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56–033 PDF 2010

S. HRG. 111–564 

CHANGE PROPOSED BY THE NORTH DAKOTA 

DEPARTMENT OF HEALTH TO INCREASE ALLOWABLE SULFATE LEVELS IN THE SHEYENNE 

RIVER 

HEARING 

BEFORE A

SUBCOMMITTEE OF THE 

COMMITTEE ON APPROPRIATIONS 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

SPECIAL HEARING 

FEBRUARY 19, 2010—WEST FARGO, ND 

Printed for the use of the Committee on Appropriations 

( 

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

COMMITTEE ON APPROPRIATIONS 

DANIEL K. INOUYE, Hawaii, Chairman 

ROBERT C. BYRD, West Virginia 

PATRICK J. LEAHY, Vermont 

TOM HARKIN, Iowa 

BARBARA A. MIKULSKI, Maryland 

HERB KOHL, Wisconsin 

PATTY MURRAY, Washington 

BYRON L. DORGAN, North Dakota 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

TIM JOHNSON, South Dakota 

MARY L. LANDRIEU, Louisiana 

JACK REED, Rhode Island 

FRANK R. LAUTENBERG, New Jersey 

BEN NELSON, Nebraska 

MARK PRYOR, Arkansas 

JON TESTER, Montana 

ARLEN SPECTER, Pennsylvania 

THAD COCHRAN, Mississippi 

CHRISTOPHER S. BOND, Missouri 

MITCH MCCONNELL, Kentucky 

RICHARD C. SHELBY, Alabama 

JUDD GREGG, New Hampshire 

ROBERT F. BENNETT, Utah 

KAY BAILEY HUTCHISON, Texas 

SAM BROWNBACK, Kansas 

LAMAR ALEXANDER, Tennessee 

SUSAN COLLINS, Maine 

GEORGE V. VOINOVICH, Ohio 

LISA MURKOWSKI, Alaska 

CHARLES J. HOUY, Staff Director 

BRUCE EVANS, Minority Staff Director 

SUBCOMMITTEE ON ENERGY AND WATER DEVELOPMENT

BYRON L. DORGAN, North Dakota, Chairman 

ROBERT C. BYRD, West Virginia 

PATTY MURRAY, Washington 

DIANNE FEINSTEIN, California 

TIM JOHNSON, South Dakota 

MARY L. LANDRIEU, Louisiana 

JACK REED, Rhode Island 

FRANK R. LAUTENBERG, New Jersey 

TOM HARKIN, Iowa 

JON TESTER, Montana 

DANIEL K. INOUYE, Hawaii, (ex officio) 

ROBERT F. BENNETT, Utah 

THAD COCHRAN, Mississippi 

MITCH MCCONNELL, Kentucky 

CHRISTOPHER S. BOND, Missouri 

KAY BAILEY HUTCHISON, Texas 

RICHARD C. SHELBY, Alabama 

LAMAR ALEXANDER, Tennessee 

GEORGE V. VOINOVICH, Ohio 

Professional Staff 

DOUG CLAPP

ROGER COCKRELL

FRANZ WUERFMANNSDOBLER

CAROLYN E. APOSTOLOU (Minority) 

TYLER OWENS (Minority) 

Administrative Support 

MOLLY BARACKMAN
(III) 

C O N T E N T S 

Page 

Opening Statement of Senator Byron L. Dorgan .................................................. 1 

Statement of Hon. John Hoeven, Governor, State of North Dakota ................... 2 

Prepared Statement ......................................................................................... 4 

Statement of Dennis Walaker, Mayor, City of Fargo ........................................... 6 

North Dakota State Water Commission—North Dakota Department of 

Health ................................................................................................................... 8 

Statement of L. David Glatt, Chief, Environmental Health Section, North 

Dakota Department of Health ............................................................................ 11 

Statement of Fred Bott, Mayor, City of Devils Lake; President, Devils Lake 

City Commission .................................................................................................. 13 

Prepared Statement ......................................................................................... 14 

Statement of Jon Cameron, City Administrator, Valley City .............................. 15 

Prepared Statement ......................................................................................... 16 

Statement of Wei Lin, Associate Professor, Department of Civil Engineering, 

North Dakota State University ........................................................................... 17 

Prepared Statement ......................................................................................... 19 

Statement of Jim Stevens, People to Save the Sheyenne River .......................... 21 

Prepared Statement ......................................................................................... 22 

State Officials Not Dealing Truthfully When it Comes to Devils Lake Outlet .. 23 

‘‘Sign of Hope: Dorgan Speaks on Devils Lake’’ .................................................... 25 

Increased River Flow Needs Study ........................................................................ 25 

Devils Lake Study Must Come First ...................................................................... 26 

Letters to the Editor ................................................................................................ 26 

Statement of Joe Belford, Chairman, Ramsey County Commission ................... 34 

Statement of Madeline Luke, Physician, Valley City ........................................... 36 

Prepared Statement ......................................................................................... 39 

Statement of Leroy Triebold, Valley City .............................................................. 40 

Statement of Bob Werkhoven, Retired District Engineer, Department of 

Transportation, Valley City District ................................................................... 41 

Additional Committee Questions ............................................................................ 46 

Questions Submitted to L. David Glatt ................................................................. 46 

Questions Submitted by Byron L. Dorgan ............................................................. 46 

Maximum Sulfate Limit of the Sheyenne River Supporting Analysis ................ 47 

Appendix A—Intradepartmental Memorandum ................................................... 51 

Stochastic Simulations of Effects of 250 Cubic Feet Per Second Devils Lake 

Outlet on Sulfate Concentrations in the Sheyenne River ................................. 53 

Prepared Statement of Richard Betting, Valley City, North Dakota .................. 89 

Prepared Statement of Gary L. Pearson, D.V.M. .................................................. 90 

Comments on the North Dakota Department of Health’s July 15, 2009 Proposal to Adopt an Emergency Rule Adding a New Section to North Dakota 

Administrative Code Chapter 33–16–02.1 Standards of Quality for Waters 

of the State to Change the Classification of the Upper Sheyenne River 

and Increase the Maximum Limit for Sulfate in the River From 450 mg/ 

L to 750 mg/L ....................................................................................................... 97 

Comments on the North Dakota State Water Commission’s Application No. 

3457 to Drain Water From Devils Lake to the Sheyenne River by Increasing 

the Capacity of the Existing Devils Lake Outlet from 100 to 250 Cubic 

Feet Per Second .................................................................................................... 118 

Letters From Gary L. Pearson, D.V.M. ............................................................. 135, 136 

State Officials Not Dealing Truthfully When it Comes to Devils Lake Outlet .. 137 

Prepared Statement of the City-County Health District, Valley City, ND ......... 139 

Prepared Statement of Joe Stickler, Valley City, ND .......................................... 139 

Prepared Statement of Sharon E. and James B. Buhr, MD, MeritCare Clinic 

Valley City, ND .................................................................................................... 139 
Page

IV 

Resolution—District 24 Dem-NPL Party-February 28, 2010 ............................... 140 

Prepared Statement of Matthew Pedersen, Valley City, ND ............................... 141 

Prepared Statement of Susan Kringlie, Valley City, ND ..................................... 141 

Prepared Statement of Richard and Terry Lee, Adam and Annie Johnson, 

Wanda Etzell, and Dennis and Bonnie Rowell, Valley City, ND and 

Enderlin, ND ........................................................................................................ 142 

Prepared Statement of Mary Ann Sheets-Hanson, Director, Asante Network .. 143 

Prepared Statement of the Peterson Coulee Outlet Association ......................... 143 

Federal Lawsuit Filed in Huge Saltwater Spill .................................................... 148 

North Dakota—State De-ices Highways With Oil Well Saltwater ...................... 149 

What’s Ugly, Smells, Kills Dogs? Blue-Green Algae ............................................. 158 

Pepared Statement of Leon Pytlik, Valley City, ND ............................................ 162 

Prepared Statement of Alice Beauchman, Valley City, ND ................................. 163 

Prepared Statement of the North Dakota Chapter of The Wildlife Society ....... 163 

Prepared Statement of Andre DeLorme, Valley City, ND ................................... 164 

Prepared Statement of William Moore, Rogers, ND ............................................. 165 
(1) 

CHANGE PROPOSED BY THE NORTH DAKOTA 

DEPARTMENT OF HEALTH TO INCREASE 

ALLOWABLE SULFATE LEVELS IN THE 

SHEYENNE RIVER 

FRIDAY, FEBRUARY 19, 2010 

U.S. SENATE, SUBCOMMITTEE ON ENERGY AND WATER DEVELOPMENT, COMMITTEE ON APPROPRIATIONS, West Fargo, ND. 

The subcommittee met at 10 a.m., in West Fargo City Commission Chambers, Hon. Byron Dorgan (chairman) presiding. 

Present: Senator Dorgan. 

OPENING STATEMENT OF SENATOR BYRON L. DORGAN

Senator DORGAN. Ladies and gentlemen, we’re going to begin. I’m 

Senator Byron Dorgan chairman of the Energy and Water and Appropriations Subcommittee. This is a formal hearing of the subcommittee. We’ll keep the record open for 2 weeks for anyone who 

wishes to submit formal comments for the hearing record. You can 

submit them to my office if you wish. 

The purpose of this hearing is to evaluate the change that is proposed by the North Dakota Department of Health to increase the 

allowable sulfate levels in the Sheyenne River. The State’s Devils 

Lake outlet is scheduled to begin operating at a higher capacity 

sometime this summer, early summer, and I understand that that 

is the basis for the Department of Health’s position to increase the 

sulfate levels. 

Let me say for the purposes of Devils Lake I support all the efforts that we can make to take water off of the lake as you know. 

I have funded proposals in the past to take water off for irrigation 

purposes. I have included, I think, the single largest appropriation 

that has ever been moved from our subcommittee, exclusive of the 

hurricane Katrina issues, to the Corps of Engineers some $90 plus 

million 1 year ago. I included that is now available and now being 

used to increase the levee at Devils Lake. That is the largest appropriation that I have ever made for one single project. 

So the question isn’t does the delegation or do I support what is 

going on in Devils Lake. We have spent years and years raising 

roads, raising levees, and doing all the things to try to mitigate the 

flooding in Devils Lake. That includes supporting an outlet and it 

includes supporting the building of a State outlet. 

The question today is, with the proposal to increase the level of 

the outlet, which I believe will result in taking off somewhere 
2 

around 3 to 4 inches from the lake a year if it’s operated at what 

is expected to be the levels expected to operate. The question is, are 

there consequences to that? If so, what are the consequences? What 

should we understand about those consequences for others? 

It may be there are consequences, and we need to understand 

what they are in order to make judgments about them. So one of 

the reasons that I decided finally to hold a hearing is I had delivered to me a petition with some 700 names on it, residents of particularly Valley City but the surrounding region as well, indicating 

that not enough was known about this. They wanted to understand 

more. 

As I began to look into it, I agree. I don’t understand all the consequences of it either. I think all of us need to understand what 

the risks are, if any. What are the consequences, if any, and that 

does not diminish our intent and interest in addressing the Devils 

Lake flooding issue. It is chronic flooding, and we’ve spent years of 

the State government and Federal Government working on this. 

We have spent a massive amount of money working on it, and yet 

the lake continues to rise. 

I have no interest nor would I expect other public officials to 

have an interest in transferring problems from one region of the 

State to another region of the State. If that were the case, that 

would be not be acceptable. I don’t know that that’s the case, but 

this hearing will provide us a basis of information with which to 

judge that. 

I want to thank all of you for being here. I know that you have 

prepared testimony that will be part of the permanent record as 

well. 

What I would like to do is call on the Governor and the health 

department first. I believe Mayor Walaker has to leave at some 

point during this hearing, and then we’ll have statements from the 

witnesses. I will ask questions. Following which I will have an open 

microphone period, and we will ask if you have things you wish to 

say. Come and state your name and so that we have your name 

for the record. 

Again, I appreciate this opportunity, and I look forward to the 

testimony. 

Governor Hoeven. 

STATEMENT OF HON. JOHN HOEVEN, GOVERNOR, STATE OF NORTH 

DAKOTA 

Governor HOEVEN. Senator, thank you, and it is good to be with 

you and certainly our mayors and everyone here present. We just 

had a media avail with Mayor Walaker, Mayor Mattern, and 

Mayor Fred Bott. Mayor Mary Lee Nielson of Valley City is actually on her way to Washington, DC so she wasn’t able to join us 

otherwise would have been present with us as well. I think it really 

reflects the great joint effort and cooperation between the communities and the State of North Dakota. Because when it comes to 

water management and flood protection in the Red River Basin, it’s 

very important we’re all working together and that’s exactly what’s 

going on. And so I also appreciate your help and your support in 

this effort as you mention your support for the Devils Lake outlet 
3 

and its operation. It’s much appreciated and so I thank you for 

that. 

Of course, today we’re talking about increasing the flows out of 

the outlet and what I need to emphasize right up front that is very 

much about protecting the downstream communities on the 

Sheyenne. It is very much about protecting the downstream communities on the Sheyenne both in terms of water quality and to 

prevent flooding as much as it is to help with Devils Lake and 

flooding in the lake region basin. And so we’re going to go through 

that a little bit. 

We’ve got Dave Glatt here who is chief of the Environmental Section from the North Dakota Department of Health. He’s going to 

go through in detail this is another good opportunity to do just 

what he’s been doing, which is holding hearings in and around the 

basin and Devils Lake and Valley City and other places, not only 

to provide information but to hear from people as well, so this is 

an ongoing process both the Federal entities such as yourself and 

others, the A—U.S. Fish and Wildlife, and there’s a long list, which 

I’ve included in my comments, but also the State agencies water 

commission, department of health, to really get information out 

there so people understand that this is an effort to protect upstream and downstream, and it’s a cooperative effort in terms of 

water quality and flood prevention throughout the Red River 

Basin. 

Of course, what’s necessitating increasing the flows out of Devils 

Lake is the rise in the lake level. Since 1993—and I know you are 

well aware of much of this, but since 1993 Devils Lake has risen 

27 feet, 27 feet. It’s now at lake elevation of more than 1,450, and 

they’re talking about another 3 feet this year, and we’re only 8 feet 

from the point where we have an uncontrolled spill out of the east 

end where we truly have water quality issues and, of course, that 

would create flooding. 

So even building some type of control structure over there still 

leaves us with the water quality issues. And as I say, we’re only 

8 feet away with potentially 3 feet of that occurring in the rise this 

year. So the effort is through the west-end outlet to increase the 

flows so that we prevent flooding. We don’t have water coming out 

during the spring as now we’re very concerned about flooding obviously throughout the basin, so it’s both for flood protection and prevention. But then also to make sure that we manage the water 

quality, for example, its use of sulfates which has been a discussion 

in something that the health department is working on very carefully. 

There is no plan to change the sulfate standard essentially below 

Valley City or Lake—Baldhill Dam all the way down and through 

and past Fargo. There’s no intent to change that sulfate standard. 

It would still be the stream standard of 450 milligrams per liter, 

which is actually better than the Canadian drinking water standard, which is 500 parts—500 milligrams per liter, so even untreated it’s better than their drinking water standard. 

Making sure we cover all State health department requirements 

and EPA requirements, but even in addition to that to make sure 

that everybody’s on board and that any and all concerns are addressed where all the State through the water commission is work-
4 

ing with the communities along the Sheyenne to make sure that 

whatever water treatment plans and preparations they have both 

now and for the future that we’re a partner with them. To have it 

set the way they want. Example, Valley City is in process of upgrading their water treatment plant because they need more capacity. That’s a good thing, Jon Cameron sitting interviews here. He 

will speak to it. We partnered with them to add reverse osmosis, 

which will take sulfates out, so they’re—actually their water quality will be better than it is now. 

Fargo and West Fargo are working together on water treatment 

options for the Fargo/West Fargo metro area. That’s fantastic. I 

want to commend them for that joint effort. They don’t currently 

draw water from the Sheyenne as their primary source, but they 

use it as a back-up source, and so as they look at water treatment 

development, same thing. We’re going work—we’re going—the 

State’s going work with them to make sure that we partner with 

them in whatever solution they want be that reverse osmosis or 

whatever they may want or need to make sure that they have their 

treatment set the way they want it. And so that’s the approach 

we’re taking, but it’s the approach we must take. 

Same thing with any erosion issues, I know there’s been some 

discussion that the West Fargo diversion if there’s more water coming through, more days when the water’s coming through could create some erosion issues. We’ll work with them to help them rip rap 

the West Fargo diversion. So really it’s a kin to the same kind of 

work that we’re undertaking with permanent flood protection for 

the region. 

This has to be a comprehensive approach. It has to be a basinwide approach. It has to be a local, State, Federal approach. It’s 

very important. And so I think to the extent we could really again 

discuss that today and continue to work together as we are that 

this is useful, and so it’s good to be here, and I’ll wrap up there. 

PREPARED STATEMENT

I know Dave’s got some comments and also Mayor Walaker and 

then, of course, we do want to hear the update from the National 

Weather Service, which is coming out this morning as well on the 

flood. 

[The statement follows:] 

PREPARED STATEMENT OF HON. JOHN HOEVEN

Good morning Senator, good morning mayors, ladies and gentleman. 

I appreciate this opportunity to discuss the operation of the Devils Lake Outlet 

and its importance—not just to the community of Devils Lake and the Devils Lake 

area, but also to downstream interests. 

We have worked hard to provide information to all concerned regarding the operation of the Devils Lake Outlet, and I thank you, Senator Dorgan, for your support 

of the outlet. Attached to my testimony are three of your letters in support of operating the Devils Lake Outlet. 

First and foremost, I want to make clear that the State of North Dakota is committed to protecting the interests of Valley City, Lisbon, west Fargo, Fargo and 

other communities along the Sheyenne and Red River, as well as Devils Lake. 

In fact, operating the Devils Lake Outlet is as important to protecting downstream communities’ water quality and preventing downstream flooding, as it is to 

helping mitigate flooding in the Devils Lake region. 
5 

Rather than transferring any problem from one region of our State to another region of our State, operating the Devils Lake Outlet at up to 250 cfs is designed to 

protect water quality for communities downstream of Devils Lake. 

Since 1993, Devils Lake has risen by 27 feet and it is forecasted to set another 

record high this year. 

At a lake elevation of 1,450 feet, it is now only about 8 feet from an overflow out 

of Stump Lake on the east end. 

Such an overflow would initiate a discharge of the poorest quality, highest-sulfate 

water overland to the Sheyenne River. 

Therefore, instead of lower sulfate water at manageable levels, downstream communities—including Valley City, Lisbon, west Fargo, and Fargo—would receive high 

sulfate water at more than 2,200 milligrams per liter. 

The State’s objective with the west-end outlet is to minimize or avoid the effects 

of a discharge from Devils Lake into the Sheyenne that would create problems 

downstream from either a flooding or water quality standpoint. 

We are absolutely committed to working with the downstream communities in 

that effort, just as we are working to mitigate flooding in the Devils Lake Basin. 

Dave Glatt, chief of the State’s Environmental Health Division, is here to provide 

more specifics. 

He and our health department have been working with other agencies, including 

the U.S. Environmental Protection Agency, U.S. Department of State, U.S. Department of the Interior, U.S. Fish and Wildlife Service, the White House Council on 

Environmental Quality, Canadian officials, and as you know, your office as well, 

Senator Dorgan, to properly manage operation of the Devils Lake Outlet. 

At the local level, officials from the North Dakota Department of Health, the State 

Water Commission, and the Department of Game and Fish have also provided information to city representatives from Devils Lake, Valley City, Fargo and other communities. 

These officials have conducted well-attended public hearings in Devils Lake, Valley City and Bismarck; and, in addition, participated in a local public health board 

meeting and open public forum in Valley City. 

Information on the Devils Lake outlet, moreover, is readily available in great detail on the Department of Health and State Water Commission Web pages. 

I also want to underscore that the Outlet is just one part of a three part plan 

to address Devils Lake flooding. That effort includes mitigation (diking and raising 

roads); water retention; and the outlet. 

In terms of water retention, Devils Lake has grown from less than 50,000 acres 

to more than 160,000 acres. Clearly there is a huge amount of water in essence 

stored in the Lake Region—more than 100,000 acres of water. 

Also, more than $500 million has been spent by local, State, and Federal entities 

to mitigate rising waters in the Devils Lake region, including raising roads and 

diking. An additional $150 million will be spent over the next 18 months. 

Certainly, the $90 million you secured recently will help raise dikes around the 

city of Devils Lake again, but it will not address the issue of an east-end overflow 

with its downstream impacts. That is why we must increase operation of the outlet 

in a controlled manner. 

To assist in the operation of the Devils Lake outlet, the North Dakota Legislature 

created a 10-member advisory committee, including State, county, and tribal members. 

Its management is not determined by any one individual, but rather to a group 

of concerned and involved citizens, each representing the interests and concerns of 

communities throughout the affected region. 

These committee members develop an annual operating plan, which considers factors such as spring runoff and flooding potential, as well as downstream impacts 

on water quality and stream bank erosion. 

We did not last year, and we will not, operate while downstream communities are 

facing flooding. 

In addition, the State also continues to conduct complete chemical analyses of 

Devils Lake and the Sheyenne and Red rivers on a regular schedule to ensure that 

they comply with all acceptable EPA and State standards. 

In regard to sulfates, the stream standard for the Sheyenne River below Baldhill 

Dam will remain 450 milligrams per liter, as it has always been. The State Water 

Commissions objective is to keep sulfates on the Sheyenne through downstream 

communities below that level. 

To put that in perspective, at 450 parts per million on the Sheyenne River, our 

stream sulfate standard at Valley City is in fact better than the Canadian drinking 

water standard, which is 500 parts per million. 
6 

Although the scientific evidence indicates that we are well within acceptable levels, we want communities downstream to be assured of quality municipal water supplies and are doing what we can to help. 

To that end, the North Dakota Department of Health and the State Water Commission have been working closely with the community of Valley City, not just to 

mitigate the possibility of a major flood, but to improve Valley City’s water supply 

system. 

To emphasize North Dakota’s commitment to Valley City’s interests, last summer 

the State awarded nearly $12 million in direct assistance for a new municipal water 

supply system. 

At present, the city’s water is treated by a conventional lime-softening treatment 

process that does not remove sulfates and minerals. 

The new facility, however, will remove sulfates and other dissolved minerals, resulting in significantly higher water quality than the community’s existing water 

treatment plant now provides. 

Moreover, the new facility meets not only the city’s immediate needs, but also its 

future needs as a growing North Dakota community. 

Similarly, we are committed to operating the outlet in a manner that manages 

sulfate levels in west Fargo and Fargo at levels well within the acceptable limit established by the EPA and the State of North Dakota. 

To that end, we were pleased to learn that Fargo and west Fargo are working 

together on water treatment for their growing communities, and we will do what 

we can to help them reach their goals, just as we are doing in Valley City. 

If they should need technical or financial assistance with their project, including 

reverse osmosis technology, we are committed to working with the cities to help. 

Likewise, we will help if additional rip rap is needed for the west Fargo diversion. 

Again, I want to underscore our commitment to protect the interests not only of 

Devils Lake, but of Valley City, Lisbon, Fargo, west Fargo, and all of our communities along the Sheyenne and Red Rivers. 

Working together, there is much we can, and will, accomplish. 

Thank you. 

Senator DORGAN. Governor, thank you very much. I’m going to 

call on Mayor Walaker before Mr. Glatt. I believe the mayor has 

to leave in 10 to 15 minutes. So, Mayor Walaker, thank you for 

being here. 

STATEMENT OF DENNIS WALAKER, MAYOR, CITY OF FARGO 

Mayor WALAKER. First of all, it’s a privilege to be here, Senator 

Dorgan. The press conference in the—this coming from National 

Weather Service and we have to be there by 10:45. 

I’m Fargo Mayor Dennis Walaker, and I’d like to thank Senator 

Dorgan and the city of West Fargo for hosting this subcommittee 

hearing regarding the Emergency Rule action on the Sheyenne 

River. 

First, I think some background information would be helpful to 

understand Fargo’s position on this matter. The city of Fargo utilizes both the Red and Sheyenne for its municipal water supply. 

We think having two surface water sources is a good water supply 

planning and historically, we’ve utilized them both independently 

and in combination for a variety of reasons related to water quality. And the Fargo water system presently provides drinking water 

to the city of Fargo and a significant user, the Cass County Rural 

Water Users District, serving a total population of approximately 

120,000 people. 

In addition, we have recently begun discussions with the city of 

West Fargo to explore the possibility of a regional water supply solution, and it’s my understanding that’s moving forward. There’s a 

possibility that we could treat water and serve the city of West 

Fargo and have maybe a process where we could work together 

that would benefit both cities and that seems to be very important 
7 

to us and very important to them because the cost of doing the 

other part of the process is extremely expensive and basically redundant. 

Our water treatment plant was constructed in 1997 with treatment technologies that were selected based on historic water quality in the Red and Sheyenne Rivers. As far back as 1975, the USGS 

historic water quality data on the Sheyenne River at West Fargo 

shows an average sulfate concentration around 200 milligrams per 

liter with an occasional peak of 300. The EPA secondary standard 

for sulfates in drinking water is 250 milligrams per liter, and the 

North Dakota Department of Health’s recommended upper limit for 

sulfates in drinking water is also 250 milligrams per liter. So based 

on historic water quality, it wasn’t necessary for our treatment 

plant to include technologies for sulfate removal. And since the 

plant began operating in 1997, we’ve been able to routinely meet 

the EPA secondary standard and the North Dakota Department of 

Health’s recommended upper limit for sulfate concentration in our 

drinking water. 

The Sheyenne River is a critical part of Fargo’s water supply and 

drought mitigation plans. As such, we have two perfected permits, 

one for natural flows in the Sheyenne and one for stored water in 

Lake Ashtabula. In addition, Fargo is an active participant in the 

Red River Valley Water Supply Project to bring Missouri water to 

eastern North Dakota during periods of water shortages or 

drought. The preferred option utilizes Lake Ashtabula and the 

Sheyenne River. Fargo’s participation is, in part, predicated on the 

water quality that allows us to continue to meet the EPA secondary 

standard and North Dakota Department of Health upper recommended limit for sulfates in drinking water with our current 

treatment technologies. 

