Manitoba to sue North Dakota over Devils Lake outlet
Transboundary water issues
Manitoba has served formal notice that it intends to sue North Dakota unless action is taken to ensure fish are not being moved out of Devils Lake through the operation of the lake's outlet.
The Devils Lake outlet was constructed in August 2005, in an effort to ease flooding. It drains Devils Lake into the Sheyenne River, which flows into Manitoba's Red River and eventually into Lake Winnipeg. However, the outlet's current filter does not prevent foreign species of plants, fish and micro-organisms from entering Manitoba's waterways. When the outlet was constructed, the Canadian and U.S. federal governments agreed to build an advanced filter for the outlet, but did not set a firm timeline to complete the work.
It hasn't been an issue for the last two years because sulphate levels in the Sheyenne River have been below the threshold in the outlet's operating permit issued by North Dakota's Department of Health. In fact, before June 2007, the outlet only ran for 11 days in August 2005 until the sulphate levels rose and forced it to shut down.
In August 2006, North Dakota's Department of Health approved a higher sulphate threshold for the Devils Lake outlet. And, on June 11, 2007, the sulphate levels dropped enough to allow the outlet to operate. But the advanced filter has yet to be built, let alone installed.
Manitoba claims that operating the outlet without the promised advanced filter is a breach of the 2005 agreement with Washington. Neither Canada nor Manitoba was given any warning that the outlet would begin operating without the advanced filter.
Three environmental groups to join Manitoba
Three U.S.-based environmental protection groups will join Manitoba in the lawsuit: People to Save the Sheyenne, Peterson Coulee Outlet Association and the United States National Wildlife Federation.
If North Dakota chooses to continue to run the outlet, the lawsuit will be filed under the U.S. Clean Water Act against North Dakota's water commission and health department. The Act requires 60 days' notice of the intent to sue; therefore, the actual lawsuit cannot be filed until the end of summer 2007. Under the U.S. Clean Water Act, violations of discharge permits can result in fines of up to $25,000 U.S. each day.
The six-page notice of intent to sue in part states that, initially, North Dakota officials were not able "to locate or identify the size of fish shown in the pictures," that they told local press they had "checked the channel from top to bottom but couldn't find any fish." But less than a week later officials were forced to admit they were incorrect and that adult fish were being found downstream of the intake.
"The onus is on North Dakota to demonstrate adult fish did not pass through the outlet from Devils Lake," said Christine Melnick, Manitoba's Water Stewardship Minister. "So far, this has not been demonstrated, yet the state regulatory agency continues to allow the outlet to be operated."
North Dakota officials have said in the state's local media that they don't object to the advanced filter as long as North Dakota doesn't have to pay for it and doesn't impede the operation of the outlet.
Appeal also filed for new sulphate standards
Manitoba and the environmental groups have also filed an appeal in North Dakota Supreme Court against the North Dakota's Department of Health's 2006 decision to weaken the sulphate standards in Devils Lake outlet's original operating permit. These changes allowed the Devils Lake outlet to begin discharging water into the Sheyenne River in June 2007.
North Dakota has the delegated authority under sections of the U.S. Clean Water Act to unilaterally change the operating permit. Manitoba has asked the federal government to lobby the U.S. federal government to remove this authority. "Had the standards not been unilaterally weakened, the outlet would remain inoperable today as sulphate levels are above the original guideline," said Melnick. Sulphate levels are estimated to be 10 times higher in Devils Lake than in Lake Winnipeg.
This is the second appeal of the North Dakota sulphate decision. In April 2007, a North Dakota district court in the city of Devils Lake rejected the first appeal