 
        even counting the cost of the outlet! But the underlying 
        causes, including artificial drainage into the lake, remain 
        largely unaddressed.
  --Shut Off ``The Faucet'' (i.e., the water coming into Devils 
        Lake).--Annually, water from 358,000 Upper Basin acres of 
        artificially drained wetlands pours into Devils Lake. Viewing 
        Devils Lake as a bathtub, it makes no sense to discharge highly 
        polluted water from the tub's drain without first TURNING OFF 
        the faucet artificially dumping water in. Corps of Engineers 
        conservatively states that reinstating the water-storing 
        capacity of the Upper Basin wetlands would prevent Devils Lake 
        from rising 1 foot each year.
  --No More Dredging in the Tolna Coulee.--Even though we're told the 
        lake might ultimately overflow at the Tolna Coulee, the city of 
        Devils Lake was allowed to dredge out 1 foot this year, thus 
        significantly INCREASING the possibility that such an overflow 
        could occur. Please mandate that the Tolna Coulee cannot be 
        further dredged, and that the comprehensive study include an 
        evaluation as to whether the Tolna Coulee needs to be 
        ``armored'' (reinforced so that it will not wash out).
                                 ______
                                 
 Prepared Statement of Richard and Terry Lee, Adam and Annie Johnson, 
    Wanda Etzell, and Dennis and Bonnie Rowell, Valley City, ND and 
                              Enderlin, ND
    Americans do not want to believe that their government would 
implement any major project having serious harmful consequences without 
first having thoroughly studied (and disclosed) all of the issues 
contributing to the problem being addressed, and all of the impacts 
resulting from the project--and without having exhausted all less-
harmful alternatives. Yet we now know that when it constructed the 
Devils Lake Outlet to discharge highly-polluted water into the Sheyenne 
River, our government did exactly that: It implemented a very costly 
project WITHOUT having completed comprehensive studies (including 
hydrologic studies) to determine the real causes of the rising level of 
Devils Lake, WITHOUT having determined the damages that would result to 
the Sheyenne River system and everyone using it, and WITHOUT 
implementing the most-obvious less-harmful alternative--restoration of 
artificially drained wetlands in the Devils Lake Upper Basin.
    Now we know that the 358,000 acres of upper-basin wetlands that 
have been artificially drained into Devils Lake once had the capacity 
to store over 623,000 acre-feet of water in periods of high 
precipitation (such as 2009), which is 6 percent MORE than the entire, 
record 587,000 acre-feet of inflows during last year's spring flood.
    Now we know that if the sulfate standard for the Upper Sheyenne 
River is, in fact, raised to 750 mg/L in order to support increasing 
Devils Lake discharges from 100 cfs to 250 cfs, the beautiful Sheyenne 
River will be essentially trashed. Fish and mussel species will be 
lost. Downstream flooding will be exacerbated. Spawning and nursery 
habitat will be lost. Water treatment costs for downstream 
municipalities will increase. Bank erosion will worsen. Large trees 
along the river will die. All because Devils Lake's highly-polluted 
water contains twice as much phosphorous, nitrate, and arsenic as are 
found in the Sheyenne--and 10 times the chloride and 4 times as much 
sulfate.
    Now we know that the $28 million outlet does NOT work as its 
promoters claimed it would, and that the State knew it could not work 
as claimed even before they built it. As a matter of fact, by 2008, the 
outlet had removed only one-tenth of an inch of water from the lake (at 
an annual operating cost of over a quarter of a million dollars), and 
by 2009 the lake was 10 inches higher than it was before the outlet 
began operation.
    Enough is enough. We urge that there be absolutely no increase in 
the volume of water discharged through the Devils Lake Outlet, and no 
increase in allowable levels of contaminants in any part of the 
Sheyenne River. Instead, we urge that out-of-State, objective experts 
be commissioned to complete a thorough, scientific study of all the 
real causes of the rising lake level; and of all the potential 
downstream effects/impacts of discharging Devils Lake water into the 
Sheyenne River--so that we can proceed rationally, truthfully and 
responsibly to manage the issue of the rising level of water in Devils 
Lake.
    Thank you for your consideration.
                                 ______
                                 
 Prepared Statement of Mary Ann Sheets-Hanson, Director, Asante Network
    Dear subcommittee members: As a citizen of Valley City, North 
Dakota, living next to the Sheyenne River, I have a request. ``Before 
any additional Devils Lake water is discharged through the Lake outlet, 
I request that independent, outside experts complete a comprehensive, 
scientific study of both the root causes of rising lake level and all 
the impacts of Outlet water on the Sheyenne River. This study should 
include an expert hydrologic assessment of the entire Devils Lake and 
Sheyenne River areas, and the LIDAR flight study which has been 
authorized and appropriated by Senate Energy and Water Appropriations 
Subcommittee. This must be carried out by out-of-State professionals 
who are free of the political pressures that dominate North Dakota 
water issues! Why the study?
  --The Outlet is Ineffective.--North Dakota has spent millions on an 
        outlet and wants to spend millions more to add another set of 
        pumps. From 2005-2008, pumping at 100 cfs, this outlet removed 
        only a bit over 0.1 INCH from the lake. By 2009 the lake was 10 
        INCHES HIGHER than it was before the outlet began operation.
  --Greater Pollution.--Devils Lake water, is much more polluted than 
        water in the Sheyenne, contains two times the amount 
        phosphorous, nitrate and arsenic as in the Sheyenne--along with 
        10 times the chloride and 4 times as much sulfate. Why pollute 
        a healthy river?
  --Valley City's drinking water source is the Sheyenne River! Devils 
        Lake's drinking water source is not Devils Lake. Why not?
    There are other reasons to conduct this study. I'm certain you have 
that list.
    Is it possible that the problem with the rise in Devils Lake could 
have a solution that's been missed because of a ``not seeing the forest 
for the trees'' syndrome?
    I recently went to the city of Devils Lake Web site to find out 
where that city gets its water. I learned it's from underground wells 
and that the city has recently spent millions to lay new pipe to 
transport that water. Idea: instead of spending billions of additional 
assets in money, time and energy with no good solution, consider 
spending those same assets to build two or more super reverse osmosis 
plants in Devils Lake. Stop using precious underground water to supply 
that city with drinking water. Use the water from Devils Lake for that 
city's and the surrounding community's drinking water.
                drink the devils lake--lake level down!
    Thank you for your consideration of this testimony.
                                 ______
                                 
      Prepared Statement of the Peterson Coulee Outlet Association
    Thank you for the opportunity to submit outside witness testimony 
to the Senate Committee on Appropriations; Subcommittee on Energy and 
Water Development; the subcommittee's February 19 field hearing in West 
Fargo, North Dakota, on the potential negative impacts on the 
downstream environment and human communities from the suggested 
increased release of polluted waters from the Temporary Emergency 
Devils Lake Outlet.
    First let us again, clarify that the lake of Devils Lake is not 
flooding, it is filling. The lake of Devils Lake has not reached its 
Natural Overflow Spill Elevation (NOSE). Until the lake of Devils Lake 
reaches it's NOSE it is not proper to proclaim that the lake is 
flooding.
    In the January 29, 2010, a news article announcing the February 19, 
2010, Senate Committee on Energy and Water Development's field hearing 
on the potential impacts on the downstream aquatic environment and 
human communities from the suggested increased release of polluted 
waters from the Temporary Emergency Devils Lake Outlet, Subcommittee 
Chairman Senator Byron Dorgan of North Dakota was quoted as saying: 
``We have made all kinds of efforts . . . to help provide the funding 
necessary to mitigate the damages of flooding at Devils Lake. But I 
have always insisted, I am not interested in transferring the problem 
from one region of our State to another.'' (Daum, 2010)
    However this is exactly what the Temporary Emergency Devils Lake 
Outlet has been doing, with absolutely no benefits, what-so-ever, to 
the lake bed ``landowners'' adjacent to the present shores of Devils 
Lake.
    At this time, as we understand the situation, the Senate 
Subcommittee on Energy and Water Development's only concern with the 
suggested, increased flows from the Temporary Emergency Devils Lake 
Outlet is whether or not to appropriate a portion of the ever 
dwindling, very limited Federal money for the upgrade of only two of 
the downstream North Dakota cities', which use the Sheyenne River as a 
municipal water source, water treatment facilities. It is estimated 
that these water treatment facility upgrades that will cost the United 
States Federal Taxpayers approximately $60 million. Sixty million 
dollars the United States Federal Taxpayers can ill afford in these 
financially troubling times, (with absolutely no tangible benefits to 
the United States Federal Taxpayers from the expenditure of their 
monies).
    The only solution a reasonably thinking person could logically 
conceive would be for the anticipated downstream North Dakota cities' 
water treatment facility dilemma, is to immediately order the 
discontinuation of discharges of the polluted Devils Lake waters from 
the Temporary Emergency Devils Lake Outlet.
    The Temporary Emergency Devils Lake Outlet is indeed, without any 
reasonable doubt, transferring one community's manmade problem to many 
other downstream communities, including the ongoing, unwanted, bulk 
biota transfers along with the sulfates and other pollutants.
    When one's bath tub is filling and may overflow, one does not drill 
a hole in the side of the tub and in the floor to drain the potential 
overflow water onto the people living beneath them, one simply turns 
off the faucet. The Devils Lake Upper Basin storage program now in 
place, to prevent unwanted inflows into the lake of Devils Lake 
(turning off the faucet, so to speak) is a joke! At the present time 
and since the year 2000, the Devils Lake Upper Basin, Extended Storage 
Acreage Program (ESAP) has only been able to enroll 395 acres of land, 
capable of storing a potential total of 769 acre-feet of water. 
Preventing 769 acre-feet from entering a lake that already contains 
approximately 3,375,692 acre-feet, at the present elevation of 
approximately 1,450 means sea level (msl) (see attachment), is an 
insult and a joke. That joke is being played on the United States 
Federal Taxpayers. The State of North Dakota (one of the only States in 
the United States of America, that is not awash in Red Ink, during 
these financially troubling times) seemingly refuses to use its own 
money for this Temporary Emergency Devils lake dilemma.
    In fact it appears to any reasonably thinking person, that the 
State of North Dakota has been deliberately exacerbating the Devils 
Lake dilemma for the sole purpose of using the manmade Temporary 
Emergency as an economic development project to bring in United States 
Federal Taxpayers dollars to the State, by discontinuing the Available 
Storage Acreage Program (ASAP). The Executive Summary of the 2006, 
Devils Lake Basin Water Management Plan, page 3, third paragraph, 
states;

    ``The Water Commission enacted ASAP (Available Storage Acreage 
Program) in 1996. This program paid landowners to store water that 
would have contributed to the flooding around Devils Lake. The program 
ran from 1996-1999 and stored 8,000-22,000 acre-feet per year at a 
total cost of $3.5 million. In 2000, the ASAP evolved into the Extended 
Storage Acreage program (ESAP), which involved extended (typically 10-
year, rather than 1-year) contracts. Under ESAP, the Water Commission 
signed contracts for 8 sites in 2,000 which covered 395 acres, and had 
an approximate storage volume of 800 acre-feet. Those contracts are 
scheduled to expire on December 31, 2008. In 2003, an additional ESAP 
contract was signed for 18 acres, with 35 acre-feet of storage. That 
contract will also run through December 31, 2008.''