I want to emphasize this is extremely important, and we need to 

emphasize the next statement I’m going to make. We certainly— 

Fargo recognizes the threat of flooding to the city of Devils Lake 

and surrounding areas. We also recognize the potential downstream impacts of an uncontrolled overflow from Devils Lake. So 

it is our desire to work cooperatively toward a mutually beneficial 

solution to address the flooding threat in Devils Lake and address 

the potential downstream water quality impacts on water systems 

that utilize the Sheyenne River as a water supply. 

The Emergency Rule increased the allowable sulfate concentration in the Sheyenne River, measured at a .01 miles downstream 

of Baldhill Dam, to 750 milligrams per liter. Our review of historic 

USGS water quality data indicates that there is little or no change 

in Sheyenne River sulfate concentrations between Baldhill Dam 

and West Fargo. However, it’s important to note that the Emergency Rule did not change the stream standard and correspondingly allowable sulfate concentration in the Sheyenne River at 

West Fargo remains at 450 milligrams per liter. 

To that end, we have estimated the modifications necessary to 

our water treatment system to reduce the sulfate concentration 

from 450 milligrams per liter in the Sheyenne River to 250 milligrams per liter in our drinking water would cost upwards of $45 

million. 
8 

We’d hope that an operational strategy can be developed for the 

Emergency Outlet that can control the maximum sulfate concentration in the Sheyenne River at West Fargo to the historic maximum 

level around 300 milligrams per liter. If that isn’t possible, we 

would like to see a financial assistance program to be applied 

equivalently to all downstream water systems for the additional 

treatment upgrades necessary to reduce sulfate concentrations in 

drinking water to meet the EPA secondary standard and that the 

North Dakota Department of Health’s upper recommended limit. 

Once again, we want to thank you for the opportunity to present 

our concerns. We would be happy to answer questions—or somebody will be here to answer questions, and we also have staff 

present to address the technical matters. 

And, in summary, until we get some more information on what 

you consider, you know, 300 is a figure that—is it arbitrary? Yes. 

Does it create problems? Right now we have a—what we consider 

an extremely good water system in the city of Fargo and, of course, 

there is some fear about it changing, but we also want to be able 

to communicate to the general public exactly what they can look 

forward to or what’s going to happen and so forth. But the bottom 

line is very simple; we will work with our communities together to 

come up with a solution to this problem. Thank you. 

Senator DORGAN. Mr. Mayor, thank you very much. I understand 

you do have to leave, and I’m sorry about that, but I understand 

your reasons for it so I appreciate your testimony. Is there someone 

here who can answer questions on your behalf? 

Mayor WALAKER. Yes, Bruce Grubb is here. Matter of fact, I can 

put his up—since mine’s on the floor. No. We thank—we thank 

you, Senator Dorgan, for this opportunity. We also fish up in Devils 

Lake. We understand that, you know, the whole process. I mean, 

it’s an extremely huge problem. I mean, nobody—I repeat nobody— 

knew then where this was going in 1993. They didn’t have a clue 

and to go over that, and now it’s probably got its own weather system right now as far as moisture is concerned. 

Senator DORGAN. Well, in 1991 they had a committee called the 

Lake Preservation Committee because there was too little water in 

Devils Lake and it’s a big fishing industry. 

Mayor WALAKER. Well, they’re very appreciative of Jake. 

Governor HOEVEN. Excuse me, Senator. 

Senator DORGAN. Yes. 

Governor HOEVEN. I’ll be going with Mayor Walaker to get the 

flood update, but you’ve got Dave Glatt here and others who can 

cover. 

Senator DORGAN. He will speak for you? 

Governor HOEVEN. Yes. 

[The information follows:] 

NORTH DAKOTA STATE WATER COMMISSION—NORTH DAKOTA DEPARTMENT OF

HEALTH

The State of North Dakota wants to thank you for your long term support of the 

Devils Lake Outlet program. We hope this response answers any questions you may 

have about the present situation. 

As you know, Devils Lake has risen 27 feet since 1993. In terms of acreage, Devils 

Lake has increased from less than 50,000 acres to more than 160,000 acres during 

this time period. Available hydrologic outlooks suggest that water levels will continue to rise. That means more than 100,000 acres of land has been flooded. The 
9 

National Weather Service Hydrology Outlook released on March 5, 2010 states that 

there is a 90 percent probability that Devils Lake will reach 1,452.1 feet by September 2010. The volume increase from the current elevation of 1,450.1 feet to 

1,452.1 feet is 346,500 acre-feet. An additional area of approximately 19,500 acres 

will be inundated. If an additional 1.6 million acre-feet of water enters Devils Lake, 

water would overflow into Tolna Coulee. Coupling the prediction for this year with 

the fact that Devils Lake had an estimated inflow of 585,000 acre-feet in 2009, as 

well as inflows greater than 100,000 acre-feet in 2001, 2004, 2005, and 2006, suggests that water levels will continue to rise at a rapid pace, threatening overflow 

if no action is taken. 

The current elevation of Devils Lake is 1,450 feet mean sea level, only about 8 

feet away from an overflow out of Stump Lake. If the rise of water into Devils Lake 

continues, spillover could occur through the Tolna Coulee into the Sheyenne River. 

The water involved in this discharge would constitute the poorest quality, highest 

sulfate water in the Devils Lake system. If this occurred, downstream communities, 

including Valley City, Lisbon, West Fargo, and Fargo, could receive a large volume 

of high sulfate water beginning at more than 2,200 milligrams per liter. To prevent 

this potential outcome, we plan to use the Devils Outlet along with mitigation and 

water retention methods to reduce water levels in the Devils Lake Basin. 

Operation of the Devils Lake Outlet is the most manageable way for North Dakota to reduce the risk of the overflow of Devils Lake, and in doing so, protects 

downstream interests. If the Devils Lake Outlet were operated at 250 cubic feet per 

second for 210 days per year, 7.7 inches would be removed with a lake elevation 

of 1,450 feet mean sea level. The outlet can potentially remove 110,000 acre/feet of 

water annually. Per your request concerning how many inches of water the Devils 

Lake Outlet would remove if Devils Lake reached 1,455 feet mean sea level, 5.8 

inches would be removed with continuous operation. Although operational constraints could limit these amounts, this demonstrates the ability of the outlet to 

greatly reduce water levels in the Devils Lake Basin over time. 

One of the methods you suggest to reduce runoff into the Devils Lake Basin is 

landowner participation in a State program designed to pay landowners to retain 

water on their land. There are already several State and Federal programs serving 

this purpose including the State Water Commission’s Extended Storage Acreage 

Program (ESAP), which pays landowners to store water that would otherwise have 

contributed to flooding around Devils Lake. Over the past 10 years, the ESAP program has been storing about 800 acre-feet at a cost of about $12,000 per year. Last 

August, the State Water Commission approved a 10 year extension of the ESAP program, allocating $142,250 in funds, Unfortunately for the region’s agribusiness sector, there is already a great deal of involuntary storage of water on land throughout 

the Devils Lake Basin. An important factor worth noting is that farmers are often 

reluctant to flood portions of their fields, fearing inability to access the balance of 

their acreage, reduced crop yield, delayed planting, and long term negative impacts 

to the soil. 

There are already a number of ways in which water is being retained in the Devils Lake Basin. Devils Lake itself has increased 110,000 acres since 1993, from 

50,000 acres to 160,000 acres. Satellite imagery taken on November 4, 2009 showed 

that there are 112 square miles of surface water in the Devils Lake Basin not including Devils Lake and Stump Lake. In addition, the Fish and Wildlife Service has 

perpetual easements on 165,000 acres in five counties alone in the Devils Lake 

Basin. Prior to implementation of the Swampbuster program in 1986, farmers were 

allowed to use legal drains to drain wetland areas, often with Federal concurrence 

and cost-sharing, but since 1986 there has been little additional drainage of wetlands. The further retention of water on highly productive, valuable farmland would 

cause grave agricultural losses. 

In addition to potential economic, social, and legal barriers, many studies by third 

party experts have shown that use of even a massive water retention program 

would not have a substantial impact on reducing drainage into Devils Lake. As an 

example, a Devils Lake Upper Basin Storage Evaluation was conducted for the U.S. 

Army Corps of Engineers, St. Paul District, by WEST Consultants, an independent 

organization from California. This study, conducted in 2001, found that if all the depressions that were identified by WEST as possibly drained were restored for wetland storage, there would be 127,835 acre/feet of storage space available. Use of this 

potential space would result in a reduction of 23,841 acre-feet of runoff into Devils 

Lake. At present, a reduction in input of 23,841 acre-feet would result in a less than 

2 inch reduction in water levels. Wetland restoration is not a complete answer to 

this problem, and would be a costly step that would serve as only a small contributing factor to a larger solution. In response to your inquiry, we would not recommend that the State Legislature pursue measures that would force landowners 
10 

within the Devils Lake Basin to retain more water on their productive farm land. 

We certainly appreciate further ideas from you concerning potential Federal participation to turn off the ‘‘faucet’’ of upper basin inflows. 

Weighing heavily in our decision to promote the greatest possible use of the 

State’s Devils Lake outlet is the immediacy of potential overflow into the Tolna Coulee. The water level at which water from the Devils Lake basin could overflow into 

the Tolna Coulee is 1,458 feet. Using a United States Geological Service stochastic 

model which assumes that Devils Lake will reach 1,452 feet by June 30, there is 

a 10 percent chance that Devils Lake will reach an elevation of 1,458.1 feet by 2019 

if the outlet is not used. These numbers demonstrate the fact that there is a relatively large possibility that Devils Lake could overflow into the Tolna Coulee, and 

ultimately into the Sheyenne River within 10 years if no preventative steps are 

taken. Under the same United States Geological Service stochastic model which assumes that Devils Lake will reach 1,452 feet by June 20, 2010, if the outlet operates 

at 250 cubic feet per second, constrained to meet the 450 milligram per liter sulfate 

level below Lake Ashtabula, there is a 5 percent chance of the lake reaching 1,458.4 

feet mean sea level in 2019. Operation of the Devils Lake Outlet would reduce the 

risk of an overflow by approximately one-half, and would also reduce the volume 

and duration of a spill should one occur. 

Many factors have been considered with regards to implementation of the Devils 

Lake Outlet, one of the foremost being the maintenance of water quality standards. 

Ensuring appropriate sulfate levels is one of the most critical aspects to monitor 

during this process, and the State of North Dakota is working to take necessary 

steps to ensure that sulfate levels do not exceed maximum limits as a result of outlet operations. To ensure the 450 milligrams per liter limit below Lake Ashtabula, 

State agencies will conduct extensive monitoring and management of Devils Lake 

Outlet operations. Real time conductivity measurements will be recorded at the gage 

locations, and will be made continuously available to the public. These measurements will provide a real time estimate of the total dissolved solids and sulfate concentrations for operational decisions. During ice free conditions, water will be sampled for sulfates 4 days a week at the Devils Lake Outlet, and once a week along 

the Sheyenne River at locations near Warwick, Cooperstown, Lake Ashtabula, Valley City, Lisbon and Horace. The North Dakota State Water Commission, with review and input from the statutorily established Outlet Advisory Committee, will 

control the release of water to ensure that water quality standards are met. Moreover, the outlet will not be operated when the releases would contribute to flooding 

downstream in the Sheyenne or Red River. 

Since 2007, Valley City has been in the process of upgrading their 35-year-old 

water treatment plant as part of an effort to meet a 2014 EPA compliance deadline. 

Valley City officials approached the State of North Dakota with a request for assistance in meeting the EPA deadline, whereupon $12.5 million of loan and grant funds 

were provided for the project. The State of North Dakota has funded many cities 

with upgrades to satisfy EPA requirements and reduce the use of chemical additives 

during the treatment process. North Dakota is dedicated to providing its citizens 

with a high quality, of sufficient quantity water supply. The State will continue this 

effort with other cities, including West Fargo and Fargo, in dealing with water supply issues. 

In summary, there are no easy solutions for the flooding problem in the Devils 

Lake basin. Be assured, the State of North Dakota is taking all necessary and reasonable steps to implement the most effective and safe measures to reduce or eliminate this persistent, costly problem. 

Senator DORGAN. Let me ask you one question before you leave, 

however, if I might. It relates to the mayor’s suggestion and the 

press thing that you referred to. If Fargo, for example, and others 

determine that they need for their own reasons to build a $45 million treatment plant, where would the money come from for that 

and is there a commitment from the State to fund that? 

Governor HOEVEN. Really to be to add reverse osmosis to whatever they do and they’ve estimated roughly that could cost $45 million so we’d work with them to do that. Now, again, we’re going 

to have to see what—we’re not changing the stream standard, and 

Dave can talk to that, but we’ll have to see what the sulfates are 

and if that’s an issue, yes, then the State’s going to work with them 

to do what they need to do whether it’s reverse osmosis as an add 
11 

to their treatment plant or whatever joint solution they’re undertaking anyway then we’ll partner with them. 

Senator DORGAN. I understand, but I think what the mayor was 

suggesting was if they feel as a result of the science and the understanding of the science that they need to do something here that 

he refers to as costing $45 million. One of the interests of this subcommittee, because we spend a lot of money on water issues 

around the country, is where will that funding come from? 

Governor HOEVEN. Oh, we’re going to work with them through 

the Water Commission, and we’d love some help from the Federal 

participation as well, but we’re certainly going to stand with them 

because this is about making sure that we take a comprehensive 

approach to solving this issue not only for Devils Lake but all the 

communities, Fargo, West Fargo, Valley City as we were—have already done. So, yes, we’re going to be there working with them, 

and we’d love to have you as a partner as well in that bonding effort depending on what it’s going—but if it’s $45 million reverse osmosis, we’re certainly going to work through the Water Commission help with that as we did in the past. 

Senator DORGAN. Well, I understand you have to leave and with 

your permission I’m going to send some written questions from the 

committee to you in those areas, but I appreciate very much your 

being here. 

Governor HOEVEN. Yes. And, again, I appreciate your support in 

the Devils Lake outlet and this operation. Thank you. 

Senator DORGAN. Thank you. Mr. Glatt. 

STATEMENT OF L. DAVID GLATT, CHIEF, ENVIRONMENTAL HEALTH 

SECTION, NORTH DAKOTA DEPARTMENT OF HEALTH 

Mr. GLATT. Good morning, Senator. Thank you for having this 

opportunity to talk to the subcommittee. It’s nice to sit sometimes 

on this side of the hearing table as we go through this, but my 

name’s Dave Glatt. I’m chief of the Environmental Health Section 

for the North Dakota Department of Health. Our department is responsible for many of the environmental protection programs implemented in the State. A number of these programs are provided 

through primacy agreements with and oversight by the U.S. Environmental Protection Agency. I’m here today to provide a brief 

overview of the current process associated with the water quality 

standards being proposed and considered by the department. 

The issue before the department today relates to the proposed 

change in the sulfate standards from 450 milligrams per liter to 

750 milligrams per liter for a portion of the Sheyenne River from 

its headwaters to .1 miles downstream of Baldhill Dam. It is important to note that the proposed Sheyenne River sulfate standard 

change is part of a larger, EPA-required, triennial water quality 

standard review. The triennial review includes changes to the existing standards that reflect the current science and status of water 

quality throughout North Dakota. The department is currently in 

the middle of a required public review and comment period set to 

end on March 1, 2010. Upon completion of the comment period and 

prior to making a final decision regarding the proposed water quality standards change, the department is required to provide a written response to all comments. After the department has made a 
12 

final determination regarding the standards, it must seek review 

and approval from the following: The North Dakota Water Pollution Control Board, which is comprised of representatives that include private citizens, municipalities, State agencies, Federal agencies, agriculture and industry. 

We’re also required to get approval from the North Dakota State 

Health Council. Members include the medical committee, private 

citizens, municipalities and industry—industry as well. 

We’re also required to go through the North Dakota Office of the 

Attorney General. 

We’re also required to go through—get approval from the Administrative Rules Committee where basic—where they are comprised 

of legislators on that committee. 

And, finally, after that then we are required to go to the U.S. Department of Protection Agency, which they review our response to 

comments, the science, and determine whether or not those—our 

determinations can be supported or needs to be changed. 

It’s important to note that the water quality standards will be 

considered finally—final only after review and approval by all of 

the previously mentioned agencies and boards. 

In formulating any proposed decision, whether it is concerning a 

permit or rule, the department must follow prescriptive legal requirements and applicable science. In the issue being discussed 

today, the department has evaluated and continues to evaluate the 

following: Historical and current water quality data. For several 

decades we have either conducted activities as part of department 

duties or partnered with other State and Federal agencies in the 

collection of water quality data from locations in Devils Lake, the 

Sheyenne River and the Red River to the Canadian border. This 

continuing effort includes the collection of samples for laboratory 

analysis. 

The State Water Commission and the department also have 

partnered with the U.S. Geological Survey to install gauging stations at seven locations from the headwaters of the Sheyenne River 

to below the Baldhill Dam, providing web-accessible data on a 24/ 

7 basis. Additional USGS water quality and quantity stations are 

located along the Sheyenne and Red Rivers to the Canadian border. 

I also state that all our data, water quality data, is available on 

the Web page and is accessible to the public or they can just ask 

us for it. We will get it to them. 

We’ve also conducted biota surveys. The department has completed biological assessments either on its own or in cooperation 

with other State and Federal agencies. Of particular note are the 

first ones that count—the biota survey conducted by the Council on 

Environmental Quality directed—they directed that study, a biological survey of Devils Lake and also a survey of several locations 

in the upper Sheyenne River conducted by a private consultant 

hired by the State Water Commission. Also a biological diversity 

assessment conducted by the department. And, again, also a survey 

conducted by the International Red River Board Parasite and 

Pathogen survey directed by representatives of the Bureau of Reclamation and Canada. 

We’ve also looked at other water quality standards. In evaluating 

the proposed sulfate change, the department also reviewed EPA-ap-
13 

proved water quality standards from other States to ensure consistency in the standards and science. It’s important to note that Minnesota has a sulfate standard of 400 milligrams per liter in their 

drinking water primarily for infants and babies. South Dakota is 

looking at 500 not to be higher than 875, and they’re also standards—because it’s a secondary standard, is non-enforceable primarily because there isn’t a concern relating to health, but it’s 

more of an aesthetic issue. We have several communities in the 

State that drink considerably more than 250 and some above a 

thousand milligrams per liter with no observed health effects. 

Please note that the proposed change for the Sheyenne River applies only to the area previously identified and does not change any 

standard essentially downstream of Baldhill Dam or on the Red 

River. We are required as part of our annual review to commit and 

comply with all the existing water quality standards downstream, 

and in our proposed changes it does say that we will maintain compliance at 450 downstream and 250 in the Red River for sulfate. 

The department is also a strong advocate of the legislature authorized Outlet Advisory Committee to ensure that people impacted 

in the Devils Lake area and downstream of the outlet have a 

strong voice in the operation of the outlet. 

The department is keenly aware of its obligations to the citizens 

of the State and also to the EPA in the implementation of the 

Clean Water Act. We are bound by State and Federal law to thoroughly assess and evaluate each use and discharge into waters of 

the State for potential impacts on downstream designated uses. Potential impacts are evaluated for each specific discharge utilizing 

the best available science and applicable law. Discharges include 

those from point sources such as municipal/industrial wastewater 

systems and from agricultural operations. 

This concludes my testimony. I’d be happy to answer any questions you may have. 

Senator DORGAN. Mr. Glatt, thank you very much. We appreciate 

you being here. I do have a series of questions. Next Mayor Bott, 

the mayor of Devils Lake. We welcome you. 

STATEMENT OF FRED BOTT, MAYOR, CITY OF DEVILS LAKE; PRESIDENT, DEVILS LAKE CITY COMMISSION 

Mayor BOTT. Good morning, Senator. Thank you for the opportunity to speak with you today regarding the current challenges 

facing the city of Devils Lake and surrounding area and the potential implications related to rising water levels within the lake. My 

name is Fred Bott. I’m President of the Devils Lake City Commission. 

As you are aware, the city of Devils Lake has faced a multitude 

of challenges resulting from fluctuating lake levels. Last year the 

city reluctantly agreed to enter into a Project Cooperative Agreement with the Corps of Engineers to increase the protection level 

of the embankment protecting the city and surrounding area. The 

city was extremely concerned about entering into this agreement 

because we felt that continued flooding and increasing lake elevations will have dire economic impacts to the city. We understood 

that if the lake continued to rise it would flood an additional 

100,000 acres or more of prime farmland, flood countless homes, 
14 

and be devastating to our neighboring communities. Therefore, the 

city of Devils Lake fully supports efforts from the North Dakota 

Department of Health and the North Dakota State Water Commission to remove additional water from the lake to reduce flood damages. 

With the drastic rise in Devils Lake again this—again last year 

and the continuing precipitation we’ve been receiving, we feel it is 

imperative that emergency measures be taken to address our continued flooding. The city of Devils Lake does not want to pass our 

problems along downstream, but it appears obvious to us that if adjustments to downstream water quality and quantity requirements 

are not made to allow increased flows from the lake, a natural 

overflow could result in extreme water quality and flooding impacts 

downstream in the future. Even with the expansion of the embankment protecting our area, it will not be able to contain the lake 

should it continue to rise. Therefore, working together now to develop effective flood relief measures rather than waiting to see if 

Mother Nature will address the issue on her own future is the most 

logical approach to solve this issue. 

On February 11, 2009, I had the honor to testify before you, Senator Dorgan, in Washington, DC. One of my statements was as follows: As you will hear today from representatives of the National 

Weather Service it appears there is a significant chance the lake 

will experience a dramatic rise this spring. By the end of February 

2009, we knew something was coming. It was a rise of 3 feet 7 

inches and 36 of those 43 inches remain on the lake. As of the 

morning of February 19, 2010, it appears there is a significant 

chance the lake will experience a dramatic rise this spring. Devils 

Lake is rapidly building to an overflow. 

The city of Devils Lake fully supports the proposed water quality 

adjustments within the Sheyenne River and feels necessary adjustments need to be made to allow larger amounts of water to be removed from the lake to prevent its continued rise. 

PREPARED STATEMENT

Again, Senator, thank you for the opportunity to speak today. We 

appreciate that you continue to understand the great challenges 

that lie ahead of us and hope we are able to work together to find 

effective solutions. 

[The statement follows:] 

PREPARED STATEMENT OF FRED BOTT

Senator Dorgan and subcommittee members, thank you for the opportunity to 

speak with you today regarding the current challenges facing the city of Devils Lake 

and surrounding area and the potential implications related to rising water levels 

within the lake. My name is Fred Bott, I am the president of the Devils Lake City 

Commission. 

As you are aware, the city of Devils Lake has faced a multitude of challenges resulting from fluctuating lake levels. Last year, the city reluctantly agreed to enter 

into a Project Cooperative Agreement with the Corps of Engineers to increase the 

protection level of the embankment protecting the city and surrounding area. The 

city was extremely concerned about entering into this agreement because we felt 

that continued flooding and increasing lake elevations will have dire economic impacts to the city. We understood that if the lake continued to rise, it could flood an 

additional 100,000 acres or more of prime farmland, flood countless homes and be 

devastating to our neighboring communities. Therefore, the city of Devils Lake fully 

supports efforts from the North Dakota Department of Health and the North Da-
15 

kota State Water Commission to remove additional water from the lake to reduce 

flood damages. 

With the drastic rise in Devils Lake again last year and the continuing precipitation that we have been receiving, we feel that it is imperative that emergency measures be taken to address our continued flooding. The city of Devils Lake does not 

want to pass our problems along downstream, but it appears obvious to us that if 

adjustments to downstream water quality/quantity requirements are not made to 

allow increased flows from the lake, a natural overflow could result in extreme 

water quality and flooding impacts downstream in the future. Even with the expansion of the embankment protecting our area, it will not be able to contain the lake 

should it continue to rise. Therefore, working together now to develop effective flood 

relief measures, rather than waiting to see if Mother Nature will address the issue 

on her own in the future, is the most logical approach to solve this issue. 

On February 11, 2009, I had the honor to testify before you Senator Dorgan in 

Washington, DC. One of my statements was as follows: ‘‘As you will hear today from 

representatives of the National Weather Service, it appears there is a significant 

chance the lake will experience a dramatic rise this spring.’’ By the end of February 

2009, we knew something was coming—it was a rise of 3 feet, 7 inches and 36 of 

those 43 inches remain in the lake. As of the morning of February 19, 2010, it appears there is a significant chance the lake will experience a dramatic rise this 

spring. Devils Lake is rapidly building to an overflow. 

The city of Devils Lake fully supports the proposed water quality adjustments 

within the Sheyenne River and feels necessary adjustments need to be made to 

allow larger amounts of water to be removed from the lake to prevent its continued 

rise. 

Again, thank you for the opportunity to speak today. We appreciate that you continue to understand the great challenges that lie ahead of us and hope we are able 

to work together to find effective solutions. 

Senator DORGAN. Mayor Bott, thank you very much. Jon Cameron is here on behalf of the mayor of Valley City. Mr. Cameron. 

STATEMENT OF JON CAMERON, CITY ADMINISTRATOR, VALLEY CITY 

Mr. CAMERON. Good morning, Senator. Again, I’m Jon Cameron, 

City Administrator for Valley City, and I’m honored to be here 

today representing Mayor Mary Lee Nielson and the City Commission of Valley City. The stated purpose of the hearing today is to 

hear from multiple community officials about the impact of the increase in the allowable sulfate levels in the Sheyenne River that 

those will have on drinking water quality and those communities 

served by the Sheyenne River. 

A brief history of the Valley City water treatment plant will help 

clarify the overall understanding of this issue for our city. The 

plant in Valley City was constructed in 1972 and basically used a 

lime softener process for water treatment. There are currently two 

wild water sources utilized by the plant, surface water from the 

Sheyenne River and groundwater from the Valley City aquifer, 

which is under direct influence of the river. When the city is operating on 100 percent surface water, the plant produces approximately 3 million gallons per day. Due to operational limitations of 

the groundwater wells, the plant produces 2.2 million gallons per 

day running solely on the ground—groundwater. It is part of a plan 

plant upgrade program the city recently completed the chlorine 

chloramine contact basin project, which provides control of disinfection contact in order to meet Federal drinking water regulation. 

