Proceedings of the Standing Senate Committee on
Energy, the Environment and Natural Resources
Issue 15 - Evidence - June 14, 2005
OTTAWA, Tuesday, June 14, 2005
The Standing Senate Committee on Energy, the Environment and Natural Resources met this day at 5:12 p.m. to examine and report on emerging issues related to its mandate.
Senator Tommy Banks (Chairman) in the chair.
The Chairman: I call the meeting to order. We have before us representatives from Foreign Affairs Canada and from the National Water Research Institute to talk to us about the Devils Lake drainage into the Cheyenne River and then into the Red River system and the Lake Winnipeg drainage area.
Mr. Levy, you have the floor, sir.
Bruce Levy, Director, U.S. Relations Division, Foreign Affairs Canada: Thank you very much. Senators, it is a pleasure to be here. I will disappoint you right off the bat by saying I do not intend to be very long. You have the deck, and I will go through it quite quickly. I would like to focus more on the tail end of it, namely, the efforts we have made collectively as a government and with stakeholders to deal with this question.
I might add that I was in this building a few weeks ago speaking to some university students and, by way of introducing the subject of U.S. relations, asked them what issue they thought took most of the time of Canada-U.S. negotiators these days. Nobody guessed Devils Lake, but that, in fact, is the right answer.
It has been a very busy three months or so on this issue, but that is not to suggest that it has only been the last three months. This is an issue that has — forgive the terrible pun — bedevilled us for years, for far too long, but with some luck and a lot of hard work, we may get it resolved in the near future.
This deck is abridged from a larger presentation that was made recently by federal officials to the U.S. Council on Environmental Quality, which is the environmental arm of the White House. That is a small good-news aspect to this story at this point, which is that we do have White House involvement. That is where much of this comes from.
We begin by stressing the obvious, that anybody who looks at the map, or who lives or travels in either of our countries, knows the essential nature of cooperation on bilateral transboundary water issues. A remarkable percentage of the border, more than many people think at first blush, is made up of water.
The Great Lakes, of course, are a primary source of the world's fresh water. Recognizing that reality, leaders in both countries established the Boundary Waters Treaty and, with it, the International Joint Commission, both of which are coming up to their 100th anniversary, and from our perspective we wish them long life.
The IJC has become a tested and reliable vehicle for resolving disputes, but, because the headlines can be misleading, I would stress to you that the IJC is not just about resolving disputes. In fact, day-to-day, its duties revolve around a whole range of water management issues that do not get into the headlines but are incredibly important to both countries. Many of you have probably interacted with some of the bodies that report watershed boards. Colleagues here could talk more about that.
Looking to the future, there is no sign at all that the importance of water issues, which led us to create the Boundary Waters Treaty, will diminish. It is quite the opposite. There is an assumption that water issues will become more important to both countries and that there will be an obvious need for an effective mechanism to resolve the disputes that will arise.
That was recognized by the three leaders of North America when they met in Texas on March 23 and very intentionally inserted into the communiqué a reference to water quality and, more important, to the International Joint Commission specifically.
Turning to Devils Lake itself, the situation that has us all here today, the water level is a real issue in North Dakota. I would not want to suggest that it was not. We are sympathetic to their plight, which at this point is twelve years of rising levels, creating real hardship. There is agreement on the problem; there is far from agreement on the solution, although the solution is identified. An outlet is needed, but an outlet is incredibly controversial, and not only because of its potential effects and the risk involved.
For the sake of shorthand, I will frequently refer to Canada; when I do, I will also be including the province of Manitoba and all stakeholders on both sides of the border, including the state of Minnesota and very prominent NGOs and Aboriginal groups.
The issue is not just disagreement over the risk involved. If you could magically solve the risk question, there is still a serious doubt on the part of many as to whether an outlet is even an effective solution.
There are all sorts of facts on both sides that are batted about and disagreed on. We acknowledge that. There are a number of facts that nobody can really dispute, which is that there has been no specific environmental assessment on the state outlet project. North Dakota, in order to justify going ahead, has relied on data from a different federal project that was in play a few years ago.
Senator Milne: What is EIS?
Mr. Levy: Environmental impact statement.
Even when relying on data from a different project, North Dakota has chosen to ignore the findings from the process that were not supportive of its cause.
I will not go into the specifics about the state outlet project, although any of my colleagues would be happy to answer your questions about the various risks involved, and about the science of biota transfer and water quality impacts, as well as the socioeconomic impacts.
This is the point that we are making: Given that there is an obvious disagreement on what is at play here, what do you do in any field of endeavour, if you have a disagreement? You go for someone objective to arbitrate. That is essentially what we would like to see the IJC do.
The Chairman: Did Canada ever refuse a reference to the IJC in the first instance when the U.S. Army Corps of Engineers was proposing this?
Mr. Levy: The technical answer is no, we did not refuse. In 2002, we said that the request at that time was premature because it was for a different project than this one. It was for a federally funded U.S. Army Corps of Engineers project.
Our reason was very simple. There is a tradition between the countries that we do not invoke the IJC on dispute resolution or recommendation until we are satisfied that domestic processes that exist have been exhausted. In that case, they were still going through their domestic process and environmental assessment.
In a sense, we were saying, ``Go to the IJC, but wait until there is a final proposal to present to the IJC.'' It seems the U.S. were hopeful that they would get our agreement to use the IJC to almost design the project for them and to suggest that: ``What is on the table does not work very well; here are some recommendations.'' Manitoba, among others, would have had some difficulty with that.
In effect, we said, ``Not at this time. Finish your environmental assessments, and then we can talk.''
Senator Buchanan: Who made the request?
Mr. Levy: The U.S. Department of State on behalf of the U.S. government.
The Chairman: I want to make sure we all understand this. We did not say, ``No.'' We said, ``Not right now.''
Mr. Levy: We said it was premature. Even the U.S. folks trying to use that against us acknowledge that that was the wording used.
The Chairman: That was on a project different from this one?
Mr. Levy: It was on a federally mandated project to be done by the U.S. Army Corps of Engineers.
The Chairman: That is the one that found there was a likelihood of problems downstream?
Mr. Levy: It suggested a range of mitigation measures,which now are being ignored. The reason they are being ignored is that the mitigation measures imply considerable expense. Even though it was a federal project, North Dakota would have had to pay a third, which just for North Dakota would have amounted to $70 million or $80 million, and probably more.
Page five of the deck outlines what I think many of you already know instinctively, that Lake Winnipeg is at risk here, in our view. It simply describes the lake as the tenth largest fresh water lake in the world, a big commercial and sports fishery involving Aboriginal Canadians, a predominantly big tourism industry, and a big source of drinking water. That establishes what is potentially at risk.
I would like to move to the subject of an IJC reference now. It is safe to say, maybe with an understatement, that North Dakota and Manitoba do not get along too well on this issue. This has made dialogue at this stage very difficult. Therefore, North Dakota very quickly moved to suggest that our request for a reference at this point was nothing more than a delay tactic.
The Chairman: That is correct.
Mr. Levy: You may say that, sir. I think that is a deeply held belief. It is not just rhetoric. There is, unfortunately, deeply rooted suspicion on both sides with reference to this issue.
You will hear various accusations, including that we have come at this as a last-moment request because we were searching for means to delay. That ignores the fact that we started asking about this projected state outlet as far back as 1999 and regularly thereafter.