    As far as we know, all (all eight, only eight) of the ESAP 
contracts that had expired on December 31, 2008, have all been renewed 
for another 10 years. If the State of North Dakota deemed it prudent, 
necessary and had the where-with-all to pay for and store 8,000-22,000 
acre-feet from entering the lake of Devils Lake, from 1996 through 
1999, the State of North Dakota must now have other undisclosed reasons 
for not continuing the ASAP program, especially now when the State of 
North Dakota is awash in Oil Tax Revenue money!
    The United States of America is, has been and will continue to be, 
facing an imminent Health Care Crisis, meanwhile the North Dakota State 
Water Commission used the majority of North Dakota's share of the 
Tobacco Lawsuit Settlement money to finance, build, operate and 
maintain the Temporary Emergency Devils Lake Outlet as a solution to a 
North Dakota manmade disaster.
    Now the State of North Dakota, through its effected downstream 
cities, is asking for even more United States Federal Taxpayers dollars 
to continue this manmade disaster, economic development project.
    We pray that you the members of the Senate Committee on 
Appropriations, Subcommittee on Energy and Water Development do not 
allow this fiscal irresponsibility be continued.
                              attachments
                        Peterson Coulee Outlet Association,
                                    Maddock, ND, February 26, 2010.
Mr. Dennis Fewless,
Director, Division of Water Quality, Environmental Health Section, 
        North Dakota Department of Health, Gold Seal Center, 918 E. 
        Divide Ave. Bismarck, North Dakota 58501-1947.
    Dear Sir: Thank you for the opportunity to provide comments to the 
North Dakota Department of Health's (ND DoH) Triennial Review of the 
Standards of Quality for Water of the State as Required by 33 U.S.C. 
1313(c).
    The ND DoH's Web site's home page public notice of the announcement 
of the (ND DoH) Triennial Review of the Standards of Quality for Water 
of the State as Required by 33 U.S.C. 1313(c) appears to be 
deliberately misleading by only emphasizing and discussing the effects 
of the ``intent to amend administrative rules relating to standards of 
water quality'' for the proposed Sheyenne River segment 
reclassification in order to accommodate the discharging of even more 
polluted Devils Lake waters, for a longer period of time into an out of 
basin location, to a point source in the Sheyenne River. However that 
is not our understanding of the purpose of a Triennial Review. The ND 
DoH's statutory and fiduciary responsibilities to maintain and improve 
the quality of waters of the State of North Dakota as required by 33 
U.S.C. 1313(c), as we understand a Triennial Review, are to include all 
of the ND DoH's handling of water quality issues in the State of North 
Dakota for the last three (3) years.
    The North Dakota Department of Health has a seemingly, long, 
unimpressive history of upholding the Standards of Quality for Water of 
the State as Required by 33 U.S.C. 1313(c).
    Examples of this unimpressive history are numerous, only a few will 
be cited in these comments, at this time.
    An example of the failure of the ND DoH's statutory and fiduciary 
responsibilities to maintain and improve the quality of waters of the 
State of North Dakota as required by 33 U.S.C. 1313(c), is the ever 
changing, site specific, study standards of groundwater aquifers for 
the needed ND DoH's permit approval of private or public projects, such 
as the Grand Forks Landfill and the many Confined Animal Feeding 
Operations' (CAFOs, Animal Factories) sewage ponds scattered around the 
State. The study standards appear to be tailored to meet the very 
lowest, if even that, of the newly lowered acceptable limit of each of 
the individual projects' required needs for permit approval.
    Another example(s) of the abysmal failure of the ND DoH's statutory 
and fiduciary responsibilities to maintain and improve the quality of 
waters of the State of North Dakota as required by 33 U.S.C. 1313(c), 
is the lack of substantive, regular inspections of facilities, 
infrastructures and procedures that are capable of producing 
irrevocable harm to the Quality for Waters of the State of North Dakota 
are the two oil well, salt water spills into the Charbonneau Creek, a 
tributary of the Yellowstone River. ``(David) Glatt said the company 
did not report the August 2005 spill, and regulators learned of it only 
while investigating the spill that occurred more than a year later.'' 
Quote taken from the Associated Press--Monday, October 27, 2008, 
article titled ``Federal lawsuit filed in huge saltwater spill''. 
Enclosed.
    The lack of awareness by the ND DoH of the aforementioned 
incident(s) does not appear to be an isolated incident. Again, another 
example; ``But the department's water quality director, Dennis Fewless, 
said he hadn't even heard about the practice until asked about it this 
week by The Associated Press.'' . . . ``Transportation engineer Brad 
Darr said the saltwater has been used on State roads in the Dickinson 
area of southwestern North Dakota since the late 1960s, and the 
practice has expanded to some other parts of the State in the past 
decade.'' For approximately 40 plus years, the ND DoH's statutory and 
fiduciary responsibilities to maintain and improve the quality of 
waters of the State of North Dakota as required by 33 U.S.C.  1313(c) 
has been seriously compromised by the ND DoH's (willful?) lack of 
awareness due to the ND DoH's lack of substantive, regular inspections 
of facilities, infrastructures and procedures that are capable of 
producing irrevocable harm to the Quality for Waters of the State of 
North Dakota. Quotes taken from the Associated Press--Saturday, 
February 03, 2007, article titled ``ND State de-ices highways with oil 
well saltwater''. Enclosed.
    With the ongoing and anticipated long lasting oil boom in North 
Dakota's Bakken Shale Formation, the Three Forks-Sanish Formation and a 
crude-bearing cache known as the Birdbear, and with the ND DoH's 
history of the lack of awareness, the ND DoH's lack of substantive, 
regular inspections of facilities, infrastructures and procedures, are 
the North Dakota citizens really expected to entrust the ND DoH to 
inspect, regulate, and enforce generally accepted industrial standards 
& procedures for oil well produced water, produced water 
transportation, storage and disposal, the regulation of coal ash ponds, 
etc., for another 3 years without an on-going program of intensive 
over-sight of the ND DoH's activities in regulating water quality in 
the navigable waters of the United States within North Dakota? The oil 
boom is so intense that there is now talk by the oil industry, in their 
rush to exploit all possible oil bearing formations, of their 
intentions of constructing offshore oil drilling and pumping platforms 
in the middle of Lake Sakakawea?, under the bed of the Missouri River. 
With the potential to allow and permit such activities the ND DoH risks 
that pollutants, such as drilling mud, petroleum products, the BTEX 
chemicals and other pollutants may be released, whether intentionally 
or accidentally, into the Waters of the State of North Dakota, the 
Waters of the United States causing irrevocable harm to the Quality of 
the Waters.
    Since none of our, Peterson Coulee Outlet Association (PCOA), 
previous concerns dealing with the Temporary Emergency Devils Lake 
Outlet (TEDLO, Outlet) have ever been substantively addressed, we would 
like to submit those concerns at this time. A great number of these 
concerns have been published in the form of Letters to the Editor(s) in 
the local county newspapers of record and are therefore, a matter of 
public record which can be found in the local county newspaper of 
records' archives; the ND DoH must consider those previous Letters to 
the Editor(s), PCOA's oral testimony at the February 17, 2010, ND DoH's 
Bismarck, North Dakota, hearing and PCOA's written submitted comments 
of November 4, 2009, along with the new concerns outlined in this 
document when considering the desirability of the ND DoH's Intent to 
Amend Administrative Rules Relating to Standards of Water Quality in a 
Segment of the Sheyenne River.
    By the ND DoH's approval of the Amending of Administrative Rules to 
change the Classification of a Segment of the Sheyenne River, for the 
sole purpose of allowing the uninterrupted, continual discharge of 
polluted Devils Lake water into the Sheyenne River, the ND DoH is also 
approving the construction of a permanent Round Lake intake structure 
and is therefore, willfully attempting to change the North Dakota 
legislative policy and intent of a Temporary (not intermittent) 
Emergency Devils Lake Outlet.
    Page 3 and 4 of the of the 52 page ND DoH's ``Notice Of Intent To 
Amend Administrative Rules Relating To Standards Of Water Quality'' 
states in part:
    North Dakota Administrative Code 33-16-02.1(2)(a), specifies that: 
``The `quality of waters' (of the State) shall be the quality of record 
at the time the first standards were established in 1967, or later if 
these indicate improved quality. Waters with existing quality that is 
higher than established standards will be maintained at the higher 
standard unless affirmatively demonstrated, after full satisfaction of 
the intergovernmental coordination and public participation provisions 
of the continuing process, that a change is necessary to accommodate 
important social or economic development in the area which the waters 
are located. In allowing the lowering of existing quality, the (North 
Dakota Department of Health) shall assure that existing uses are fully 
protected and that the highest statutory and regulatory requirements 
for all point sources and cost-effective and reasonable best management 
practices for nonpoint sources are achieved.'' [Emphasis Added]
    In February of 2006, the Peterson Coulee Outlet Association asked 
the United States Army Corps if the closed basin of Devils Lake was now 
considered connected to the Red River/Sheyenne River system because of 
the operation and discharge flows from the Temporary Emergency Devils 
Lake Outlet. The United States Army Corps response letter is attached 
and states in part, ``When Devils Lake is below elevation 1,459, Devils 
Lake is considered `non-contributing' and, therefore, not 
hydrologically connected to the Sheyenne or Red River basins''. And 
will not be considered ``contributing'' to the Sheyenne or Red river 
basins, until the lake of Devils Lake naturally overflows the elevation 
of 1,459 msl., therefore, it is the PCOA's contention that the ND DoH 
can not legally change the Sheyenne River classification, because the 
closed basin of Devils Lake is not in ``in the area which the waters 
are located'' which are the waters that will be degraded by the 
proposed Sheyenne River reclassification.
    Due to the diminutive size and the minute discharges from the 
Temporary Emergency Devils Lake Outlet, the Outlet is too small to ever 
be considered any real relief to the Devils Lake lakebed's inundated 
acres. With the lake of Devils Lake at a present level, of 
approximately 1,450 msl, with a prediction of an additional two (2) 
foot rise this spring and the Temporary Emergency Devils Lake Outlet, 
discharging at 100 cubic feet per second (cfs) or even at a discharge 
rate of 250 cfs, the Outlet will not have any substantive effect on 
lowering a lake with a volume of approximately 3,375,692 acre feet (at 
the 1,450 msl elevation) or even substantially slowing the rate of rise 
of a lake that has had averaged inflows into the lake of Devils Lake of 
317,000 acre-feet per year from 1993 to 2000 (U.S. Army Corps of 
Engineers, 2002). The Temporary Emergency Devils Lake Outlet is more 
symbolic than significant. The Temporary Emergency Devils Lake Outlet's 
Application to Drain, No. 3457 and the ND DoH's Intention to Amend 
Administrative Rules Relating to Standards of Water Quality for a 
Segment of the Sheyenne River may be some sort of a psychological 
relief but it is not any real relief to the inundated lake bed acres. A 
psychological relief is not a legally, defensible reason that 
accommodates important social or economic development in the area, for 
the granting of a permit for the Application to Drain, No. 3457 or for 
the ND DoH's Intention to Amend Administrative Rules Relating to 
Standards of Water Quality for a Segment of the Sheyenne River.
    At the present time, Devils Lake's current elevation of 
approximately 1,450 means sea level (msl), has a vast number of acres 
above the numerous various meanderline elevations, yet below the 
Ordinary High Water Mark and are owned in fee simple, by private 
individuals and by the deliberate actions by man, to cause the draining 
of Sovereign Lands, by the granting of a permit for the Application to 
Drain, No. 3457 and the ND DoH's Intention to Amend Administrative 
Rules Relating to Standards of Water Quality for a Segment of the 
Sheyenne River, it would be considered the willful conversion of the 
Sovereign Lands to private ownership in the judicial system. Sovereign 
Lands are lands held in perpetual trust for the benefit of all the 
citizens of the State of North Dakota, the conversion of Sovereign 
Lands for the sole benefit of a select few private individuals' 
economic enjoyment is in itself an illegal act. Only through acts of 
nature, such as evaporation, could the lake bed acres perhaps, perhaps 
legally revert back to those select few private individuals.
    The laws of North Dakota are quite clear;

    North Dakota Administrative Code, Article 89-10, Sovereign Lands, 
chapter 89-10-01, section 89-10-01-02. Prohibition on permanent 
relinquishment. Sovereign lands may not be permanently relinquished but 
must be held in perpetual trust for the benefit of the citizens of the 
State of North Dakota. All structures permitted or otherwise allowed 
for private use on sovereign lands are subordinate to public use and 
values.

and;

    North Dakota Century Code 61-33-01, Definitions, No. 3, ``Sovereign 
Lands'' means those areas, including beds and islands, laying within 
the ordinary high watermark of navigable lakes and streams.