The next phase of our upgrade project was to create redundancy 

in the lime softener line feed system. Planning for this project was 

underway when proposed increase of the sulfate levels in Sheyenne 

River was announced last summer. 

We initiated contact immediately with officials of North Dakota 

Department of Health, State Water Commission, and the office of 
16 

the Governor regarding potential impact of increased sulfates in 

the drinking water in Valley City. At the same time we had dialogue with Advanced Engineering and Environmental Services Incorporated to contract water engineering firms for Valley City. We 

determined at that time the best and most practical way to treat 

the surface water effectively was through the installation of reverse 

osmosis or membrane water treatment facility. The membrane facility would not only treat and filter the increased sulfates, but also 

be able to remove turbidity and soften the water. 

Through the efforts of our local elected officials funding assistance was obtained through the State Water Commission in the 

amount of $9.2 million. The new system is securing two $400,000 

corporations for a total of $800,000. And finally $4.6 million in 

funds were secured through ARRA, which consisted of $2.6 million 

forgivable loan and $2 million loan payable—— 

Senator DORGAN. ARRA is the economic stimulus? 

Mr. CAMERON. Yes, sir. That loan $2 million payable over 20 

years at 1 percent. 

PREPARED STATEMENT

Our design work is under way and construction should begin in 

late 2010 with a projected completion date of 2011. We in Valley 

City are appreciative of the divine efforts of you, Senator, and the 

State officials of North Dakota to help Valley City respond to the 

water treatment plant issues in a manner that will result in a 

treatment plant to meet all current and known future water treatment requirements while at the same time minimizing the longterm cost to our locals out there. Thank you again for the opportunity. 

[The statement follows:] 

PREPARED STATEMENT OF JON CAMERON

Good morning. I am Jon Cameron, the city administrator in Valley City, North 

Dakota, and I am honored to be here today representing Mayor Mary Lee Nielson 

and the city commission of Valley City. The stated purpose of the hearing today is 

to hear from local community officials about the impact the increase in the allowable sulfate levels in the Sheyenne River will have on drinking water quality in 

those communities served by the Sheyenne River. 

A brief history of the Valley City Water Treatment Plant will help with the overall understanding of this issue for our city. The plant in Valley City was constructed 

in 1972 and basically uses a lime softening process for water treatment. There are 

currently two raw water sources utilized by the plant, surface water from the 

Sheyenne River and groundwater from the Valley City Aquifer which is under direct 

influence of the river. When the city is operating on 100 percent surface water, the 

plant produces approximately 3.0 MGD (2,080 gpm). Due to operational limitations 

of the city’s groundwater wells, the plant typically produces approximately 2.2 MGD 

(1,500 gpm) when running solely on groundwater. 

As part of a planned plant upgrade program, the city recently completed a Chlorine/Chloramine Contact Basin Project which provides control of disinfection contact 

time in order to meet Federal drinking water regulations. The next phase of our upgrade project was to create redundancy in the lime softening and lime feed system. 

Planning for this project was underway when the proposed increase to the sulfate 

levels in the Sheyenne River was announced last summer. 

We initiated contact with officials from the North Dakota Department of Health, 

State Water Commission and the Office of the Governor regarding the potential impact of the increased sulfates on the drinking water in Valley City. At the same 

time, we had dialogue with Advanced Engineering & Environmental Services, Inc., 

the contracted water engineering firm for Valley City. It was determined that the 

best and most practical way to treat the surface water effectively was through the 
17 

installation of a reverse osmosis or membrane water treatment facility. The membrane facility would not only treat and filter the increased sulfates but would also 

be able to remove turbidity, and soften the water. 

Through the efforts of our local elected officials, funding assistance was obtained 

through the State Water Commission in the amount of $9.2 million. Senator Dorgan 

assisted in securing two $400,000 appropriations for a total of $800,000. Finally, 

$4.6 million in funds were secured through ARRA, which consisted of a $2.6 million 

forgivable loan and a $2.0 million loan repayable over 20 years at 1 percent. Design 

work is underway and construction should begin in late 2010 with a projected completion at the end of 2011. 

We in Valley City are appreciative of the combined efforts of Senator Dorgan and 

State Officials in North Dakota to help Valley City respond to the water treatment 

plant issues in a manner that will result in a treatment plant that will meet all 

current and known future water treatment requirements while at the same time 

minimizing the long-term costs to the local taxpayers. 

Senator DORGAN. Mr. Cameron, thank you very much. Next, we’ll 

hear from Dr. Wei Lin. Did I pronounce that correctly? 

Dr. LIN. Yes. 

Senator DORGAN. Dr. Lin is an associate professor of civil engineering at North Dakota State University. 

STATEMENT OF WEI LIN, ASSOCIATE PROFESSOR, DEPARTMENT OF 

CIVIL ENGINEERING, NORTH DAKOTA STATE UNIVERSITY 

Dr. LIN. Good morning, Senator Dorgan. My name is Wei Lin. 

I’m an associate professor in the Department of Civil Engineering 

at North Dakota State University. I’m an environmental engineer 

and my specialty areas are water quality management and water 

in the wastewater treatment. I’m also a member of the North Dakota State Water Pollution Control Board. I am pleased to provide 

the following information on potential impact of sulfate on various 

water uses in reference to the proposed increase of allowable sulfate levels in the Sheyenne River. 

Sulfate is a commonly occurring negatively charged ion in natural waters. At high concentrations, sulfate may cause some adverse health and environment impacts including taste in drinking 

water and the laxative effects; increase of soil salinity and reduction in productivity; corrosion of water distribution network; and 

chemical reactions that affect lake water quality. 

Sulfate in drinking water has a secondary maximum contamination level of 250 milligrams per liter. A salty taste may be experienced when sulfate concentration exceeds 250 milligrams per liter. 

Secondary drinking water standards are established for aesthetic 

considerations and are not enforceable by USEPA. However, taste 

and odors in drinking water are two of the top consumer complaints according to American Water Works Association, a professional organization of water industry. Taste in water may lead to 

consumers drinking less water and thus losing their appetite. 

Health concerns regarding sulfate in drinking water have been 

raised because laxative effect of sulfate on infant and transient 

populations. Diarrhea and dehydration conditions may be induced 

by sudden increase of sulfate level in drinking water. Infants receiving their first bottles containing tap water are more susceptible 

than adults to diarrheal water loss because of differences in gastrointestinal structure and function. As a precaution, Minnesota Department of Health recommends that water with a sulfate level exceeding 400 milligrams per liter should not be used in the preparation of infant formula. Older children and adults become accus-
18 

tomed to higher sulfate levels after few days. Evidence indicates 

that people acclimate to presence of sulfate in drinking water. An 

earlier informal survey conducted by the North Dakota Department 

of Health—actually about 60 years ago, which has been often referenced as being a scientific literature, suggested that water sulfate level greater than 750 milligrams per liter was considered a 

laxative by most consumers. No chronic adverse health impact from 

exposure to sulfate in water has been reported. An expert panel assembled by Centers for Disease Control and Prevention recommended a health advisory in places where drinking water has 

sulfate levels greater than 500 milligrams per liter. Animals are 

also found sensitive to high level of sulfate. In young animals, high 

level may be associated with severe diarrhea. 

High sulfate concentration in Devils Lake is associated with high 

salinity, which is often measured as electrical conductivity. Higher 

the sulfate concentration—or higher salt concentration, higher the 

electrical conductivity. Sulfate is a nutrient to plants at low concentrations. Present of sulfate as dissolved gypsum calcium sulfate 

may reduce sodium hazard by reducing sodium to calcium and 

magnesium ratio, called sodium adsorption ratio. However, high salinity is proven to have a negative impact on crop yield. A recent 

study conducted by NDSU researchers indicates potential accumulation of sulfate and increase of salinity in topsoil after irrigating 

a field with water containing relatively high sulfate and salinity. 

Now, I’d like to talk about the potential impact of sulfate on the 

aquatic ecosystem. We all know that under anaerobic conditions— 

that’s conditions without oxygen—sulfate may be reduced to sulfide 

through microbial reactions. Hydrogen sulfide formed in these reactions gives a rotten egg smell of sewage. Sulfate reduction may also 

occur in organic rich sediments in lakes and slow moving rivers. In 

sediment, sulfate serves as an alternative of oxygen and stimulates 

the decomposition of organic matter. As organic matter is decomposed sulfate is reduced to sulfide at same time phosphate and ammonia is released from decomposed organic matter. Instead of 

forming hydrogen sulfide, sulfide ions in sediment have a tendency 

to bind with metals such as iron and aluminum and releasing phosphate that is originally associated with these metal ions. Scientists 

give this process a term internal eutrophication. Results from scientific studies show that an increase of sulfate concentration may 

cause more nitrogen and phosphorous release from sediments and 

therefore resulting in more algal growth in lakes. 

The importance of increased eutrophication on the aquatic ecosystem and—or the impact—I’m sorry. The impact of increased eutrophication on the aquatic system and the economy could be significant. Algal bloom will not only cause unpleasant conditions for 

recreational use of the lake, but blue-green algae may release toxins that make the water unsafe for human and animal consumption. Highly eutrophic lakes typically have low oxygen level near 

the bottom and experience strong daily oxygen variations in the top 

layer. Oxygen limitation will have adverse impact on the fish population. It will cause disappearance of game fish and encourage the 

growth of trash fish. Impact of the increased Sheyenne River sulfate level on Lake Ashtabula is not clear and it could be long term. 

Once a lake becomes eutrophic it is very difficult to reverse the 
19 

process. I strongly support a comprehensive monitoring program on 

Lake Ashtabula to track the progression of sulfate level and the 

change in other water quality and ecological parameters. I would 

like to recommend establishment of a research program focusing on 

Lake Ashtabula water quality and its aquatic system. The research 

will include field sampling/surveying, experimental studies, and 

model simulations to understand the impact of sulfate and other 

environmental stressors on lake chemistry and biological processes 

to predict short-and long-term effects on water quality and ecosystem, and to study potential socio-economical impact to the region. 

Sulfates are important in both public and industrial water supplies because of the tendency of water containing high amounts of 

sulfates to form hard scales in boilers and heat exchangers. Sulfate 

cannot be removed by conventional water treatment process as earlier speakers already mentioned. Therefore, high sulfate level in 

source water will result in high sulfate concentration in drinking 

water unless advanced treatment methods are employed in the 

water treatment plan. Effective advanced water treatment methods 

for sulfate removal include reverse osmosis, ion exchange, and distillation. 

PREPARED STATEMENT

This ends my testimony. Thank you for your attention and opportunity. 

[The statement follows:] 

PREPARED STATEMENT OF WEI LIN

My name is Wei Lin. I am an associate professor in the Department of Civil Engineering at North Dakota State University (NDSU). I am an environmental engineer 

and my specialty areas are water quality management, and water/wastewater treatment. I am also a member of the North Dakota State Water Pollution Control 

Board. I am pleased to provide the following information on potential impact of sulfate on various water uses in reference to proposed increase of allowable sulfate levels in the Sheyenne River. 

Sulfate (SO2

2¥) is a commonly occurring negatively charged ion (anion) in natural 

waters. At high concentrations, sulfate may cause some adverse health and environmental impacts, including: taste in drinking water and laxative effects; increase of 

soil salinity and reduction in productivity; corrosion of water distribution network; 

and chemical reactions that affect lake water quality. 

Sulfate in drinking water has a secondary maximum contaminant level (SMCL) 

of 250 mg/L. A salty taste may be experienced when sulfate concentration exceeds 

250 mg/L. Secondary drinking water standards are established for aesthetic considerations and are not enforced by USEPA. However, tastes and odors in drinking 

water are one of the top customer complaints according to American Water Works 

Association, a professional organization of the water industry. Taste in tap water 

may lead to consumers drinking less water and losing their appetite. 

Health concerns regarding sulfate in drinking water have been raised because laxative effects of sulfate on infants and transient populations (USEPA, 1999a). Diarrhea and dehydration conditions may be induced by a sudden increase of sulfate levels in drinking water. Infants receiving their first bottles containing tap water are 

more susceptible than adults to diarrheal water loss because of differences in gastrointestinal structure and function (USEPA, 2003). As a precaution, Minnesota Department of Health (2006) recommends that water with a sulfate level exceeding 

400 mg/L should not be used in the preparation of infant formula. Older children 

and adults become accustomed to high sulfated levels after a few days. Evidence indicates that people acclimated to the presence of sulfate in drinking water. An informal survey conducted by the North Dakota Department of Health suggested that 

water sulfate levels greater than 750 mg/L was considered laxative by most consumers. No chronic adverse health impact from exposure to sulfate in water has 
20 

been reported (USEPA, 1994). An expert panel assembled by the Center for Disease 

Control and Prevention recommended a health advisory in places where drinking 

water has sulfate levels greater than 500 mg/L (USEPA, 1999b). Animals are also 

found sensitive to high levels of sulfate. In young animals, high levels may be associated with severe diarrhea. 

High sulfate concentration in Devils Lake is associated with high salinity, which 

is often measured as electrical conductivity. Higher the salt concentration, higher 

the electrical conductivity. Sulfate is a nutrient to plants at low concentrations. 

Present of sulfate as dissolved gypsum (calcium sulfate) may reduce sodium hazard 

by reducing sodium to calcium and magnesium ratio, called sodium adsorption ratio 

(SAR). However, high salinity is proven to have a negative impact on crop yield. A 

recent study conducted by NDSU researchers indicates potential accumulation of 

sulfate in the topsoil after irrigating with water containing relatively high sulfate 

and salinity. 

Now, I’d like to talk about the potential impact of sulfate on the aquatic ecosystem. We all know that under anaerobic (without oxygen) conditions, sulfate may 

be reduced to sulfide through microbial reactions. Hydrogen sulfide formed in these 

reactions gives a ‘‘rotten egg smell’’ of sewage. Sulfate reduction may also occur in 

organic rich sediments in lakes and slow moving rivers. In sediment, sulfate serves 

as an alternative of oxygen and stimulates the decomposition of organic matter. As 

organic matter is decomposed sulfate is reduced to sulfide. Phosphate and ammonia 

are released from decomposed organic matter. Instead of forming hydrogen sulfide, 

sulfide ions in sediment have a tendency to bind with metals such as iron and aluminum and releasing phosphate that is originally associated with these metal ions 

(Smolders et al., 2006). Scientists give this process a term ‘‘internal eutrophication’’. 

Results from scientific studies, show that an increase of sulfate concentration may 

cause more N and P release from sediments and therefore result in more algal 

growth in lakes. 

The impact of increased eutrophication on the aquatic ecosystem and the economy 

could be significant. Algal bloom will not only cause unpleasant conditions for recreational use of a lake, but blue-green algae may release toxins that makes water 

unsafe for human and animal consumption. Highly eutrophic lakes typically have 

low oxygen level near the bottom and experience strong daily oxygen variations in 

the top layer. Oxygen limitation will have adverse impact on the fish population. 

It will cause disappearance of game fish and encourage the growth of trash fish. Impact of the increased Sheyenne River sulfate level on Lake Ashtabula is not clear 

and could be long term. Once a lake becomes eutrophic it is very difficult to reverse 

the process. I strongly support a comprehensive monitoring program on Lake Ashtabula to track the progression of sulfate level and changes in other water quality 

and ecological parameters. I would like to recommend establishment of a research 

program focusing on Lake Ashtabula water quality and its aquatic ecosystem. The 

research will be include field sampling/surveying, experimental studies, and model 

simulations to understand the impact of sulfate and other environmental stressors 

on lake chemistry and biological processes, to predict short and long-term effects on 

water quality and ecosystem, and to study potential socio-economical impacts to the 

region. 

Sulfates are important in both public and industrial water supplies because of the 

tendency of waters containing appreciable amounts to form hard scales in boilers 

and heat exchangers. Sulfate cannot be removed by conventional water treatment 

processes. Therefore, high sulfate level in source water will result in high sulfate 

concentration in drinking water unless advanced treatment methods are employed 

in the water treatment process. Effective advanced water treatment methods include: reverse osmosis, ion exchange, and distillation. 

Thank you for your attention and the opportunity. 

REFERENCE: 

Minnesota Department of Health (2006) Well Management, Sulfate In Well 

Water, www.health.state.mn.us/divs/eh/wells/sulfate.html. 

Smolders, A.J.P., Lamers, L.P.M, Lucassen, E.C.H.E.T., Van der Velde, G., and 

Roelofs, J.G.M. (2006) Internal eutrophication: How it works and what to do about 

it—a review, Chemistry and Ecology, 22, 2, 93–111. 

U.S. Environmental Protection Agency (USEPA) (1994) Fact Sheet—Sulfate, Office of Water 4603, EPA 811–F94–006, November 1994. 

USEPA (1999a) Health Effects from Exposure to High Levels of Sulfate in Drinking Water Supply, EPA 815–R–99–001, January 1999. 

USEPA (1999b) Health Effects from Exposure to High Levels of Sulfate in Drinking Water Workshop, EPA 815–R–99–002, January 1999. 
21 

USEPA (2003) Drinking Water Advisory: Consumer Acceptability Advice and 

Health Effects Analysis on Sulfate, EPA 822–R–03–007, February 2003. 

Senator DORGAN. Dr. Lin, thank you very much. We appreciate 

you being here, and next Mr. Jim Stevens, who represents the organization People to Save the Sheyenne River. 

STATEMENT OF JIM STEVENS, PEOPLE TO SAVE THE SHEYENNE 

RIVER 

Mr. STEVENS. Thank you, Senator. I feel honored to be here 

today. I did explain to Justin when he called me that I am a past 

president of that organization, but I would have to be speaking 

today as an individual who lives in rural North Dakota along the 

Sheyenne River. My family goes back over 130 years in that area, 

and my great-grandfather homesteaded parts of what we have 

right now and my grandchildren will be the sixth generation on 

this land. 

We are very concerned about the—any added Devils Lake water 

to our river. We’ve experienced many floods over the years and any 

additional water from Devils Lake can spill out onto the fields and 

up and down the valley, not just our land, but down the whole valley and sit on these fields for weeks on end, and with the added 

sulfate levels, could be detrimental to our soil. 

In past years the Sheyenne River has decreased to less than 50 

cfs and the banks get a chance to re-vegetate and heal for the next 

flood, which seems to come more often each year. We in 1993 had 

a severe summer flood when we got 10 to 12 inches of rain in our 

area and within 24 hours we had a major flood. They can’t shut 

down the Devils Lake outlet to help in a situation like that. That 

extra flow could be catastrophe for many local citizens and the 

towns of Fort Ransom, Lisbon, Enderlin, on down to the Red River 

Valley area. 

The State Water Commission and the State Health Department 

have claimed that these high sulfates will only reach a little bit 

below Baldhill Dam and Lake Ashtabula. I wonder if they have 

done enough studies. What is it going to do to Baldhill Dam? And 

it would be hard for me to believe that it will not gradually go further down over a number of years. They might be looking at the 

first year. What about 5, 10 years down the road? The city of Devils Lake has purchased land in the Tolna Coulee and already lowered it 1 foot. They would like to lower it another 5 feet. Any farmer cutting a drain would be in deep trouble if he tried that, but it 

seems like the Governor goes under him or above the law. 

I know an older gentleman from east of New Rockford who was 

at meetings decades ago when they were planning to increase 

draining in the upper basin to bring water to the salt plat of Devils 

Lake. A man of knowledge stood up and told them if you’re planning this amount of draining, you better have a plan in place when 

you get too much water, and no one believed him. 

I do not believe that they have done a sufficient amount of controlling the water coming into Devils Lake. As long as they’re 

ungated, manmade drains coming into that area, they are not 

doing what they should to prevent the flood. It has been stated by 

officials from Devils Lake that they do not want the lake to go 

below 1,446 because it’s been very good for their economy. They 
22 

want to turn this into a river and then have your Devils Lake outlet. But as was said earlier, the Devils Lake outlet would take up 

to 3 to 4 inches off the lake a year if it’s increased to this level. 

Before when they set up the 4 inches, it took a fraction of an inch. 

That would never prevent a natural overflow anyway. You have to 

do other measures to prevent the natural overflow. If it’s going to 

increase 3 feet with all that rain coming into Devils Lake, 4 inches 

is not going to help. 

PREPARED STATEMENT

Thank you very much for your time, Senator, and I’m honored 

to be here. 

[The statement follows:] 

PREPARED STATEMENT OF JIM STEVENS

In his announcement of the February 19, 2010 hearing in west Fargo, North Dakota, to take testimony on the Devils Lake Outlet Project, Senator Byron Dorgan 

made it clear that he believed that ‘‘transferring water problems from one region 

of North Dakota to another’’ was not acceptable. 

People to Save the Sheyenne agree with Senator Dorgan’s assessment and wish 

to add this information as part of the record objecting to the construction and operation of the Devils Lake Outlet as a method of dealing with excess water on Devils 

Lake, North Dakota. 

The Main Point of Contention.—What are the chief causes of the rise of Devils 

Lake over the past 25 years and what is the best method of dealing with that situation? Officials have not yet considered seriously the restoration of upper basin 

drained wetlands which would result in more acres of storage. Since over 350,000 

acres of upper basin wetlands have been drained, it stands to reason that those 

drained acres contribute to higher levels on Devils Lake. 

Here’s What Needs To Be Done First.—A complete and objective scientific study 

by outside experts of the hydrology of the entire Devils Lake Basin to determine 

the extent of the drainage and the amount of water that drainage has produced on 

Devils Lake. 

The North Dakota State Water Commission built its outlet from Devils Lake into 

the Sheyenne River in 2005. The original permit limited sulfate levels in the 

Sheyenne River to 300 milligrams per liter. The North Dakota Department of 

Health increased that limit in 2008 to 450 mg/L. On July 15, 2009, Governor John 

Hoeven, using Emergency Rules, voided the original permit and approved an increase in the sulfate limit in the upper Sheyenne River to 750 mg/L, a move that 

would allow almost unlimited pumping of Devils Lake water into the Sheyenne. The 

SWC is planning to increase the flow of water from Devils Lake into the river this 

year from 100 cubic feet per second to 250 cfs. Such an increase will result in serious degradation of the water quality in the river, turning it into a miniature Devils 

Lake ditch. 

No scientific, objective studies of the results of adding more Devils Lake water to 

the river have been done. Instead, both the North Dakota Department of Health and 

the SWC have stated that such an increase of Devils Lake water would not change 

the usefulness of Sheyenne River water. 

The Governor made his decision without scientific study and without consultation 

with those who will be affected by increased flows of Devils Lake water into the 

Sheyenne River. 

Who should have been involved in making the decision to void the original outlet 

permit? Well, besides Valley City and Barnes County, North Dakota, here are a few: 

—The U.S. Fish Hatchery.—Can 50 species of fish (and 9 species of mussels) 

hatch, survive and thrive in Devils Lake water at the Valley City National Fish 

Hatchery? If fish (and mussels) reproduce naturally in Devils Lake water, why 

is Devils Lake still being stocked? How many species live, reproduce and thrive 

in Devils Lake water? 

—The North Dakota Game and Fish Department.—What will 100,000 acre/feet of 

Devils Lake water do to Lake Ashtabula? What is the North Dakota Game and 

Fish response to the change in water quality, to what those changes will do to 

recreation on the lake? What about cabin owners around the lake? 

—The U.S. Army Corps of Engineers.—What changes will the U.S. Army Corps 

of Engineers make to its operational plan for Lake Ashtabula as a result of 250 
23 

cfs additional water for 7 months of the year? Will there be an earlier and deeper spring drawdown? Who has jurisdiction, the Corps or the North Dakota State 

Water Commission, when it comes to deciding when and how much water to release? What happens when the sulfate level in the lake rises above 450 mg/L? 

What happens when that water is released downstream into the river? 

—Landowners Along the Sheyenne River.—What will happen to the Sheyenne 

River between Devils Lake and Lake Ashtabula, once sulfate-and-other-contaminant-laden Devils Lake water becomes 80 or 90 percent of the total water 

in the river? The Sheyenne River between Devils Lake and Lake Ashtabula will 

contain almost 700 mg/L sulfate. What will that do to the ecology of the river? 

To livestock? 

—Cities Such as Fargo and West Fargo.—How will the Sheyenne Diversion 

around west Fargo be impacted by continuously higher flows? More erosion? 

That’s what will occur in the entire Sheyenne River. What difference will higher 

flows of contaminated Devils Lake water do to Fargo water supply when it 

draws water from the Sheyenne? 

—Canada.—Have Canadian concerns about biota transfer been adequately addressed? The FEIS of the Corps’ Outlet Project seem to indicate that they have 

not. And what about added levels of contaminated Devils Lake water in general? What about using the International Joint Commission to mediate? 

—The U.S. Bureau of Reclamation.—Where are the studies showing the effects of 

Devils Lake water on the RRBWSP? Has the Red River Basin Water Supply 

Project taken Devils Lake water into consideration? If so, what are the ramifications of more Devils Lake water in the Sheyenne? Where are the studies showing the impacts? Is Devils Lake water part of the plan to get Missouri River 

water to Fargo? 

When the SWC pumps 250 cubic feet per second Devils Lake water into the river 

and the RRVWSP adds another 125 cfs, what will the effects be on erosion and 

flooding along the Sheyenne River? When the river flows at less than 50 cfs in the 

fall of the year, what will adding 600 percent more water do? 

All of these affected parties should have facts and scientific data—not just verbal 

assurances—to reveal the effects of adding 250 cfs Devils Lake water to the 

Sheyenne River. 

But when Governor Hoeven on July 15, 2009 signed the letter allowing the use 

of Emergency Rules to void the permit to drain and replace it with a plan that will 

allow degradation of the Sheyenne River, none of these constituents had any voice 

in the matter. An arbitrary and capricious act replaced science, common sense and 

community involvement. 

People to Save the Sheyenne requests U.S. Senate Appropriations Subcommittee 

on Energy and Water Development withhold Federal funding for Devils Lake 

projects, including money to be spent on infrastructure, until a complete, comprehensive hydrologic study of the entire Devils Lake Basin, including causes of the 

rise of Devils Lake and methods of dealing with the problems, has been authorized 

and initiated. 

