McCain Introduces Devils Lake North Dakota Amendment

AMENDMENT NO. 214

Mr. McCAIN. Mr. President, I send an amendment to the desk and ask for its immediate consideration. The amendment is numbered 214.

The PRESIDING OFFICER. The clerk will report.

The legislative clerk read as follows:

The Senator from Arizona [Mr. McCAIN] proposes an amendment numbered 214.

Mr. McCAIN. I ask unanimous consent to dispense with the reading of the amendment.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:

(Purpose: To require completion of the feasibility study required by Public Law 105-245, and the other requirements of that law relating to construction of an emergency outlet at Devils Lake, North Dakota, before any appropriated funds are spent for the project)

On page 262, beginning with "That" in line 2, strike through "State," in line 24, and insert "That the Secretary of the Army, acting through the Chief of Engineers, may use up to $5,000,000 of Construction, General funding as provided herein for construction of an emergency outlet from Devils Lake, North Dakota, to the Sheyenne River except that the funds shall not become available until completion of the feasibility study required by Public Law 150-245, for the continuation of which the Secretary may use $500,000 of such funding, and except that the funds for such construction shall not become available unless the Secretary of the Army determines that an emergency (as defined in section 102 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122) exists with respect to the emergency need for the outlet and reports to Congress that the construction is technically sound, economically justified, and environmentally acceptable and in compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.): Provided further, That the economic justification for the emergency outlet shall be prepared in accordance with the principles and guidelines for economic evaluation as required by regulations and procedures of the Army Corps of Engineers for all flood control projects: Provided further, That the economic justification be fully described, including the analysis of the benefits and costs, in the project plan documents: Provided further, That the plans for the emergency outlet shall be reviewed and, to be effective, shall contain assurances provided by the Secretary of State, after consultation with the International Joint Commission,".

Mr. McCAIN. Mr. President, as soon as the Senator from Minnesota arrives in the Chamber, I intend to propose a time agreement so we can dispense with this amendment. I would like to consult with cosponsors before we do. I don't think this issue needs to be debated very long. But I will propose a time agreement very shortly.

I offer an amendment to a provision of a bill regarding a project to construct an outlet in Devils Lake, ND. The project is very controversial and its impact extends well beyond North Dakota into Minnesota, Missouri, and Canada. I am pleased to be joined in support of this by Senators Dayton and Coleman.

The outlet from the landlocked lake allows contaminated water to flow into neighboring waterways, causing the introduction of invasive species.

I ask unanimous consent to have letters of support be printed in the RECORD.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

FRIENDS OF THE EARTH; MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY; NATIONAL AUDUBON SOCIETY; NATIONAL WILDLIFE FEDERATION; SIERRA CLUB,

January 22, 2003.

Re McCain-Dayton Devils Lake Amendment to the Omnibus Appropriations Bill.

U.S. Senate,

Washington, DC.

DEAR SENATOR: On behalf of our conservation organizations and the millions of members and supporters we represent, we urge you to support the McCain-Dayton Devils Lake amendment to the Omnibus Appropriations Bill for FY 2003. That amendment would remove an anti-environment, anti-taypayer rider authorizing the Devils Lake "Emergency" Outlet project in North Dakota. The rider waives the standard requirement that the project's benefits must exceed its costs and changes current law to weaken international consultation requirements with Canada.

Far from a parochial state issue, the rider would authorize a bad precedent-setting out-of-basin water transfer and a key element of North Dakota's longstanding and highly controversial Garrison Water Diversion Plan. The States of Minnesota, Missouri, and the Great Lakes Commission all oppose the Devils Lake project. So too do the Canadian Government and the province of Manitoba.

The Bush Administration did not request any funding for the Devils Lake outlet and the Army Corps of Engineers has delayed issuing a Final Environmental Impact Statement for the project, citing the need for additional analysis of the project's environmental impacts in the U.S. and Canada. The Corps has also calculated that the project benefit/cost would only generate 37 cents of benefits on the dollar based on the region's hydrologic record.

Because Devils Lake has no natural outlet, it contains high concentrations of salts, dissolved solids and other pollutants. Pumping the lake water into the Sheyenne River, which flows to Minnesota and Manitoba, would take a dramatic toll on water quality downstream—with serious impacts on people, wildlife and the environment that could reach through the Red River to Lake Winnipeg and as far as the Hudson Bay.

Far from an "emergency," the water level of Devils Lake has actually declined over the last two years. In addition, taxpayers have already spent more than $350 million on mitigation, including buying out affected property owners around the lake. This project is not authorized and has not been reviewed in hearings before the Senate Environment and Public Works Committee. When considered through the proper channels, it will become clear that there are far better and less expensive solutions, such as restoring wetlands around Devils Lake, than transferring its water out of basin.

We urge you to support the McCain amendment, which would preserve a legitimate planning process for the Devils Lake project, honor our international treaty obligations to Canada, and protect wildlife and the environment and the affected communities in Minnesota's Red River Valley.