    The ND DoH's ``Intent to Amend Administrative Rules Relating to 
Standards of Water Quality'' for the proposed Sheyenne River segment 
reclassification is not; Legally Defensible, Economically Defensible, 
Morally Defensible or, Environmentally Defensible!
    For all of the afore mentioned cases cited above and because North 
Dakota Department of Health officials have failed miserably to act in a 
professional, truthful and responsible manner to meet their statutory 
and fiduciary responsibilities to maintain and improve the quality of 
the water of waters of the State of North Dakota as required by 33 
U.S.C. 1313(c), and have instead decided to compromise their 
professional integrity, the ND DoH clearly lacks the credibility and 
the competence to regulate the administering, inspecting and enforcing 
the Standards of Quality for Waters of the State. Therefore, the 
Administrator of the United States Environmental Protection Agency 
should immediately implement a comprehensive review of all of the 
department's actions under the Federal Clean Water Act and establish an 
on-going program of intensive over-sight of the department's activities 
in regulating water quality in the navigable waters of the United 
States within North Dakota.
    We will leave you with this one parting comment to ponder, taken 
from the Final Biennial Report for 1911-1912, North Dakota State 
Engineer to the Governor, which states in part:

    ``The water level of any lake possessing no outlet depends on the 
amount of evaporation, seepage, rainfall and runoff 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 runoff from more than 700 or 800 square miles of the total 
area ever reaches the lake.'' [Emphasis Added]
    The PCOA would also humbly request that our comments and enclosures 
be included in any submissions that the ND DoH makes to the Untied 
States Environmental Protection Agency in connection with the Triennial 
Review of the Standards of Quality for Waters of the State of North 
Dakota under 33 U.S.C. 1313(c).
            Sincerely,
                                       Mrs. Thelma Paulson,
                                                         President.
                                 ______
                                 

         [From the Associated Press, Monday, October 27, 2008]

             Federal Lawsuit Filed in Huge Saltwater Spill
    A rancher is suing an Oklahoma oil company over a pipeline that 
twice spilled saltwater into a creek and on land where she runs her 
cattle in northwestern North Dakota.
    Linda Monson, of Alexander, said nothing but weeds have grown where 
Zenergy, Inc., of Tulsa, Oklahoma, spilled salty water.
    ``There's nothing growing where they had those spills, and my cows 
still refuse to drink from the creek,'' she said.
    Monson was one of about a dozen ranchers affected by the saltwater 
spill near Alexander that was discovered in January 2006. The spill has 
been described as the worst in North Dakota's oil history.
    The saltwater, a byproduct of oil production, flooded a stock pond 
and a beaver dam, and flowed into Charbonneau Creek, a tributary of the 
Yellowstone River.
    Monson said a similar spill occurred in August 2005 that never was 
reported to authorities.
    Saltwater from the pipeline, containing water 10 times as salty as 
sea water, killed fish, turtles and plants along the creek after both 
spills, she said.
    Monson's Federal lawsuit seeks at least $75,000 from Zenergy.
    Company officials did not return telephone calls on Monday seeking 
comment.
    State officials last year reached a $123,000 settlement with 
Zenergy, said Dave Glatt, the director of the State Health Department's 
environmental health section.
    A fine of $31,750 was suspended ``for following through on their 
corrective action plan,'' Glatt said.
    Glatt said the company did not report the August 2005 spill, and 
regulators learned of it only while investigating the spill that 
occurred more than a year later.
    Zenergy is continuing with the cleanup, which has cost the company 
more than $2 million so far, Glatt said.
    The company has excavated tons of contaminated soil from the spill 
site. It has said the creek is as clean as it was before the spill and 
has been repopulated with turtles and fish.
    ``That's my understanding, and leads us to believe the cleanup is 
headed in the right direction,'' Glatt said.
    Monson and her attorney, Derrick Braaten of Bismarck, are not 
convinced. They worry about the long-term effect of the spills.``One of 
the main concerns is that there is still saltwater underground and it's 
not static--it can move,'' Braaten said.
    Monson and Braaten also said the company's cleanup operation has 
worsened the flow of water into the creek.``They've cut off the main 
water veins that feed the creek,'' Monson said.``A fairly large chunk 
of the creek is dried up now,'' Braaten said.
    The creek had never been dry before the spills, Monson said.
    Zenergy has offered a total of about $7,000 to Monson to settle the 
issue, though she has declined, Braaten said. ``I haven't taken 
anything from them,'' Monson said.
    The company has one oil well on Monson's land. She says the 
horizontal well is aimed at government land adjacent to her property 
and says she receives no royalties from the well's production.
    Zenergy has drilled a new water well on Monson's ranch so she can 
water her cattle without the creek. She says it's not enough.``I just 
want some fairness,'' she said.
                                 ______
                                 

        [From the Associated Press, Saturday, February 3, 2007]

      North Dakota--State De-ices Highways With Oil Well Saltwater
    For about 40 years, State workers have dumped saltwater left over 
from oil production on some North Dakota roads, including those in the 
Devils Lake area. That's news to the Health Department, which wants the 
practice stopped.
    The Transportation Department claims oil well wastewater up to 10 
times saltier than sea water is a safe, effective and cheap deicer.
    Environmentalists are stunned that workers have dumped tens of 
thousands of gallons of the potentially contaminated stuff on roads 
every year, causing unknown harm to wetlands, streams and water 
supplies.
                            sierra club view
    ``I can't imagine anybody would sign off on this,'' said Wayde 
Schafer, a North Dakota spokesman for the Sierra Club.
    ``When it leaves the well site and is in an oil company truck, it's 
considered toxic material,'' he said. ``If they have just one drip from 
the truck, they're fined. But when it's transferred to a State truck, 
it's spread wholesale along the interstate. It definitely makes one 
wonder.''
                         health department view
    Transportation spokeswoman Peggy Anderson said the State Health 
Department had approved the use of the salty wastewater for deicing. 
But the department's water quality director, Dennis Fewless, said he 
hadn't even heard about the practice until asked about it this week by 
The Associated Press.
    ``In our opinion, we did not give them our blessing on this 
practice,'' Fewless said Friday.
    Fewless said the wastewater pulled from oil wells may contain oil 
and chemicals from drilling operations. ``The bottom line is, we need 
to look to the future and look for better options and phase this 
process out,'' Fewless said.
                        north dakota dot's view
    Transportation Department officials say they have not seen any ill 
effects caused by the saltwater, such as dead vegetation along highways 
or rustier-than-normal vehicles.
    Transportation engineer Brad Darr said the saltwater has been used 
on State roads in the Dickinson area of southwestern North Dakota since 
the late 1960s, and the practice has expanded to some other parts of 
the State in the past decade.
                           saltwater is free
    Darr said the Transportation Department had no exact figure, but 
uses ``tens of thousands of gallons'' of the saltwater each year, at no 
charge from the oil companies who otherwise would have to pay someone 
to haul it off. ``They can have all they want,'' said Dave Wanner, a 
manager at Missouri Basin Well Service in Belfield, North Dakota.
    Darr said the use of the oil field wastewater has been expanded in 
the past decade to State roads in Williston, Minot and Devils Lake.
    Larry Gangl, the district engineer for the Transportation 
Department in Dickinson, said about 30 gallons of the undiluted 
saltwater is applied each mile to slick highways. Sometimes, it is 
mixed with sand, he said. ``It cuts through the ice and helps sand 
stick to the ice,'' Gangl said.
    Gangl said the salty water has been applied in just the past couple 
of years before a predicted storm. That led to a few complaints, he 
said, but he believes it helps keep roads safe. ``We're doing it for 
the safety of the traveling public,'' Gangl said. ``Once they hear 
that, they are pretty fine with it.''
    Schafer, of the Sierra Club, said his group has found no other 
States that use oil well saltwater for deicing.
                           montana dot's view
    Charity Watt Levis, a spokeswoman for the Montana Department of 
Transportation, said the State does not use the salt brine from oil 
wells. ``It is something that we looked at not something that we've 
really studied closely but on the surface, it looks as though the heavy 
metals that might be in there wouldn't meet the Montana Department of 
Transportation specifications,'' she said.
    Wanner, a manager at Missouri Basin Well Service in Belfield, North 
Dakota said the saltwater may contain traces of oil residue with a 
``little tiny film to it,'' but that it is not dangerous to the 
environment if applied sparingly. ``It's not that nasty at all. You 
don't see dead grass along the highways out here,'' Wanner said. ``They 
don't put it on that heavy.''
                                 ______
                                 
                        Peterson Coulee Outlet Association,
                          Maddock, North Dakota, February 22, 2010.
Mr. Jim Herda,
Office Manager, 524 4th Avenue North East, Unit #12, Devils Lake, North 
        Dakota 58301-2490.
    Dear Sir: Thank you for the opportunity to provide comments to the 
Application to Drain, No. 3457.
    Since none of our, Peterson Coulee Outlet Association (PCOA), 
previous concerns dealing with the Temporary Emergency Devils Lake 
Outlet have ever been substantively addressed, we would like to 
resubmit those concerns at this time. A great number of these concerns 
have been published in the form of letters to the Editor(s) in the 
local county newspapers of record and are therefore, a matter of public 
record which can be found in the local county newspaper of records' 
archives; you must consider those previous Letters to the Editor(s) 
along with the new concerns outlined in this document when considering 
the desirability of approving the Application to Drain, No. 3457.
    Clearly, the Governor of North Dakota, in conjunction with the 
North Dakota State Water Commission, is attempting to shift the 
liability for any and all damages caused by the Temporary Emergency 
Devils Lake Outlet to the Joint Ramsey-Towner County Water Resource 
Board. The Governor of North Dakota has the legal power, granted to him 
by the people of North Dakota, to proclaim an Executive Order, for the 
greater good of the all the citizens of North Dakota and proceed with 
this drainage scheme, Application to Drain, No. 3457, without the need 
for the solicitation and involvement of any local County Water Resource 
Board(s). Are the individual board members of the Joint Ramsey-Towner 
County Water Resource Board willing to accept their fiduciary 
responsibilities associated with the potential liabilities of the 
Application to Drain, No. 3457?
    By the granting of a permit for the Application to Drain, No. 3457, 
the Joint Ramsey-Towner County Water Resource Board is also approving 
the construction of a permanent Round Lake intake structure and is 
therefore, willfully attempting to change the North Dakota legislative 
policy and intent of a Temporary (not intermittent) Emergency Devils 
Lake Outlet. The PCOA has not been able to find, anywhere, the Joint 
Ramsey-Towner County Water Resource Board's legally required 
reclamation plan for the Temporary Emergency Devils Lake Outlet real 
properties, after the emergency has passed.
    The Joint Ramsey-Towner County Water Resource Board is premature in 
considering the Application to Drain, No. 3457, until all of the other 
necessary components (that is permits, reclassifications, etc., which 
are needed for the workability of the application to Drain, No. 3457), 
have been obtained, such as the interconnection permit, from the 
Western Area Power Administration (WAPA, along with WAPA's Federally 
required cost/benefit for the entire drainage scheme), needed for the 
additional electricity to power the pumps for the proposed increase in 
the drainage discharge flows, the North Dakota Department of Health's 
(ND DoH) permanent reclassification standards for the Sheyenne River, 
the application is incomplete without the obtaining of all of the 
required downstream flowage easements by the petitioners for the 
approval of the Application to Drain, No. 3457, to name just a few.
    North Dakota Administrative Code 33-16-02.1(2)(a), specifies that: 
``The `quality of waters' (of the State) shall be the quality of record 
at the time the first standards were established in 1967, or later if 
these indicate improved quality. Waters with existing quality that is 
higher than established standards will be maintained at the higher 
standard unless affirmatively demonstrated, after full satisfaction of 
the intergovernmental coordination and public participation provisions 
of the continuing process, that a change is necessary to accommodate 
important social or economic development in the area which the waters 
are located. In allowing the lowering of existing quality, the (North 
Dakota Department of Health) shall assure that existing uses are fully 
protected and that the highest statutory and regulatory requirements 
for all point sources and cost-effective and reasonable best management 
practices for nonpoint sources are achieved.'' [Emphasis Added]
    In February of 2006, the Peterson Coulee Outlet Association asked 
the United States Army Corps if the closed basin of Devils Lake was now 
considered connected to the Red River/Sheyenne River system because of 
the operation and discharge flows from the Temporary Emergency Devils 
Lake Outlet. The United States Army Corps response letter is enclosed 
and states in part, ``When Devils Lake is below elevation 1,459, Devils 
Lake is considered `non-contributing' and, therefore, not 
hydrologically connected to the Sheyenne or Red River basins''. And 
will not be considered ``contributing'' to the Sheyenne or Red river 
basins, until the lake of Devils Lake naturally overflows the elevation 
of 1,459 msl., therefore, it is the PCOA's contention that the ND DoH 
can not legally change the Sheyenne River classification, because the 
closed basin of Devils Lake is not in ``in the area which the waters 
are located'' which are the waters that will be degraded by the 
proposed Sheyenne River reclassification.
    The Application to Drain, No. 3457, forum is incomplete. Question 
number nine of the application forum reads;