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

STATE OFFICIALS NOT DEALING TRUTHFULLY WHEN IT COMES TO DEVILS LAKE

OUTLET

North Dakota Department of Health Administrator Dr. Terry Dwelle, Environmental Health Section Chief L. David Glatt and Assistant State Engineer Todd 

Sando’s February 8 letter responding to the Times-Record’s February 2 editorial on 

the Devils Lake outlet warrants a factual response. 

They claim State agencies have informed numerous Federal agencies, including 

the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, U.S. Department of State, the White House Council on Environmental Quality and Canadian officials about flooding at Devils Lake and operation of the outlet. What they 

fail to say is that much of the information they have provided to Federal agencies, 

Canadian officials and the public regarding the operation of the outlet has been incomplete, misleading and frequently deliberately false. 

For example, based on information provided by North Dakota agencies, Senators 

Byron Dorgan and Kent Conrad and Congressman Earl Pomeroy told U.S. Department of State officials on July 12, 2005 that it was imperative to disregard the concerns of Canadian officials and allow immediate operation of the outlet because: 

‘‘The longer we postpone the solution to this flooding crisis, the more danger North 
24 

Dakota, Canada, and surrounding areas will face. The Devils Lake outlet project 

needs to be in full operation as soon as possible.’’ By 2008, the $28 million outlet had removed the equivalent of one-tenth of an 

inch of water from the lake at an annual operating cost of over a quarter of a million dollars, and by 2009 the lake was 10 inches higher than it was before the outlet 

began operation. 

They neglect to mention that State Engineer Dale Frink made deliberately false 

statements regarding the operation and efficacy of the outlet in his August 30, 2002, 

application for a North Dakota Pollution Discharge Elimination System permit for 

the project, or that the Department of Health knew the statements were false but 

approved the permit anyway. The statement that, ‘‘More than $800 million of State and Federal funds have 

been spent in recent years on storing more water in the upper basin, raising and 

protecting infrastructure, and building an outlet’’ is seriously misleading. Most of 

the $800 million that have been spent dealing with the rising level of Devils Lake 

have been Federal taxpayer funds. From 1996 to 1999, while inflows to Devils Lake 

were averaging 317,000 acre-feet per year, the State spent $3.5 million annually to 

store an average of only 17,345 acre-feet of water per year. By 2009, when record 

inflows occurred to Devils Lake, the State’s upper basin water storage program was 

down 769 acre-feet. 

Dwelle, Sando and Glatt also neglect to mention the $1.5 million U.S. taxpayer 

dollars that the State squandered on an experimental irrigation project to utilize 

water in the upper basin that anyone with a $4.95 calculator could see would be 

worthless in lowering the lake. 

They ignore the contribution of the drainage of 358,000 acres of wetlands in the 

Upper Devils Lake Basin—condoned and frequently promoted by the State engineer—to the rise of Devils Lake. Because wetlands in the Devils Lake Basin have 

the capacity to store an average of 1.7 feet of water and because the area had been 

in a drought for 4 years, 623,500 acre-feet of storage were no longer available as 

a result of wetland drainage when high levels of precipitation hit the area in 1993. 

The drainage of those 358,000 acres of wetlands has reduced the net loss of water 

in the Upper Basin through evaporation by another 239,000 acre-feet per year, indicating that as much as 75 percent of the inflows from 1993 to 1999—and 40 percent 

of the record inflows in 2009—were the result of the loss of evaporation capacity 

from drained wetlands. 

They say that Devils Lake is ‘‘within just 8 feet of an uncontrolled release of the 

poorest quality, high-sulfate water from the east end,’’ but they neglect to mention 

that it would take another 1.9 million acre-feet of water to raise Devils Lake to its 

natural overflow elevation of 1,459 feet, and by that time, evaporation would be removing over 700,000 acre-feet per year—seven times what the outlet operating at 

250 cubic feet per second for 7 months would remove. They also do not mention that 

it would take 6 years for the outlet operating at 250 cfs just to remove last spring’s 

inflows. 

They claim that their objective is to avoid a catastrophic uncontrolled overflow 

from Devils Lake, but by not taking action to prevent the city of Devils Lake from 

lowering the natural outlet to 1,458 feet, they have actually doubled the chance 

(from 3.2 to 6.1 percent) of a major uncontrolled overflow (where the discharge 

would exceed those of the State’s 250 cfs outlet by another 50 cfs) to the Sheyenne 

River within 10 years. Lowering the outlet to 1,458 feet means that an additional 

269,000 acre-feet of poor quality Devils Lake water would be discharged initially 

into the Sheyenne River as a result of lost storage if the lake should rise to its overflow elevation, and the discharge would be increased by 23,000 acre-feet every year 

as a result of lost evaporation from the lake because of its smaller surface area. 

They claim that the proposed increase of the sulfate limit in the Sheyenne River 

to 750 parts per million ‘‘is protective of aquatic life, as well as recreational and agricultural uses,’’ but they ignore the numerous serious adverse impacts to aquatic 

life and recreational and agricultural use of the Sheyenne River identified by the 

U.S. Army Corps of Engineers for an outlet constrained by a much lower 300 ppm 

sulfate limit in the Sheyenne River. 

They neglect to mention that data from the State Water Commission show that 

the 450 ppm sulfate limit originally established by the Department of Health for the 

Sheyenne River was never reached in the area downstream from the outlet before 

operation of the outlet began. Nor do they mention that the department’s own regulations require it to maintain water quality in streams when it is better than the 

established standards. 

They say that the awarding of $12 million to incorporate reverse osmosis in Valley 

City’s new water treatment plant in order to remove sulfates and other minerals 

‘‘is a clear signal from the State that the interests of Valley City are important and 
25 

will be protected.’’ They do not mention that the reason a reverse osmosis system 

is necessary is to treat the increased levels of sulfates and other minerals from the 

Devils Lake outlet. Nor do they mention that the Corps of Engineers has determined that operation of an outlet constrained by a much lower 300 ppm sulfate 

limit in the Sheyenne River would increase downstream water treatment costs by 

$1.7 to $3.3 million annually. Governor John Hoeven appointed the administrator 

of the Health Department and, as chairman of the State Water Commission, he was 

instrumental in appointing the State engineer and is responsible for oversight of the 

State engineer and his staff. It is time for State officials to start dealing responsibly 

and truthfully with the problem of rising water levels at Devils Lake. 

GARY PEARSON, 

Jamestown, North Dakota. 

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

‘‘SIGN OF HOPE: DORGAN SPEAKS ON DEVILS LAKE’’ 

For the first time since July, there’s hope that the imminent increase of chemicalladen Devils Lake waters into the Sheyenne River might be stopped. 

In a conference call with news media last week, Senator Byron Dorgan said he 

wanted to examine effects of Devils Lake water on downstream communities, including Fargo and Valley City. Since July, when the North Dakota Department of 

Health allowed higher sulfate levels into the Sheyenne, it’s the first time a State 

leader has talked publicly about concerns over the issue. This is big news. 

‘‘I am not interested in transferring the problems from one region of our State to 

another,’’ Dorgan said, as reported in The Forum of Fargo-Moorhead. 

The sulfate level threatens the health of residents in Valley City, which gets its 

drinking water from the Sheyenne. Indeed, the sulfates put at risk all who rely on 

the river for farming, recreation or living. 

And at little gain. The State has been installing pumps at Devils Lake to increase 

the flow into the Sheyenne from 100 to 250 cubic feet per second. At the higher rate, 

only 6 inches of water will come off the lake a year, according to Dave Glatt of the 

Health Department. Unless something is done, the pumps will start up this summer. 

Glatt doesn’t care that Valley City and other communities are at risk. Neither, 

apparently, does Governor John Hoeven, who heads the State Water Commission 

and approved the increased levels. 

Other chemicals, which the State doesn’t measure—including arsenic—will flow 

with the sulfates. The threat to the public is clear. 

And yet until Dorgan spoke up, no State official had said anything. Not even a 

petition signed by 700 Valley City residents last fall calling for a study of the increased chemicals’ effects generated a word from the Health Department or the 

State Water Commission. Where is Hoeven? 

We hope Dorgan can do something. A yet-to-be-installed reverse osmosis water 

system in Valley City hardly justifies ruining a river. 

The Senator will host a field hearing of the Senate’s Subcommittee on Energy and 

Water Development on February 19. As The Forum reported, the meeting will look 

at the release of water from Devils Lake on downstream communities. 

The first thing that should be done is an independent agency should conduct a 

comprehensive assessment on the effects of sulfate and other chemicals in the river. 

That’s the right thing to do. 

LEE MORRIS, NEWS EDITOR, 

Times-Record, Valley City, North Dakota. 

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

INCREASED RIVER FLOW NEEDS STUDY

Lee Morris’ editorial in the Valley City Times Record on January 8 related to the 

increased sulfate levels in the Sheyenne River was comprehensive and accurate. 

Valley City is a lovely town and we must all work to protect it and its residents. 

Increased flows in the river increase the risk of flooding and cause health concerns. 

The North Dakota Department of Health is holding a hearing on February 17 on 

increasing the flow out of Devils Lake thereby increasing the sulfate levels in our 

river. They will decide on the allowable sulfate level. The State Water Commission 
26 

will decide on how much water is allowed to flow out of Devils Lake into the 

Sheyenne River. 

Before any water is allowed to flow from Devils Lake into the Sheyenne River 

from either the east or the west end, a comprehensive study, including an environmental impact study, and expert hydrological assessment must be done by an external agency (i.e., an organization not connected to the State of North Dakota). Over 

700 people in Valley City signed such a petition with signatures collected in a very 

few days. We hope our State agencies will listen. 

SHARON BUHR, 

Valley City, North Dakota. 

[From the Times-Record February 4, 2010] 

DEVILS LAKE STUDY MUST COME FIRST

It was somewhat heartening to read the article in The Forum on January 29 

quoting Senator Byron Dorgan, D-N.D., in regard to flooding in the Devils Lake 

basin: ‘‘. . . I have always insisted, I am not interested in transferring the problems 

from one region of our state to another.’’ 

I wish Governor John Hoeven and the State’s water and health commissions felt 

the same. Particularly alarming is the fact that the Governor and his commissions 

continue to press for increased flows into the Sheyenne River from the Devils Lake 

outlet without a thorough study of the environmental impact downstream. 

Obviously, such a study should have been done years ago, before the outlet was 

built. But it is still not too late for that to happen, especially since it has been 

shown that increasing flows into the Sheyenne will have very little impact on the 

water level in the Devils Lake Basin, but once that water, high in sulfates and other 

contaminants, is in Lake Ashtabula and the Sheyenne River, the damage could be 

significant. 

The damage could be even greater than what Dave Glatt of the State Department 

of Health talks about: ‘‘diarrhea in small animals and intestinal problems for transient populations.’’ For Valley City, those ‘‘transient populations’’ include university 

students, hospital and care center patients, tourists, visiting sports teams and other 

visitors. 

And it is important to keep in mind that Devils Lake does not get its drinking 

water from the lake, but Valley City does take its municipal water from the 

Sheyenne. Important, too, is the increased flooding downstream and very likely 

harm from other contaminants. 

We could easily be, in Dorgan’s words, ‘‘transferring problems from one region to 

another.’’ Let’s not transfer anything until we are sure what we are doing. 

KAY KRINGLIE, 

Valley City, North Dakota. 

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

LETTERS TO THE EDITOR

About a month ago a regional gossip column took issue with folks who opposed 

degrading the Sheyenne River with water from Devils Lake. The writer called those 

who criticized the Devils Lake outlet ‘‘a handful of prevaricators.’’ He went on to 

say that the outlet has not had ‘‘any discernable effect’’ on the river. 

No ‘‘discernable effect’’? Since when does glancing at the Sheyenne River tell you 

about water quality? 

Let’s assume that one ‘‘lie’’ might be that Devils Lake water will degrade the 

Sheyenne River. If that is false, why is the North Dakota State Water Commission 

helping pay for a new Valley City water treatment plant, one that will help deal 

with the increase in sulfates from Devils Lake? Even the North Dakota Department 

of Health admits that water high in sulfates will taste bad, though that’s merely 

an ‘‘aesthetic’’ issue, they claimed. 

More serious than aesthetics are the other contaminants in Devils Lake water. 

Higher levels of phosphates, nitrates, chlorides and total dissolved solids, among 

others. Don’t forget the arsenic, which will increase from about 5 milligrams per 

liter in the river to 12–15 mgl with Devils Lake water. Devils Lake doesn’t use 

water from Devils Lake (See www.nd.water.usgs.gov/devilslake/science/hydrology.html). 
27 

The ground water wells from which Valley City gets its water are recharged from 

the Sheyenne River. What happens to the river happens to the city’s drinking water. 

When the outlet is pumped at 250 cfs, it could remove about 100,000 acre-feet per 

year from the lake. About 7–8 inches. Since Lake Ashtabula holds about 70,000 

acre-feet, all of the water in the lake will be replaced every year with that from Devils Lake. Where are the studies that show the effects on the hydrology and the ecology of the river and the lake? 

How many fish species will remain, how many mussels, and how that water will 

affect cattle? Who is responsible for the extra bank erosion and flooding that the 

added 250 cubic feet per second water flow will produce? 

Where are the studies that describe all of these effects? 

As Senator Dorgan said when he scheduled a February 19 hearing on the Devils 

Lake water issue, he was ‘‘not interested in transferring the problem from one region of our state to another.’’ And that’s exactly what outlet operation has done and 

will continue to do. 

It’s time to separate the prevarication from the facts so that North Dakotans can 

make responsible, long-term decisions about the best ways of dealing with Devils 

Lake water. 

Taste tests prior to the river becoming contaminated with Devils Lake water don’t 

count. 

RICHARD BETTING, 

Valley City, North Dakota. 

Senator DORGAN. Mr. Stevens, thank you very much. I appreciate 

your testimony. 

Let me ask a series of questions and then I will open it up for 

others who wish to testify. 

Mr. Grubb, do you want to take a chair up here and be available 

for questions? 

Mr. Glatt, I don’t know that you’re the one who asked this, but 

if the outlet is increased to 250 cfs, what is the period of time that 

you estimate it will operate during the year? If it operates during 

that period of time, how much will it take off the lake? 

Mr. GLATT. Senator, how much it operates will depend a lot 

about on what the conditions are and how much additional water 

will be in the river. As we stand today, we are constrained by 

water quality standards so that will dictate how long that outlet 

will actually operate and at what level. I don’t have exact numbers 

in front of me today. It could operate at 250 csf for a period of time, 

but that is going to be constrained about that water quality and 

the backdrop and not to exceed the limits that we put—— 

Senator DORGAN. But you must be modeling what you could 

achieve with this and so—— 

Mr. GLATT. Yes. Yes. At maximum level—that’s correct. It has 

maximum amount of—if we went to a period of operation, ice free 

conditions, it’s my understanding if we went to 250 cfs it would 

take off about 6 inches off the lake. 

Senator DORGAN. But what does your modeling expect you to be 

able to take off the lake at this point given what you expect to be 

able to operate at? 

Mr. GLATT. Senator, what I can tell you is from past experience 

and what we saw last year was about 2 inches, with the amount 

that was taken off would be somewhere between like 2 inches and 

6 inches depending on the natural conditions and how much water 

is actually flowing. 

Senator DORGAN. At 2 inches is at 100 cfs? 

Mr. GLATT. That’s at 100 cfs, that’s correct. 
28 

Senator DORGAN. And you would probably average 175 cfs. 

You’re not going to be able to run at 250. You could but you can’t 

do that continually—— 

Mr. GLATT. Right 

Senator DORGAN [continuing]. So you’re talking 3 or 4 inches off 

the lake? 

Mr. GLATT. That’s about roughly my position, sir. 

Senator DORGAN. The testimony of the mayor in Fargo, and I 

suspect that the concern of Valley City and probably West Fargo, 

about the issue of treatment is because from their perspective they 

anticipate that there will be higher levels of sulfates reaching their 

communities, which would require them to have more effective 

treatment. 

The question I would ask, Mr. Glatt, is if you were the mayor 

of West Fargo or Valley City and anticipating what you are planning to do, would you want and insist on additional treatment 

plans for your water? 

Mr. GLATT. First of all, I don’t know if I could handle a mayor’s 

job but—— 

Senator DORGAN. Could you put the microphone a bit closer for 

me. 

Mr. GLATT. Sure. 

Senator DORGAN. Thank you. 

Mr. GLATT. What clearly, Senator, that—when we’re—a couple 

things here. First of all, the standards for the stream, the portion 

that flows by West Fargo that flows into the Red River, those 

standards stay the same, but clearly then the water quality is 

going to shift. There will be a shift in the sulfate concentration. We 

do have systems in the State that drink significantly higher than 

the 450. It comes down to a policy decision what the city is willing 

to deal with, what they’ve seen in the past as ranges of sulfate concentration, and that will be a local decision. Some cities obviously 

have said that is not a problem for them. They can deal with the 

higher levels. Other ones obviously have said, no, we’re concerned—— 

Senator DORGAN. Which cities have said the former? 

Mr. GLATT. Well, that—we have cities—several of them. I can get 

you that list of the cities that drink significantly higher than 250, 

significantly higher than 500. 

Senator DORGAN. On the Sheyenne? 

Mr. GLATT. Not on the Sheyenne. These are public water—— 

Senator DORGAN. We’re just talking at this point about communities on the Sheyenne. 

Mr. GLATT. On the Sheyenne I have not heard that because really at this point in time the water quality hasn’t impacted them to 

that level. We’re just starting the operation of the outlet at 100 cfs. 

Senator DORGAN. Let me ask you as well, I have the new National Weather Service forecast that was just released, and they’re 

talking about the current lake level outlook surpassing something 

just less than a 2 foot rise this spring, slightly less than they predicted last fall, but then the fact is nobody knows. We have had 

1 percent occurrences predicted, and we’ve met them. 

Assume for a moment that Devils Lake goes from 1,450 to let’s 

say 1,455, at that level because this is a bowl and it takes massive 
29 

amounts of water to fill the top of the bowl as does the bottom of 

the bowl, at 1,455, 1,456 we’re getting close to an overflow, but at 

that point, what does a 250 cfs running on average 175 a year take 

off the lake? Because the lake is much broader, much larger, much 

more water, and my guess is you’re going down from 3 inches to 

substantially less than that; is that correct? 

Mr. GLATT. I think that essentially is correct. I would refer those 

questions to the State Water Commission. They deal more with the 

water quantity issues, and we deal with the quality, but clearly as 

you have more surface area you’ll have more chance for evaporation and it doesn’t come up quite as high. I will say we were 

hopeful last year for a fair amount of evaporation and that did not 

occur and the water level did not drop as much as we were hoping 

for. 

Senator DORGAN. Is the State Water Commission here or someone from the State Water Commission? 

Mr. FRINK. Yes. 

Senator DORGAN. Let’s assume that lake is at 1,455, which 

spreads dramatically from its current level and consumes far more 

acreage and so on, and you’re operating an average 175 cfs. At that 

point how many inches are you taking off the lake in a year without them in operation? 

Mr. FRINK. Senator Dorgan, I’m Dale Frink with the State Water 

Commission, and I think the 3 to 4 inches—or 4 inches is probably 

a realistic number off the lake. We know that we cannot take 250 

cfs off the lake. The 2 inches we took off last year also we could 

have pumped another month. So even at a hundred cfs it wouldn’t 

have been more than 2 inches maybe 21⁄2 to 3 inches if we would 

just turn that on. But we—it’s—what we’re really dealing with is 

it’s somewhat what I call risk management and that, you know, 

we’re taking it off the west side. One advantage of doing that is it’s 

a pump, which means there’s a switch, and by closely monitoring 

the situation downstream and we do have—we have some control. 

On the other hand, if we just sit and do nothing, there’s a chance 

it’s coming out the east end, and that is much more water, and you 

don’t have certainly the control. You don’t have a switch on the 

east end. So what we’re trying to do is trying to manage a very difficult situation here, but we—we understand you just can’t—we’re 

not going to be able to turn on the 250 and just leave it. 

Senator DORGAN. But my question is different than that. My 

question is, assuming the lake is higher than current level, it’s at 

1,455, which means it’s much, much broader and there’s far more 

water, I believe that in order to get to the spillover it would take 

about 40 percent more water than now exists in the entire lake. If 

that is the case, what I’m trying to understand is what is the margin of safety you get from these increases when you get a lake at 

1,455? It is not 3 or 4 inches a year then. It is, I would guess, essentially less than that. I’m just trying to understand if someone 

has modeled that? 

Mr. FRINK. We have those numbers. I don’t necessarily have 

them, but if we could take off 4 inches now, we’d probably take off 

3. One advantage we do have when it goes to 1,455 is that we’re 

dealing with a little bit better water in Devils Lake, which means 
30 

you would probably be able to pump a little more water out and 

still meet those standards. 

Senator DORGAN. All right. Thanks for being available. I have a 

couple of other questions as well, but, Bruce, if Mr. Glatt says your 

standards are going to remain stable in Fargo, why would you be 

interested and why would you need additional treatment options? 

Mr. GRUBB. Well, we certainly recognize that the stream standard is not changing at West Fargo where our intake is located. 

That stream standard will remain at 450 milligrams per liter. I 

think really from Fargo’s perspective it’s more of a historic water 

quality issue on the Sheyenne River as the mayor mentioned. Historic records that we’ve looked at the USGS have indicated that 

over the past 50 years sulfate levels in the Sheyenne River have 

been on average in that 200 milligram per liter range. Seen occasional spikes where it’s gotten up in the 300 milligram per liter 

range. Thus, we designed another surface water treatment plant to 

utilize both the Red and the Sheyenne Rivers, and we designed 

around that quality of water. That being said, since our plant has 

been in operation, we’ve been able to deliver to our customers a 

sulfate concentration that meets both the EPA secondary standard—— 

Senator DORGAN. Which is? 

Mr. GRUBB [continuing]. Of 250 milligrams per liter. And the 

North Dakota Department of Health’s upper recommended public 

standard of 250 milligrams per liter. We’d like to be able to continue participating with the Devils Lake outlet. 

Senator DORGAN. Why is it important that you continue that? 

Mr. GRUBB. Well, I think two things. It’s the public standards. 

I think that most water systems not unlike ourselves are proud of 

our ability to deliver water quality, even though these aren’t enforceable standards, that we can meet that. We’d like to continue 

to do that. We’ve established that history with our customers. 

Senator DORGAN. You could not continue to do that if the sulfate 

levels—— 

Mr. GRUBB. Well, the comment was made about our use of the 

Sheyenne River. I mean, obviously we think it was good water 

planning, secure two water sources, the Red and the Sheyenne 

River. Over the past 5 years, we have used water from the 

Sheyenne exclusively a low 18 percent of the time in 2005. The 

very next year, the prior year 2006, we used it 55 percent of the 

time. So we do rely on the Sheyenne River as part of our water 

management and drought mitigation plan. So if we are exclusively 

utilizing water from the Sheyenne River and it achieved the current stream standard of 450 milligrams per liter, in order for us 

to be able to treat that so that the drinking water that we put out 

meets that 250 milligram per liter level that we prided ourselves 

in, we think we would need reverse osmosis treatment and that’s 

what the mayor referred to—— 

Senator DORGAN. That would cost you $45 million? 

Mr. GRUBB. Yes. We’ve looked at a sulfate concentration in the 

Sheyenne River that meets that current stream standard of 450 

milligrams per liter. We use an average of 12 million gallons a day. 

We think that we’d have to treat up to 8 million gallons of that and 
31 

then we would reblend those sources back and we’d be able to 

achieve our 250 milligrams per liter number. 

Senator DORGAN. Mr. Cameron, with respect to Valley City, your 

desire and determination to have a reverse osmosis treatment was 

predicated on what basis? 

Mr. CAMERON. It’s predicated basically on the worst case scenario 

of sulfate levels reaching the 450 and potential of a catastrophic effect of an overflow from the eastern end of the lake as well. 

Senator DORGAN. Mayor Bott, help me understand something. I 

know there was great controversy in Devils Lake about the issue 

of raising the levee. I didn’t quite understand that because it 

seemed to me that protecting the city in the face of the kinds of 

projections that were out there, rising lake levels, was essentially 

necessary. Probably not particularly today, but can you tell me as 

we talk about a range of issues here—I’ve talked about the $90 

million that I was able to achieve for the Federal share of that— 

please describe the context of raising levees and running an outlet 

and doing things to try to protect roads and keep the economy 

working. What was the controversy in respect to raising the levee? 

Mayor BOTT. I think part of the controversy was that it took 

place in 2008—or I should say in the summer of 2008. It took place 

before the prediction came out in February of last year that the 

lake was going to be coming up and it already came up 3 feet. We 

hadn’t had 2 years where there was minimal rise in the lake. In 

fact, it was noticeable that it hadn’t gone down, and hope springs 

eternal then, we really kind of hoped maybe this was over. Even 

though there were predictions that the wet cycle wasn’t over but, 

you know, it was more than a year it was noticeable. And to raise 

and extend what is now the embankment to impact more property 

owners, to impact the community financially because you know 

about the local match, there was a feeling of some that if the lake 

isn’t going to come up, why do we need to do this? Why do we need 

to spend the money? Why impact the property? We’ll take our 

chances that it’s done coming up. Well, unfortunately, it did come 

up and now we’re back in that situation. So I can’t speak for those 

people, but now they would maybe fatalistically accept that that 

was the right plan. It’s not over yet. We still meet that potential. 

Senator DORGAN. Mr. Glatt, Mr. Stevens raised the question and 

I think Dr. Lin raised the question of the effect of higher sulfates 

on productive cropland. Have you modeled that and studied that? 

Mr. GLATT. We’ve done some work on that. Looking at what the 

board put together, and I don’t have that information with us, but 

that’s something that will be addressed as part of our public comment review hearing. 

Senator DORGAN. Dr. Lin, you described circumstances in which 

productivity of land that is widely receptive to higher sulfate levels 

could have decreased productivity. Is that a significant concern or 

is it an insignificant concern? 