I personally sat in meetings where U.S. Department of State officials assured us that any outlet proposal, federal or state, would have to adhere to the Boundary Waters Treaty. Based on those assurances, we hoped that we would eventually get a reference, if it came to that.
Lower down on the page, we speak to the question you just asked about the alleged refusal to pursue a reference in 2002, and anotyher point made on this page, which has received a lot of publicity, is that Governor Hoeven of North Dakota in particular likes to say that on top of everything else, the IJC takes an average of eight and a half years for a reference. That is something that he might be able to defend legally based on one reference that is still technically open 80 years later. However, the IJC in recent years has done references in one year, six months, and even less. The bottom line is that the IJC is an instrument of governments, and governments would instruct the IJC on the terms of reference, including when they wanted to get a report back.
As further evidence of our own good faith, I would add that we spoke to the IJC about two months ago, asking this question: ``If we ever get to the stage of being able to agree on a reference with you folks, could you carry out a credible reference in a maximum of a year?'' The Honourable Herb Gray and his U.S. counterpart were in the room, and both agreed with that.
That takes us to what we have been doing as a government to try to fight the good fight.
Essentially, we were stalled about six months ago. Repeated requests from the foreign minister that they agree to a reference on Devils Lake had been turned down, although not formally. We were told unofficially the reason they were being turned down was that there was nobody willing to take on the fairly daunting power of the two senators from North Dakota. They have a willingness to go to the wall on this issue and a willingness to block appointments, which they have done in the past on related questions. One or both sit on the appropriations committee, which is a pretty powerful body.
Essentially, we have lots of support in the U.S. for our position, including other senators, but to this point they have not been willing to exert the same muscle that the senators backing the outlet are willing to do.
We had been told pretty candidly from the Department of State that we were not going to get the reference. We were told pretty candidly as well that, if we had any hope, we were going to have to raise the political pressure. Essentially, that is the message we got around Christmas, and we have been trying to follow up on that ever since.
In our collective experience dealing with Canada-U.S. issues, the advocacy page speaks of an unprecedented campaign that most recently includes your own letter, I think, Senator Banks, to enlist pretty much every avenue that we can: Press every button, call every number and do op-ed pieces — and there was a good piece under Ambassador McKenna's name in the New York Times — in an attempt to up the pressure. I am perhaps not an entirely objective observer, but I have to say that it has worked, if we measure from six months ago, when the Department of State was saying, ``Forget it,'' to the stage we are at today, where the CEQ, the White House's environmental arm, is directly engaged, and that is on express orders of the president. It does not offer any assurances as to outcome, but at least it tells you that the dialogue is in the right place.
The Chairman: We heard a good suggestion last week that a useful approach might be to go to the State Department and say, ``We have these two mining projects coming up in British Columbia, and you have this one in Devils Lake. Let us refer all three of them to the IJC now, or not.''
Has any of that leverage been applied, the implied but very courteous threat being that, if you want things to be looked at on this side of the border, you also have to look at things on that side of the border?
Mr. Levy: Indeed. The answer is yes, but from a slightly different angle. The point that we have been trying to make in the U.S. and, in particular, to Senator Baucus, our good friend from Montana, who is one of the biggest proponents of an IJC reference on the Flathead issue in B.C., is not to make any threats here, but to say, ``How strong will your case be when you come to us for a reference on this issue, which British Columbia dearly would not want to have a reference on, if you have stiffed us on Devils Lake?''
I think that is the answer. I might be speculating here somewhat, because there could be discussions that occur politically of which I am not aware. I would say, as a factual matter, the politics internally in both countries would be pretty difficult around that kind of deal.
The Chairman: Has Senator Baucus replied?
Mr. Levy: Senator Baucus has written internally in his own system to request a reference on Flathead.
The Chairman: What about on Devils Lake?
Mr. Levy: Not on Devils Lake that I am aware officially. On the issues in B.C., it is a little bit like in 2002. Devils Lake is ready to pour water next week or the week after. Flathead is still very much at a preliminary stage with all sorts of environmental hoops to go through in British Columbia. You might well get to a reference, but the timing does not quite jibe.
Senator Adams: You mentioned Devils Lake and the negotiation between the U.S. and Canada. Do the Americans understand that we are concerned about Aboriginal harvesting and fishing and hunting? How does the system work between Canada and the U.S. with Aboriginals?
Mr. Levy: I will let my colleague answer that because he has been very much involved with a group that we call allies on both sides of the border. He has burned up a lot of watts in line time in speaking to them over the months and years.
We did have an exchange, as part of this advocacy campaign, with Phil Fontaine asking for his involvement, and he agreed to get involved. I will ask Mr. Fawcett to speak to the specifics.
Mr. Peter Fawcett, Deputy Director, US Relations Division, Foreign Affairs Canada: I will start by saying that the Assembly of First Nations accompanied Premier Doer to Washington this spring and made an effective presentation. The premier took a number of representatives with him, including: the Minister of National Resources from Ontario; the Minister of the Environment from Quebec; Mr. Phil Fontaine, and the Chairman of the Great Lakes Commission. In their calls in Washington, they gave a very strong message to the State Department, to the White House, to the EPA and others in terms of our messaging.
We also have a group of local NGOs in North Dakota that are very concerned about this issue as well, including the Spirit Lake Band and the Red Lake Band. They have provided information as to the impact it would have on their communities as well.
We do have, as Mr. Levy has mentioned, a strong group of concerned organizations that have all weighed in on this issue.
Senator Adams: I do not know much about Devils Lake. Are you talking about reversing water to the States? My concern is that sometimes the people there are doing traditional hunting and fishing. If anything happens in the future, do the Aboriginals have a guarantee? I want to be sure of the system. How is it guaranteed to happen? What sort of agreement is there between the Aboriginals in Canada and those in the United States? If Aboriginals have been living there for so many years, hunting and living off the fish in the lake, and other people are using Devils Lake too, what effect will the project have on them? And what exactly is the project you are talking about? Are you saying that they will sell to it the United States or that the United States is taking it? What is the agreement between the United States and Devils Lake?
Mr. Fawcett: I will ask Mr. Carey to address the issue of the impacts on downstream waters from an environmental perspective.
This is an issue of draining water out of a stagnant lake. There is no natural outlet from Devils Lake. There has not been a survey of biota in this lake. That is the big question mark for us right now. We are concerned about the risks associated downstream to all communities who live down stream, but particularly for Lake Winnipeg, because that is where the water will eventually stop or be deposited and any foreign biota will stop. That is what our particular concern is.
Mr. John H. Carey, Director General, National Water Research Institute, Environment Canada: First, I will give a few descriptions of Devils Lake. As Mr. Fawcett said, it is a stagnant body of water. It is a higher elevation relative to most of the surrounding basin. Most of the time, over the last 10,000 years, it has not actually discharged. In fact, there has not been a natural discharge to the river for about 1,000 years. At various times during those 10,000 years, the lake has actually been completely dry. In fact, in the last century it was dry in the 1940s. There is a rather large drainage basin, and the water in that basin flows down into the lake; the lake has no outlet, so the water evaporates.
Since most of the water comes from the drainage basin to the west, the water quality in the eastern end of the lake is actually quite salty. That causes some concern for us, in that, if that water were to be discharged, certain water quality objectives in the Sheyenne River, and ultimately in the Red River, would not be met.