    (9) Do you own the land to be drained in fee? _ YES X NO

    If NO, give the name and address of the legal landowner(s):

    And the partial answer was;

    Majority of the land is sovereign land held in trust by the State 
of North Dakota A ``Majority of the land'' . . . is not all of the 
land, the other names and addresses of the legal landowner(s) have not 
been provided with the Application to Drain, No. 3457. Until such time 
when the other names and addresses of all of the legal landowner(s) 
have been provided, the Joint Ramsey-Towner County Water Resource Board 
can not legally grant a permit for the Application to Drain, No. 3457.

    At the present time, Devils Lake's current elevation of 
approximately 1,450 means sea level (msl), has a vast number of acres 
above the various meanderline elevations and are owned in fee, by 
private individuals, by the deliberate actions by man, to cause the 
draining of Sovereign Lands, by the granting of a permit for the 
Application to Drain, No. 3457, it would be considered the willful 
destruction of the Sovereign Lands, in the judicial system. Sovereign 
Lands are lands held in perpetual trust for the benefit of the citizens 
of the State of North Dakota, the destruction of Sovereign Lands for 
the sole benefit of a select few private individuals' economic 
enjoyment is in it-self an illegal act. Only through acts of nature, 
such as evaporation, could the lake bed acres perhaps, perhaps legally 
revert back to those select few private individuals. The laws of North 
Dakota are quite clear;

    North Dakota Administrative Code, Article 89-10, Sovereign Lands, 
chapter 89-10-01, section 89-10-01-02. Prohibition on permanent 
relinquishment. Sovereign lands may not be permanently relinquished but 
must be held in perpetual trust for the benefit of the citizens of the 
State of North Dakota. All structures permitted or otherwise allowed 
for private use on sovereign lands are subordinate to public use and 
values.

and;

    North Dakota Century Code 61-33-01, Definitions, No. 3, ``Sovereign 
Lands'' means those areas, including beds and islands, laying within 
the ordinary high watermark of navigable lakes and streams.

    Since the Temporary Emergency Devils Lake Outlet has been operating 
and discharging the drained waters from the large wetland, that is 
referred to by the name of Devils Lake, (whether the Temporary 
Emergency Devils Lake Outlet has been effective at draining and 
maintaining the lake at a set elevation or not) the Untied States 
Department of Agriculture (USDA) through its subordinate agencies, the 
Farm Service Agency (FSA) and the Natural Resources Conservation 
Service (NRCS) will consider any drained, inundated croplands 
recovered, to be unpermitted, drained, converted wetlands and unless 
those drained, converted wetlands are properly mitigated with an equal 
number of restored wetland acres, within the same hydrological area, a 
landowner, farmer, operator will not be able to harvest agricultural 
commodities from those drained, converted wetlands. To do so would put 
the landowner, farmer, operator out of compliance with the USDA's 
subordinate agencies' regulations. The potential consequence of such 
compliance violations, the landowner, farmer, operator will lose all of 
their USDA, FSA, NRCS Federal agricultural subsidies for the year in 
which the violation occurred, all future subsidy payments will be 
withheld until the violation has been corrected or mitigated and the 
mandatory repayment of all agricultural subsidies received for the 
previous 10 years from/for the USDA's FSA, NRCS Federal agricultural 
subsidy programs, if the landowner, farmer, operator had so chosen to 
enroll in the USDA's FSA, NRCS Federal agricultural subsidy programs. 
The Joint Ramsey-Towner County Water Resource Board will be putting 
their constituents at a great risk of harm by granting the permit for 
the Application to Drain, No. 3457.
    Due to the diminutive size and the minute discharges from the 
Temporary Emergency Devils Lake Outlet, the Outlet is too small to ever 
be considered any real relief to the Devils Lake lakebed's inundated 
acres. With the lake of Devils Lake at a present level, of 
approximately 1,450 msl, and the Temporary Emergency Devils Lake Outlet 
discharging at 100 cubic feet per second (cfs) or even at a discharge 
rate of 250 cfs, the Outlet will not have any substantive effect on 
lowering a lake with a volume of approximately 3,375,692 acre feet (at 
the 1,450 msl elevation) or even substantially slowing the rate of rise 
of a lake with averaged inflows to the lake of Devils Lake of 317,000 
acre-feet per year from 1993 to 2000 (U.S. Army Corps of Engineers, 
2002). The Temporary Emergency Devils Lake Outlet is more symbolic than 
significant. The Temporary Emergency Devils Lake Outlet's Application 
to Drain, No. 3457 may be some sort of a psychological relief but is 
not a real relief to the inundated lake bed acres. A psychological 
relief is not a legally, defensible reason that accommodates important 
social or economic development in the area for granting a permit for 
the Application to Drain, No. 3457.
    As of today's date, the PCOA has not found anywhere a social/
economic report of the potential costs/impacts/benefits of the proposed 
Application to Drain, No. 3457.
    As of today's date, the PCOA has found no evidence of any attempt 
by Joint Ramsey-Towner County Water Resource Board to obtain the 
required downstream flowage easements for the Application to Drain, No. 
3457.
    As of today's date, the PCOA is aware of less than 10 general 
public comments indicating the desire for the approval of Application 
to Drain, No. 3457. This lack of general public support in favor of 
approval for the Application to Drain, No. 3457, indicates an 
overwhelming desire by the public to not grant the permit for the 
Application to Drain, No. 3457.
    The Application to Drain, No. 3457, is not; Legally Defensible, 
Economically Defensible, Morally Defensible or, Environmentally 
Defensible!
    For all of the above reasons the Peterson Coulee Outlet Association 
opposes the approval and granting of the permit associated with the 
Application to Drain, No. 3457.
    We will leave you with this one parting comment to ponder, taken 
from the Final Biennial Report for 1911-1912, North Dakota State 
Engineer to the Governor, which states in part:

    ``The water level of any lake possessing no outlet depends on the 
amount of evaporation, seepage, rainfall and runoff 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 runoff from more than 700 or 800 square miles of the total 
area ever reaches the lake.'' [Emphasis Added]

            Sincerely,
                                       Mrs. Thelma Paulson,
                                                         President.
                                 ______
                                 
                        Peterson Coulee Outlet Association,
                          Maddock, North Dakota, February 12, 2010.
Mr. Dirk Shulund,
P.O. Box 35800, Billings, Montana 59107-5800.
    Dear Mr. Shulund: We are aware that the North Dakota State Water 
Commission (ND SWC) is required to obtain and has requested, an 
interconnection permit for the electricity that will travel through the 
newly constructed electrical transmission line to power the additional 
electrical motors needed to increase the discharge of Devils Lake 
waters through the Temporary Emergency Devils Lake Outlet (TEDLO) 
project.
  --What is the status of the requested ND SWC's TEDLO interconnection 
        permit?
  --If the requested ND SWC's TEDLO interconnection permit has been 
        granted what is the cost/impact/benefit ratio for the ND SWC's 
        TEDLO associated with the granted interconnection permit?
  --What is the estimated additional newly created ``carbon foot 
        print'' associated with the granting of the ND SWC's TEDLO 
        interconnection permit?
  --What is the estimated increase of the cost of electricity to the 
        other consumers of electricity in the region, because of the 
        increased demand for the limited available, existing electrical 
        capacity in North Dakota, associated with the granting of the 
        ND SWC's TEDLO interconnection permit?
  --What provisions by the Western Area Power Administration (WAPA) are 
        in place or are being proposed by WAPA, for achieving 
        compliance with the requirement of the National Environmental 
        Policy Act (NEPA), section 102 (C), for an Environmental Impact 
        Statement (EIS) covering the issuance of the interconnection 
        permit?
            Sincerely,
                                       Mrs. Thelma Paulson,
                                                         President.
                                 ______
                                 