Dr. LIN. I talked with our agriculture and soil scientist on this 

issue and in conducting research by using coulee water. I don’t remember which coulee, but the water for testing in the Devils Lake 

area and therefore the results show the top layer was increased in 

sulfate concentrations. They’re still working on their report so I 

cannot report to you what would be the impact on yield at this 
32 

time, but based on knowledge from soil scientists and agriculture 

experts the higher salt concentration will have an impact on crops, 

but the impact—how big the impact will be—depends on the type 

of crops and also the type of soil. 

Senator DORGAN. Mr. Stevens, Mr. Glatt I know has held a number of regional meetings and perhaps hearings on these issues. 

Have you attended any of those? 

Mr. STEVENS. Yes, I have. 

Senator DORGAN. Have you requested information and received 

information that responds to some of your interests and concerns? 

Mr. STEVENS. A few years back I did when I was more involved 

in the—this group that you mentioned. I haven’t in recent years, 

but we do not believe in our area that enough studies have been 

done as to what’s going to happen down the road. They’re looking 

at the first year. If they’re going to run this for a number of years, 

apparently, I hope it’s going to settle out in Ashtabula, but if it 

does not, in 5 or 10 years down the road or even maybe less, how 

are they going to restore the damage that they’ve done? I mean, 

they’re not getting enough benefit. As you mentioned earlier when 

this gets up and spreads out, you asked these questions on how 

much it’s going to take off the lake and they’re very iffy about it 

as you noted. 

Senator DORGAN. Mr. Glatt, how far out are you modeling? What 

kind of modeling are you doing? 

Mr. GLATT. Well, Senator, there’s been extensive work done to— 

before it comes to modeling. Currently the USGS is doing additional modeling as it relates to water quality impact downstream 

under various scenarios and various lake levels. In addition to that 

we’ve got an extensive water quality data base working on water 

quality in Devils Lake and the Sheyenne prior to the outlet, during 

the outlet operation, and then after the outlet, and we’ve seen how 

the river responds and what we can expect and anticipate in water 

quality changes. That has been done and continues to be done 

today. So a lot of that data is available and is being done, and we 

do anticipate ongoing monitoring. Just because a standard’s 

changed, doesn’t mean we stop. I mean, we will continue to monitor. Monitoring goes on every 2 weeks collecting natural water 

quality samples. It goes on throughout the year and on top of that 

we still have the USGS stations that provide us 24/7 so—— 

Senator DORGAN. Were you with the Health Department when 

the outlet was built? 

Mr. GLATT. Yes. 

Senator DORGAN. But when the outlet was built, there were projections I know from the Water Commission and the Health Department in terms of how it would operate and then it didn’t operate for some significant amount of time, and I never quite understood whether they just missed the understanding of what the sulfates would be or that they would exceed standards. Can you describe a bit of what happened at the origin of that because, there 

are questions about whether or not these estimates will work the 

way you anticipated? 

Now, going back to the origin of this, what happened that caused 

that to be built and then not used for so long? 
33 

Mr. GLATT. Well, clearly there are a lot of different—it’s a balancing act, and there’s a lot of different—I won’t say competing interest but—interests in how things should be operated. Those in 

Devils Lake area feel that as much water as you can get out as 

quickly as possible is the way to go, and then we have the concerns 

downstream. 

The agency I’m involved with it’s always been about water quality from day one, and I will tell you that if you go back and look 

through the history that outlet has been constrained, not because 

of engineering, because they have the ability to pump the water, 

but due to concerns downstream. That has been constrained in the 

beginning, and as we gain additional information relating water 

quality impacts downstream, we felt comfortable with allowing a 

little bit more water out, still looking at constraints and concerns 

downstream and that continues on today. 

So from the beginning it was about the need to get water out, 

but also balancing that with water quality downstream. And that’s 

my understanding how the outlet was operated. And I will say that 

I think it’s extremely important that the Outlet Advisory Committee get more active because you need to have everybody sitting 

at the table downstream and for the people in Devils Lake. They 

all have issues here, and they need to come to the table in what 

makes sense as far as how the outlet should be operated. I believe 

it should come from them. 

Senator DORGAN. Is it your notion at this point that because of 

the way you’ve operated the outlet that there are perhaps some 

risks but the risk of higher sulfates is offset by the release of 

water? Is your notion of risk relative to the interests of downstream communities what you measure in terms of your new standard in the amount of increased releases? 

Mr. GLATT. Senator, clearly we’re trying to find that balance and 

between the need to get water and the major issues that are going 

on with the flooding from the basin and the potential impacts 

downstream. What we have to defer to is what we know as the 

water quality from the monitoring and also what has been approved by EPA as being safe in other States. We aren’t developing 

new standards. These are standards that have been evaluated by 

the Environmental Protection Agency, proposed by other States, 

and approved by the EPA, and so we defer to a lot of that science 

as well saying that this—these levels will be protective of aquatic 

life, recreational uses, agricultural uses that are currently established by the EPA. 

Senator DORGAN. All right. Well, I have some other questions, 

but I want other people in the room to have an opportunity to comment. 

I have not and should have introduced Roger Cockrell, who is a 

professional staff person on my subcommittee and is responsible for 

water issues, and Justin Schardin, who is my current staff member 

working on water issues, and both of them do excellent work and 

I appreciate both of them being here. 

Let me ask the witnesses to remain, I have other questions as 

well with your permission. Let me ask those who come to the podium to state your name, and if you can, make your statements 

reasonably brief so that we can hear as many as possible. How 
34 

many of you would like to say something today? The rest are all 

Lutherans. I welcome anyone who wishes—I’m a Lutheran so I’m 

just kidding—pretty nonverbal. Let me welcome anyone who wishes to come up and state your name and proceed, Joe, thank you for 

all of your work. 

STATEMENT OF JOE BELFORD, CHAIRMAN, RAMSEY COUNTY COMMISSION 

Mr. BELFORD. Thank you, Senator, for holding this hearing 

today. I am Joe Belford. I’m chairman of the Ramsey County Commission. I have been twenty-second year of commissioner. I’m 

working with you, through your ears, and one of the guys who 

started the Lake Preservation Coalition. I was too dumb to get a 

job. But I do have a prepared statement and I want to begin by 

saying everything possible must be done to reduce the ever increasing flood damages plaguing the Devils Lake region. Increasing the 

capacity of the State’s outlet and moving more water out of Devils 

Lake is critical not only for those of us living near the lake but the 

thousands of North Dakota citizens who live downstream along the 

Sheyenne and Red River. 

We have no desire to reduce our flooding problems by passing 

them downstream, but the fact is that Devils Lake continues to 

rise. Consequences of a natural overflow of several thousand acre 

feet per second and the exact number the Corps has done is approximately 12,000 acre feet if it breaks out on its own for 96 days. 

That will vastly greatly impact of the increasing of the State’s outlet capacity to 250 cfs per second. 

Since it’s beginning of the raise in 1993, Devils Lake has reached 

an elevation on precedence of settlement that now stands 1.6 million acre feet from reaching the natural overflow elevation. Just 

three more springs—spring and flows like Devils Lake saw in 2009 

would lead to Devils Lake pouring through the Tolna Coulee dirty 

water four times higher in sulfates than the State outlet, proposed 

of up to 24 times greater into the Sheyenne River. 

As we discuss this issue, Devils Lake has even had more moisture in the upper basin than it did at the same time in 2009. We 

are getting more and more worried that we could see a record lake 

elevation of 1,453 this year, just short about 5 feet from the overflow. At that point one bad summer storm could make this discussion moot. The time is becoming very short but designing friendly 

and infrastructural measure to address the natural overflow scenario. 

A change in the stream down—streams down from the Sheyenne 

River means that the outlet will have the potential to operate at 

stoop capacity of 250 cfs. Every acre foot that Devils Lake outlet 

pumps out now is one that we do not have to worry about spilling 

through in the route of the Tulna Coulee where it will have no control over timing, quality, or the amount of water. 

Of course, Devils Lake region already has experienced a great 

deal of damage from the flooding. The high water has caused $600 

to $800 million of Federal work that’s projected to happen this year 

or next year in direct expenditures. It does not include the 17 years 

of lost agricultural production at its peak last summer. The Devils 

Lake flood was about 300 square miles in 1993 when the current 
35 

flood started Devils Lake and Stump Lake covering just 84 square 

miles. 

Everyone must understand that the next 8 feet of lake rise the 

entire State will be seriously affected with the boast of major roads, 

such as Highway 2, a diversion of rail traffic. If—in fact, Amtrak 

is getting ready once again now to discontinue using that route 

through Churches Ferry because of the high waters. As I referred 

before, this says nothing of the damages that would be realized 

downstream. In flooding in Valley City was nearly catastrophic— 

can’t do it—this spring. Now, imagine that flooding with a thousand of cubic feet per second from the Tolna Coulee overflow. 

Everyone must understand that while the economic caused the 

public investment resulted in Devils Lake flooding is enormous, but 

terrific impact upon our communities social fabric has been imaginable—unimaginable. We have already lost one whole town, 

Churches Ferry. The city of Minnewauken is in serious jeopardy. 

And without its levee system, the city of Devils Lake would have 

been flooded out years ago. The personal cost in dollars to relocate 

and the emotional challenges from being uprooted are not measured in the publics—economic cost. 

My friends and neighbors have struggled in this flood for 17 

years. Unlike the river flood, where flooded properties and where 

people must evacuate for a few days or weeks, the people around 

Devils Lake must evacuate for years, perhaps for a generation or 

more. Once the lake comes up and floods you out, you have no way 

of knowing when or if you will ever see your property again. I think 

the worse part of all this is the uncertainty of not knowing how 

high the Devils Lake will ultimately raise. 

The changes have been proposed by the sulfate standards in the 

Sheyenne River above Valley City but not below. We’ll still protect 

the human and wildlife uses but the river historically has seen. Let 

us not forget Devils Lake has overflowed several times since the ice 

age, and all of the creatures that lived in the Sheyenne River have 

experienced sulfate levels many times higher than the State’s outlet will continue. 

Also, the communication for Valley City downstream will still 

have their drinking water supply protected with a maximum of 450 

parts of sulfates in levels seen naturally exceed without the outlet 

of previous years. We know the increase flows in Devils Lake outlet 

will cause hardship for our neighbors downstream. I wish that 

wasn’t the case, but I believe the State is taking every due caution 

to keep these impacts to a minimum. Everyone must look at the 

big picture. If Devils Lake does not continue to rise and natural 

spills out to Sheyenne River—Sheyenne the impacts downstream 

will be many times greater than what will occur with the State’s 

outlet. If thousands of cubic feet per seconds of water is added to 

Sheyenne River, then maybe what it—maybe that when Valley 

City and Lisbon folks have to evacuate it won’t be for a few days 

or first few weeks, it will likely be for a few months. 

I want to add to that. We talked just a little bit about agriculture. Agriculture is much more severe. In fact, I have the US— 

the NDSU Lake group—Lake Region College and the county agent 

ran some numbers for me, and this last year the agricultural loss 

in the Devils Lake Basin was $22,716,000 because the land was not 
36 

able to be farmed. In the compound that eventually three and a 

half times, it’s a pretty significant amount. Now, they ran some estimates of the—since—of the last 5 years, and it’s approximately 

$83 million with agriculture loss. You know, we’ve got farmers out 

there who have 10 feet of water on their land. We have to talk 

about that, but we need to talk more about that because we’ve not 

came up with a solution to help those fellows as well. 

And I’m going to conclude by adding our opinion of the Fargo 

Forum. The Lake that spilled into the river, I’m just going to read 

the, say, first paragraph. The hearing today in West Fargo regarding problems associated with Devils Lake will provide useful only 

if downstream residents recognize it is in their best interest to endorse a controlled drawdown of the ever-rising, ever-expanding 

lake. The largest natural lake in North Dakota has risen 27 feet 

in slightly more than a decade. It has nearly tripled its surface 

area. 

So with that, Senator, we have a lot of work ahead of us. We 

have to operate as a team. This thing could come out on it is own. 

We do not know the elevation. It might break out, but we have people at home that have been fighting this for years. Thank you for 

being here. 

Senator DORGAN. Mr. Belford, thank you very much. We appreciate your testimony, anyone else? 

STATEMENT OF MADELINE LUKE, PHYSICIAN, VALLEY CITY 

Dr. LUKE. Thank you, Senator Dorgan, for allowing me to speak. 

Some of the figures I’ll mention are rough but I believe that there 

are others who are concerned in Valley City that will provide by 

Internet better numbers if someone is interested in. Thank you for 

holding this hearing and allowing me to speak. 

My name is Madeline Luke. I’m a physician in Valley City. I 

have practiced medicine and lived next to the river for 25 years. 

About 3 months ago 722 people who live or work in Valley City 

spoke, which is their right, by signing a petition requesting for a 

nonbiased, expert, comprehensive evaluation of the rise in Devils 

Lake water situation. We hoped that this would guide our State 

government into actions that would be effective in giving the people 

up there some real relief, while being cost efficient and environmentally sensitive. The petition was triggered by the State department of health requesting a change in the maximum sulfate level. 

In taking the petition around I and others heard various concerns. The increased risk of flooding, decreased drinking water 

quality, increased water cost, increased erosion with loss of land, 

degradation of the beauty of the Sheyenne River. We are designated—or recreational trail I believe, Loss of wildlife and habitat, 

and salinization of flooded land. Yes, the State Water Commission 

has contributed $9.2 million on reverse osmosis plant, which will 

be very effective in filtering out all contaminants, but we still don’t 

know how much it’s going to cost to operate. Reverse osmosis is an 

energy intensive way of removing contaminants. Also we have concerns that the water could come down before the plan is completed. 

As Mayor Walaker mentioned Fargo also uses Sheyenne River 

water when the Red is insufficient or too dirty so their municipal 

water supply is at risk as well. Governor Hoeven made and the 
37 

State department has made comments that in other places in 

North Dakota the levels of sulfates are allowable by their local municipal policies. Yes, it is a policy issue, but it’s also a health issue. 

I think that when sulfate levels get up into the higher levels there 

is a real quality issue and people don’t drink water. I’ve lived all 

over the United States and traveled all over the world and when 

water quality is not good, people don’t drink the water or they have 

to buy it. We’ve been blessed in Valley City that we have a good 

water supply. I think that most people in North Dakota feel that 

is one of the advantages of living here. 

None of the other issues that people have concerns about have 

been addressed. The signers are not insensitive to the impact of the 

high water on people living around the lake but more important 

finding the cause of the high water and addressing it instead of 

just sending it downstream with its attendant effects. 

The State government has talked about handling the Devils Lake 

situation in three ways; infrastructure protection, removal of water 

via an outlet, and upper basin management. 

Roads, highways, and the city of Devils Lake have been protected by mostly Federal funds totaling about $800 million and the same 

amount is contemplated for the Fargo diversion. This does not solve 

the problem though, it just buys time. 

Earlier this year—earlier North Dakota constructed an outlet costing $28 million and now wants to add another set of pumps at 

$16.2 million and it takes about $250,000 a year to operate. Unlike 

the Pelican Lake outlet that the Army Corporation proposed in 

2003 they didn’t plan on any money for mitigation. And as a side 

as a physician I find it irritating that a lot of this money has come 

from State tobacco money. Our population is aging. Money from the 

tobacco settlement issue is for health care, not for water projects. 

So what do we get for this money? We must keep in mind that 

evaporation can take up to 30 inches per year. In June 2003 the 

State Water Commission engineers stated that a 100 cfs outlet 

would remove 2 to 4 inches yearly. In 2005 they said they could 

take out 4 inches in 7 months. In reality a bit over .1 inches was 

removed from 2005 to 2008. Now the State engineer says that 250 

cfs outlet will remove over 6 inches annually if it were to operate 

continuously over 5.5 months. How reliable is this estimate? Consider the water from the west bay, which is better quality water, 

is 6 to 700 milligrams per liter sulfates. Operation of the outlet at 

250 cfs would replace the 69,000 acre foot volume at the top of Ashtabula in 4.2 months. Once the 450 milligrams per liter level is 

reached in Ashtabula, further flows would be limited again as the 

sulfate limit is still 450 milligrams per liter in the lower Sheyenne. 

That would be after the first drop, the levels would flow from there. 

I don’t think there’s any way that you can get from 4—750 to 450 

in .1 mile. This is a simplification, the numbers may be rough, but 

emphasizes the importance of doing a thorough hydrological evaluation. On the negative side, the Corps cited the following downstream effects for a 300 cfs outlet from Pelican Lake, which is actually cleaner water. 

A 15 percent increase in sodium, chloride and sulfate in the 

Sheyenne, over 15 percent increase in chloride, nitrates, phosphorus, sodium, sulfates in the Red River, increased mercury in the 
38 

Red River. Possible increase methyl mercury, a potent neurotoxin, 

in Lake Ashtabula and that goes to Dr. Wei Lin’s comments about 

usual recreation. 

Five to ten fold increase in summer/fall flows through the 

Sheyenne causing an increase in erosion, sedimentation, and flood 

risk. And, again, that goes back to 2002, I was there. We had no 

warning. Valley City was a mess. 

Increasing ground water affecting access to the river, tree survival, increasing soil salinity in 6,300 acres along the Sheyenne, 

and soil salinization on 430 acres irrigated along the Sheyenne, the 

risk of biota transfer. I should comment that the Corps project had 

a sand filter that was designed to filter out biota from Devils Lake. 

The present outlet has no sand filter. And has impacts on the fish 

hatchery. 

This past fall, the city of Devils Lake cleaned out 1 foot of sediment at the Tolna Coulee and reportedly plans on taking 4 more 

feet out. This drops the natural overflow of the lake from 1,459 to 

1,454. This action actually increases the risk of uncontrolled flow 

of the worst qualities of Devils Lake water into the Sheyenne River 

and that’s the very eventuality the west bay outlet was supposed 

to protect us from. Furthermore, I don’t see any modeling that 

shows how that water will come down should it overflow naturally. 

Actions which will lower the natural overflow need to be stopped 

immediately and the State has not commented on that. 

As a physician I’m always amazed at how well the human body 

can adapt to severe stresses as long as there’s time for healing. I 

think of the natural world in this manner as well. I believe that 

the Devils Lake basin has been subjected to numerous amounts of 

water coming in from many years and I think you’re seeing the reflection of that now. I believe that the constant flow of poor quality 

Devils Lake water will cause irreparable damage to the Sheyenne 

without significantly altering the situation in Devils Lake. 

Upper basin storage has never been instituted in a meaningful 

fashion. Less than 1,000 acres are in easement presently. The lake 

is currently about 134,000 acres. A 100 cfs outlet could take up to 

40,000 acre feet annually. The 250 cfs outlet could take up to 

100,000 acre feet and operate continuously. The Devils Lake upper 

basin storage evaluation of 2001 states that drained wetlands could 

contain 132,000 acres of water. The authors themselves state that 

this is an underestimation and figures of 250,000 to 358,000 acres 

have been stated by the Fish and Wildlife service. The recent 

LIDAR flight authorized by you will be an invaluable tool in locating and qualifying wetlands. Wetland restoration has no bad downstream effects; wetlands are crucial to improving wildlife habitat, 

and recharging groundwater supplies. 

I would ask the subcommittee to use its influences and resources 

to ensure that an expert, nonbiased study be done to address the 

Devils Lake situation and that further actions be guided by such 

a study. Furthermore, while the study is underway, the subcommittee uses its influences and resources to institute even this 

winter an upper basin storage which is fair and accessible to the 

farmer. 
39 

PREPARED STATEMENT

I recently heard that the Emergency Rule has been delayed until 

August. The lake is getting better every year. The lake rises and 

it becomes that much more difficult to get water off and that is 

why I ask for the initiation of upper basin storage this year. Thank 

you. 

[The statement follows:] 

PREPARED STATEMENT OF MADELINE LUKE

Senator Dorgan, thank you for holding this hearing and allowing me to speak. 

About 3 months ago 722 people who live or work in VC spoke by signing a petition 

requesting a non biased, expert, comprehensive evaluation of the rising Devils Lake 

water. We hoped this would guide our State government into actions that would be 

effective in giving the people up there real relief while being cost efficient and environmentally sensitive. The petition was triggered by the State of North Dakota requesting a change in maximum sulfate level in the Sheyenne from 450 to 750 mg/ 

liter in order to increase the flow of water from the West Bay of Devils Lake to the 

Sheyenne River from 100 to 250 CFS. 

I heard various concerns: increased risk of flooding, decreased drinking water 

quality, increased water costs, increased erosion with loss of land, degradation of the 

beauty of the Sheyenne, loss of wildlife habitat, salinization of flooded land. Yes, the 

State Water Commission is contributing $9.2 million toward a reverse osmosis plant 

which will be very effective in filtering out all contaminants, but we still do not 

know how much it will cost to operate, nor do we know if it will be completed before 

the higher flows occur. Fargo also uses Sheyenne River water when the Red is too 

dirty, so their municipal water supply is at risk as well. 

None of the other issues have been addressed. The signers were not insensitive 

to the impact of the high water on people living around the lake, but thought it 

quite reasonable to find out the cause of the high water and addressing it instead 

of just sending it downstream with its attendant effects. 

The State government has talked about handling the Devils Lake situation in 3 

ways—infrastructure protection, removal of water via an outlet and upper basin 

management. 

Roads, highways and the town of Devils Lake have been protected by mostly Fed- eral funds, totaling about $800 million—the same amount as contemplated for the 

Fargo diversion. This does not solve the problem, just buys time. The State of North Dakota constructed an outlet costing $28 million, wants to add another set of pumps at $16.2 million which takes $250,000/year to operate. Unlike 

the Pelican Lake, outlet the Army Corps of Engineers proposed in 2003, the State 

has no money for mitigation of downstream effects. What do we get for this? Please 

keep in mind that evaporation can take off up 30 inches/year. In June 2003, the 

State Water Commission engineers stated a 100 cfs outlet would remove 2–4 inches 

yearly. In 2005, they said they could take off 4 inches in 7 months. In reality, a 

bit over .1 inches was removed from 2005–2008. Now, the State engineers say that 

a 250 cfs flow will remove over 6 inches annually if it were to operate continuously 

over 5.5 months. How reliable is this estimate? 

Water from the West Bay is 600–700 mg/liter sulfates. Operation of the outlet at 

250 cfs would replace the 69,000 acre foot volume at the top of Ashtabula in 4.2 

months. Once the 450 mg/liter level is reached in Ashtabula, further flows would 

be limited again as the sulfate limit is still 450 mg/liter in the lower Sheyenne. This 

is a simplification but emphasizes the importance of doing a thorough hydrological 

evaluation. 

On the negative side, the Corps cited the following downstream effects for a 300 

cfs outlet from Pelican Lake which is cleaner water than the West Bay water. 

—Over 15 percent increase in sodium, chloride and sulfate in the Sheyenne, over 

15 percent increase in chloride, nitrates, phosphorus, sodium, sulfates in the 

Red River, increased mercury in the Red River. 

—Increased methyl mercury, a potent neurotoxin, in Lake Ashtabula. 

—Five to tenfold increase in the summer/fall flows through the Sheyenne causing 

an increase in erosion and sedimentation, flood risk. 

—Decrease in diverse and intensity of aquatic species in the Sheyenne River. 

—Increasing ground water affecting access to the river, tree survival, increasing 

soil salinity in 6,300 acres along the Sheyenne. 

—Soil salinization on 430 acres irrigated along the Sheyenne. 

—Risk of biota transfer. 
40 

—Effects on Valley City Fish Hatchery: Increased TDS may have effects on fish 

rearing, increased corrosion of iron pipes, affect ability to drain rearing ponds. 

This past fall, The city of Devils Lake cleaned out 1 foot of sediment at Tolna coulee and reportedly plans on taking 4 more feet out. This drops the overflow of the 

lake from 1,459 to 1,454 feet. This action increases the risk of uncontrolled flow of 

the worst quality Devils Lake water into the Sheyenne, the very eventuality the 

West Bay outlet was supposed to protect us from. Actions which will lower the natural outflow need to be stopped immediately. 

As a physician, I am always amazed at how well the human body can adapt to 

severe stresses as long as there is time for healing. I think of the natural world in 

this manner as well. I believe that the constant, chronic flow of Devils Lake water 

will cause irreparable damage to the Sheyenne without significantly altering the situation in Devils Lake. 

Upper basin storage has never been instituted in a meaningful fashion. Less than 

1,000 acres are in easement presently. The lake is currently about 134,000 acres. 

A 100 cfs outflow could take up to 40,000 acre feet annually, a 250 cfs outlet could 

take up to 100,000 acre feet. The DL upper basin storage evaluation of 2001 states 

that drained wetlands could contain 132,729 acre feet of water. The authors state 

this is likely an underestimation and figures of 250,000 to 358,000 acres have been 

stated by the Fish and Wildlife service. The recent LIDAR flight authorized by the 

Senator will be an invaluable tool in locating the wetlands. Wetland restoration has 

no bad downstream effects; wetlands are crucial to improving wildlife habitat, and 

recharging groundwater supplies. 

I would ask the subcommittee to use its influence and resources to ensure that 

an expert, non biased study be done to address the Devils Lake situation and that 

further actions be guided by such a study. Furthermore, while the study is underway, the subcommittee use its influence and resources to institute even this winter 

an upper basin storage which is fair and accessible to the farmer. 

Senator DORGAN. Thank you very much, others? Yes, sir. 

STATEMENT OF LEROY TRIEBOLD, VALLEY CITY 

Mr. TRIEBOLD. Good morning, Senator, and other distinguished 

guests. My name is Leroy Triebold from Valley City, and I’ve made 

about 13 trips up there this last summer observing the Devils Lake 

issues and Stump Lake issues, and I think that we are closer to 

an uncontrolled overflow than anyone has even addressed here 

today. 

I’ve got some pictures of this Tolna Coulee that shows Stump 

Lake back here and it’s up into Coulee. Well, up into those cattails 

already. And another picture I have shows the shoreline of Stump 

Lake and the water here is only like maybe 50 or a 100 feet from 

this shoreline right here. And I would predict that if that level— 

or Stump Lake comes up about 30 inches it will be from that point, 

and at that time it will be up on that shoreline that is very visible 

all the way around Stump Lake and all the way around east Devils 

Lake, that tells me that that’s as deep as the water gets, because 

for some reason it’s going somewhere at that point. If it got to 

1,458, there would be another shoreline up there at 8 feet higher 

than the water level is today. 