Moreover, because of the salty nature of the lake and the fact that it was dry, and because many biota stocked up there after the water returned, the ecosystem does not look quite the same as the rest of the drainage basin. We are concerned that there may be biota there that would be invasive if they reached Lake Winnipeg and would damage Canadian interests.
It is up to the Americans to control impacts in American rivers, but the Boundary Waters Treaty says that neither party will undertake projects that cause harm to the other country. What we would be concerned about is harm to Canadians, including Aboriginal fisheries. That would be another evidence of harm, and the Americans are well aware that that would be one of our definitions of harm. It is recognized.
Senator Milne: I am interested in rivers that flow in both directions. The only ones I know that do are tidal. Will the biota from Devils Lake, if it reaches Lake Winnipeg, then migrate upstream?
Mr. Carey: Devils Lake is upstream.
Senator Milne: It will drain out through the Cheyenne River and the Red River into Lake Winnipeg. Then will it migrate from Lake Winnipeg up to the divide in the Rockies?
Mr. Carey: Certainly, if it was fish, it would. That is the potential. We do not actually know. It depends on the biota, but it is worth remembering that the Lake Winnipeg drainage basin is most of western Canada. It is Alberta, Saskatchewan and Manitoba. If that could happen, and I cannot say that it will; we have Tobin reservoir, there are dams blocking it and there are other factors to consider.
Senator Milne: There are boats that go up and down rivers.
Mr. Carey: There is the potential. The problem we have with respect to biota is that the corps, in their statement, although they concluded they did not know of a risk, did identify some species that they thought were potentially invasive. They said that there has not been a comprehensive enough study done of the biota in Devils Lake.
Senator Milne: Who are ``they?''
Mr. Carey: The U.S. Army Corps of Engineers, the people who proposed the original project. The project that was originally proposed or talked about was three times the size of the current one.
Senator Milne: Mr. Levy, you spoke of the environmental hoops you had to go through in the early days of the Flathead proposal. Is that not the problem we have right here? The Americans, with the Devils Lake proposal, are absolutely ignoring all those environmental hoops to go through.
Mr. Levy: That is right.
Senator Milne: We turned down an opportunity that we had in order to have at least an oar in the water.
Mr. Levy: There are a couple of points on that. You mention the Flathead proposal. There are no hoops at this point being ignored there. They are going through the hoops, and this is part of our problem.
Senator Milne: But then we are Canadians and we are nice.
Mr. Levy: We are good guys. My problem is I have American relatives.
Senator Milne: Me too.
The Chairman: So do I.
Mr. Levy: If somebody could have given me a crystal ball four years ago and said that this was the course that the U.S — or North Dakota, in this case — would take, who knows? We certainly would have factored in the discussion. However, at the same time as we were having this proposal for a reference on a different proposal — same lake, but a different proposal and radically different quality issues and different sizes — at the same time as they were giving us that proposal, they were also telling us across the table not to worry about the state project, which frankly seemed a little far off at that time. They were all saying, ``Don't worry about it; we are telling you that it will be forced to adhere to the same standards as the federal project.''
Did we miss an opportunity? You could argue it that way. However, given the situation at the time, I think it was a reasonable response for Canada. It may be a distinction that is being lost in the debate, but we did not refuse it. We simply said, ``Finish your environmental process so we know exactly what we are talking about.''
Senator Milne: It is pretty discouraging when they, in effect, said, ``Don't worry about it and we will guarantee that the state project, if it goes ahead, will conform to the same environmental aspects,'' and it has not.
Mr. Levy: It is discouraging.
Senator Milne: What are they doing about it, if they said that it would have to conform and it has not?
Mr. Levy: Given the very difficult political situation that they have related to these two senators, and the ambitious domestic agenda that the president has, for which he needs help, they are choosing to accept, with more faith than we would, the research or the data that North Dakota is citing in support of this outlet.
Senator Milne: There is some research and data that they are citing?
Mr. Levy: There always is. Our argument is that it is not the essential, basic environmental assessment related to this specific project.
Senator Milne: At this point, other than writing letters and contacting people, as you have done, Mr. Chair, what can we do?
The Chairman: We will discuss that in a minute.
Senator Milne: We can holler and wave our arms.
The Chairman: We can do that. We could jump up and down and stamp our feet.
I will read out some statements, which are at the moment unattributable but represent a different position. I would like you gentlemen, in whatever order, to comment on them. Please make notes as you go along, because I cannot distribute this material. There are a number of statements that I want to get your response on, if I can, please:
Contrary to frequent statements by Canadian officials, several environmental studies of water quality and biota at Devils Lake have been done by state and federal agencies in the United States. These studies are publicly available.
Devils Lake is a sub-basin of the Red River of the north. It lies entirely within the Red River basin but at current water levels has no natural outlet to a river. Devils Lake spills into the —
I will not give you that part because it is immaterial.
Devils Lake hosts a world-class fishery, attracting anglers from across North America and around the world. It is also a prime habitat for many species of migratory birds.
I will find one more that I would like you to comment on.
There is a pilot project now under way to use Devils Lake water for irrigation.
Senator Milne: That would be a darn good idea. Get rid of it that way.
The Chairman: There is one other statement I am looking for especially, one that says there is a natural flow.
A natural surface water connection to the Red River basin has been documented in 1997, 2003, 2004 and 2005. At this location on the northeastern edge of Devils Lake basin, water was documented to be flowing from the Devils Lake basin into the Pembina-Red River basin at a flow of approximately 15 cubic feet per second.
Also, for members' information, this statement contendsthat 89 per cent of the Red River basin is in the United States, 47 per cent being in North Dakota, 41 per cent in Minnesota and one per cent in South Dakota, while 11 per cent of the Red River basin is in Manitoba. According to a 2002 study, the United States contributes 65 per cent of the nitrogen and 60 per cent of the phosphorus in the Red River, which eventually flows into Lake Winnipeg with the rest of the nutrients largely coming from Manitoba. That means that Canada is putting roughly 4.5 times more nitrogen and 5.5 times more phosphorous into the Red River per square mile, given those percentages earlier, than is the United States.
Mr. Levy: Senator, my colleagues are itching to get at you. I will say two things by way of introduction and then hand off to people who know much more about the matter. Number one, it will not surprise you to know that we could tell you exactly who said each of those statements. We have become very familiar with them.
The Chairman: I want to be clear that I did not.
Mr. Levy: I understand. The second point, which I do not make only as a point of rhetoric, is that, when we do get some of these statements from North Dakota or the proponents, we say, ``Great. Therefore, you should have no objection to putting this to the IJC for an objective assessment.''
I will ask Dr. Carey if he wants to tackle that and then others can wade in, so to speak.
Mr. Carey: With respect to the water quality studies, if you are talking about chemistry, I would agree that there are studies of chemistry available that are probably sufficient for us to have some confidence that we might know a range. I have to say, however, that the range in just sulphate concentration from the eastern end of the lake to the western end of the lake is at least five-fold. The same is true for total dissolved solids. Excuse me, I got that backwards. It is lower at the western end than at the eastern end. The in-flow, the natural water from the drainage basin, comes mostly from the west. The sulphate concentration at the eastern end, at the high end, is more than 10 times the IJC water quality objective that we would apply at the border in the Red River.
With respect to the chemistry, however, we know that one's modeling does depend on where the water is actually taken out. That is why you really need a specific project proposal. You cannot just say that you will take it from somewhere in the lake and do a reference, and would that be okay? That is one of the reasons why we waited for a specific project proposal, as opposed to a design-based study, before considering a reference. We normally require a specific proposal so that we can do the impact study, and not design the project as part of the reference.