                        Peterson Coulee Outlet Association,
                           Maddock, North Dakota, November 4, 2009.
L. David Glatt,
P.E., Chief, Environmental Health Section, North Dakota Department of 
        Health, Gold Seal Center, 918 E. Divide Ave. Bismarck, North 
        Dakota 58501-1947.
    Dear Sir: Thank you for the opportunity to address a few of the 
numerous concerns from the citizens of North Dakota in the form of 
comments to the North Dakota Department of Health's, July 15, 2009, 
Proposal to Adopt an Emergency Rule adding a New Section to North 
Dakota Administrative Code Chapter 33-16-02.1, Standards of Quality for 
Waters of the State to Change the Classification of the Upper Sheyenne 
River and Increase the Maximum Limit for Sulfate in the River From 450 
mg/L to 750 mg/L.
    North Dakota State law states: ``Sovereign lands may not be 
permanently relinquished but must be held in trust for the benefit of 
the citizens of North Dakota''. This has not been the case with the 
lake bed of Devils Lake, located in the State of North Dakota. Since 
the time of North Dakota statehood, the North Dakota State government 
has known that the lake of Devils Lake's Ordinary High Water Mark 
(OHWM) is between 1,458 to 1,459 means sea level (msl), with a Natural 
Overflow Elevation (NOE) of 1,459 msl. The Lake of Devils Lake's 
natural tendency is to fluctuate. Devils Lake has not yet reached its 
OHWM or its NOE. Sometime in the past, during one of the lake's 
naturally occurring low fluctuations, the North Dakota State 
government, in all its combined wisdom, deeded, permanently 
relinquished, the temporarily dried lake bed bottom, Sovereign lands, 
to private individuals for their personal economic gains. At that time 
the North Dakota State government had breeched the trust of the 
citizens of North Dakota by condoning the illegal sale of the People of 
North Dakota's lands. Now the North Dakota Department of Health (ND 
DoH), by declaring an Emergency, with an Imminent Peril to life and 
property on the, privately owned, illegally deeded lake bed, and 
because of the lake's natural fluctuation, the lake is now filling its 
previously dry lake bed area, the ND DoH is now an active accomplice to 
this illegal act of stealing the Sovereign Land's away from the good 
citizens of North Dakota. If the ND DoH had been unbiased and by 
actually taking their responsibilities seriously, thereby doing their 
required due diligence of taking a hard look at the laws of North 
Dakota, the ND DoH would have known better than to declare an Emergency 
of Imminent Peril for lands below the OHWM and NOE. This comment is not 
beyond the scope of the issues regarding the North Dakota Department of 
Health's, July 15, 2009, Proposal to Adopt an Emergency Rule adding a 
New Section to North Dakota Administrative Code Chapter 33-16-02.1, 
Standards of Quality for Waters of the State to Change the 
Classification of the Upper Sheyenne River and Increase the Maximum 
Limit for Sulfate in the River from 450 mg/L to 750 mg/L.
    The proposed PERMANENT Upper Sheyenne River Reclassification by the 
ND DoH, runs counter intuitive to the clear intent of the North 
Dakota's 58th Legislative Assembly to construct a TEMPORARY Emergency 
Devils Lake Outlet. The ND DoH is deliberately attempting to circumvent 
the desires of the North Dakota citizen's legislature by this permanent 
Upper Sheyenne River Reclassification in order to allow the operation 
of the Temporary Emergency Devils Lake Outlet to be come in reality a 
Permanent Emergency Devils Lake Outlet. This comment is not beyond the 
scope of the issues regarding the North Dakota Department of Health's, 
July 15, 2009 Proposal to Adopt an Emergency Rule adding a New Section 
to North Dakota Administrative Code Chapter 33-16-02.1, Standards of 
Quality for Waters of the State to Change the Classification of the 
Upper Sheyenne River and Increase the Maximum Limit for Sulfate in the 
River from 450 mg/L to 750 mg/L.
    The ND DoH's proposed, Permanent Upper Sheyenne River 
Reclassification is seriously lacking statewide support. There has been 
absolutely no overwhelming North Dakota public out cry demanding a 
Permanent Upper Sheyenne River Reclassification. None, absolutely none, 
of the State's major population centers, the cities of Fargo, Grand 
Forks, Bismarck, Minot, Williston, Dickinson have passed any 
resolutions in support of, petitioned the North Dakota legislature for, 
or even sent letters to the Environmental Protection Agency begging, 
for this degrading Upper Sheyenne River Reclassification, which would 
permanently allow the pumping greater quantities, of ever lower quality 
waters, into the Upper Sheyenne River. If the ND DoH would have taken 
their responsibilities seriously, had taken a hard look and did their 
required due diligence, the ND DoH would have known better than to 
suggest that the filling of a lake is an Emergency of Imminent Peril 
and of State Wide Significance therefore a proposed permanent river 
reclassification for a temporary emergency would never have been 
considered. This comment is not beyond the scope of the issues 
regarding the North Dakota Department of Health's, July 15, 2009, 
Proposal to Adopt an Emergency Rule adding a New Section to North 
Dakota Administrative Code Chapter 33-16-02.1, Standards of Quality for 
Waters of the State to Change the Classification of the Upper Sheyenne 
River and Increase the Maximum Limit for Sulfate in the River from 450 
mg/L to 750 mg/L.
    If the ND DoH had seriously taken a hard look, completed their 
required due diligence, for the citizens of North Dakota, the ND DoH 
would be aware that they are premature in proposing a Permanent 
Emergency Upper Sheyenne River Reclassification. The North Dakota State 
Water Commission (ND SWC) (one, of the only two entities, petitioning 
for the Permanent Emergency Upper Sheyenne River Reclassification, the 
other being the city of Devils Lake) has applied for, months ago, but 
has not yet, at this time, received the approval for an Interconnection 
Permit from the Western Area Power Administration (WAPA, a Federal 
Governmental Agency) that is needed for the additional electrical power 
to operate the four additional Temporary Emergency Devils Lake Outlet 
discharge pumps in order to increase the outlet's discharge capacity to 
250 cubic feet per second (cfs). The granting of an Interconnection 
Permit from WAPA is highly unlikely. If WAPA grants an Interconnection 
Permit for the electricity to operate the four additional Temporary 
Emergency Devils Lake Outlet discharge pumps, the Temporary Emergency 
Devils Lake Outlet automatically becomes a Federal project. In order 
for a Federal Governmental Agency to grant a permit for a project, the 
project must first meet the Federal Government's, mandated, stringent 
legal, environmental and economical requirements. In order for WAPA to 
insure that the Public's resources will not be wasted on an 
uneconomical endeavor, the project must be determined to have a 
positive cost/benefit ratio. At the last Devils Lake Task Force 
meeting, October 29, 2009, in the city of Devils Lake North Dakota, an 
engineer from the ND SWC was asked (and we are paraphrasing here), 
``That if the Temporary Emergency Devils Lake Outlet could have been 
discharging at the full 250 cfs for the full operating season this 
year, how much would the operation of the outlet lowered the lake 
elevation (assuming that the Permanent Upper Sheyenne River 
Reclassification was in effect for the whole season)?'' He answered 
hesitantly, and finally said about 4 to 6 inches, depending on the 
beginning lake level of course and any additional inflows to the lake 
during the pumping season. A better question to have asked would have 
been, ``How many inches of shore line, from around the whole of the 
lake (or the combined aggregate of acres, derived from the inches of 
shoreline recovered), would have been recovered due to the discharges 
attributed to the Temporary Emergency Devils Lake Outlet?'' The 
question wasn't asked, so there is no official answer, to the question. 
According to our calculations the answer would be, very few inches of 
shoreline recovered, less than 5 acres would have been recovered. Not 
many bushels of agricultural commodities can be raised (at below cost 
of production, hence the need for agricultural commodity 
subsidizations) on less than 5 acres of recovered, unproductive, saline 
lake bed. These factors do not meet the Federal Government's permitting 
requirements for a positive cost/benefit ratio. It is highly unlikely 
that WAPA will grant the Interconnection Permit. This comment is not 
beyond the scope of the issues regarding the North Dakota Department of 
Health's, July 15, 2009 Proposal to Adopt an Emergency Rule adding a 
New Section to North Dakota Administrative Code Chapter 33-16-02.1, 
Standards of Quality for Waters of the State to Change the 
Classification of the Upper Sheyenne River and Increase the Maximum 
Limit for Sulfate in the River from 450 mg/L to 750 mg/L.
    The ND DoH has not, beyond a reasonable doubt, begun to not even 
have consider, in a substantive manner, any of the numerous downstream 
ecological damages to the beneficial uses of, not only the Upper 
Sheyenne River, but the entire Sheyenne River and Red River, that are 
being and will continue to be, caused by the degradation of the 
excessive amounts of nutrient loading in the Rivers by the enactment of 
the ND DoH's, July 15, 2009, Proposal to Adopt an Emergency Rule adding 
a New Section to North Dakota Administrative Code Chapter 33-16-02.1, 
Standards of Quality for Waters of the State to Change the 
Classification of the Upper Sheyenne River and Increase the Maximum 
Limit for Sulfate in the River from 450 mg/L to 750 mg/L. On Tuesday, 
10:58 a.m., September 29, 2009, a member of the Peterson Coulee Outlet 
Association (PCOA) e-mailed a request for information from the ND NoH. 
After not having received a reply from the ND DoH in a timely manner, 
the PCOA then sent a written letter to the ND DoH on October 8, 2009 
(enclosed). On October 22, 2009, the PCOA received a reply letter from 
the ND DoH, dated October 20, 2009 (enclosed). The POCA did not believe 
that the ND DoH's October 20, 2009, was a substantive answer to the 
PCOA's ``Request for Information on the Background studies for the 
North Dakota Department of Health's July 15, 2009 proposal to Adopt an 
Emergency Rule . . . ''. On October 27, 2009, the PCOA sent yet another 
letter to the ND DoH informing the ND DoH of such (enclosed). On 
November 2, 2009, PCOA received a Federal Express Airmail, certified 
letter (only 4 days before the ND DoH's, July 15, 2009, Proposal to 
Adopt an Emergency Rule . . .  comment deadline date) dated October 30, 
2009, from the ND DoH (enclosed). Although the October 30, 2009, letter 
from the ND DoH, did contain a computer disc of spreadsheets compiled 
from the, 2005-2009, United States Geological Survey (USGS) and the 
North Dakota State Water Commission (ND SWC) of the raw data of 
nutrient loads gathered from the various monitoring gauges along the 
Sheyenne River, the disc did not contain any interpretations of the 
data or the estimated increase in the nutrient loads being introduced 
by the additional flows of the polluted waters from the lake of Devils 
Lake or the effects of the additional nutrient load will have on the 
receiving navigable waters, the Sheyenne and Red Rivers. This is not 
the Due Diligence required by the ND DoH under North Dakota statutes 
for a July 15, 2009, Proposal to Adopt an Emergency Rule adding a New 
Section to North Dakota Administrative Code Chapter 33-16-02.1, 
Standards of Quality for Waters of the State to Change the 
Classification of the Upper Sheyenne River and Increase the Maximum 
Limit for Sulfate in the River from 450 mg/L to 750 mg/L. The ND DoH's 
October 30, 2009, still seems to confuse the PCOA's request for 
information with North Dakota's Open Records law by stating a public 
entity is not required ``to create or compile a record that does not 
exist''. Be that as it may, the ND DoH did admit that ``At this time, 
the Department does not have in its possession any records that contain 
the results of these calculations or that specifically answer PCOA'S 
questions.'' Nor did the ND DoH October 30, 2009 letter offer any 
general answers to the PCOA's questions either. This is not the Due 
Diligence required by the ND DoH under North Dakota statutes. The ND 
DoH has not begun to attempt any, hard look, and begin under taking any 
substantive studies of the effects on the receiving waters beneficial 
uses by the introduction of massive amounts of extremely low quality 
water, that are being caused by their own, North Dakota Department of 
Health's, July 15, 2009, Proposal to Adopt an Emergency Rule adding a 
New Section to North Dakota Administrative Code Chapter 33-16-02.1, 
Standards of Quality for Waters of the State to Change the 
Classification of the Upper Sheyenne River and Increase the Maximum 
Limit for Sulfate in the River from 450 mg/L to 750 mg/L. The ND DoH's 
stead-fast refusal to fulfill, or even acknowledge, its legal 
responsibility to ``maintain or improve, or both, the quality of the 
waters of the State and to protect existing uses'' under NDAC Chapter 
33-16-02.1. Clearly, the ND DoH cannot assure that existing uses of the 
Sheyenne River will be protected unless the impacts of the proposed 
emergency rule on those existing uses are identified and quantified 
through the review and analysis of scientific data regarding the 
resulting changes in water quality in the river. NDAC section 33-16-02. 
1-02 2c states explicitly: ``Any public or private project or 
development which constitutes a source of pollution shall provide the 
best degree of treatment as designated by the ND DoH in the North 
Dakota pollutant discharge elimination system. (Note that this 
requirement is under the ``Standards of Quality for Waters of the 
State'' and is separate from the regulations in NDAC 33-16-01 governing 
the North Dakota Pollution Discharge Elimination System permit.) If 
review of data and public input indicates any detrimental water quality 
changes, appropriate actions will be taken by the department following 
procedures approved by the Environmental Protection Agency. (North 
Dakota Antidegradation Implementation Procedure, appendix IV.)'' 
(Emphasis added) Clearly, the regulation requires ``review of data'' to 
determine whether ``detrimental water quality changes'' will occur and 
their severity, and the failure to review that data will result in 
failure of the ND DoH to discharge its responsibilities under its own 
regulations to ``take appropriate actions following procedures approved 
by the Environmental Protection Agency.'' The statement by Mr. Glatt 
that ``the department does not have in its possession any records that 
contain the results of these calculations'' constitutes his admission 
of the ND DoH's willful failure to perform the review required by NDAC 
chapter 33-16-02.1. Moreover, by failing to ``specifically answer 
PCOA's questions'' about the impacts of the proposed emergency rule on 
water quality in the Sheyenne River, the ND DoH is deliberately 
thwarting the very ``public input (regarding) detrimental water quality 
changes'' provided in its own regulations. This comment is not beyond 
the scope of the issues regarding the North Dakota Department of 
Health's, July 15, 2009, Proposal to Adopt an Emergency Rule adding a 
New Section to North Dakota Administrative Code Chapter 33-16-02.1, 
Standards of Quality for Waters of the State to Change the 
Classification of the Upper Sheyenne River and Increase the Maximum 
Limit for Sulfate in the River from 450 mg/L to 750 mg/L.
    North Dakota Governor John Hoeven wrote a letter to Secretary of 
State, the Honorable Condoleezza Rice, dated April 20, 2005, (enclosed) 
assuring the Secretary of State that all beneficial uses of waters 
downstream of the Temporary Emergency Devils Lake Outlet will be 
protected. Paragraph five of that letter reads; ``The permit to 
discharge water from Devils Lake to the Sheyenne River is designed to 
protect all beneficial uses of the water downstream. It has extensive 
compliance requirements including establishment of baseline conditions, 
monitoring, adaptive management and reporting. As part of the adaptive 
management plan, the permit includes a mechanism for recognizing and 
rapidly addressing issues that may arise.'' Although North Dakota 
Governor Hoeven was at the time speaking about the first ND DoH's 
discharge permit, there were at least some minor protections to all of 
the downstream water's beneficial uses. The North Dakota Department of 
Health's, July 15, 2009, Proposal to Adopt an Emergency Rule adding a 
New Section to North Dakota Administrative Code Chapter 33-16-02.1, 
Standards of Quality for Waters of the State to Change the 
Classification of the Upper Sheyenne River and Increase the Maximum 
Limit for Sulfate in the River from 450 mg/L to 750 mg/L, willfully and 
totally disregards Governor Hoeven's previous commitment to the 
Secretary of State, the citizens of the United States of America, the 
citizens of North Dakota and Minnesota, the Federal Canadian Government 
and the Province of Manitoba. This comment is not beyond the scope of 
the issues regarding the North Dakota Department of Health's, July 15, 
2009, Proposal to Adopt an Emergency Rule adding a New Section to North 
Dakota Administrative Code Chapter 33-16-02.1, Standards of Quality for 
Waters of the State to Change the Classification of the Upper Sheyenne 
River and Increase the Maximum Limit for Sulfate in the River from 450 
mg/L to 750 mg/L.
    The Lake of Devils Lake is filling, according to its own normal 
natural fluctuation cycle. The North Dakota Department of Health is 
deliberately, shifting, perpetuating and intensifying the problems of 
this natural fluctuation cycle of the closed basin lake of Devils Lake, 
by this ill-conceived, July 15, 2009, Proposal to Adopt an Emergency 
Rule adding a New Section to North Dakota Administrative Code Chapter 
33-16-02.1, Standards of Quality for Waters of the State to Change the 
Classification of the Upper Sheyenne River and Increase the Maximum 
Limit for Sulfate in the River from 450 mg/L to 750 mg/L, to the 
artificially created (by way of the man made, Temporary Emergency 
Devils Lake Outlet) connection to the downstream Upper Sheyenne River 
regions. The Temporary Emergency Devils Lake Outlet is not a natural 
phenomenon; it takes an act of man to throw the switch and turn on the 
discharge pumps. This comment is not beyond the scope of the issues 
regarding the North Dakota Department of Health's, July 15, 2009, 
Proposal to Adopt an Emergency Rule adding a New Section to North 
Dakota Administrative Code Chapter 33-16-02.1, Standards of Quality for 
Waters of the State to Change the Classification of the Upper Sheyenne 
River and Increase the Maximum Limit for Sulfate in the River from 450 
mg/L to 750 mg/L.
    Hence, the North Dakota Department of Health's, July 15, 2009, 
Proposal to Adopt an Emergency Rule adding a New Section to North 
Dakota Administrative Code Chapter 33-16-02.1, Standards of Quality for 
Waters of the State to Change the Classification of the Upper Sheyenne 
River and Increase the Maximum Limit for Sulfate in the River from 450 
mg/L to 750 mg/L is not; Legally Defensible, Economically Defensible 
or, Environmentally Defensible!
            Sincerely,
                                            Thelma Paulson,
                                                         President.
                                 ______
                                 