I have this report of findings number 100 that was done by the 

State geologist in 1997. He was in the Coulee on March 1997, and 

he did a cross section of the Coulee. And it shows here that at 

1,453 approximately, which would be about 3 feet above where the 

water level is today, there is a layer of peat and that indicates to 

me at one time there was a lot of vegetative growth there for many 

years and that created that peat and then after that sand and 

gravel was deposited on top of that. 

Well, how is that put in there? Well, my—my theory is that it 

was pushed in there by either wave action or ice action in the 

spring or whatever, but that 4 to 5 feet of sand and gravel is defi-
41 

nitely not suitable dike or barrier from that water to come out of 

Stump Lake, and if we allow that water to get up on there and 

then that blows out, we got 3 feet of water off Stump Lake in Devils Lake. That’s the equivalent of about 500,000 acre feet of water 

that’s going to come down the Sheyenne River. 

So like I say, I was up there 13 times this summer observing 

that, and I don’t think that anyone else in the room today has 

brought those issues to light like the pictures that I have in my 

possession could. So I want to thank you for your time. 

Senator DORGAN. Will you share those photographs with us? 

Mr. TRIEBOLD. Sure will. 

Senator DORGAN. Okay, thank you, Mr. Triebold, others? 

STATEMENT OF BOB WERKHOVEN, RETIRED DISTRICT ENGINEER, DEPARTMENT OF TRANSPORTATION, VALLEY CITY DISTRICT 

Mr. WERKHOVEN. It’s a pleasure to have you back in State, Senator. My name’s Bob Werkhoven. I’m a retired district engineer 

with the DOT at Valley City District, and I could attest to what 

Mr. Stevens was talking about. We don’t need any more water in 

Valley City. Last year he was using the tractor to get in and out 

of his farm buildings and taking care of his cattle. I was a few 

miles north going in and out of a home by boat, and we were sandbagging there for the better part of 2 weeks. 

But I do have a couple of questions and concerns and I’m wondering about if there are any aquifers and if my memory serves me 

right the city of Cooperstown draws their water from an aquifer 

under the Sheyenne River east of Cooperstown just off of Highway 

200, and I’m wondering what impact this sulfate—increase in sulfates will have in recharging that aquifer? I’m assuming that it’s 

recharged by the Sheyenne River because the well pumps are right 

there. Maybe Mr. Glatt can straighten me out on that. 

Then I’m always a little puzzled as I listened to him at Valley 

City Commission meeting Tuesday night. We were talking about 

the 1,000 yards downstream from the Baldhill Dam. The standard 

now will be 450 milligrams per liter. That’s the standard. Does that 

mean that magically it’s going to stay at that or is it going to increase? I’m convinced that the water quality of the Sheyenne River’s going to change, and then we continue to talk about the Tolna 

Coulee. As I’ve been up there a few times too, not doing what Leroy 

was doing, I had a fishing pole in the back of my car and was up 

to Devils Lake, but it seems to me we built the Jamestown reservoir and earth dam. The Pipestem Dam is an earth dam. The 

Baldhill Dam is an earth dam with a concrete downstream face on 

it. I was involved with the dam west of Ellendale earth dam, and 

it seems to me with all the diking we ought to have a lot of expertise in that. If we’re really concerned about that blowout at the 

Tulna Coulee, let’s trench through that thing and put a clay core 

in there and then put a dike across it. 

And I thank you for your time. 

Senator DORGAN. All right. Thank you very much, anyone else? 

Let me ask you, I referred to this earlier but I didn’t get an answer and perhaps the water commissioner will know, what additional water will it take into the lake to overflow? 
42 

I’m not talking about any number of feet. I’m talking about the 

quantity of water. Would it take about 40 percent of the water that 

now exists, another increase of 40 percent? 

Mr. FRINK. Senator Dorgan, I’m Dale Frink, I believe the number—Todd, is it 1.5 million acre feet left? 

Mr. SANDO. About 1.5. 

Mr. FRINK. About 1.5 million acre feet left in that 8 feet. 

Senator DORGAN. Could you give me the percentage? How does 

that relate to the water that now exists, what percent? 

Mr. FRINK. Yes. I think we’re in—we’re over 300—we’re over 3 

million. Last year we had 600,000 acre feet go into the lake, so 21⁄2

times what we had last year. 600,000 is a lot of water. They’re predicting something, you know, in the 300,000 to 400,000 acre feet 

this year. 

Senator DORGAN. What kind of ongoing effort exists? 

I’m going to make a comment. First of all, there’s going to be an 

outlet that is operated. Water is going to leave Devils Lake. I don’t 

think anybody in this room believes or understands that this outlet 

that exists is not going to release some water. The question is how 

much? What are the consequences, for whom? 

Having said that, if you’re going to move water out then the 

question is how do you retard water coming in? So what kind of 

effort is currently underway with respect to water retention in the 

basin in trying to prevent additional water from coming in? What 

efforts are underway? Who is involved in the efforts? What kind of 

planning exists, and so on? 

Mr. FRINK. Senator, the State Water Commission is funding a 

program to restore wetlands. We do pay the landowners money. It 

is a voluntarily program I believe. You know, it isn’t—we don’t get 

as much as interest as we would like, but we do have a program 

we fund the restoration of some wetlands. We also—even like some 

of the larger lakes with water more to the previous landowners a 

certain amount of money each year to raise that about 6 inches 

each year. So it—— 

Senator DORGAN. Let me make a point. It seems to me if you’ve 

got a bathtub that’s full and you’re working on the drain to let 

some water out you need to work on the faucet to stop some coming 

in. So I’m trying to understand what you’re doing with the faucet. 

How extensive is your program? 

Mr. FRINK. We do not have the ability to force landowners at this 

time to flood land—to flood water on it without a significant 

amount of compensation, and we haven’t gotten into the non-voluntary type of arrangements for wetland restoration. 

Senator DORGAN. Well, I guess the question is why not? If the 

release of the outlet in Devils Lake moves water from the lake and 

increases sulfate levels and so on, whatever the consequences of 

that are, why would there not be at this point or moving forward 

some effort that is beyond voluntary with respect to the connection 

of the storage of water to try to protect Devils Lake? 

Mr. FRINK. Well, if the legislature directs us to do that, we will. 

Senator DORGAN. Have you recommended it to the legislature? 

Mr. FRINK. I haven’t recommended it to the legislature. I have 

been in discussion with several people in the basin in terms of 
43 

modification in channel A, channel A and things like that. It’s a 

difficult situation to make it happen. 

Senator DORGAN. I understand but, you know, as I said it was 

just about 15 months ago that I stuck $90 million in to increase 

that levee. 

Mr. FRINK. And we stuck in about $3 million. 

Senator DORGAN. That’s correct. But that’s on top of massive 

amounts of money, hundreds of millions of dollars, for raising roads 

and doing all these things, and I’m just asking the question. In addition today’s hearing is about the drain. I understand that. How 

much water’s going to be let out in order to try to take some pressure off the lake, but the faucet is also very important, and I’m trying to evaluate whether there’s anything being done or anything 

planned. Does the administration here have any plans to ask the 

legislature for something beyond voluntary cooperation with respect to the government? 

Mr. FRINK. Not that I know of. 

Senator DORGAN. Do you think they should? 

Mr. FRINK. Well, first of all, Devils Lake is very close to its elevation today as 1830. Devils Lake is going up and down. 

Senator DORGAN. I wasn’t around for it by the way—— 

Mr. FRINK. But it has gone up and down. It has flowed out that 

Stump Lake outlet before. It probably will today—or again. So to 

say that you can restore all of the wetlands and then solve the 

problem, is not true, because we know in 1830—and it’s probably 

due to the 1825 and 1826 floods that we do have documentation of 

it at Winnipeg. The lake got to where it is now all by—with all the 

wetlands in place. Now the wetlands have been drained, and we 

spent a lot of Federal dollars on draining as we all know, and drain 

before all of our times. It does not help. And I wish they were more 

and more in place, but Devils Lake still has over half of the wetlands in place and so if you fly over it, there’s clearly a lot of wetland storage still available and still in the Devils Lake basin. It’s 

not like the Red River Valley where you have to find—go look for 

a wetland. Devils Lake has a lot of existing storage, and there is— 

but there is a tremendous amount of opposition of trying to go into 

that basin, of course, and force—— 

Senator DORGAN. Yes, but that would not be an excuse for not 

availing yourselves of part of the solution to this problem. I happen 

to agree with Joe and you and others—that the potential of coming 

over the divide naturally has devastating consequences to a lot of 

the downstream areas, so we want to try to prevent that. Preventing that means releasing some waters. The question is what’s 

the impact on the community? What are the consequences? 

One of the interests of this subcommittee is that as the Governor 

implied this morning they would welcome some financial commitment for treatment plants that the cities believe are necessary because they don’t want to degrade water quality. I want to understand what are the consequences and who might be asking for 

money and why later on. The same is true with respect to storage. 

I mean, on the faucet side of this, and I understand nobody would 

want to have somebody come to them and say, we’d like you to 

store some of this water rather than let it run into the lake. 
44 

On the other hand, if you’re going to do the range of things in 

the toolbox, why would one just take out one tool and leave another 

effective tool? So the question is who has studied retention capability in the upper basin that is at this point available but not yet 

used? Mr. Glatt, do you have any information about that or, Mr. 

Frink, do you? 

Mr. GLATT. No. 

Mr. FRINK. I’ve done studies back in the 1980s. Yes, there are. 

There are certain capabilities to store more water. Will it solve all 

of the problems, no, but there is like I said, I wish a lot of those 

wetlands that have been drained were still in place but they are 

not. 

Senator DORGAN. Dr. Luke, you raised your hand—— 

Dr. LUKE. Yes. 

Senator DORGAN. But you said when you started your testimony 

that you weren’t sure of the numbers so—— 

Dr. LUKE. The Army Corps of Engineer did a study, did a set of 

analysis I think that impacted analysis taken into problem with a 

wet scenario, and under the wet scenario say cost benefit analysis 

for various options including doing infrastructure versus upper 

basin versus the various outlets. The basis of their analysis was a 

west study that was commissioned by the Corps in 2001 upper 

basin management came up with a very conservative figure of 

whatever it was I said and they said it was very conservative. They 

needed to compare with their pictures from 1940. So with the very 

conservative number of wetlands and numbers and then just restoring half of them, the cost benefit analysis was 1.2 and that 

is—— 

Senator DORGAN. But I’m interested in more than the cost benefit. I’m interested in the quantity of water to be developed, is 

that—— 

Dr. LUKE. I believe 132,000 and that’s very conservative, really 

round. Like I said, with LIDAR you would know more. 

Senator DORGAN. Well, the LIDAR is going to be an unbelievably 

important tool. 

Dr. LUKE. Yes. 

Senator DORGAN. I funded that and it is now going to be ready 

and available and it’s going to give us very substantial capabilities 

here in the Valley and Devils Lake that we’ve never before had in 

terms of more storage. It’s capable of being done. I mean, let me 

just digress for a moment to say that the LIDAR imagery has been 

useful in the Red River Valley as well while we were working very 

hard on the Fargo/Moorhead Flood Control Project. I do not think 

it is sufficient for the Red River Valley. It will only protect the discrete population surface. Flooding occurs in a chronic way across 

the valley, and I have the announcement this morning from the 

National Weather Service about what they expect to happen in the 

Red River Valley in the coming months. 

What I’m very interested in doing is making certain that water 

retention is considered up and down the Valley for farms and small 

towns beyond the three major population centers. When Fargo and 

Moorhead is complete we will have three major flood control 

projects done. But I believe up and down the Valley for other areas 

we’re going to need to have some sort of basinwide authority that 
45 

exists to do more comprehensive water retention planning. This 

does not exist now and in my judgment it should, and I’ll be making recommendation on that. Yes, sir. 

Mr. TRIEBOLD. I did make this one little point because she talked 

about 130,000 acre feet. That would be less than 1 foot of water 

on Devils Lake and Stump Lake. 

Dr. LUKE. That’s more than 6 inches—— 

Senator DORGAN. Well, let me say this. My interest and the subcommittee’s interest and the interest of the Congress in this is because we’ve spent a boatload of money, a lot of money, and have 

been involved all of the years that Joe and you and the mayor and 

others have talked about. We’ve held hearing after hearing up 

there. We’ve had task forces of all the Federal agencies and joint 

task forces with State and local folks and Mayor Bott and you have 

been involved in this for a long, long, long time. 

As I said when I started, I had committees coming to me to say 

we’ve got to save the lake because there’s not enough water. It’s 

going to kill us up here. It’s going to hurt the economy, kill the 

fish, and we’ve got major problems and so the first committee was 

to try to preserve the lake to get more water there. Then, of course, 

the chronic flooding entwisted, and our country has very little experience except perhaps for the Great Salt Lake and now Devils Lake 

with lake flooding. What we have experience with is seeing a television shot of river flooding, where the river gorges and forces and 

takes homes and things with it and then you see very quickly and 

there’s a calm and there’s a clean up, but lake flooding that is 

chronic and comes and stays and is very unusual for our country 

to try to deal with. No one has been able to deal with this very successfully. Except I would say this, all of the money that has been 

spent has been spent to move structures, raise roads, and do a 

range of things, but it has also been very protective of the major 

population center. I know there’s been a controversy about raising 

the levee, but I assume now with the most two recent forecasts 

that the people of Devils Lake are going to be mighty happy that 

that levee increase is going to exist and funding for it is all available. It does not need to be obtained later. It’s all available now. 

The issue of this hearing was the State’s plan for this outlet. In 

my judgment the outlet will run. It’s built. It’s going operate. The 

question is under what conditions will it operate? What are the 

consequences of those conditions for others? I think my interest is 

in finding out with this kind of a hearing, what are the issues to 

be considered? What kind of additional information is necessary, 

Mr. Glatt, to fully understand the consequences? I think we’ve 

begun some of that accomplishment today. I am going to submit 

questions to a number of witnesses because there’s additional information that I want to have. I know that ultimately the EPA will 

also be involved in raising these issues, and then as, Bruce, you indicated and others, some of the downstream cities. I assume Lisbon 

in addition to Valley City, West Fargo, and Fargo are the ones 

being involved to evaluate what this means, in terms of the kind 

of water we’re going to provide to citizens in the future. So this has 

been informative for me. I hope it has been for you as well. 
46 

ADDITIONAL COMMITTEE QUESTIONS

I’m going to submit a list of additional questions and then create 

a committee report. I appreciate the time many of you have taken 

to be here today to be a part of this. 

[The following questions were not asked at the hearing, but were 

submitted to the witnesses for response subsequent to the hearing:] 

QUESTIONS SUBMITTED TO L. DAVID GLATT

QUESTIONS SUBMITTED BY BYRON L. DORGAN

Question. What will higher sulfate levels mean for animals and other biota in and 

near the Sheyenne River? 

Answer. Based on the known natural sulfate concentrations monitored in the 

Sheyenne River and Devils Lake, and the toxicological expertise of the U.S. Environmental Protection Agency (EPA), the aquatic and terrestrial wildlife will be protected. The North Dakota Department of Health supportive analysis (Attachment 1) 

provides a scientific rationale for increased sulfate concentrations to a maximum of 

750 milligrams per liter for the defined portion of the Sheyenne River. The supportive analysis uses extensive water quality monitoring results from the Sheyenne 

River and Devils Lake, along with the scientific expertise of the EPA, to identify 

environmental compound concentrations protective of designated uses. This analysis 

procedure, which has been used by other States and endorsed by the EPA, demonstrates that the increase of sulfate is protective of aquatic life. In fact, based on 

calculations from the EPA-approved formula, the department is very conservative 

in identifying the maximum sulfate concentration for the Sheyenne River (note 

graphed sulfate concentration representations in the supporting analysis (Attachment 1) and the February 25, 2010 letter from the Environmental Protection Agency 

Region VIII (Attachment 4)). This supportive analysis also shows that the sulfate 

concentration of 2,000 milligrams per liter is protective of agricultural use, including 

livestock watering. It is important to note that in the upper Sheyenne River at the 

Flora site (upstream from the Devils Lake Outlet), 42 of 565 samples taken from 

2005 to July 2009 naturally exceeded 750 milligrams per liter sulfate. Sulfate concentrations gradually attenuate downstream from the outlet (Attachment 2). 

Question. What impact will higher pollutant levels from Devils Lake have on agriculture along the Sheyenne River? 

Answer. All constituents identified in Devils Lake are naturally occurring compounds found throughout water bodies in the State, including the Sheyenne River. 

It is true that the concentration of some constituents will temporarily increase in 

the Sheyenne River as a result of the operation of the Devils Lake Outlet, however, 

all will be at concentrations below established water quality standards identified for 

the Sheyenne River. The degree to which each constituent will increase is a function 

of outlet operation and natural flow and background concentrations found in the 

river. In any event, water discharged from the Devils Lake west outlet will not result in the exceeding of approved water quality standards for the Sheyenne River. 

Agriculture is one of the designated beneficial uses in this reach of the Sheyenne 

River. Water quality standards protective of agricultural activities have been approved by EPA and established for the Sheyenne River. 

Question. What risks are posed by pollutants other than sulfates that are found 

in the greater amounts of water that will be coming from Devils Lake? 

Answer. Our approach is to monitor the water quality in west bay of Devils Lake 

and then compare the results with numeric criteria found in the State water quality 

standards. A comparison of parameters of concern demonstrates that aquatic life is 

protected. These include, but are not limited to, major inorganic ions, trace metals 

and nutrients. Parameters of interest for municipal water use are compared to the 

Safe Drinking Water Act maximum contaminant level (MCL) for human consumption. The established beneficial municipal water supply uses are maintained for the 

Sheyenne River downstream from Baldhill Dam. 

Question. How thoroughly have the risks of these extra pollutants been studied? 

Answer. North Dakota water quality standards contain/delineate the numeric criteria for protection of aquatic life and the MCL for protection of human health. The 

standards reflect the best available science for the protection of the beneficial uses 

of the water. On a State level, these standards are reviewed by the North Dakota 

Water Pollution Control Board, the State Health Council and the public at large. 

The EPA must approve the North Dakota standards, thereby affirming that the numeric and narrative criteria to protect beneficial uses are maintained. The water 
47 

quality standards established for the Sheyenne River are protective of aquatic life, 

agriculture and human consumptive use. In addition, the department continues to 

maintain an extensive water quality data base reflecting the routine monitoring of 

the Sheyenne and Red Rivers. 

Question. How far downstream have you modeled the potential effects of the rule 

change? 

Answer. In cooperation with the North Dakota State Water Commission, the U.S. 

Geological Survey is modeling the Sheyenne River to its confluence with the Red 

River. The modeling results are preliminary and have not been released. The modeling effort involves stochastic simulation of the effects of a 250-cubic-feet-per-second discharge from the Devils Lake Outlet on sulfate concentrations in the 

Sheyenne River (Attachment 3). Another effort is to develop a real-time hydrodynamic and water quality model for Lake Ashtabula. The purpose of the model is 

to estimate the impact of discharge water from Devils Lake under various hydrologic conditions. This information will be used to address appropriate outlet operation to ensure compliance with downstream standards. The constraint that will 

limit the amount of water discharged is the State water quality standard specifying 

a maximum of 450 milligrams per liter sulfate below Baldhill Dam. More important 

than the modeling will be the routine water quality monitoring data collected from 

the Sheyenne River, Lake Ashtabula and the Red River. This data will also be used 

to determine changes in water quality and influence the operation plan to ensure 

compliance with downstream standards. In the final analysis, nothing surpasses empirical water quality data input for making informed management decisions. 

Question. Will your long-term monitoring program for Lake Ashtabula include 

monitoring the accumulation of sulfates in the sediments of the lake and how they 

could affect future downstream water quality? 

Answer. The water column will be monitored, and in the unlikely event a significant flux of sulfate occurs, the operating plan can be adjusted accordingly. 

ATTACHMENT 1 

MAXIMUM SULFATE LIMIT OF THE SHEYENNE RIVER SUPPORTING ANALYSIS

The Sheyenne River is a Class IA stream in North Dakota. The quality of the 

waters in this class shall be the same as the quality of a Class I stream except that 

treatment for municipal use may also require softening to meet the drinking water 

requirements of the department. 

Under the proposed change, the Sheyenne River will remain a Class IA stream 

but a segment of the river will be subject to a different criterion for sulfate than 

is normally applied to Class IA streams. The proposed change allows the maximum 

sulfate (total) concentration of 750 mg/L (30-day arithmetic average) from the headwaters of the Sheyenne River to 0.1 miles downstream of Baldhill Dam. 

The Sheyenne River sulfate concentrations are largely influenced by natural conditions. Runoff from precipitation and snow melt generally decrease sulfate concentrations whereas low flows are dominated by groundwater discharge. Groundwater is more mineralized and contains much higher sulfate concentrations. 

From 2005 to present; 565 samples were taken at the Flora site. Of these 167 had 

a higher sulfate concentration than 450 mg/L; 80 had a higher concentration than 

600 mg/L; 45 had a higher concentration than 700 mg/L; and 42 had a higher concentration than 750 mg/L. 

This demonstrates that the criterion for sulfate of 450 mg/L is inappropriate because at the time the standard was established the natural background condition 

was not considered. There is one permitted discharger under section 402 of the 

Clean Water Act located on the main stem of the river upstream from the Flora site. 

This municipal discharger with a population of less than 2,000 has low sulfate 

drinking water and, therefore, has an inconsequential effect on sulfate concentrations at Flora. 

There are no municipal, rural water districts, or industrial uses of the Sheyenne 

River from its headwaters to 0.1 miles downstream of Baldhill Dam. This department is not aware of any plans, preliminary plans or intent in using the Sheyenne 

River in this reach for these purposes. (Memo, D. Wayne Kern, Appendix A) The 

department intends to remove the municipal use designation from this reach of the 

river during the next triennial water quality review process. 

The North Dakota State Water Commission reports there are no applications for 

water appropriation permits on this reach of river. An appropriation of greater than 

12.5 acre feet of water requires a permit. 

Agriculture use on this reach of the Sheyenne River is mostly livestock watering 

and a small number of irrigators. North Dakota designates Class III streams as 
48 

suitable for agriculture use but does not delineate numeric criteria to support that 

use. Class III streams have a maximum limit of 750 mg/L of sulfate (total) 30-day 

arithmetic average. The State of Illinois has numeric limits of 2,000 mg/L of sulfate 

for livestock watering. 

North Dakota State University Extension suggests that concentration of 1,000 mg/ 

L to 1,500 mg/L is protective for most classes of grazing livestock. 

This reach of Sheyenne River is designated suitable for the propagation or protection or both of resident fish species and other aquatic biotic. 

The State of Illinois developed sulfate criteria for protection of aquatic life (See 

Ill. Admin. Code tit. 35, § 302.208). 

The Environmental Protection Agency (EPA) approved Illinois Water Quality 

Standards including the permissible sulfate concentrations. 

The Illinois’ sulfate criteria, which is located in Ill. Admin. Code tit. 35, 

§ 302.208(h), states: 

The following concentrations for sulfate must not be exceeded except in receiving 

waters for which mixing is allowed pursuant to section 302.102: 

—At any point where water is withdrawn or accessed for purposes of livestock watering, the average of sulfate concentrations must not exceed 2,000 mg/L when 

measured at a representative frequency over a 30 day period. 

—The results of the following equations provide sulfate water quality standards 

in mg/L for the specified ranges of hardness (in mg/L as CaCO3) and chloride 

(in mg/L) and must be met at all times: 

—If the hardness concentration of receiving waters is greater than or equal to 

100 mg/L but less than or equal to 500 mg/L, and if the chloride concentration 

of waters is greater than or equal to 25 mg/L but less than or equal to 500 

mg/L then: C = [1276.7 ∂ 5.508 (hardness)¥1.457 (chloride)] *0.65 where, C 

= sulfate concentration 

—If the hardness concentration of waters is greater than or equal to 100 mg/ 

L but less than or equal to 500 mg/L, and if the chloride concentration of 

waters is greater than or equal to 5 mg/L but less than 25 mg/L, then: C = 

[¥57.478 ∂ 5.79 (hardness) ∂ 54.163 (chloride)] *0.65 where C = sulfate concentration 

—The following sulfate standards must be met at all times when hardness (in mg/ 

L as CaCO3) and chloride (in mg/L) concentrations other than specified in (h)(2) 

are present: 

—If the hardness concentration of waters is less than 100 mg/L or chloride concentration of waters is less than 5 mg/L, the sulfate standard is 500 mg/L. 

—If the hardness concentration of waters is greater than 500 mg/L and the 

chloride concentration of waters is 5 mg/L or greater, the sulfate standard is 

2,000 mg/L. 

—If the combination of hardness and chloride concentrations of existing waters 

are not reflected in subsection (h)(3)(A) or (B), the sulfate standard may be 

determined in a site-specific rulemaking pursuant to section 303(c) of the Federal Water Pollution Control Act of 1972 (Clean Water Act), 33 U.S.C. 1313, 

and Federal Regulations at 40 CFR 131.10(j)(2). 

The Illinois’ method for determining permissible sulfate concentrations supports 

our conclusion that 750 milligrams per liter sulfate (total) is not only protective but 

more than adequate to protect aquatic life. 

Data from April 2008 to July 2009 from the Sheyenne River near Flora, Bremen, 

Cooperstown, below Baldhill Dam and the Devils Lake outlet were used to calculate 

sulfate concentrations that are protective of aquatic life (Table 1). 
49 

TABLE 1 

Chloride Hardness Sulfate Criterion (mg/L) 

Site Min Max Mean Median Min Max Mean Median N (min H & min CI) (min H & max CI) 

Devils Lake State Outlet .................................................................................... 10.9 103.0 86.0 96 .2 202 658 551 562 20 1106 1455 Sheyenne River Below Baldhill Dam ................................................................. 6.8 22.4 15.3 16 .3 227 537 349 337 39 1057 1605 Sheyenne River Near Bremen ............................................................................ 12.7 44.8 25.6 24 .95 281 547 432 439 38 1467 1793 Sheyenne River Near Cooperstown .................................................................... 11.7 40.8 19.5 17 .4 292 478 400 417 39 1473 1836 Sheyenne River Near Flora ................................................................................ 9.6 27.2 18.8 19 .25 183 565 407 417 38 988 1459 

Location Map—Appendix B. 
50 

The formula found in the Illinois Water Quality Standards where chloride concentration in mg/L, and hardness concentration (in mg/L as calcium carbonate) was 

used to calculate the sulfate criteria. The data expressed in minimum, maximum, 

mean, and median concentrations unequivocally support the proposed 750 mg/L criterion for sulfate. 