If you are talking about biota, however, I am not so sure that I would agree with that. I do not think the army corps of engineers in their impact statement agreed with that. They did indicate that they had seen some species that were potentially invasive, but they also indicated that comprehensive surveys had not been conducted. Therefore, it depends on what you mean by water quality studies. If you mean chemical water quality, I would agree. If you mean aquatic ecosystem, in terms of potentially invasive species, I do not think we agree.
The Chairman: For our information, from which end of the lake will the ditch lead into the Cheyenne River?
Mr. Carey: The state project is from the western end.
The Chairman: Is that the less concentrated sulphate?
Mr. Carey: Yes. I already indicated that I do not characterize this as an inter-basin transfer in the same way as the Missouri to the Hudson Bay drainage basin is. For me, an intermittent basin is still a part of the basin.
As to the fishing, I have not been there and I cannot comment on whether it is a world-class fishery or not. I do not know your definition of a world-class fishery.
The Chairman: It is not my definition.
Mr. Carey: The lake was completely dry in the 1940s and has been stocked since then. Perhaps there are different definitions of ``world class.'' I do know that they are attempting to have a sport fishery in the lake and they do attract people.
I cannot answer the question about whether there is a serious project for irrigation. I have heard some folks talk about that.
The Chairman: Just so we are clear, are you saying that this is not a transfer of water into a basin to which that water is alien?
Mr. Carey: I am saying it is not an inter-basin transfer. We have a policy that says we do not transfer water out of its basin. I am saying that the water in Devils Lake is part of that Hudson Bay drainage basin. That does not mean we do not have concerns about its quality or the biota in it that would indicate to us that something ought to be done before it is discharged. That does not mean that at all. It means I am not comfortable characterizing that project as an inter- basin transfer that violates our policy against inter-basin transfers. I do not personally use that argument.
Mr. Fawcett: If Devils Lake were in Alberta or in western Canada generally, we would call it a slough. That is what this is. Water drains into it, water does not drain out of it. It is an inland lake that has been growing in size.
The Chairman: Is it a great big slew?
Mr. Fawcett: Yes. The reason it has got to be so large, and the single largest contributing factor to the flooding and the growing size of Devils Lake, is the ploughing of wetlands. In the Devils Lake basin region estimates of upwards of 300,000 acres have been ploughed up. Guess where that water goes? It goes into a very flat flood plain. Each inch of water that comes in causes it to spreads quite a distance.
That is the situation in which we find ourselves. Generally speaking, water in Devils Lake is not suitable for irrigation, as Mr. Carey has said. It is very salty and has other contaminants. It has never been used for irrigation.
There is now a 400-acre pilot project in the upper basin to try to use this water for irrigation, but that is not going to solve the problem of flooding in Devils Lake, because 400 acres will not take up much water. Moreover, if you think about it, you need water for irrigation when the land is dry, not when it is wet. When it is dry, Devils Lake will be shrinking at that time, and when it is wet, and the lake is expanding, there will not be a need for water for irrigation. So irrigation really is not going to be a means of addressing flooding in Devils Lake. At any rate, iIt is simply a pilot project to see if some of this can be used for irrigation.
As to the other issue, that North Dakota has said its strategy in terms of dealing with flooding is to try to protect the infrastructure surrounding Devils Lake, certainly we are sympathetic to that. The federal government in the United States has contributed $300 million to $400 million U.S. to deal with the flooding problems. However, the only real solution to dealing with the problem has been this outlet. They have not attempted any measures to deal with what we call ``upper basin storage,'' to try to get water back into the wetlands and back into the upper basin to reduce the amount of runoff that goes into Devils Lake.
Mr. Carey: As I said, I have not heard about the irrigation project. With respect to this natural connection, I just heard about this last week and I have not had time to personally investigate it. When I asked some of our staff about it they indicated to me that, yes, there is some exchange of water in the late spring up in the headwater wetlands, when runoff is occurring and there is some potential exchange. That is the condition that is being discussed. That is up in the basin at the higher elevations during snow melt and in wetland areas. That is quite different from the situation down at the lake in the saline part of the lake.
The Chairman: If it is part of the Hudson Bay basin, then one assumes that at some point water flowed from it into the Hudson Bay basin. How long has it been since that was the case?
Mr. Carey: I wish I could go back and look at some notes, but, as I recall the history, since the last glaciation, in other words within the last 10,000 years, there have been in the order of five to 10 times that there was a natural outlet. I think the number is five, or it might be four, but it is some very low number of times that there was a natural outlet, and those were in times of very high flow. To get to a natural outlet from where they were at the time of their study would require 21 more back-to-back wet years. The water would have to rise another seven feet and spread out even more. It is not a credible scenario for the current climate. The last time there was a natural discharge appears to have been more than 1,000 years ago.
The Chairman: Gentlemen, before I go to Senator Gustafson, would you like to provide us with more answers?
Mr. Carey: The last point has to do with relative nutrient loadings. It is well recognized in Manitoba that they have nutrient problems in the lake. They have a nutrient management plan which they are trying to implement in Lake Winnipeg. They have asked for and will be receiving federal participation in studies to determine what they need to do in Manitoba to control and reduce their nutrients. Their target is to get the nutrients in Lake Winnipeg back to 1970 levels.
As part of that, there is a proposal to fix loadings of nutrients at current levels at the border so that inputs along the Red River would, through agreement, not increase beyond where they are now.
It is clear that the contribution from Devils Lake, should the outlet go at 100 CFS, would increase the loadings beyond what they are now and cause further aggravation to the system in Lake Winnipeg. I have heard David Schindler compare it to Lake Erie in the late 1970s in terms of its seriousness.
The Chairman: Their claim in terms of the nutrient load in Lake Winnipeg is that we are contributing four-and-a- half orfive-and-a-half times the amount per square mile that the United States contributes. Many of these arguments are refuting ours. For example, with reference to the point that Mr. Fawcett just brought up that irrigation is not going to solve the problem, they are refuting our argument. We have said that even North Dakota will not allow this water to be used for irrigation, but they are saying, ``Yes, we are.''
Are they right about the fact we are proportionately contributing a lot more to the problem in Lake Winnipeg than they are?
Mr. Carey: I do not have the numbers, but I would not refute that. We do contribute a lot of nutrients to Lake Winnipeg, in terms of non-point sources due to farming, the use of manure on fields, and also city sewage discharge in the city of Winnipeg itself and perhaps other locations. We are a significant source, yes.
David Whorley, Senior Advisor, Water Coordinator and Transboundary Water Issues, Environment Canada: I want to get back to the issue of inter-basin transfers. I agree with the comments that were made, but I would like to point out how unique Devils Lake is. It is a stranded basin that has not been connected. Back in the 1940s it was dry. That makes it a special case, because all of the larger life forms in that lake have been stocked.
In some respects, it is kind of like an inter-basin transfer.I agree with Mr. Carey's point that it is not in the same category as, say, a shifting between major continental basins. Devils Lake is a unique case. It has not overflowed in 1,000 years, and it is not going to in the foreseeable future. It was dry as recentlyas 60 years ago.
Mr. Carey: Despite the fact that it might be geographically in the basin, the type of ecosystem and the water there makes it of concern, should it be discharged. We should not take it lightly.