                        Peterson Coulee Outlet Association,
                            Maddock, North Dakota, October 8, 2009.
Mr. Mike Ell,
Environmental Health Section, Surface Water Quality/Lakes/Rivers, North 
        Dakota Department of Health, Gold Seal Center, 918 E. Divide 
        Ave. Bismarck, North Dakota 58501-1947.
    Dear Mr. Ell: On Tuesday, 10:58 a.m., September 29, 2009, you were 
sent the following e-mail from the Peterson Coulee Outlet Association. 
As of today's date, October 8, 2009, we have not had any type of reply 
from you, perhaps you did not receive our letter. Hence we feel it 
necessary to send this written letter, to rectify the uncertainty.
    We request substantive answers to our questions within fifteen (15) 
calendar days from today's date, October 8, 2009.
    We realize that no reply or non answers, to these questions are, 
yet another indication of the North Dakota Department of Health's lack 
of background studies for the proposed adoption of an Emergency Rule, 
Adding a New Section to North Dakota Administrative Code Chapter 33-16-
02.1, Standards of Quality for Waters of the State, to Change the 
Classification of the Upper Sheyenne River and will be viewed as such.
    Thank you in advance.
            Sincerely,
                                            Thelma Paulson,
                                                         President.
                                 ______
                                 
FW: Devils Lake Downstream Issues Question. What's Ugly, Smells, Kills 
        Dogs? Blue-Green Algae?
From: Leo Walker ([email protected])
Sent: Tue 9/29/09 10:58 a.m.
To: [email protected]; [email protected]; [email protected]
    Good Morning, It was suggested (see the following) that maybe you 
folks would be able to answer our simple questions in a meaningful 
manner.
    Thank you in advance.
            Sincerely,
                                                Leo Walker,
                                Peterson Coulee Outlet Association.
                                 ______
                                 
From: [email protected]
To: [email protected]; [email protected]; 
        [email protected]; [email protected]; 
        [email protected]; [email protected]; 
        [email protected]
Date: Tue, 29 Sep 2009 11:27:58-0400
Subject: Re: Devils Lake Downstream Issues Question. What's Ugly, 
        Smells, Kills Dogs? Blue-Green Algae
    Mr. Walker, In response to your following e-mail message, the 
Natural Resources Conservation Service does not have the technical 
background to address questions you have posed.
    Some of the questions being asked may very well require detailed 
literature research or even new scientific study to adequately address 
the issue. I am recommending you contact North Dakota State University, 
Water Quality Staff, Thomas Scherer, Associate Professor, 
[email protected] 701-231-7239  or Roxanne Johnson [email protected] 701-231-
8926.
    The North Dakota Department of Health would be another source with 
such expertise, and have the legal statutory authority to address such 
an issue. Mike Ell, Environmental Administrator, would be an excellent 
contact for this concern. His number is 701-328-5214.
                                                       John Glover.
                                 ______
                                 
From: Leo Walker 
To: Glover, John--Washington, DC; Weston, Keith--Bismarck, ND; Reep, 
        Dennis--Bismarck, ND; Wingenbach, Andy--Devils Lake, ND; Yow, 
        Toni--Fessenden, ND; Collins, Mike--Jamestown, ND; Gustafson, 
        Brent--Valley City, ND.
Sent: Mon Sep 28 14:54:02 2009.
Subject: Devils Lake Downstream Issues Question. What's Ugly, Smells, 
        Kills Dogs? Blue-Green Algae.
    Good Morning, The following article comes to you from the September 
27, 2009, Grand Forks Herald. Quotes:

    ``Blue-green algae are common in waters but not every lake develops 
serious problems until plentiful ``man-induced'' nutrients like 
phosphorous arrive, said Jim Vennie, a Wisconsin Department of Natural 
Resources expert.''. . . 
    ``Some people say they have gotten nauseous and vomited from 
smelling it,'' said Ken Schreiber, a Wisconsin Department of Natural 
Resources water quality specialist.''. . . 
    ``John Plaza, president of the Chetek Lakes Protection Association, 
which represents six lakes in northwest Wisconsin, said farm runoff, 
lawn fertilizers, septic systems and even ashes from leaves being 
burned on the shorelines are among factors contributing to the algae 
problems.''

    We are attempting to write comments concerning the North Dakota 
Department of Health's reclassification of the Sheyenne River (North 
Dakota) in order to increase the discharges from the Temporary 
Emergency Devils Lake Outlet into the Sheyenne River. October 16, 2009, 
is the deadline.
    Can anyone help us calculate;
  --How much phosphorous, phosphates (in mg/L or tons, whichever is 
        more appropriate for illustration purposes) from the West Bay 
        of Devils Lake that Lake Ashtabula can accommodate before the 
        Blue-Green algae takes over and poisons Lake Ashtabula?
  --How many years it will take, at the following estimated rate 
        inflows from Devils Lake, before the accumulation of phosphates 
        reaches critical mass in Lake Ashtabula?
  --Will the downstream receiving cities' water treatment facilities be 
        able to remove the Blue-Green algae toxins?
    When the North Dakota State Water Commission completes it's scheme 
to increases the Temporary Emergency Devils Lake Outlet pumping 
capacity from 100 cfs (cubic feet a second) to 250 cfs (approximately 
100,000 acre/feet a year), Lake Ashtabula's waters will be replaced 
over 1\1/2\ times a year with Devils Lake water. The volume of Lake 
Ashtabula is approximately 60,000 acre/feet.
    We believe most of the phosphorous, phosphates from Devils Lake 
will accumulate and remain in Lake Ashtabula and will not be flowing 
through Baldhill Dam. We believe Lake Ashtabula is, will become more 
of, a nutrient trap for Devils Lake waters, the cumulative effects on 
Lake Ashtabula will be devastating and irreversible.