Sincerely,

Sara Zdeb, Legislative Director, Friends of the Earth; Peter Bachman, Executive Director, Minnesota Center for Environmental Advocacy; Bob Perciasepe, Sr. Vice President for Policy, National Audubon Society; Jim Lyon, Senior Director for Congressional and Federal Affairs, National Wildlife Federation; Debbie Sease, Legislative Director, Sierra Club.

Mr. McCAIN. The Canadian Government is so concerned that it was a leading item in recent talks between President Bush and the Prime Minister of Canada.

The provision authorizes $5 million for construction and a total of $100 million for the Corps of Engineers to have completed their feasibility study or environmental review. In fact, the Corps has indicated they do not believe the outlet would accomplish the purpose for which it was intended.

There is a letter from the Canadian Ambassador addressed to the Honorable BILL YOUNG, chairman of the Appropriations Committee that I ask unanimous consent to have printed in the RECORD.

There being no objection, the material was ordered to be printed in the Record, as follows:

CANADIAN EMBASSY,

Washington, DC, March 8, 2000.

Re Devils Lake Supplemental Appropriation.

Hon. Bill Young,

Chairman, Appropriations Committee, House of Representatives, Washington, DC.

DEAR CHAIRMAN YOUNG: I understand that you will soon be considering the Administration's request for $6.6 million in emergency supplemental funding for preconstruction activities related to the Corps of Engineers' proposed construction of an outlet from Devils Lake, North Dakota, to the Sheyenne River. I am writing to express the strong opposition of the Government of Canada and the Province of Manitoba to a project that could lead to transfers of water, potentially carrying non-native biota, including fish diseases, from Devils Lake into the Red River and Hudson Bay basin, a result that the International Joint Commission concluded in 1977 could have "irreversible and catastrophic" consequences for Manitoba's commercial fishing industry.

While Canada sympathizes with North Dakota's problems with Devils Lake flooding, it cannot agree to a solution that poses a genuine threat to Canadian water resources, as well as to those of other states. There are alternative, internal solutions available to North Dakota, including the construction of additional flood protection works and the pursuit of upper basin storage approaches. Canada urges that additional funds not be provided for the Devils Lake outlet project unless and until all of the issues it raises are thoroughly addressed through studies repeatedly mandated by Congress, and following meaningful consultation with Canada under the 1909 Boundary Waters Treaty.

There is little question that an outlet to the Sheyenne River from Devils Lake would adversely affect water quality in the Red River (into which the Sheyenne flows), due to the high level of total dissolved solids, sulphates and bioaccumulation of mercury in Devils Lake water. The initial work done by the Corps of Engineers has raised serious doubts about the possibility of operating an outlet in compliance with existing US water quality standards. Water quality in the Red River at the point where it flows into Canada has already failed to meet established objectives, according to the International Joint Commission. Additional, poor quality water from Devils Lake would require municipalities which use the Red River as their drinking water source to increase their level of treatment, and incur increased costs.

Although the US Fish and Wildlife Service's preliminary review in May 1999 did not address the impact of an outlet on the Red River, it concluded that "the combination of high total dissolved solids (TDS), sulfates, and chlorides (plus unknown levels of other toxic or harmful constituents) would likely devastate the freshwater aquatic life in the Sheyenne River." The US Fish and Wildlife Service also concluded that the "introduction of Devils Lake water into the Sheyenne River will significantly degrade water quality, increase erosion and sedimentation, and result in conditions detrimental to aquatic mollusks, such as freshwater mussels, pill clams, and snails." We understand that these concerns are shared by the Minnesota Department of Natural Resources and contribute to opposition to the outlet from Governor Ventura and Senator Wellstone.

In addition to the impact on downstream water quality and its effect on aquatic species, Canada is especially concerned about the potential transfer of unknown biota from Devils Lake to the Red River. While there is some knowledge of the large fish species, very little is understood at this time about microscopic organisms in either system such as fish pathogens, viruses, etc. As you know, there are many examples of prior man-made connections between major watersheds causing severe regional and international problems because of biota transfer, including the introduction of the sea lamprey into the Great Lakes, the spread of zebra mussels to dozens of states, and the invasion by round gobies (which are displacing perch in Lake Michigan) of the Mississippi River and Missouri River watersheds. Zebra mussel management in the Great Lakes alone costs over $3 billion per year. President Clinton recognized the seriousness of this national problem last year in his Executive Order on Invasive Species. If a Devils Lake outlet to the Sheyenne River is constructed, it will provide a permanent route for existing and future non-native biota to move into the Hudson Bay basin.

From a technical standpoint, there is serious doubt that an outlet with the proposed capacity would have any demonstrable effect on the level of Devils Lake. After thorough review, the Corps of Engineers announced in a June 1999 press release its conclusion that an outlet is not the necessary or appropriate solution, at this time, and recommended a review of alternatives. Restoration of drained wetlands is one possibility. As Devils Lake has no natural outlet, its high levels may well have been exacerbated by the amount of run-off from drained wetlands in the basin.