Senator Gustafson: In listening to this, it seems to me that you have a ``Dead Sea'' there. No water flows out.
The Chairman: A dead slough.
Senator Gustafson: When it dries up, does it have an alkali basin? Is it rife with alkali?
Mr. Carey: I presume so. I do not know. I have not seen pictures, but that is typical of that type of water body, yes.
Senator Gustafson: Are we asking the Americans to do something that is impossible here? How are you going to clean this lake up? What are we asking them to do?
The Chairman: When you talked about moving water back up into the upper basin, into the wetlands, how would you do that? Water runs downhill.
Mr. Carey: You are asking about what we are asking them to do. Let us talk about what they intend to do or have stated they want to do.
Senator Gustafson: This is the corps of engineers?
Mr. Carey: No, that is not the project that is happening now. The U.S. Army Corps of Engineers looked at flood relief, and it looked at under what conditions you would pump water from Devils Lake.
My memory is not as good as it used to be, but I believeI remember these figures correctly. Since 1995, the lake has risen 25 feet. That means that its surface area has increased from 70 to more than 220 square miles. The additional 150 square miles that have been flooded have included roads and people's farms. In towns like Devils Lake, they have been building levies to try to protect their towns. Between $300 million and $400 million have been spent on flood damages and protection projects.
This is a serious situation for them, and that is why they are trying to reduce water levels. That is what the corps project looked at. It looked at some possible scenarios for the future, to determine if it would be economically useful to try to build an outlet, and under what conditions you could discharge into the system.
They came up with a whole bunch of mitigation options before they decided they would discharge the water. They said they would have to acquire a habitat along the river that might be flooded. This is the Cheyenne River that they would be discharging into. They said they would have to do some projects with riprap, which is rocks in a basket, to protect against erosion. They said they would have to identify critical habitat for the spawning of fish and build bypass channels so this additional flow would go around them. They said there would be water quality constraints and they would put something in, like a sand filter and other technology, to protect against biota invasion. None of those mitigation options are featured in the current state project.
Do you want to know what we would ask them to do? If we were going to evaluate a project, I think we would like to evaluate a project that had mitigation options in it that were protective of the system, for one thing. We are saying: ``Refer this to the IJC and let them look at it and tell us what would be protective.''
Senator Gustafson: You are asking for a study?
Mr. Carey: Yes, of how this might be done.
The state has assigned itself a permit to make a discharge and stated which conditions should be met. There are some water quality conditions, some flow conditions, and seasonal constraints. If they were able to operate at what they say is their design capacity of 100 CFS and do that for 10 years from May to November, they would reduce the elevation of the lake by 17 inches. That is 1.7 inches a year for a lake that has risen 25 feet. Does that make sense?
Senator Gustafson: I lived through the Rafferty-Alameda profect. I was a Member of Parliament during that time and had a lot of communications; most of the things that were suggested might happen never did. It was suggested that it might be dry in two or three years; there are 51 feet of water there right now.
I can appreciate the fact that you deal with the unknown. Only experimentally will you see what will happen. When it comes to this, I am from Missouri; I think it is going to take an awful long time to move the Americans on this one.
The Chairman: It already is taking a long time, Senator Gustafson.
Senator Buchanan: I am from Missouri for another reason, but I am truly from Cape Breton, and that is reason enough to deem this to be a problem. Canada has a hard nut to crack with this problem and not because of what you said. Your comments are valid, but this has become political, making it more difficult. There is a powerful group of senators in congress who disagree with Canada; they agree with North Dakota and, as I understand it, they have been able to energize other U.S. senators to agree with them; then there is the White House, concerned about the votes that these senators would mean to them.
Canada has a valid environmental concern, as far as we are concerned. On the other side, North Dakota has its problems, which are valid as far as they are concerned. That is complicated by the political situation, which is stacking up against Canada, as I understand it. I know a few American senators and have spoken to them about it. The senators from the East Coast are not too interested, but the ones in the Midwest and along the border are being energized by the North Dakotans. In addition to that, the North Dakota Supreme Court has ruled in favour of this project. So you have many problems to deal with.
I am right that the supreme court there has sided with the Government of North Dakota, am I not? Is that right?
Mr. Levy: That is right.
Senator Buchanan: Has that been appealed?
Mr. Levy: The ruling was by the North Dakota Supreme Court, where there is provision for appeal, but I do not think that has been done.
Senator Buchanan: It could be appealed to the Federal Court.
Mr. Fawcett: No. Under the U.S. Clean Water Act, authority was delegated to the State of North Dakota to issuethis 402 permit. Once that was done, it moved entirely into the hands of the North Dakota government and courts.
Senator Buchanan: Does that preclude the Federal Court?
Mr. Fawcett: Yes, it does.
Mr. Levy: That happens not only in North Dakota but also in other states that have authority over water rights. Senator, I must say, I was feeling all right about this until I heard your grim summation of where we stand. I would point out that I am unsure of how many other senators agree with the two senators from North Dakota. However, a certain number of senators have been intimidated into saying that, although they do not like what is happening in North Dakota, they appreciate the muscle these guys bring to bear.
I have learned a lesson from this. What Canada thinks on a bilateral issue does not truly matter much in the United States. The old line is that we do not pay taxes and do not vote down there. Our intent on any high-profile issue such as this one is to round up our allies in the United States. In this case, there will be different opinions among the people working on this. One reason we are still ``alive,'' however bleak the outlook might be, is that Minnesota is involved. In particular, the Governor of Minnesota has been quite active and has done joint press conferences with the Premier of Manitoba; he has written and phoned the White House, the same group we are dealing with in the White House. The Council on Environmental Quality, CEQ, has met privately with the delegation from Minnesota. I do not care how we get there so long we achieve a result with which we are happy.
Senator Buchanan: Is it not true that Canada wants it referred to the IJC, but that that can only happen if the U.S. Department of State makes the same referral?
Mr. Levy: Traditionally, these are joint references. The instruction would come from Foreign Affairs and from the U.S. State Department.
Senator Buchanan: Two or three years ago the U.S. State Department wanted a similar project referred to the IJC. However, in this case, it is not willing to refer it.
Mr. Levy: When we say they are not willing, you almost have to differentiate between what they would like to do and what they are capable of doing in this situation.
Senator Buchanan: That is right.
Mr. Levy: Second, when the U.S. State Department wanted the other project referred four years ago, it was a requirement of their legislation to do so.
Senator Buchanan: That is because it was a federal issue.
Mr. Levy: That is right and it was in connection with the Boundary Waters Treaty. I do not remember the exact words, but, essentially, it was to the effect that it had to be confirmed by the IJC.
The good senators from North Dakota, I think, spear-headed a campaign to get that removed from the legislation. There is no longer a requirement that speaks specifically to the IJC. The U.S. Government says it will still honour its treaty obligations, but it has more leeway to determine how it will honour those obligations. They do not have to hand it off to the IJC to do so.
Senator Buchanan: The joint reference to the IJC by Canada and the U.S. is bogged down by the U.S. State Department not agreeing to have it referred.
Mr. Levy: That is correct.
Senator Buchanan: The reason for that is political.
Mr. Levy: Absolutely.
Senator Buchanan: That is why the nut is so hard to crack. When it becomes political, watch out.
Senator Gustafson: Some U.S. politicians are extremely powerful and difficult to deal with.
Mr. Levy: They are very skilful at what they do.