------------------------------------------------------------------------
                                  WEST BAY of DEVILS    SHEYENNE RIVER
                                      LAKE (mg/L)           (mg/L)
------------------------------------------------------------------------
Total Dissolved Solids..........         1,200-2,000             600-700
Calcium.........................               70-75               50-60
Magnesium.......................               80-85               30-35
Sodium..........................             240-250               75-85
Arsenic.........................               12-15                 4-5
Phosphorous.....................                .400           .175-.250
Chloride........................             125-150               10-20
Hardness........................             450-550             250-300
------------------------------------------------------------------------

    There is Mercury, Strontium, Cadmium, Aluminum and others that we 
don't know about, that need to be considered also.
    Thank you in advance.
            Best Regards,
                                                Leo Walker,
                                Peterson Coulee Outlet Association.
                                 ______
                                 

        [From the Associated Press, Sunday, September 27, 2009]

           What's Ugly, Smells, Kills Dogs? Blue-Green Algae
    Waterways across the upper Midwest are increasingly plagued with 
ugly, smelly and potentially deadly blue-green algae, bloomed by 
drought and fertilizer runoffs from farm fields, that's killed dozens 
of dogs and sickened many people.
    Aquatic biologists say it's a problem that falls somewhere between 
a human health concern and a nuisance, but will eventually lead to more 
human poisoning. State officials are telling people, who live on algae-
covered lakes to close their windows, stop taking walks along the 
picturesque shorelines and keep their dogs from drinking the rank 
water.
    Peggy McAloon, 62, lives on Wisconsin's Tainter Lake and calls the 
algae blooms the ``cockroach on the water.'' ``It is like living in the 
sewer for 3 weeks. You gag. You cannot go outside,'' she said. ``We 
have pictures of squirrels that are dead underneath the scum and fish 
that are dead. . . . It has gotten out of control because of the 
nutrient loads we as humans are adding to the waters.''
    Blue-green algae are common in waters but not every lake develops 
serious problems until plentiful ``man-induced'' nutrients like 
phosphorous arrive, said Jim Vennie, a Wisconsin Department of Natural 
Resources expert. The toxins released by the algae can be deadly. 
Symptoms include rash, hives, runny nose, irritated eyes and throat 
irritation.
    No people have died in the United States from the algae's toxins, 
according to Wayne Carmichael, a retired aquatic biologist and 
toxicology professor in Oregon.
    Many, however, have gotten sick: ``Sooner or later, we are going to 
have more acute human poisoning,'' Carmichael said.
    The scum has killed dozens of dogs over the years--including at 
least four in Oregon, three in Wisconsin and one in Minnesota this 
summer. Wisconsin wildlife experts are warning duck hunters with dogs 
to be extra cautious this fall. ``If the water is pea-soup green, be 
sure to have clean water along to wash the dog off,'' Vennie said. 
``Don't let it drink the water.''
    Fewer than 100 lakes in Wisconsin typically have some problems with 
algae bloom each summer and the ones in western Wisconsin causing so 
much discomfort this year are being fueled by a perfect storm, Vennie 
said. The last month has seen little rain, warm, sunshiny days and 
little wind.
    The blooms just sit there, growing, then decaying and smelling. 
``Some people say they have gotten nauseous and vomited from smelling 
it,'' said Ken Schreiber, a Wisconsin Department of Natural Resources 
water quality specialist.
    Officials have banned recreational activities at some lakes in 
Washington State because of blooms. And in Oregon, the blue-green alga 
is the No. 1 water quality issue, Carmichael said.
    Yet other countries have worse problems, Carmichael said, because 
many have waters with even more nutrients than exist in U.S. lakes.
    In France, a horse died on a beach in July after falling into some 
decaying algae sludge. Last year, the Chinese Government brought in the 
army to remove the slimy growths so the Olympic sailing competition 
could be held.
    Stephanie Marquis, a spokesman for the Wisconsin Department of 
Health Services, said her agency had received 41 complaints related to 
health concerns with blue-green algae so far this season. Rashes, sore 
throats and eye irritation among the problems, she said.
    In Minnesota, Matt Lindon is a pollution control specialist for the 
State and he called 2009 a typical year for complaints about algae 
scums. But for some reason this summer, Bagley Lake in northwest 
Minnesota, an ``historically clean lake,'' generated respiratory and 
odor problems, he said. ``It may be related to the water level or some 
new runoff source,'' he said.
    Loren Hake, 71, has lived about two blocks from a Lake Menomin in 
western Wisconsin since 1963.
    He feels like a prisoner in his own home, isolated by a stench 
``something like a pig pen'' that forces he and his wife to run the air 
conditioner although it's not that hot because they can't leave the 
windows open, he said. For the first time, the couple hasn't sat on an 
outside deck because of the smell from the algae-covered bay. ``I don't 
know what they can do about it,'' Hake said.
    There's little anybody can do besides wait for cooler temperatures, 
Vennie said.
    John Plaza, president of the Chetek Lakes Protection Association, 
which represents six lakes in northwest Wisconsin, said farm runoff, 
lawn fertilizers, septic systems and even ashes from leaves being 
burned on the shorelines are among factors contributing to the algae 
problems. ``I have been a user of these lakes since 1962,'' he said. 
``I have never experienced anything like this before. It's nasty. 
People are saying we can't live with this any more.''



    This photo provided by John Kuglin shows some green algae on 
Thursday, Sept. 3, 2009, on Lake Pokegama near Chetek, Wisconsin 
Waterways across the upper Midwest are increasingly plagued with ugly, 
smelly and potentially deadly blue-green algae, bloomed by drought and 
fertilizer runoffs from farm fields, that's killed dozens of dogs and 
sickened many people. (AP Photo/John Kuglin)

                                              Robert Imrie,
                                                        Wausau, WI.
                                 ______
                                 
                        Peterson Coulee Outlet Association,
                           Maddock, North Dakota, October 27, 2009.
Mr. Dennis Fewless,
Director, Division of Water Quality, Environmental Health Section, 
        North Dakota Department of Health, Gold Seal Center, 918 E. 
        Divide Ave. Bismarck, North Dakota 58501-1947.
    Dear Mr. Dennis Fewless: On October 8, 2009, the Peterson Coulee 
Outlet Association (PCOA) sent the North Dakota Department of Health 
(ND DoH) a written request for information. See enclosed.
    PCOA has now received a letter in response to our request for 
information from the ND DoH dated October 20, 2009. (See enclosed)
    It appears to PCOA that the ND DoH has mistakenly confused the 
PCOA's request for information as a comment to the North Dakota 
Department of Health's, July 15, 2009, Proposal to Adopt an Emergency 
Rule, Adding a New Section to North Dakota Administrative Code Chapter 
33-16-02.1, Standards of Quality for Waters of the State to Change the 
Classification of the Upper Sheyenne River and Increase the Maximum 
Limit for Sulfate in the River from 450 mg/L to 750 mg/L. This is not 
case.
    PCOA's request for information is simply that, a request for 
information. If the ND DoH feels the need to include the public's 
requests for information in the public record as comments to the North 
Dakota Department of Health's, July 15, 2009, Proposal to Adopt an 
Emergency Rule, Adding a New Section to North Dakota Administrative 
Code Chapter 33-16-02.1, Standards of Quality for Waters of the State 
to Change the Classification of the Upper Sheyenne River and Increase 
the Maximum Limit for Sulfate in the River from 450 mg/L to 750 mg/L, 
the ND DoH may certainly do so.
    However, PCOA's October 8, 2009, request for information has not 
been substantively answered in the ND DoH October 20, 2009, response.
    Therefore, by the ND DoH apparent refusal to provide the 
information to the PCOA, in a timely manner, information that the PCOA 
had requested well in advance of the public's comment deadline period, 
the ND DoH is preventing the PCOA from substantively commenting on a 
major issue involving the North Dakota Department of Health's, July 15, 
2009, Proposal to Adopt an Emergency Rule, Adding a New Section to 
North Dakota Administrative Code Chapter 33-16-02.1, Standards of 
Quality for Waters of the State to Change the Classification of the 
Upper Sheyenne River and Increase the Maximum Limit for Sulfate in the 
River from 450 mg/L to 750 mg/L.
    Hence, it appears that the ND DoH is thereby deliberately 
subverting and thwarting the public participation process mandated by 
law.
    At this time, POCA, again will make the request for substantive 
information to answer our questions (to be received well in advance of 
the public comment deadline), so that we, PCOA, will be able to fully 
participate and make factual, informed comments in the Public Comment 
process mandated by law.
    Thank you in advance.
            Sincerely,
                                            Thelma Paulson,
                     President, Peterson Coulee Outlet Association.
                                 ______
                                 
                 North Dakota Department of Health,
                              Environmental Health Section,
                                    Bismarck, ND, October 20, 2009.
Thelma Paulson,
President, Peterson Coulee Outlet Association, 3321 54 Ave N.E. 
        Maddock, ND 56348.
    Dear Ms. Paulson: Thank you for your letter dated October 8, 2009 
regarding a ``Request for Information on Background Studies for the 
North Dakota Department of Health's July 15, 2009 Proposal to Adopt an 
Emergency Rule. . . .'' which also includes a request for answers to 
questions sent in an e-mail to me from Mr. Leo Walker dated September 
29, 2009. Since this letter and the attached questions are directly 
related to the Department's proposed actions related to the Devils Lake 
outlet and proposed changes in our water quality standards for a 
portion of the Sheyenne River, the Department has determined that it is 
appropriate to enter this letter and the attached questions into the 
public record as part of the public comment period regarding this 
proposed rule change.
    For your information the public comment period ends on November 6, 
2009. Following the end of the comment period the Department will 
thoughtfully consider and prepare responses to all of the comments 
received, including the questions posed in your letter and Mr. Walker's 
e-mail. In this way, your questions and the Department's response will 
be part of the public record.
    If you have any further questions concerning this matter, please 
contact Mr. Dennis Fewless, Director, Division of Water Quality, at 
701-328-5210.

                                            Michael J. Ell,
            Environmental Administrator, Division of Water Quality.
                                 ______
                                 
                 North Dakota Department of Health,
                              Environmental Health Section,
                                    Bismarck, ND, October 30, 2009.
Thelma Paulson,
President, Peterson Coulee Outlet Association, 3321 54 Ave. NE, 
        Maddock, ND 58348.
    Dear Ms. Paulson: Thank you for your October 27, 2009 letter 
informing the Department that it mistakenly confused the Peterson 
Coulee Outlet Association's (PCOA) September 29, 2009 e-mail and 
October 6, 2009 letter as ``comments'' in the Department's ongoing 
emergency rulemaking for the proposed new section to North Dakota 
Administrative Code Chapter 33-16-02.1.
    Because you said that the PCOA's October 6, 2009 letter, and 
September 29, 2009 e-mail are not ``comments'' on the emergency rule, 
the Department will not treat them as such and will remove them from 
the written record of comments on the rule. If this is not correct, and 
you would, in fact, like the Department to treat the PCOA's October 6, 
2009 letter and September 29, 2009 e-mail as comments to the rule, 
please inform the Department by the end of the public comment period, 
which is close of business on November 6, 2009. Of course, the PCOA may 
also submit any other written or oral comments on the proposed rule 
before the end of the comment period.
    After reading your most recent letter, it is my understanding that 
the PCOA is making an open records request. Specifically, PCOA wants 
the Department to provide answers to the three questions posed in the 
September 29, 2009 e-mail, which was also sent as an attachment to the 
October 6, 2009 letter. These questions ask for the results of specific 
calculations and the impact of those results on Lake Ashtabula and 
cities along the Sheyenne River.
    At this time, the Department does not have in its possession any 
records that contain the results of these calculations or that 
specifically answer PCOA's questions. Under North Dakota's open records 
law, a public entity is not required to create or compile a record that 
does not exist.'' NDCC  44-04-18(4). In the future, as part of its 
review of comments, the Department may make or acquire records that may 
relate to PCOA's questions. This will depend upon the nature of the 
comments received.
    The enclosed disk may be of assistance to PCOA in making the 
calculations needed to answer its questions. The disk contains the data 
relied on by the Department in proposing the rule, including data on 
phosphorus concentrations in the Sheyenne River.
                                            L. David Glatt,
   Environmental Health Section, North Dakota Department of Health.
                                 ______
                                 
                            Department of the Army,
                     St. Paul District, Corps of Engineers,
                                       St. Paul MN, March 16, 2006.
Mrs. Thelma Paulson,
President, Peterson Coulee Outlet Association, 3321 54th Avenue NE, 
        Maddock, North Dakota 58348.
    Dear Mrs. Paulson: Thank you for your February 15, 2006, letter 
regarding the relationship between the Devils Lake and Sheyenne River 
watersheds. The key in assessing hydrologic connections lies with what 
is considered the natural, functioning system.
    When Devils Lake is below elevation 1,459, Devils Lake is 
considered ``non-contributing'' and, therefore, not hydrologically 
connected to the Sheyenne or Red River basins. Drainage areas may 
include ``non-contributing'' areas that, under normal conditions, would 
not contribute directly to surface runoff to the stream. Non-
contributing drainage areas can become contributing during large runoff 
events.
    The Devils Lake basin connection to the Red River of the North 
basin does not happen naturally until Devils Lake reaches an elevation 
of 1,459 feet above mean sea level. At this point, the surface runoff 
would naturally flow through Tolna Coulee to the Sheyenne River and, in 
effect, hydrologically connect to the Red River basin. Devils Lake was 
above this natural spill elevation at least twice in the past 4,000 
years (North Dakota Geological Survey Report of Investigation No. 100, 
1997).
    The State of North Dakota's outlet from Devils Lake to Peterson 
Coulee has a pump station that ``lifts'' water from Devils Lake over 
the divide to a constructed outlet channel. Without the pump, water 
from Devils Lake could not flow naturally to the outlet channel.
    If you have additional questions, please contact Ms. Bonnie 
Greenleaf at 651-290-5476.
                                         William L. Csajko,
                                  Chief, Project Management Branch.
                                 ______
                                 