If the proposed outlet is nevertheless constructed and found ineffective, this could result in pressure to increase the flows, thereby increasing the volume of water flowing into the Red River and Hudson Bay basin, and exacerbating future flooding and water quality problems in both the United States and Canada.

Of critical concern to Canada, Manitoba and US opponents of the outlet is the link between the Bureau of Reclamation's Garrison Diversion Unit and the stabilization of water levels in Devils Lake. It is well known that water level stabilization in Devils Lake was one of the original goals of the Garrison project. Public statements by both local government officials in the Devils Lake basin and by the North Dakota congressional delegation clearly indicate that this has been their long-term goal. While gaining an outlet to Devils Lake is their immediate objective, once water levels recede naturally following the end of the present wet cycle—as they have historically—their next goal will be to create an inlet to raise the lake level using water diverted from the Missouri River. It is important to note that less than ten years ago, North Dakota was examining proposals to construct an inlet to Devils Lake from the Missouri River because of concerns with low water levels. This objective has remained evident in State of North Dakota literature on the Garrison Diversion and on Devils Lake. This raises once again Canadian and other concerns over inter-basin biota transfer that caused such controversy over the Garrison Diversion before the 1986 Reformulation Act.

The potential for imminent overflow of Devils Lake to the Red River basin in minimal. U.S. federal agencies had concluded in 1999 that, even with the previous rate of lake level increase, such an overflow would not occur naturally for another 10-18 years, and that planning for such an event would not have to begin for another five or six years. This year, it is predicted there will be a decrease in level for the first time in several years, further supporting that conclusion. This allows sufficient time for serious and thoughtful examination of all potential alternatives and a thorough assessment of environmental impacts.

For all these reasons, Canada is very concerned that the Corps of Engineers has proposed in its Supplemental Fiscal Year 2000 request, and in its request for Fiscal Year 2001, the deletion of language contained in the last several Energy and Water Development Appropriations Acts that requires a showing of an emergency need and economic justification before construction can proceed. Canada urges that those restrictions, which among other things require compliance with U.S. environmental laws and obligations under the Boundary Water Treaty of 1909, remain intact.

I would be pleased to respond to any questions you may have regarding Canada's position on the Devils Lake outlet or the Garrison Diversion project.

Yours sincerely,

RAYMOND CHRETIEN,        

Ambassador.

Mr. McCAIN. In part it reads:

While Canada sympathizes with North Dakota's problems with Devils Lake flooding, it cannot agree to a solution that poses a genuine threat to Canadian water resources, as well as to those of other states. There are alternative, internal solutions available to North Dakota, including the construction of additional flood protection works and the pursuit of upper basin storage approaches. Canada urges that additional funds not be provided for the Devils Lake outlet project unless and until all of the issues it raises are thoroughly addressed through studies repeatedly mandated by Congress, and following meaningful consultation with Canada under the 1909 Boundary Waters Treaty.

From a technical standpoint, there is serious doubt that an outlet with the proposed capacity would have any demonstrable effect on the level of Devils Lake. After thorough review, the Corps of Engineers announced in a June 1999 press release its conclusion that an outlet is not the necessary or appropriate solution, at this time, and recommended a review of alternatives. Restoration of drained wetlands is one possibility. As Devils Lake has no natural outlet, its high levels may well have been exacerbated by the amount of run-off from drained wetlands in the basin.

I have had extended conversations with both Senators from North Dakota. I do not claim to have extensive education and expertise on this issue. I think it is serious when we have these concerns by Canada and neighboring States and there is not a cost-benefit analysis.

My friends from North Dakota point out that it is under the way in which that cost-benefit analysis is conducted. With a basin such as this, that catches water and does not release water, as happens in the case of rivers, this is very difficult, if not impossible, to do. I still believe we should be able to fashion some kind of formula to find out what the cost-benefit ratio is.

I also point out that, thanks to the good efforts of the Senators from North Dakota, $350 million has been spent in the last several years, raising highways and relocating individuals who live in proximity to Devils Lake.

There are concerns raised. I think the concerns are serious. I also assured my colleagues from North Dakota that I will send my staff out to North Dakota.

Mr. STEVENS. Will the Senator yield?

Mr. McCAIN. I will be glad to yield.

Mr. STEVENS. Will the Senator entertain a time agreement now?

Mr. McCAIN. I would like to wait, if it is agreeable to the Senator from Alaska. I understand the senior Senator from Minnesota is on his way. If you could give me about 3 or 4 minutes?

Mr. STEVENS. All right. Thank you.

Mr. McCAIN. The senior Senator, as well as the junior Senator, from Minnesota, have views on this issue. I would not like to enter into a time agreement until such time as they at least are consulted. But I am sure they would be agreeable to a reasonable time limit.

I did discuss with my colleagues from North Dakota that I sent staff out to Devils Lake to further look at this situation. I understand and appreciate their long involvement—I understand 9 years—in this issue. I would be more than willing to learn more about this issue.

At this time, I yield the floor.