Senator Buchanan: In a month's time I will be a delegate at a meeting of the Northeastern State Governments in Connecticut. It is sad to think that many of them might not have heard of Devils Lake. I will find out when I get there.
Mr. Levy: I hope you will be proven wrong, because there has been considerable effort there.
Senator Buchanan: I know them all, too.
Mr. Levy: Recently, the Premier of Quebec went to Washington. At the end of a meeting with the Environmental Protection Agency his host asked if there was anything else he wanted to raise. The premier raised the matter of Devils Lake. The Premier of Ontario and others have also been part of the effort. We are trying to spread the word wherever we can. I hope there is at least some superficial knowledge of it.
Senator Buchanan: Okay. I will find out.
Mr. Fawcett: I want to pick up on something that Senator Buchanan said at the beginning about being from Missouri.
Senator Buchanan: The clans are down there.
Mr. Fawcett: One of our allies, in fact, is the State of Missouri. The Governor of Missouri has written in support of a reference. The reason for Missouri's concern about this is not the outlet per se, because that does not affect the downstream interests in the Missouri River. The cconcern is that when lake levels do stabilize, as they will eventually, then, if North Dakota operates this outlet, it will need to stabilize the water levels. In other words, they will need to divert water into Devils Lake. There is a plan, which has been around since 1987 and has been talked about in the last few years, for an inlet to divert water from the Garrison Reservoir, which is upstream in the Missouri River, into Devils Lake to make sure water levels are stabilized at a certain point. Missouri is very worried about this, as are we. This would be the old Garrison Diversion days. We would be right back to diverting water out of the Missouri, which would be an inter-basin transfer.
Therefore, we do have a lot of support for our position, with a variety of interests downstream, such as the Great Lakes Commission and members of the Great Lakes delegation, Senator Voinovich and Senator DeWine, who have also weighed in. We also have support in New York State.
Senator Buchanan: Senator Lugar, as well.
Mr. Fawcett: Yes, from Indiana. The chairman of the Foreign Relations Committee has written in our support as well.
Senator Milne: I do not think that really we have anything on the record as to precisely what this project is. Are they pumping water up over a height of land or into a ditch, or have they just dug a ditch? You say the water level has gone up 27 feet and with this project it will take 10 years to reduce it by 17 inches. How big a ditch is this?
Mr. Carey: It is a pipe.
Senator Milne: It is a pipe, is it? How big a pipe is it?
Mr. Fawcett: It is a number of things. There is a pumping station in the lake to pump it first into a pipeline, and then it goes into a channel that is being dug. It will also have to be pumped over several heights of land. It is both a pipeline and an open channel.
Senator Milne: They are pumping it over heights of land. Are they siphoning it up over the land?
Mr. Carey: When the water is going up, it is being pumped up through a pipe, and when it is coming down it is running through a ditch.
Senator Milne: How big is this pipe then?
Mr. Carey: That is interesting. They are building one that has a capacity to pump 300 cubic feet per second, which was the size of the corps project, even though the project they say they are doing is 100 cubic feet per second and they have a permit for that. I find it interesting that they are building a pipe three times the size of the one for which they have approval.
The Chairman: Is the approval one they gave themselves?
Mr. Carey: Correct. I am told that the governor has the authority to declare a state of emergency and ignore the permit if he wants.
Senator Milne: If they pump to the full capacity of this line they are building, then how quickly will that take down the level of the water?
Mr. Carey: Three times as fast.
Senator Milne: Therefore, in three years it will be down17 inches.
Mr. Carey: It will be five inches a year.
Mr. Fawcett: Senator, it is important to note the reason they cannot operate at 300 cubic feet per second. It would exceed the water quality standards of the state in the downstream Cheyenne River. Even their own water permit will not allow them to operate it at more than 100 CFS.
Mr. Carey: We do not think they can actually operateat 100 CFS and meet their permit. Their permit has several characteristics, one of which is seasonal discharge; so they can only discharge from May to November. They have said that the flow capacity in the river itself is 600 cubic feet per second, and so they cannot contribute a flow to exceed 600 cubic feet per second. There are times of the year when the Cheyenne River has so much water that they will not be able to reach 100 CFS. Also, they have water quality criteria for sulphate, for example. Their permit says that they are not to exceed 300 milligrams per litre of sulphate in their receiving water in the Cheyenne River at the insertion point.
Now, the IJC objective is 250. That is not that different, but that will also be a constraint at low flow times of the year in the Cheyenne River. So the amount of time they could operate even at 100 cubic feet per second is actually debatable. It is kind of strange that they would be building a pipe three times that capacity.
The Chairman: That is presuming they decide to continue to conform with their rules in the permit that they have issued themselves.
Mr. Carey: Yes. As I say, we believe that there is the option for the governor to override it.
Senator Gustafson: Where are they reclaiming the wetlands you referred to? I understood there was much more land going into farming. Is that in the Grand Forks area?
Mr. Carey: I think it is up further in the basin.
Senator Gustafson: Is it west of that?
Mr. Carey: They have installed agriculture drainage ditches to drain this land. It is up in the basin.
Senator Gustafson: It is not in the Red River Valley then.
Mr. Carey: No.
Senator Buchanan: I have not been following the technicalities of this thing at all, but are you saying it would only drop the level of that lake 17 inches in three years?
Mr. Carey: These are their numbers.
The Chairman: In 10 years.
Senator Buchanan: If that is the case, how long would that take to cause any problems in Lake Winnipeg? If it is a 17-inch drop and the water then flows through this pipe and the drainage thing into the Red River, it would probably take an eternity to get to Lake Winnipeg, would it not?
Mr. Carey: No, the water they are pumping would get to Lake Winnipeg this year.
Senator Buchanan: They are not pumping that much.
Mr. Carey: One hundred CFS is actually a healthy flow; one hundred cubic feet per second.
Senator Buchanan: How big a lake is this?
Mr. Carey: It is 225 square miles.
Senator Buchanan: It is that big.
Mr. Carey: It is now.
Senator Buchanan: Yet you say that in the 1940s it was dry.
Mr. Carey: Yes, and 25 years ago it was 70 square miles. That is their problem. They have a very flat terrain and they are trying to build farms in this flood plain. They build them when the lake is dry and when the water comes back they have a problem.
The Chairman: That is as stupid as establishing farms in the Palliser Triangle.
Okay, I think we have a better picture now than we did, for which I thank you very much, gentlemen.
Now, we have written our ingenuous letter, which went to all members of the United States Congress, for which I do not hold out a whole lot of hope. In your view, is there anything else we could do that would be constructive in this respect?
Mr. Levy: Looking at what has happened in the last couple of months, I would say it is more of the same. If you can, then have meetings or direct contacts with particular individuals with whom you have struck up an accord over the years, or a phone call, a letter, an email, a meeting, whatever, but contact them to say this may seem kind of far from their jurisdiction, but there may well be implications for them if they have any kind of transboundary water issue, and that includes even people from around the Great Lakes. The implications are huge.
In response also to Senator Buchanan`s saying it does not seem like much water, a big part of this issue is the precedent that we are talking about. If we start to say it is okay to do something without the proper environmental assessment because the risk from this specific project may not be that great, we are on a really slippery slope. We are in a sense trying to establish that base line. I should not say we are trying to establish it. We would claim the base line was established long ago and North Dakota is shifting it.
Even though it has gotten political, which makes it more difficult, it is only from political pressure that it will now be solved or resolved.