           Pepared Statement of Leon Pytlik, Valley City, ND
         devils lake drainage into sheyenne river, north dakota
    Dear subcommittee members: Back in the mid-1960s I worked in Devils 
Lake. Just south of the railroad trestle, there was a sign very high on 
a pole that showed the level of Devils Lake at some time in the past.
    In the late 1980s and early 1990s they were pleading for more water 
because Devils Lake was so low. To remedy that situation, they drained 
several hundred thousand acres of wetlands into Devils Lake. About that 
time the weather cycled into a normal to slightly above normal moisture 
pattern, and the lake begin to rise.
    Now, several hundreds of millions of dollars have been spent to 
raise dikes, roads, etc. The only thing that hasn't been tried is 
turning off the drains.
    The water in Devils Lake is so bad that the city of Devils Lake 
doesn't use the water for their drinking water. But, they want to send 
it down river, where Valley City gets its water from the Sheyenne 
River.
    The Federal guideline for sulfates is 250. The North Dakota Health 
Department has approved 450 and intends to increase that to 750. This 
says nothing of other pollutants such as mercury, lead, cadmium, 
arsenic, chloride, etc. that are also in the Devils Lake water. This is 
contrary to what the Health Department should be doing.
    It is imperative that there be an independent, out-of-state 
environmental impact study done on the effects of Devils Lake water on 
those of us downstream from Devils Lake, as well as farm animals and 
wildlife. The Sheyenne River has about 50 species of fish. About 11 can 
survive in Devils Lake. There are 9 mussel species in the Sheyenne, 
none in Devils Lake. There has to be a reason!
    I want to thank you for considering this testimony.
                                 ______
                                 
         Prepared Statement of Alice Beauchman, Valley City, ND
    Senate Energy and Water Appropriations Subcommittee: As a resident 
of Valley City I am very concerned with the Devils Lake outlet sending 
mass quantities of water into the Sheyenne River. I am worried no one 
has a complete understanding at this point of what this will do to the 
Sheyenne. I think further study by a non-partial agency is in order. It 
would be very sad to adversely affect the Sheyenne River and perhaps 
Lake Ashtabula to solve problems on Devils Lake. I am a little 
resentful that with this outlet their problems are shifted downstream. 
I am also concerned with the quality of the water we will be drinking 
in Valley City, and the cost to make that water safe.
    Please consider doing an out-of-state, nonbiased impact statement 
to gather more knowledge before decisions are made.
                                 ______
                                 
 Prepared Statement of the North Dakota Chapter of The Wildlife Society
    Dear Senator Dorgan, The North Dakota Chapter of the Wildlife 
Society shares many of the concerns that were raised by you and others 
at the February 19 hearing in of the U.S. Senate Energy and Water 
Development Subcommittee. These concerns include the growing water 
quality and flooding problems downstream from Devils Lake. We wish to 
express our strong support for your comment that upper basin storage be 
included as a key tool to help solve the growing crisis caused by the 
ongoing flooding at Devils Lake. As you aptly noted at the hearing, 
Devils Lake is like a full bathtub that is not being contained at the 
faucet. Historically, the upper basin naturally carried out upper basin 
water storage, with wetlands and grasslands serving as the catalyst. 
These intact wetlands held back a major part of the run-off within the 
watershed. Research has shown that evaporation typically removes 2-3 
feet from the water column of wetlands in the northern plains through 
evaporation; additional water is removed as it percolates downward, 
recharging aquifers. In this situation of intact wetlands, water 
storage capacity remains high in virtually all years. Currently, an 
estimated 101,000-189,000 wetland acres in the Devils Lake Basin have 
been drained, as cited in a fact sheet by Bob Anfang with the Corps of 
Engineers in an April 1998 memo to participants at an Upper Basin 
Management meeting. Major inflows into Devils Lake occur every spring 
after a significant snow pack, as well as after every major rain event 
during the spring, summer, and fall. Your work securing funding for 
LIDAR coverage of the Devils Lake Basin has made it possible to rapidly 
assess where the best opportunities exist for upper basin water 
retention expediting steps to relieve the ongoing flooding situation at 
Devils Lake as soon as possible.
    Both Devils Lake and the Sheyenne River are being taxed to their 
limits. Unless ways are found to control the faucet, the problem will 
continue to grow in complexity and severity. The Sheyenne River and its 
biota are a highly valued natural resource that provides much 
recreation to fishermen, hunters, sightseers, and birders throughout 
its length in the State. The value of the River is reflected in its 
designation as a scenic byway along some of its most unique sections.
    On a much broader scale, similar water storage efforts are needed 
in upper parts of watersheds across the entire Red River Basin to help 
stem the serious flooding problems that now occur almost annually in 
the Red River Valley. A comprehensive program increasing upper basin 
storage throughout the Red River Basin can enhance many societal values 
including not only flood mitigation but also provide water quality 
improvements, ground water recharge, reduce erosion, carbon 
sequestration, and provide wildlife habitat while supporting an 
important recreation and tourism industry. Such a program needs to be 
balanced, providing adequate compensation and consideration of needs of 
upper basin landowners, while at the same time protecting the lives, 
property, and quality of life of both rural and urban residents living 
downstream.
    We appreciate the opportunity to provide comments to the hearing 
record and stand ready to assist in any way we can to ensure the highly 
valuable natural resources threatened by the current flooding situation 
remain available to present and future generations of North Dakotas.
                                 ______
                                 
          Prepared Statement of Andre DeLorme, Valley City, ND
  concern about the proposed changes in the devils lake outlet permit
    I would like to express my concerns to the plans to increase the 
flow of the Devils Lake outlet as well as increase the allowable limits 
of sulfates in the river. These decisions have been made with very 
little preliminary study and are based more on political pressure than 
on scientific examination of the situation. While there is definitely a 
problem in the Devils Lake Basin, this solution will have very little 
effect in the short term and will possibly cause more harm than good. I 
will limit my testimony to the effect on the river biota. I am an 
aquatic biologist with considerable experience working on the Sheyenne 
River.
    The Sheyenne River has one of the most diverse populations of 
organisms in the State of North Dakota. Not only does it have a rich 
diversity of fish species, it also has numerous types of aquatic 
macroinvertebrates including the most diverse populations of mussels of 
any river in the State. There are 7 species of mussels in the upper 
Sheyenne and up to 10 in the lower Sheyenne. This is two to three times 
the number seen in other mid-size rivers in North Dakota. Mussels are 
important as water filters and biodiversity sentinels. I feel that 
these populations will be threatened to some extent with the increase 
of Devils Lake water into the Sheyenne via the Devils Lake outlet. I 
see the increase to 250 cfs for the outlet as having two main effects 
on the Sheyenne, high water levels and high dissolved solids.
    Rivers have a seasonal ebb and flow, they have high flows during 
the spring and low flows in late summer and early fall. Rivers also 
have changes in populations as you move downstream. Rivers gradually 
increase in size and discharge the further downstream, these changes 
provide differing habitats and lead to different assemblages of 
organisms. In the case of the Sheyenne, you would not expect the same 
assemblage of organisms in the river near Warwick as you would find 
near Kindred, which is located much farther downstream. In the upper 
Sheyenne flows are usually below 60 cfs in late summer-early fall. By 
running the outlet at 250 cfs you will be changing the dynamics of the 
river in the upper Sheyenne. Population assemblages adapted to low 
flows in the fall will no longer see those low flows. In fact, at 250 
cfs you will have flows that are even higher than what is normally seen 
at Kindred during this time of the year. I feel this change in flow 
will change the assemblage of organisms over time in the upper Sheyenne 
River. If you take this stress on the environment due to erosion and 
scouring and couple it with increased dissolved solids, the cumulative 
effects could be devastating.
    All aquatic organisms can be susceptible to high dissolved solids. 
They place a metabolic load on ion transport systems and can interfere 
with reproduction. It is up for debate as to what levels of dissolved 
solids, and sulfates in particular, are toxic to aquatic organisms. The 
currently proposed new standard for sulfates is well under the known 
acute toxicity for most organisms to sulfate. However, acute toxicity 
addresses the short term affect of these levels on an organism, 
basically it addresses the question of ``does this directly kill the 
organism''. A more difficult question is what are the chronic 
toxicities for aquatic organisms? Since this is a long term proposal, 
organisms are going to be exposed to these for long periods of time. 
Unfortunately there is not a lot of data for sulfates on that question. 
I have been told there is a rough 10 percent rule, that you will see 
chronic effects at 10 percent of the acute toxicity levels. This would 
indeed put the chronic toxicity levels in the realm of 750 mg/L for 
many aquatic organisms. There should be a wide range of chronic 
toxicity tests done on desirable species such as mayfly larvae, 
caddisfly larvae, and mussel species before we can truly say what is a 
safe, chronic level for sulfates. To my knowledge those studies have 
not been done.
                                 ______
                                 
            Prepared Statement of William Moore, Rogers, ND
    devils lake outlet and upper basin storage resulting in harm to 
                             sheyenne river
    Due to the lack of accurate data on the impacts of the operation of 
the Devils Lake and the minimal effect on reducing the rise of the lake 
and the outlet should not be operated. At the least if it is not shut 
down it should only be operated under the conditions of the original 
permit.
    This is not an emergency and the rising level of the lake is not 
justification for adversely impacting the Sheyenne River. The North 
Dakota State Health Department is mandated to act in the public 
interest to protect, maintain, and improve the quality of the waters in 
the State (NDCC 61-28-01).
    Increasing the outlet flows will seriously degrade the Sheyenne 
River. In North Dakota, water management (mismanagement) has 
historically been to pass water problems (quantity-quality) on to 
others. This is not acceptable.
    Before considering increasing the output of the outlet beyond the 
current permit standards, much more accurate data is needed. At this 
time sulfate levels have been the main consideration in the permitting 
and operation of the outlet.
    The State health department and State water commission have acted 
more as political entities rather than objective scientific bodies 
basing decisions on accurate data. For this reason a thorough, accurate 
EIS conducted by independent out-of-state experts is needed. This 
position is supported by the Barnes County Health Board, the Barnes 
County Commission, and more than 700 concerned citizens in a very brief 
petition drive.
    Some of the areas where accurate information is needed are:
  --Impacts of water quality in Lake Ashtabula and the Sheyenne River 
        (sulfates, phosphates, mercury, arsenic, chlorides, and others)
    --U.S. Fish Hatchery at Valley City
    --Water treatment costs for Valley City and Fargo
    --Biota
    --Recreation
  --Impacts of Increased flows (Quantity and Timing)
    --Summer Flooding
    --Biota
    --Bank Erosion
    --Sedimentation
  --Serious consideration of upper basin water management and storage
  --Management of the outlet and Baldhill Dam: Will it be the Corps of 
        Engineers or the State Water Commission
  --The allowable level of sulfates in Lake Ashtabula
  --The amount of water that would be removed from Devils Lake
  --The cost and effectiveness of armoring the Tolna Coulee
    Thank you for this opportunity to provide testimony.

                                   - 
