Letter to Richard Johnson Mayor City of Devils Lake

Letter

Conrad, Dorgan: EPA Ruling Clears Way for State to Move More Water Off Devils Lake

White House says State of North Dakota has Flexibility to Address Water Quality Standards

Senators Kent Conrad and Byron Dorgan announced today that the White House has concluded that the State of North Dakota does not need approval from the Environmental Protection Agency (EPA) to move more water off of Devils Lake. The ruling frees up the state's efforts to increase controlled releases through the existing state outlet and another planned outlet for the eastern end of the lake.

Upon learning of the ruling, the Senators alerted Devils Lake Mayor Richard Johnson that the state has significantly more flexibility available to them to move more water off the lake.

"As a result of this determination, the state now has considerable and immediate flexibility to operate the outlet as they best see fit. This news is a significant step forward in allowing for additional releases off the lake from the state outlet and through an east end outlet," the Senators said.

The State had been seeking EPA approval for either a permanent change or variance in water quality standards on the lower Sheyenne and Red rivers in order to increase controlled releases. However, when pressed by Senators Conrad and Dorgan, the Obama Administration reviewed the issue and concluded that the state can proceed to move water without EPA approval.

The Administration's decision is based on a 2008 ruling that allows for the transfer of raw water within the state from one water body to another without a National Pollutant Discharge Elimination System permit.

Following is a copy of the letter sent to Mayor Johnson.

Richard Johnson
Mayor
City of Devils Lake
423 6th Street NE
Devils Lake, ND 58301

Dear Mayor Johnson:

We write to share with you important news regarding our efforts to advance solutions to Devils Lake flooding.

As you well know, we have had numerous conversations with the state in the past several months about the need to reduce the risk of an uncontrolled overflow of Devils Lake by increasing controlled releases through the existing outlet and another one planned for the eastern end of the lake. The state has maintained that the primary constraint keeping it from moving forward was a need to get the Environmental Protection Agency (EPA) to approve of a permanent change or variance in water quality standards on the lower Sheyenne and Red rivers to avoid legal challenges under the Clean Water Act.

In response to this concern, we have had numerous conversations with the Vice President and the EPA to make sure the EPA does not stand in the way of appropriate state action to move more water off Devils Lake in a controlled manner. In recent days, we have had very good news. At our request, the Obama Administration conducted a review of this question and has concluded that the EPA's Water Transfer Rule means that the state can proceed, without EPA approval, to move more water off the lake without being constrained by the current water quality standards downstream. EPA has confirmed this interpretation in conversations with our staffs. As a result, a permanent change or variance in water quality standards is not necessary.

Adopted in June 2008, the Water Transfer Rule allows for the transfer of raw water within the state from one navigable body of water to another without a National Pollutant Discharge Elimination System (NPDES) permit if the water is not altered or put to an intervening use. In response to this rule, the previous state NPDES permit for the state outlet was subsequently withdrawn. Absent the need for a permit, the EPA has indicated it has no jurisdiction or authority to enforce water quality standards set by the state under the Clean Water Act. Further, EPA has noted that the State of Minnesota would have no recourse under the Act to block releases over concerns about water quality standards on the Red River.

As a result of this determination, it is our understanding that the state now has considerable and immediate flexibility to operate the outlet without being constrained by water quality standards. This news is a significant step forward in allowing for additional releases off the lake from the state outlet and through an east end outlet.

We appreciate your leadership and look forward to our continued cooperation as we advance solutions to this disaster.

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