Senator Buchanan: There is no question about that. In the United States, this is not typically a Democrat versus Republican deal either. You have people on both sides that are either for or against it. You do not just have Republicans saying we do not want this to happen, or Democrats saying we do. I suspect from what I have heard that this is not a partisan political fight.
Mr. Levy: The Governor of North Dakota is Republican and the two senators are Democrats. The congressman is a Democrat as well. Our ally in Minnesota is the Republican senator; the governor is Republican as well, yet he is our biggest ally at this point.
Senator Buchanan: That makes it even worse for you.
The Chairman: The amount of water, unless it was a trickle, is almost beside the point, is it not? Your point is that, regardless of the volume of water, it is the stuff that it contains. I will use zebra mussels as an example. It does not make any difference how much water they came in, there are now millions of them and they have filled up everything in sight. Is that correct?
Mr. Levy: I suppose the bigger the flow of water, the greater the chances are that the bad stuff will be propelled that much further; but it does not take that much water to give you one zebra mussel. I guess two zebra mussels are what you would be worried about.
Mr. Carey: To add to that, part of the discussions that would have come about in an environmental impact statement would have been concerned with what it is that you need to protect against. If this lake really is a wildlife reservoir and birds are landing in it and then flying over and landing in the Cheyenne River, chances are bacteria and other things could be carried at some times of the year. You need to actually study to see which of your fears are real. If striped bass have been introduced into the lake, as apparently they have, we do not want them in the Red River. We do not know if they are naturally reproducing; we do not have data on that, although we have lots of claims both for and against, but we certainly do not want them in the Red River. They are not native to that environment. There are some things that we absolutely do not want there, biota that would be like zebra mussels, which, if they ever got established there, would be invasive species.
I learned this week at the IJC meetings in Kingston thatthe number of identified invasive species in the Great Lakes is more than 180. Zebra mussels are just one of those. We have a target, under the Great Lakes Water Quality Agreement, to restore the biological integrity. What is biological integrity in a lake with 180 non-native species? We do not even know what it would look like. That is what we want to prevent in Lake Winnipeg.
The Chairman: I want to point out that we did not say that zebra mussels have anything to do with Devils Lake or the Red River.
Senator Gustafson: I have a question that comes out of the meetings that we had with the Americans. They have two things that they are very concerned about. One is that land is becoming cemented under in the urban areas. Contrary to Canada's thinking, they are very concerned about that. That may enter into the formula here.
The other thing is water, because those wells in the southern irrigation area there have dropped. You hear different numbers but you hear 40 to 50 feet of water level. They are concerned about water and they are concerned about land.
If you drive through Atlanta, Georgia, and I have done that just to look at things, you will see that people are moving out of the city and buying up to 10 or 15 acres in the coiuntryside; they have a couple of horses and they build a nice million-dollar house. A lot of land in the United States is going under cement. It is happening in a major way. In fact, the Bureau of Agriculture has been recommending that the government buy up this land with a 99-year lease and keep it in agriculture. As I say, it is happening in a major way.
This could be part of what is behind the whole thinking of the Americans.
Mr. Carey: I will not comment on the last part, but I will say to you, senator, that water availability will be a real issue. That aquifer you mentioned that is down 40 feet is the Ogallala Aquifer. That is the largest aquifer on this continent. For it to be down that much says we are over-consuming. The people who are irrigating using that water are over-consuming it and they will have a problem in the future. That is why we need a dispute resolution mechanism, and why we need to keep and support the one we have. It is a pretty strong one if we use it. That is the important point here. We need to ensure that the Boundary Waters Treaty is respected and our that dispute resolution mechanisms are supported and used.
Senator Buchanan: If I were in a North Dakota politician's shoes, with the people of the state in agreement that this should proceed, with the state Supreme Court now authorizing them to proceed, with no appeal to a federal court and the court actions over, and with the authority to proceed, I would be moving on this. The State Department is, if I can use the term, dithering on the matter, but I would, if I were that governor, move with all speed to get this project going as quickly as possible. Are they doing that? Are they moving fast?
Mr. Levy: They do not necessarily divulge their strategies directly to us, but we understand they are actually still under construction of this outlet. It is not just waiting for the tap to be turned.
Senator Buchanan: They are on their way, though.
Mr. Levy: Of building it, yes, but it is not complete. They could not make the decision to make it operational today. Our understanding is that they have not actually finished building it, but they are very close to that point. There have been delays, ironically, due to rain and other things.
The date that we have been working with, and it is not an official date at all, has been July 1, ``the Canada Day gift,'' as it was described.
Senator Buchanan: As of July 1, you think they will move with all haste to get on with it? Water will flow.
Mr. Levy: It could flow. In the grand U.S. tradition, I will plead the fifth amendment on that. I do not know that I will say what I think will happen at this point. I can tell you what is going on. I do not dispute any of the things that you said about the situation that the North Dakotans have right now looking favourable for the factors you mentioned.
On the other hand, you do have a U.S. federal government that we would like to think does have some interest in some of the things that Canada is saying on this. I suspect it is less on the arguments we are making strictly on environment and more on the arguments we are making about the treaty and the precedents and so on. They are also influenced, I cannot tell you to what degree, by increasingly strong representations from Minnesota, and perhaps marginally from other states as well. They may not be willing to really twist arms the way the North Dakota senators are, but maybe by other means they are saying, ``Go to it White House; stop these guys.''
Senator Buchanan: Are you saying, then, that if, before the water flows, the President of the United States directs the State Department to refer this matter with Canada to the IJC, that would stop North Dakota?
Mr. Levy: That is a good question. My guess is that if it were simply a directive, it might well not. It might be that the federal U.S. government has to take legal action.
Senator Buchanan: That is what I am getting at.
The Chairman: Could they?
Mr. Levy: Sure they could. In the United States, there is legal action possible on anything. However, I really doubt that is how it will end up going.
Senator Buchanan: If it does not end up going that way, then it is a fait accompli.
Mr. Levy: As Dr. Carey described, when they talked about the different project a few years ago, the Department of State and Colin Powell identified a number of mitigation measures that, if undertaken, would allow the outlet to flow.
You can talk about the range of possibilities between what the two positions officially are: North Dakota wants to open an outlet tomorrow, or July 1, and does not want any nonsense about it, and Canada wants that outlet not to operate at all until there is a reference to the IJC. Between those two positions, you might have a range of measures. I am not an expert on the measures at all, but there are several — more than several — that could be taken.
Senator Buchanan: Are you saying this project could be stopped by Canada in any way?
Mr. Levy: No, not likely. It could be stopped by the United States, recognizing that they do have interests other than North Dakota's.
Senator Buchanan: Yes. The problem here is that once that project is well under way, once the water is flowing and the project is a fait accompli, the political problems become even greater for the federal government to move in and stop it. They should have stopped it long ago. If they did not stop it then, the only way they could now would be through legal action in the federal courts, and they would be loath to take that kind of action.
Mr. Levy: Perhaps I am not being clear. Governments have levers. It is equivalent right now to being told by the U.S. Department of State that they are not willing to apply the political capital to overcome the blackmail of the two senators from North Dakota. However, they are saying they cannot do anything. Of course they can, but they are choosing not to. At some point, the federal government in the U.S. could decide that it will make whatever dealings necessary to create some sort of deal on this.
Senator Buchanan: That is what happens in politics. The House of Commons is proof positive of that.