The formula is presented in a different way (table 2) which provides an alternative more user friendly method for determining protective aquatic life criterion. 

In addition to the formula and tabular method, the calculations are also provided 

in graphic form (Figure 1). 

TABLE 2 

Hardness = 500: 

Chloride ............................. 5 6 13 15 24 25 50 100 200 500 

sulfate ............................... 2020 2055 2302 2372 2689 2596 2572 2525 2430 2146 

Hardness = 400: 

Chloride ............................. 5 6 13 15 24 25 50 100 200 500 

sulfate ............................... 1644 1679 1925 1996 2313 2238 2214 2167 2072 1788 

Hardness = 300: 

Chloride ............................. 5 6 13 15 24 25 50 100 200 500 

sulfate ............................... 1267 1302 1549 1619 1936 1880 1856 1809 1714 1430 

Hardness = 200: 

Chloride ............................. 5 6 13 15 24 25 50 100 200 500 

sulfate ............................... 891 926 1173 1243 1560 1522 1498 1451 1356 1072 

Hardness = 100: 

Chloride ............................. 5 6 13 15 24 25 50 100 200 500 

sulfate ............................... 515 550 796 867 1183 1164 1140 1093 998 714 

Ag Use: 

sulfate ............................... 2000 2000 2000 2000 2000 2000 2000 2000 2000 2000 

If hardness is<100 mg/L or chloride is< 5 mg/L, the sulfate std = 500 mg/L. 

If hardness is > 500 and chloride is > or equal to 5 mg/L then the sulfate standard is 2000 mg/L. 
51 

APPENDIX A—INTRADEPARTMENTAL MEMORANDUM

TO: L. David Glatt, P.E., Chief, Environmental Health Section. 

FROM: D. Wayne Kern, P.E., Director, Division of Municipal Facilities. 

RE: Use of Sheyenne River Upstream of Lake Ashtabula as a Drinking Water 

Source. 

DATE: September 2, 2009. 

This concerns the above-referenced matter. Presently, there are no public water 

systems (PWSs) that use the Sheyenne River upstream of Lake Ashtabula as a 

drinking water source. I am also not aware of any plans on the part of PWSs to 

utilize this stretch of the Sheyenne River as a drinking water source. 

PWSs that utilize surface water are subject to strict treatment and monitoring requirements under the Federal Safe Drinking Water Act (SDWA) and its implementing regulations. Private water supplies are not subject to the SDWA. However, 

whether for public or private use, surface water must undergo substantial treatment 

to render it safe and aesthetically acceptable for drinking water purposes. 

Please contact me if you have questions or need additional information on this 

matter. 

DWK. 
52 
53 

ATTACHMENT 2 

ATTACHMENT 3 

STOCHASTIC SIMULATIONS OF EFFECTS OF 250 CUBIC FEET PER SECOND DEVILS LAKE

OUTLET ON SULFATE CONCENTRATIONS IN THE SHEYENNE RIVER

PRESENTATION OUTLINE 

Part 1 (Included in this file) 

—Describe calibration and verification of ambient (without outlet) statistical flow 

and sulfate routing model for Sheyenne River 

—Show effects of Devils Lake outlet on downstream sulfate concentrations for historical scenarios 

Part 2 (In progress) 

—Show potential effects of outlet for future years using stochastic simulations 

—Evaluate potential adverse effects of future spills and ability of outlet to reduce 

or eliminate adverse effects 

Part 1.—Statistical Flow and Sulfate Routing Model for Sheyenne River 

Uses a 5-day time step (smoothes noise in daily data, easier to route flow and sulfate) 

Calibrated and verified using flow and sulfate concentration data for 1980–2009 

(homogenous climatic period) 

Primary simulation locations 

—05056000 Sheyenne R. nr. Warwick 

—05057200 Baldhill Cr. nr. Dazey 

—05057000 Sheyenne R. nr. Cooperstown 

—05058000 Sheyenne R. blw. Baldhill Dam 

—05058700 Sheyenne R. at Lisbon 

—05059000 Sheyenne R. nr. Kindred 

Secondary locations 

—05055400 Sheyenne R. nr. Bremen 

—05059300 Shey. R. abv. Div. nr. Horace 

—Start with flow for Sheyenne R. nr. Warwick and Baldhill Cr. nr. Dazey (either 

use historical values or simulated values from stochastic model) 
54 

—Use flows for Warwick and Dazey to simulate sulfate concentrations for both 

sites 

—Use flows and sulfate concentrations for Warwick and Dazey to simulate flows 

and sulfate concentrations for Cooperstown 

—Use Cooperstown and Dazey flows and sulfate concentrations and Lake Ashtabula simulation model to simulate flows and sulfate concentrations blw. 

Baldhill Dam 

—Use flows and sulfate concentrations blw. Baldhill Dam and estimated intervening flows and sulfate concentrations to simulate flows and sulfate concentrations at Lisbon and Kindred 
55 
56 
57 
58 
59 
60 
61 
62 
63 
64 
65 
66 
67 
68 
69 
70 

Simulated Effect of 250 cfs Outlet for Historical Scenarios 

What if the proposed outlet (250 cfs, April–Nov operation, 600 cfs channel capacity constraint) were in operation during 2004–2009? 

Assume 3 different sulfate constraints for outflow from Baldhill Dam: unconstrained, 400 mg/L, and 375 mg/L 

Assume sulfate concentration from the outlet is 575 mg/L (actual concentration 

of West Bay in October 2009) 

What are the potential effects on the amount of water that can be discharged from 

the outlet and on sulfate concentrations at Lisbon and Kindred? 
71 
72 
73 

Looks like, to maintain max 350 mg/L sulfate concentration at Kindred, outflow 

from Baldhill Dam will need to be constrained to about 375 mg/L 

Note that concentrations during winter ice cover may be higher 

For the current Devils Lake sulfate concentration (575 mg/L), the outlet discharge 

(on average) would be about 50,000 acre-ft per year (less than one-half the discharge 

with no sulfate constraint) 

What if Devils Lake continues to rise and sulfate concentration decreases to 475 

mg/L? As indicated in the next slide, the outlet discharge would increase to about 

66,000 acre-ft per year 
74 

Part 2.—Devils Lake/Sheyenne River Stochastic Flow and Sulfate Simulation Model 

—Couples Devils Lake ‘‘5-Box’’ simulation model with Sheyenne River downstream flow and sulfate routing model 

—Changes to ‘‘5-Box’’ model (still in progress): 

—Update sulfate model parameters for Devils Lake (sulfate loads for inflows, 

mixing coefficients between boxes, sediment flux coefficients, etc.) using most 

recent (2002–09) sulfate concentration data 
75 

—Generate future sequences of ambient flows and sulfate concentrations for 

Sheyenne R. (including incremental flows and concentrations) that are in 

‘‘lock-step’’ with Devils Lake 

Assumptions Used for the Following Simulations 

—Lake level of Devils Lake on June 30, 2010 is 1,452.0 

—Climatic conditions for the future (i.e., the next 10–20 years) are similar to 

1980–2009 

—Higher ambient sulfate concentrations in the Sheyenne R. observed since 2000 

(especially for Warwick) are assumed to persist into the future (but not get 

worse!) 

—State outlet capacity is 100 cfs until June 30, 2010, and then increases to 250 

cfs on July 1, 2010 

—Outlet operates April 1 to Nov. 30, when lake level exceeds 1446.0 

—Outlet discharge reduced if needed to maintain max 600 cfs flow at Bremen 

—Outlet discharge constrained to maintain max sulfate concentration blw. 

Baldhill Dam (Lisbon and Kindred not yet included) 

Simulated Traces Generated for 4 Conditions 

—Ambient (no outlet discharge) 

—P250–S400 (250 cfs outlet, 400 mg/L sulfate constraint blw. Baldhill) 

—P250–S450 (250 cfs outlet, 450 mg/L sulfate constraint blw. Baldhill) 

—P250–S500 (250 cfs outlet, 500 mg/L sulfate constraint blw. Baldhill) 

NOTE.—These constraints to not include ice effects on lake ashtabula, so concentrations may be higher in winter 
76 
77 
78 
79 
80 
81 
82 
83 

ESTIMATED PROBABILITIES OF EXCEEDING CRITICAL LAKE LEVELS WITHIN THE NEXT 20 YEARS 

(BY 2029) 

Level 

Percent chance of exceedance by 2029 for 

No pump P250–S400 P250–S450 P250–S500 

1,454 ........................................................................... 47.2 33.4 28.4 26.4 

1,456 ........................................................................... 27.4 17.9 14.5 13.3 

1,458 ........................................................................... 14.6 8.8 6.9 6.5 
84 

ESTIMATED PROBABILITIES OF EXCEEDING CRITICAL LAKE LEVELS WITHIN THE NEXT 20 YEARS 

(BY 2029)—Continued 

Level 

Percent chance of exceedance by 2029 for 

No pump P250–S400 P250–S450 P250–S500 

1,460 ............................................................................. 7.2 4.0 3.2 3.0 

ATTACHMENT 4 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, 

REGION 8, 1595 WYNKOOP STREET, 

DENVER, CO, FEBRUARY 25, 2010. 

Mr. DENNIS R. FEWLESS, 

Director, Division of Water Quality, 

North Dakota Department of Health, 

Bismarck, ND 58501–1947. 

Subject: Triennial Review of Water Quality Standards. 

DEAR MR. FEWLESS: The purpose of this letter is to provide the comments of the 

U.S. EPA Region 8 Water Quality Unit on the proposed revisions to Standards of 

Quality for Waters of the State, N.D. Administrative Code Chapter 33–16–02.1. The 

proposal was made available with a public notice dated December 22, 2009. Our review addressed the information and supporting analysis made available to the public in support of the proposed revision. 

Please note that the positions described in our comments, regarding both existing 

and proposed water quality standards, are preliminary in nature and should not be 

interpreted as final EPA decisions under CWA § 303(c). EPA Region 8 approval/disapproval decisions will be made following adoption of new/revised water quality 

standards and submittal to EPA. Such decisions will be made considering all pertinent evidence available to the Region, including the comments and information submitted in response to the State’s proposal. 

REQUIREMENTS FOR CLASS 1A STREAMS [SECTION 33–16–02.1–09(1)(B)]

The proposed revision would clarify that for Class 1A streams where natural conditions do not satisfy Class 1 water quality criteria for municipal and domestic use, 

the availability of softening or other treatment methods may be considered in determining whether ambient water quality meets the requirements of the department. 

This revision allows the department to consider the availability of treatment processes such as ion exchange, reverse osmosis, or electrodialysis in determining 

whether streams with naturally elevated ambient conditions meet Class 1A requirements for protection of municipal and domestic use. We recognize there may be circumstances where streams with naturally high concentrations of certain parameters 

are used as water supplies, and that advanced drinking water treatment processes 

may be available that are capable of delivering the removal efficiencies necessary 

to achieve protective post-treatment concentrations. We also recognize that the proposed language is specific to streams where elevated concentrations are due to natural causes. Accordingly, our perspective is that the proposal would result in a useful clarification regarding streams where adoption of a Class 1A use classification 

is appropriate, and we support adoption of the proposal. 

SHEYENNE RIVER WATER QUALITY STANDARDS

Site-Specific Criteria Proposal 

The department proposed a site-specific total sulfate criterion of 750 mg/L (as a 

30-day average) for the Sheyenne River from headwaters to 0.1 mile downstream 

from the Baldhill Dam. The site-specific criterion would be included in section 33– 

16–02.1–09(3)(b). A related proposal would remove the municipal and domestic 

water supply designated use from this same segment (discussed separately below). 

Because the water supply-based sulfate criteria for the next downstream segment 

of the Sheyenne River (450 mg/L) and the Red River (250 mg/L) are more stringent 

than the proposed site-specific criterion, the department also proposed adoption of 

a site-specific narrative provision to require that the more stringent downstream criteria must continue to be maintained. 

We concur that a maximum sulfate limit at 750 mg/L is adequately protective of 

the aquatic life and agriculture uses that would be designated for this portion of 

the Sheyenne River. Using the EPA-approved aquatic life criterion adopted by Illi-
85 

nois as a benchmark, the department’s supporting analysis shows that a maximum 

sulfate concentration of 750 mg/L is protective of aquatic life. Note that the Illinois 

aquatic life criterion is a maximum limit and is expressed as a function of the ambient hardness and chloride concentration. Even at the most stringent hardness and 

chloride concentrations observed at four different locations on the Sheyenne River 

for the period April 2008 to July 2009, the supporting analysis demonstrates that 

a fixed maximum limit of 750 mg/L is more protective than the Illinois criterion. 

See Table 1. Based on evidence that agriculture uses are protected at a sulfate concentration of 2,000 mg/L, a maximum limit at 750 mg/L is also well below levels 

necessary to protect agriculture uses. Although we concur that a maximum limit of 

750 mg/L is protective, below we have described a concern about the proposed 30- 

day averaging period. 

TABLE 1.—COMPARISON OF PROPOSED SHEYENNE RIVER SULFATE CRITERION TO EPA-APPROVED 

ILLINOIS CRITERION 

Sheyenne River Location Proposed ND Sulfate 

Criterion (mg/L) 

Illinois Aq. Life Criterion (mg/L) @ Most 

Stringent Ambient 

Hardness and Chlo- ride 1

Illinois Aq. Life Criterion (mg/L) @ Median Ambient Hardness and Chloride 1

Flora ................................................................................... 750 988 2212 

Near Cooperstown .............................................................. 750 1473 2145 

Near Bremen ...................................................................... 750 1467 2495 

Below Baldhill Dam ........................................................... 750 1106 1805 

1 Based on observed ambient hardness and chloride concentrations for April 2008 to July 2009 

We recommend that the department consider whether the site-specific criterion 

should be expressed as a maximum value that must be met at all times. The department’s supporting analysis uses the EPA-approved aquatic life criterion adopted by 

Illinois as a benchmark for evaluating whether the site-specific criterion would protect aquatic life. Note that the Illinois criterion is a maximum value that is never 

to be exceeded. By contrast, the proposed revision to section 33–16–02.1–09(3)(b) describes the site-specific criterion as a 30-day average. Because of variability, during 

periods when the average sulfate concentration is near 750 mg/L, individual samples would exceed 750 mg/L. We are concerned that the supporting analysis does 

not evaluate what maximum values would be observed during periods when the 30- 

day average concentration is 750 mg/L, and does not demonstrate that a 30-day average concentration at 750 mg/L would be protective of aquatic life. Absent a demonstration that 750 mg/L as a 30-day average would be protective, we recommend 

adoption of the 750 mg/L site-specific criterion as a maximum value that must be 

met at all times. 

We support adoption of the proposed site-specific narrative provision requiring attainment and maintenance of the sulfate criteria for downstream waters. The proposed narrative provision is consistent with the Federal requirement (40 CFR section 131.10(b)) to consider the water quality standards of downstream waters and 

provide for the attainment and maintenance of such standards. 

Municipal and Domestic Use Proposal 

The department also proposed a site-specific change to the uses designated for the 

Sheyenne River. The proposal would specify that the Sheyenne River from its headwaters to 0.1 mile downstream from Baldhill Dam is not classified for municipal or 

domestic use. 

Although water supply uses are not one of the uses identified in the Clean Water 

Act section 101(a)(2) goal, it is nevertheless important for the State to provide a 

supporting rationale for any proposal to remove a water supply designated use, and 

to allow for public review and comment. 

The supporting analysis that was made available for public review includes information indicating that there are no municipal, rural water district, or industrial 

uses, nor are there plans, preliminary plans or intent to divert water for these purposes in this stretch of the Sheyenne River. Based on our review of the department’s 

supporting rationale, our current thinking is that the proposed change to the designated uses for the upper portion of the Sheyenne River is reasonable and consistent with current and anticipated uses. In addition, it is consistent with the EPA 

requirement to designate appropriate water uses to be achieved and protected. See 

40 CFR section 131.10(a). 
86 

1 As presented in table 2 of the 1986 criteria document, correlation coefficients for swimmingassociated gastroenteritis rates against mean indicator densities were 0.80 and 0.08 for E. coli 

and fecal coliforms, respectively, at fresh water swimming beaches. 

REQUIREMENTS FOR RESERVOIRS [SECTION 33–16–02.1–09(3)(E)]

The proposed revision would clarify that reservoirs located on Class 1A, Class II, 

or Class III streams shall have the parameter limitations for that class stream. This 

would be a refinement to the current requirement, which applies Class 1 stream parameter limitations to all reservoirs, even if the reservoir is located on a Class 1A, 

Class II, or Class III stream. The list of parameters where limitations would be 

modified includes chloride, sodium, sulfate, and pH. For chloride and sulfate, our 

understanding is that the Class 1A, Class II, and Class III limits are based on concentrations observed in Class 1A, Class II, and Class III streams under undisturbed 

natural conditions. In addition, for all four parameters, the reservoir limitations 

that would now apply have been approved by EPA previously as appropriate for the 

protection of Class 1A, Class II, and Class III streams. Accordingly, our current 

thinking is that the proposed revision is reasonable and appropriate, and that for 

chloride and sulfate, it is consistent with the protection of uses that are attainable 

under natural conditions. 

FECAL COLIFORM CRITERIA (TABLE 1)

The department proposed deletion of the fecal coliform criteria in table 1. However, the E. coli criteria adopted previously, and approved by EPA previously, would 

be retained for the protection of recreation uses. As discussed in the 1986 criteria 

document for bacteria, epidemiological studies conducted by EPA at fresh water 

sites did not find a statistical relationship between fecal coliform densities and risk 

of illness in swimmers. By contrast, such a statistical relationship was found for E. 

coli, demonstrating that E. coli is a better indicator of the health risks associated 

with recreational uses.1 Based on these data, and EPA’s analysis of these data (see 

the EPA criteria document), we support the department’s proposal to delete the 

fecal coliform criteria in table 1. 

REVISIONS TO WATER QUALITY CRITERIA (TABLE 2)

New acute and chronic aquatic life criteria were proposed for chlorpyrifos, 

tributyltin, and parathion consistent with criteria recommendations issued by EPA 

pursuant to CWA section 304(a). Revised human health criteria were proposed for 

acrolein and phenol consistent with recently issued changes to the EPA criteria recommendations for those parameters. 

We support adoption of these proposed new/revised criteria as consistent with the 

EPA requirement to consider new scientific information and adopt revisions to water 

quality criteria as appropriate. See 40 CFR section 131.11 and 131.20(a). 

REQUIREMENTS FOR LAKES (APPENDIX II)

The proposed revision would clarify that for lakes not specifically named in Appendix II, a Class 4 classification applies by default. We view this proposal as important and necessary to ensure that water quality standards are identified for all 

lakes in North Dakota (i.e., not only those lakes specifically named in Appendix II). 

Accordingly, we support adoption of the proposed revision. 

CONCLUSION

We hope these comments are helpful to the department. If there are questions 

concerning our comments, the most knowledgeable person on my staff is David 

Moon, and he can be reached at (303) 312–6833. 

Sincerely, 

KAREN HAMILTON, CHIEF, 

Water Quality Unit. 

Senator DORGAN. Yes? 

Mr. BELFORD. Senator, the one issue that’s not surfaced today is 

very, very private matter it’s groundwater. And I’m not just sure 

how you handle groundwater because it’s coming from the upper 

regions from the land. Most of the homes in Devils Lake have 

sump pumps and lots of them. I have three in my home. 
87 

CONCLUSION OF HEARING

Senator DORGAN. All right. Well, thank you very much. I appreciate all of you being here. This hearing is recessed. 

[Whereupon, at 11:57 a.m., Friday, February 19, the hearing was 

concluded, and the subcommittee was recessed, to reconvene subject to the call of the Chair.] 

(89) 

MATERIAL SUBMITTED SUBSEQUENT TO THE 

HEARING 

[CLERK’S NOTE.—The following testimonies were received by the 

Subcommittee on Energy and Water Development subsequent to 

the hearing for inclusion in the record.] 

PREPARED STATEMENT OF RICHARD BETTING, VALLEY CITY, NORTH DAKOTA

MAIN POINTS

— The ND SWC Outlet from Devils Lake will not prevent Devils Lake from rising; 

—Pumping the Devils Lake Outlet will violate State statues protecting beneficial 

uses of the Sheyenne River for downstream water users, including municipal 

and individual uses, aquatic life, recreation and irrigation; 

—Governor Hoeven’s decision (July 15, 2009) to void the original permit to drain 

was made without consultation with downstream entities and individuals who 

would be negatively affected by North Dakota Health Department action to increase sulfate levels in the Sheyenne from 450 mg/L to 750 mg/L. The action 

was also arbitrary and capricious and made without supporting scientific documentation of the effects of outlet operation on the aquatic life or the hydrology 

of the Sheyenne River. 

Here are some of those who should have been involved in making any decision 

before Governor Hoeven voided the original outlet permit and allowed increased 

pumping of the Devils Lake outlet from 100 cubic feet per second to 250 cfs. 

—Barnes County and Valley City Commissions.—Valley City uses river water for 

drinking. 

—The U.S. Fish Hatchery.—Can hatchery fish survive in Devils Lake water? 

—The North Dakota Game and Fish Department.—What will 100,000 acre/feet of 

Devils Lake water do to Lake Ashtabula? 

—The U.S. Army Corps of Engineers.—Who controls Baldhill Dam? 

—Landowners along the Sheyenne River.—I am one of them. 

—Fargo and West Fargo.—They will be affected by Devils Lake water. 

—Canada.—Have Canadian concerns about biota transfer been adequately addressed? The FEIS of the Corps’ Outlet Project seem to indicate that they have 

not. And what about added levels of contaminated Devils Lake water in general? What about taking the issue to the International Joint Commission for 

mediation? 

—The U.S. Bureau of Reclamation.—Where are the studies showing the effects of 

Devils Lake water on the Red River Basin Water Supply Project? Has the 

RRBWSP taken Devils Lake water into consideration? If so, what are the ramifications of more Devils Lake water in the Sheyenne? 

All of these affected parties should have facts and scientific data—not just verbal 

assurances—to reveal the effects of adding 250 cfs Devils Lake water to the 

Sheyenne River. 

But when Governor Hoeven on July 15, 2009, signed the letter allowing the use 

of Emergency Rules to void the permit to drain and replace it with a plan that will 

allow degradation of the Sheyenne River, none of these constituents had any voice 

in the matter. An arbitrary and capricious act replaced science, common sense and 

community involvement. 

Scientific studies should be done before any decision is made to allow the Devils 

Lake outlet to continue pumping contaminated water into the Sheyenne River. 

I live along the Sheyenne River south of Valley City, North Dakota, and whatever 

happens to the river affects me and impacts the ways I and hundreds of others are 

able to use the river. For the State of North Dakota to add degraded Devils Lake 

water to the Sheyenne River is a violation of all property owners’ rights because in 

one way or another contaminating river water reduces its beneficial uses. The more 
90 

contaminated the water becomes, the fewer uses, and contrary to what the North 

Dakota Department of Health says, all of the beneficial uses of the river cannot be 

maintained when large quantities of Devils Lake water are dumped into the river. 

That is, the river cannot maintain the number of fish and mussel species it now 

contains, cannot be used for recreational purposes that are now enjoyed and cannot 

be used for public consumption. 

Devils Lake has been rising since the 1950s. Higher water on the lake is not new 

and this is not an emergency. The only way to prevent water from reaching the lake 

is to turn off the faucet, just as you would if it were a bathtub. During the past 

50 years over 350,000 acres of wetlands in the upper Devils Lake basin were 

drained. In the spring of 2009, for example, over 550,000 acre-feet of water drained 

from those acres into Devils Lake from the upper basin. The lake rose 31⁄2 feet. 

How can those living around Devils Lake deal with rising water? 

Evapotranspiration will remove over 30 inches each year, but the Devils Lake outlet—removing about 3–4 inches per year—cannot keep up with that kind of annual 

inflow. Rather than draining the tub, stop the inflows 

It makes no sense to discharge polluted Devils Lake water into the Sheyenne 

River when the faucet that keeps the tub full is left on. Turn off the faucet. 

PREPARED STATEMENT OF GARY L. PEARSON, D.V.M. 

In the January 29, 2010, news story announcing the Senate Committee on Appropriations Subcommittee on Energy and Water Developments’ February 19, 2010, 

field hearing on the release of water from Devils Lake and the potential impact on 

downstream communities, Subcommittee Chairman Senator Byron Dorgan of North 

Dakota was quoted as saying: 

‘‘We have made all kinds of efforts . . . to help provide the funding necessary to 

mitigate the damages of flooding at Devils Lake. But I have always insisted, I am 

not interested in transferring the problem from one region of our State to another.’’ 

(Daum, 2010) 

Transferring problems from one region of the State to another—and to other 

States and provinces—has been a cornerstone of water management in North Dakota for nearly a century. Indeed, by definition, wetland drainage is the epitome of 

transferring a problem from one area to another. 