The Chairman: I do not know if you can tell us, but you said before that there has been a delegation of authority in water matters from the federal government to the states?
Mr. Levy: Correct.
The Chairman: No appeal, therefore, of a state decision can be made to a federal court?
Mr. Levy: That is right.
The Chairman: Except by the federal government? A minute ago, you said that the federal government might be able to use court action to stop this in the event that they decide to expend the political capital. How would they do that if they do not have access to the court?
Mr. Levy: What if I am the governor of North Dakota and I have a weather forecast that says there will not be much flooding this year, so I know that operating the outlet, which we have already decided will only remove a microscopic amount, is not going to make much difference to the welfare of my people this summer?
I would strike a deal that gets the federal government off my back and gets something for me, whatever that something may be, and in the end I still get my outlet, but a year later.
The Chairman: That is negotiating a deal. That is not going to court.
Mr. Levy: Yes. That is negotiating a deal.
Senator Gustafson: We have to understand that the Americans support the heartland. I do not care if they come from California or New York or Seattle; they will support that heartland, even if it is North Dakota.
Mr. Fawcett: A couple of things bear on a number of the questions raised by Senator Buchanan. We are encouraged by the fact that the White House Council on Environmental Quality is now engaged on this issue. In fact, Governor Hoven said to Ambassador McKenna, when they met last week, that the outlet will not operate until the CEQ process is completed.
Senator Buchanan: What is that?
Mr. Fawcett: The White House Council on Environmental Quality. They have undertaken to look at the situation. There was another meeting yesterday with the council to provide more information with respect to Dr. Carey's favourite issue of biota and what is in the lake. We will not have any surprises.
In fact, another undertaking by Governor Hoven to Ambassador McKenna was that they would notify Canada if they were going to operate this outlet. So we have two commitments out of the governor as expressed to the ambassador. They want to see that the White House is satisfied that this issue has been addressed, both from North Dakota's perspective in the United States and from Manitoba's perspective in Canada. I am encouraged by that.
With respect to the legal cases, a lot has been done on this and other issues. Our counsel, who participated in the Clean Water Act, Section 402, permit case that the North Dakota Supreme Court ruled on, indicated that a very low standard was established in that case. It is called a deferential standard. In other words, they deferred to the North Dakota Department of Health in this case. If they made any kind of attempt to address issues, they deferred to the experts, and they did not question their actual judgment. They made a decision, and we deferred to them to make the appropriate one.
We have also had good successes in other legal appeals. One of the Garrison Diversion projects is diverting water out of the Garrison Diversion into the northwest area of Minot, North Dakota. We were concerned about that for some time because we have to show balance for the Garrison Diversion. This is to address drinking water standards in the northwest part of the state where there is a shortage of potable drinking water. The problem was that this pipeline would divert water out of the Garrison Diversion all the way up to Minot and across the continental divide without any water treatment whatsoever.
Manitoba, supported by the Canadian government, appealed this issue to the federal court because it was a federal project. Basically, the court said that they had to do a full environmental assessment before this project could go forward. In fact, they have stopped the project with respect to any construction on our side of the continental divide until a better environmental assessment is done.
There are also two important rulings which we hope to bring to bear on other actions, if we are drawn into U.S. courts. First, the court said that the onus is on the project proponent to prove that there are no transboundary effects — in other words, no effects on downstream states. That is extremely important to us. Manitoba has the standing to take these cases into U.S. courts, which is another important element of that decision.
Senator Buchanan: Manitoba has standing in the U.S. courts? Are you saying that Manitoba could start an action in the North Dakota Supreme Court to stop this project? I doubt that.
Mr. Fawcett: Manitoba took the federal government in the United States to court in this northwest area water supply project.
Senator Buchanan: We are talking now about Devils Lake?
Mr. Fawcett: In Devils Lake, it was the local NGOs and Manitoba who took North Dakota to court.
Senator Buchanan: They lost.
Mr. Fawcett: Yes, they did, but I am trying to say that there are court decisions, and then there are court decisions.
Senator Buchanan: The court decision that we are talking about was lost. North Dakota won, and there is no appeal.
Mr. Fawcett: That is right.
Senator Buchanan: That ends the court route.
Mr. Fawcett: That ends that possible action. There may be other court actions, as there always are in the United States. I am trying to point out to you that there are courts that rule in different ways. The North Dakota Supreme Court ruled in a very deferential way to the administration, and the federal court ruled differently in this other project.
Senator Buchanan: I know what you are saying, because this is like the BSE situation, in which a state supreme court came out with a decision but now it will be appealed to a federal court. What you are saying here is that, in the United States, in North Dakota, they have had their rights transferred to them by the federal government so that the federal government is out of it. The federal government cannot appeal that decision of the Supreme Court of North Dakota. That ends it then.
Mr. Fawcett: That is right.
Mr. Levy: In that particular case, what we said was that the federal government could, theoretically, bring some sort of legal action that would relate to the treaty obligation.
Senator Buchanan: That is right.
The Chairman: It has been suggested to us, by a senator who is not a member of this committee but who knows something about U.S. relations, that it might be an idea for us to prepare a letter that, in effect, and for all intents and purposes, is a petition, and then contact sympathetic members of Congress and ask them to physically run it around. That has been done apparently with some success in the past as a show of force to impress the White House, and/or the State Department, that the reference needed to be made. Candidly, what would be your view of that?
Mr. Levy: Could I beg off answering that until tomorrow? I would like to consult with people in our embassy in Washington, who are far more expert on the dealings down there. We could then get back to you or your staff.
The Chairman: Will you be talking to Colin?
Mr. Levy: Yes, that gang.
The Chairman: That will save me a phone call so you go ahead.
Senator Buchanan: I have one final question.
The Chairman: I am talking about Mr. Colin Robertson.
Mr. Levy: The parliamentary secretariat.
Senator Buchanan: I suspect that time is of the essence here.
Mr. Levy: Indeed. We can all agree.
Senator Buchanan: Do I have time to talk to the state governors in Connecticut on July 20?
Mr. Levy: Too late.
Mr. Fawcett: Senator, I would nevertheless encourage you to do that, because there are, as I mentioned, other projects. There is the Red River Valley Water Supply Project with its needs study. The needs in the Red River Valley, mainly on the North Dakota side but also on the Minnesota side, are being studied by the Bureau of Reclamation. They are hoping to proceed with that. The option, as expressed by the people in the North Dakota Red River Valley Basin, was to go back to the Garrison Diversion again. These issues are not over. We will need to continue to express our concerns about their not taking into account the transboundary effects, and the importance of the Boundary Waters Treaty, and as Dr. Carey mentioned there are organizations that help us deal with some of these disputes.
Even though your upcoming meeting may not be timely in the case of Devils Lake, certainly there will be other water diversion projects in North Dakota.
Mr. Carey: I would add that, if Mr. Fawcett did not get your attention with what he said about that project and Garrison, another option they are studying is a diversion from Lake of the Woods, which I believe is called the Red River Water Availability Project. They have seven options, including several that are Garrison related, plus Lake of the Woods as well as others.
The Chairman: Gentlemen, thank you very much. I am very grateful, as we all are, for your taking the time to be here on such short notice. You have been very helpful to us. If we think of more questions, I hope we can request your help again, which I am sure we will. I look forward, Mr. Levy, for a response from you, if there is anything that we can do beyond what we have already done, which has been sort of a knee-jerk reaction. If there is anything, please let us know.
The committee adjourned.