THE CONTRIBUTION OF WETLAND DRAINAGE TO FLOODING IN NORTH DAKOTA

North Dakota originally had an estimated 5,000,000 acres of wetlands, but by 

1984, 3,000,000 acres of those wetlands had been lost (Tiner, 1984). Most of those 

wetlands occurred in the Red River Valley, the Drift Prairie and the Missouri 

Coteau in the eastern half of Dakota. Wetland drainage in the James River Basin 

has contributed to flooding at Jamestown and other areas along the James River 

in North Dakota and South Dakota where just a dozen drainage projects in two 

counties contributed 5 feet to the record flood crest at Jamestown Reservoir in 2009 

(See Pearson, 2009a, Attached). Wetland drainage in the Souris River Basin, where 

220,000 acres of wetlands had been drained by 1980, has contributed to flooding at 

Minot and other areas along the Souris River. (Pearson, 1985) 

THE RED RIVER BASIN

Most of the rest of North Dakota’s 3,000,000 acres of drained wetlands and 

2,000,000 acres of remaining wetlands were or are located within the Red River 

Basin in watersheds of tributaries to the Red River of the North, such as the 

Sheyenne, the Wild Rice, the Maple, the Rush, the Elm, the Goose, the Turtle, the 

Forest, the Park and the Pembina rivers. With the construction of the Devils Lake 

outlet to the Sheyenne River by the North Dakota State Water Commission, wetland drainage in the 3,814 square-mile Devils Lake Subbasin also has been contributing water to the Red River since 2005. 

North Dakota Century Code § 61–32–03 specifies that: 

‘‘Any person, before draining a pond, slough, lake, or sheetwater, or any series 

thereof, which has a watershed comprising 80 acres (32.37 hectares) or more, shall 

first secure a permit to do so . . . A permit may not be granted until an investigation discloses that the quantity of water which will be drained from the pond, 

slough, lake, or sheetwater, or any series thereof, will not flood or adversely affect 

downstream lands.’’ 
91 

However, the North Dakota State Engineer and local water resource districts 

rarely conduct the required investigations to document the acreage of wetlands destroyed by drainage projects, the volume of water contributed from the drained wetlands, or the effects of the drainage on downstream lands. In fact, the statute is 

routinely circumvented by the very agencies that are supposed to enforce it by: 

—Initiating action only if formal complaints are filed by the public. 

—Determining that the watershed involved is less than 80 acres in size, either 

by an arbitrary decision unsupported by evidence or by the expedient of two or 

more ditches being used to drain the watershed. 

—Arbitrarily and without evidence determining that the drainage involves 

‘‘cleanout’’ of an existing drain. 

—Arbitrarily denying, in the face of unequivocal evidence to the contrary, that 

drainage has occurred. 

—Issuing drainage permits after the fact without conducting the required investigations. (Pearson, 1985) 

Because the State Water Commission has not compiled information on wetland 

drainage in the State, it is difficult to determine the exact extent to which wetland 

drainage has contributed to flooding in eastern North Dakota; however, it clearly 

is in the millions of acre-feet of water in periods of high precipitation. 

Nearly three decades ago, in a report on ‘‘Stream Flow Changes in the Southern 

Red River Valley of North Dakota,’’ investigators at the North Dakota State University determined that: 

‘‘. . . The analysis indicates that approximately 50 percent of the increase in predicted mean annual flow [in the Maple and Goose rivers], 36 percent of the increase 

in predicted maximum daily flow, and 70 percent of the increase in predicted mean 

spring flow is due to increased drainage area. (Emphasis added) (Brun, et al., 1981) 

‘‘The current drainage upstream from Mapleton was estimated to be 64 percent 

greater than the natural drainage, while the current drainage upstream from Hillsboro was estimated to be 180 per cent greater [than] the natural drainage.’’ (Brun, 

et al., 1981) 

The investigators concluded that: 

‘‘Significant increases in flow on the Maple, Wild Rice and Goose Rivers have occurred over the last 30 to 40 years. Flow rates were shown to be related to climate 

(precipitation); however, there appears to be no change in precipitation patterns to 

account for the increase in flow rates. Predicted flow rates were shown to be closely 

related to changes in basin size due to land drainage in the Maple River and Goose 

River basins. It appears that land drainage is a factor aggravating the flooding problem in eastern North Dakota . . . ’’ (Emphasis added) (Brun, et al., 1981). 

Wetland drainage also has contributed significantly to flooding on the Pembina 

River at the Canadian Border (See Pearson, 2009b, Attached). 

Five years ago, in a study of ‘‘Changes in Fish Assemblage Structure of the Red 

River of the North,’’ investigators reported that: 

‘‘Watershed changes such as conversion of grassland to intensive row crop agriculture, wetland drainage, and channelization of tributaries may have affected species richness by increasing hydrologic variability. Climatic and hydrologic records 

over the past 120 years suggest wet periods in the late 1800s to early 1900s and 

the late 1900s to present separated by a dry period that included the drought of 

the 1930s. While the 40-year periods from 1882 to 1921 and 1962 to 2001 had similar precipitation averages, peak flows at Grand Forks have averaged 60 percent higher in the latter time period.’’ (Emphasis added) (Aadland, et al., 2005) 

The contribution of wetland drainage is becoming widely recognized across the 

country. For example: 

‘‘. . . According to the Army Corps of Engineers, 111 million acre-feet of water 

passed St. Louis during the 80 days of flooding in 1993 (citation omitted). Given 

that, at this location on the river, the bank-full discharge is 450,000 cubic feet per 

second, the volume of water in excess of this discharge for the 80-day flood period 

was approximately 40 million acre-feet. Distributed at a 3-foot depth (the approximate depth of a deep marsh), these waters would have covered a little more than 

13 million acres. The 26 million acres of wetlands eliminated (in the upper Mississippi Basin) since 1780 could have easily accommodated this volume . . .’’ (Hey 

and Philippi, 1995) 

Although the contribution of the drainage of some 2,000,000 acres of wetlands in 

the Red River Basin to the 8 of the 10 worst floods in history that have occurred 

on the Red River in the last 30 years is difficult to quantify specifically, there can 
92 

be no doubt that it has been a significant factor. And now taxpayers in North Dakota, Minnesota and across the country are faced with spending up to $1.3 billion 

dollars to protect just Fargo, North Dakota, and Moorhead, Minnesota, from flooding 

on the Red River—while increasing flooding downstream. (The Forum, 2010) 

It is in this context that the impacts of the drainage of water from Devils Lake 

on downstream communities must be considered. 

The Devils Lake Subbasin 

In his Fifth Biennial Report to the Governor for 1911–1912, the North Dakota 

State Engineer noted that: 

‘‘The water level of any lake possessing no outlet depends on the amount of evaporation, seepage, rainfall and the run-off into the Lake from the drainage area tributary to it. The drainage area of Devils Lake is nearly 2,000 square miles, but the 

land lies so nearly level, and there are so many marshes, meadows, small ponds and 

lakes which arrest the flow of the water and from which it evaporates, that it is 

not likely that the run-off from more than 700 to 800 square miles of the total area 

ever reaches the lake.’’ (North Dakota State Engineer, 1911–1912) 

As is the case in the Red River Valley, no comprehensive and objective studies 

have been done on the contribution of wetland drainage in the Devils Lake Basin 

to the rise of Devils Lake. In fact, there is no agreement on the number of acres 

of wetlands that have been drained in the Devils Lake Basin. For example, the Devils Lake Basin Advisory Committee, established by the North Dakota Legislative Assembly in 1975 to develop long-term water resource policies for the Devils Lake 

Basin, estimated that 569,000 acres of wetlands originally were present in the Basin 

and that approximately 75,000 acres of wetlands had been drained by 1976 (Devils 

Lake Basin Advisory Committee, 1976). Using topographical maps of 1.45 percent 

of the Devils Lake Basin, a 1983 report estimated that 412,000 acres of drained and 

undrained wetlands were present in the Devils Lake Basin (Ludden, et al., 1983). 

Based on aerial photography, the North Dakota State Engineer and the U.S. Fish 

and Wildlife Service estimated in 1997 that 189,000 acres of wetlands had been 

drained in the Devils Lake Basin (Sprynczynatyk and Sapa, 1997). Using a Digital 

Elevation Model, West Consultants, Inc., estimated that 92,429 acres of wetlands 

had been drained in 68 percent of the Devils Lake Basin (West Consultants, Inc., 

2001), but the modeling technique used in the study is not an accurate method for 

delineating drained prairie wetlands. (Johnson, 2001) 

The primary problem in basing estimates of the acreage of drained wetlands on 

the identification of drained wetland basins and drainage ditches is that after a few 

years of tillage and siltation many of the basins and drains no longer can be identified. It is similar to attempting to determine the number of bison that once roamed 

the prairies by counting the number of bison skulls that can be found. There is, 

however, one significant difference: the ‘‘skeletons’’ of drained wetlands still remain 

buried on the prairie in the form of hydric soils, i.e., soils that developed over thousands of years under wetland conditions. Consequently, the most reliable way to determine how many acres of wetlands have been drained in an area is to count the 

acres of remaining wetlands, which can be done quite readily, and subtract that 

number from the acres of hydric soils in the area. 

In 1998, the North Dakota State Water Commission estimated that: 

‘‘Approximately 211,000 acres of wetlands exist in the Devils Lake Basin including upper basin lakes, which comprise about 30,000 acres of the total.’’ (Hovde, 

1998) 

Subtracting the 211,000 acres of wetlands remaining in the Devils Lake Basin in 

1998 from the 569,000 acres of wetlands originally estimated to have been in the 

Basin by the Devils Lake Basin Advisory Committee (1976) would indicate that 

358,000 acres of wetlands have been drained in the Devils Lake Basin. However, 

there are an estimated 588,917 acres of hydric soils in the Devils Lake Basin (U.S. 

Fish and Wildlife Service, 1997), so the acreage of wetlands that have been drained 

in the Devils Lake Basin actually is closer to (589,000¥211,000 =) 378,000 acres. 

Wetlands in the Devils Lake Basin have the capacity to store an average of 18.5 

inches (1.54 feet) of water in a 100-year runoff event and they have an average maximum storage capacity of 20.9 inches (1.74 feet) of water (Ludden, et al., 1983). Runoff in the Devils Lake Basin since 1993 frequently has exceeded the 100-year frequency run-off, so this means that the drainage of 378,000 acres of wetlands in the 

Devils Lake Basin eliminated some 657,000 acre-feet of storage in the Basin. Therefore, because the Devils Lake Basin had been in a 5-year drought since 1988 so wetland basins were largely dry, an additional 657,000 acre-feet of water may have entered Devils Lake from those drained wetland basins when high levels of precipita-
93 

tion occurred in 1993. In addition, because evaporation in the Devils Lake Basin exceeds precipitation by an average of 12.8 inches per year, and because evaporation 

exceeded precipitation by an average of 8 inches per year even during the especially 

wet years from 1993 to 1999 (West Consultants, Inc., 2001), as much 253,000 acrefeet of water may have entered Devils Lake every year since 1993 as a result of 

lost evaporation capacity from those drained wetlands. Consequently, as much as 

80 percent of the average 317,000 acre-feet of inflows to Devils Lake from 1993 to 

1999—and as much as 43 percent of the record 587,000 acre-feet of inflows in the 

spring of 2009—may have been the result of the loss of evaporation capacity from 

drained wetlands. 

Of course, it would not be realistic to suggest that all of the 3,000,000 million 

acres of drained wetlands in North Dakota, or the 378,000 acres of drained wetlands 

in the Devils Lake Basin, could be restored. However, what is clear is that further 

wetland drainage in North Dakota, and particularly in the Red River Basin and the 

Devils Lake Basin, should be strictly prohibited except in the most critical situations and where the hydrologic and ecologic functions of the drained wetlands are 

fully replaced within the watershed. In addition, a comprehensive, long-term program to restore wetlands wherever possible should be implemented. 

IMPACTS OF THE DISCHARGE OF WATER FROM THE DEVILS LAKE OUTLET ON

DOWNSTREAM COMMUNITIES

In 2004, the North Dakota Department of Health issued a North Dakota Pollution 

Discharge Elimination System permit, under the section 402 of the Federal Clean 

Water Act, for the North Dakota State Water Commission’s Devils Lake outlet. The 

permit, which was to expire on June 30, 2008, constrained operation of the outlet 

by (1) a 100 cubic feet per second (cfs) maximum discharge, (2) limiting operation 

of the outlet from May through November, (3) limiting maximum daily Total Suspended Solids to 100 mg/L, (4) limiting the total combined discharge from the outlet 

and natural flows in the Sheyenne River to 600 cfs, (5) and a 300 milligrams per 

liter (mg/L) maximum sulfate level in the Sheyenne River. Constrained by these 

conditions, the outlet removed a total of 38.46 acre-feet of water from Devils Lake 

in 2005 and it did not operate at all in 2006. (See Pearson 2009c, Attached) 

Two years later on August 16, 2006, the North Dakota Department of Health 

modified the permit for the outlet by (1) removing the restriction on operation of 

the outlet from May through November, (2) removing the 100 mg/L maximum daily 

Total Dissolved Solids restriction, and (3) increasing the maximum sulfate limit in 

the Sheyenne River to 450 mg/L. Operating under these modified permit conditions, 

the outlet removed a total of 298.18 acre-feet of water from Devils Lake in 2007, 

and it removed a total of 1,241 acre-feet in 2008. At the current lake elevation of 

1,450 feet and surface area of 163,000 acres, that is equivalent to a 0.01 foot (0.12 

inch) reduction in the level of Devils Lake. (See Pearson 2009c, Attached) 

In July 2009, the North Dakota Department of Health vacated the Clean Water 

Act section 402 permit it had issued for the Devils Lake outlet, implemented an interim emergency rule raising the maximum sulfate level in the Upper Sheyenne 

River to 750 mg/L, and proposed the addition of a new section to the Department’s 

administrative rules permanently raising the sulfate limit in the Upper Sheyenne 

River to 750 mg/L. Then in December 2009 the North Dakota State Water Commission submitted an application for a permit to increase the capacity of the Devils 

Lake outlet from 100 cfs to 250 cfs. Because sulfate levels in West Bay of Devils 

Lake are at 600 to 700 mg/L and discharges would no longer be constrained by the 

capacity of the channel of the Sheyenne River, the only restriction on operation of 

the outlet would be the capacity of the pumps. (See Pearson, 2009c and 2010a, Attached) 

No studies have been done to identify the impacts on downstream communities 

of the operation of a 250 cfs Devils Lake outlet limited only by a 750 mg/L maximum sulfate limit in the Sheyenne River (See Pearson, 2010, p. 6, Attached), but 

the U.S. Army Corps of Engineers has identified a number of significant adverse 

impacts to the Sheyenne River and downstream communities resulting from the operation of a 300 cfs Devils Lake outlet constrained by total combined flows of 600 

cfs and a much lower 300 mg/L sulfate limit in the Sheyenne River (U.S. Army 

Corps of Engineers, 2003). Those impacts identified by the U.S. Army Corps of Engineers include: 

—Accelerated erosion along the Sheyenne River. 

—Exacerbated flooding in the Sheyenne River. 

—Substantial change in the flow regime of the Sheyenne River, including a five 

to tenfold increase in summer and fall flow. 
94 

—Changes in habitat conditions and availability resulting in changes in aquatic 

species composition and abundance in the Sheyenne River, including lost year 

classes of fish and declines in invertebrate populations. 

—Increased nutrient loading of Lake Ashtabula. 

—The shifting of a large portion of the riparian vegetation along the Sheyenne 

River from woods to a more open community type, resulting in concurrent 

changes in animal species composition along the river. 

—Reduced agricultural production on irrigated lands along the Sheyenne and Red 

rivers. 

—Increased salinity hazards associated with use of river water for irrigation. 

—Diminished property values along the Sheyenne River. 

—Induced salt loading to floodplain soils along the Sheyenne River. 

—Increased annualized downstream water treatment costs ranging from 

$1,757,000 to $3,304,400 per year. 

For additional information on these and other impacts of the Devils Lake outlet 

on the Sheyenne River and downstream communities, see Pearson 2009c and 2010a 

(Attached). 

Because sulfate levels in West Bay of Devils Lake are at 600 to 700 mg/L, the 

State Water Commission’s 250 cfs Devils Lake outlet would be limited only by the 

capacity of the pumps, so the short term impacts of the increased flows and higher 

levels of contaminants (sulfates, TDS, phosphorus, hardness, chloride, mercury, arsenic, etc.) from the Devils Lake water could be significantly more severe than those 

identified by the Corps of Engineers for a 300 cfs outlet constrained by 600 cfs total 

flows and a 300 mg/L sulfate limit in the Sheyenne River. 

EFFICACY OF A 250 CFS DEVILS LAKE OUTLET IN LOWERING THE LEVEL OF DEVILS LAKE

A 250 cfs Devils Lake outlet is unlikely to be substantially more effective in lowering the level of Devils Lake than the State Water Commission’s demonstrably ineffective 100 cfs outlet because, under the North Dakota Department of Health’s 

proposed amendment of its administrative rules, the sulfate limit in the Lower 

Sheyenne River downstream from Lake Ashtabula would remain at 450 mg/L (See 

Pearson, 2009c, 2010a, Attached). 

Assistant North Dakota State Engineer Todd Sando claims that increasing the capacity of the Devils Lake outlet from 100 cfs to 250 cfs: 

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

At Devils Lake’s current surface area of 163,000 acres, the outlet would have to 

discharge 81,500 acre-feet per year in order to remove 6 inches of water from the 

lake. However, with sulfate levels in West Bay ranging from 600 to 700 mg/L, operation of the outlet at 250 cfs would replace the entire 69,000 acre-feet volume at 

the top Lake Ashtabula’s conservation pool with Devils Lake water in just 4.2 

months, at which time operation of the outlet would have to be suspended because 

releases of water with 600 to 700 mg/L of sulfate could not be made from Lake Ashtabula without violating the 450 mg/L sulfate limit in the Sheyenne River beginning 

0.1 mile downstream from Baldhill Dam. What this means is that, once the sulfate 

level reaches 450 mg/L in Lake Ashtabula, subsequent discharges from the outlet 

would be limited by dilution of sulfate levels in the reservoir by natural flows in 

the Sheyenne River and management of the reservoir for flood control, downstream 

municipal water supplies and recreation. Of course, increasing the concentration of 

sulfates and other contaminants in the water released from Lake Ashtabula will increase water treatment costs for downstream communities. Consequently, it is unlikely that the 250 cfs outlet would remove more than an inch or so of water from 

the lake per year. To put this in perspective, Devils Lake rose 3.8 feet in the spring 

of 2009—but only 1.5 feet above the previous high on May 9, 2006—and it would 

take 5.6 years for the outlet operating at 250 cfs for 7 months every year to remove 

just last spring’s record 587,000 acre-feet of inflows. (See Pearson, 2010a, pp. 10– 

14, Attached) 

CONCLUSION

On February 10, 2010, North Dakota Congressman Earl Pomeroy visited Devils 

Lake and was reported as saying: 

‘‘The thing that really gets me about all the work we’ve done is we have another 

lake rise of 2–3 feet bringing a new host of problems that only get more difficult.’’ 

(Bodakowski, 2010) 
95 

1 At its natural overflow elevation of 1,459 feet, evaporation from Devils Lake would be over 

700,000 acre-feet per year—220 percent of the 1993–1999 annual average 317,000 acre feet of 

inflows, 20 percent more than 2009’s record 587,000 acre-feet of inflows, and seven times what 

the outlet would remove operating at its maximum 250 cfs capacity for 7 months. 

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

‘‘I know congressman Pomeroy and the Government have been working hard and 

will continue to, but its not helping, we’re losing the battle.’’ 

If, as State officials say, more than $800 million has been spent dealing with the 

rising water level at Devils Lake (Dwelle, et al., 2010) and the problems are only 

getting more difficult and we are losing the battle, then perhaps it is time to do 

something different.1

Instead of attempting to remove water after it already is in Devils Lake and after 

it has already caused damage, perhaps it is time to consider doing something to reduce the amount of water entering the lake in the first place. Nothing can be done 

about the weather, but something certainly could be done to reduce the runoff from 

the 378,000 acres of drained wetlands in the Devils Lake Basin. In my February 

10, 2009 letter to the Senate Subcommittee on Energy and Water Development 

Chairman Byron Dorgan submitted as outside testimony for the record of the subcommittee’s February 11, 2009 field hearing on ‘‘Determining what action must be 

taken to protect residents of the Devils Lake region from rising waters,’’ I recommended that: 

‘‘. . . the subcommittee address the one primary contributor to the rise in the 

level of Devils Lake that it can by directing appropriate Federal agencies with expertise in wetland hydrology and wetland restoration, such as the U.S. Environmental Protection Agency, the U.S. Department of Agriculture’s Natural Resources 

Conservation Service, the U.S. Fish and Wildlife Service, and the U.S. Army Corps 

of Engineers, to develop and implement a comprehensive, effective and scientifically 

sound wetland restoration program for the Devils Lake Basin.’’ (Pearson 2009d) 

I would like to reiterate that recommendation and add the U.S. Geological Survey 

to the list of Federal agencies that should be enlisted to prepare a wetland restoration program for the Devils Lake Basin. 

The subcommittee should also ask the U.S. Environmental Protection Agency 

what it is going to do to assure that water quality is protected in the Sheyenne 

River with the North Dakota Department of Health’s proposal to increase the maximum sulfate limit in the Upper Sheyenne River from 450 mg/L to 750 mg/L and 

the North Dakota State Water Commission’s plan to increase discharges from the 

Devils Lake outlet from 100 cfs to 250 cfs. 

In the meantime, continued expenditures on infrastructure protection requiring 

additional hundreds of millions of taxpayer dollars may be necessary because North 

Dakota State officials have refused for decades to address the problem of rising 

water levels in Devils Lake responsibly and truthfully (Pearson, 1985; 2010b, Attached). 

REFERENCES

Aadland, Luther P., Todd M. Koel, William F. Franzin, Kenneth W. Stewart and 

Patrick Nelson. 2005. Changes in Fish Assemblage Structure of the Red River of the 

North. American Fisheries Society. American Fisheries Society Symposium 454:293– 

321. 

Bodakowski, Steve. 2010. WDAZ Television. Grand Forks, North Dakota. February 11. 

Brun, L.J., J.L. Richardson, J.W. Enz and J.K. Larsen. Stream Flow Changes in 

the Southern Red River Valley of North Dakota. North Dakota Farm Research. 

38(5): 11–14. 

Daum, Kristen. 2010. Dorgan to weigh F–M options. The Forum. Fargo, North 

Dakota. January 29. 

Devils Lake Basin Advisory Committee. 1976. The Devils Lake Basin Study, 

Study Report, Volume 1. 235 pp. 

Dwelle, Terry, Todd Sando and L. David Glatt. 2010. State agencies working to 

protect Valley City as Well as Devils Lake. The Valley City Times-Record, Valley 

City, North Dakota. February 8. 

Hey, Donald L. and Nancy S. Phillippi. 1995. Flood Reduction through Wetland 

Restoration: The Upper Mississippi River Basin as a Case History. Restoration Ecology 3(1): 4–17. 
96 

Hovde, Brett. 1998. Letter from Environmental Scientist, North Dakota State 

Water Commission, Bismarck, North Dakota, to Robert J. Whiting, Environmental 

Resources Section, St. Paul District, U.S. Army Corps of Engineers, St. Paul, Minnesota. 4 pp. District, U. S. Army C. 

Johnson, Rex. 2001. Evaluation of alternative techniques for delineating restorable depressional Wetlands in the prairie pothole region and prairie parklands of 

Minnesota. A report Prepared for the Restorable Wetlands Working Group. 

Ludden, Albert P., Dale L. Frink and Douglas H. Johnson. 1983. Water storage 

capacity of natural wetland depressions in the Devils Lake Basin of North Dakota. 

Journal of Soil and Water Conservation. 38(1):45–48. 

MacPherson, James. 2009. North Dakota water panel approves Devils Lake 

project. Associated Press. August 19. 

North Dakota State Engineer. 1911–1912. Fifth Biennial Report of the State Engineer to the Governor of North Dakota For the Years 1911–1912. Knight Printing 

Company, State Printers. Fargo. 

Pearson, Gary L. 1985. Draining the Great Marsh. USA Today. November, pp. 83– 

89. 

Pearson, Gary L. 2009a. (Attached) Letter to the Editor, Kathy Steiner. The 

Jamestown Sun. April 29. 2 pp. 

Pearson, Gary L. 2009b. (Attached) (Letter to U.S. Secretary of State Hillary Clinton, Washington, DC July 13. 3 pp. 

Pearson, Gary L. 2009c. (Attached) Comments on the North Dakota Department 

of Health’s July 15, 2009, Proposal to Adopt an Emergency Rule Adding a New Section to North Dakota Administrative Code Chapter 33–16–02.1 Standards of Quality 

for Waters of the State to Change the Classification of the Upper Sheyenne River 

and Increase the Maximum Limit for Sulfate in the River from 450 mg/L to 750 mg/ 

L. 34 pp. 

Pearson, Gary L. 2009d. Letter to the Honorable Senator Byron Dorgan, Chairman, Senate Subcommittee on Energy and Water Development, Dirksen Senate Office Building, Attn. Mr. Roger Cockrell, Senate Appropriations Committee, United 

States Senate. Washington, DC 2 pp. 

Pearson, Gary L. 2010a. (Attached) Comments on the North Dakota State Water 

Commission’s Application No. 3457 to Drain Water from Devils Lake to the 

Sheyenne River by Increasing the Capacity of the Existing Devils Lake Outlet from 

100 to 250 cubic feet per second. 27 pp. 

Pearson, Gary L. 2010b. (Attached) State officials not dealing truthfully when it 

comes to Devils Lake outlet. The Valley City Times-Record. February 15. 

Spyrnczynatyk, David A. and Allyn J. Sapa. Letter from North Dakota State Engineer and Field Supervisor, U.S. Fish and Wildlife Service, to Steve Blomeke, Director, National Wildlife Federation, Bismarck, North Dakota, and Roger Beaver, 

Vice Chairman, Devils Lake Basin Joint Water Resource Board, Devils Lake, North 

Dakota. 8 pp. w/encl. 

The Forum. 2010. UPDATED: New corps report shows North Dakota, Minnesota 

diversions meet cost-benefit analysis, all Red River options raise downstream levels. 

Forum staff report. Fargo, North Dakota. February 1. 

Tiner, Ralpy W., Jr. 1984. National Wetlands Inventory, Wetlands of the United 

States: Current Status and Recent Trends. U.S. Department of the Interior, Fish 

and Wildlife Service. 59 pp. 

U.S. Army Corps of Engineers. 2003. Final Devils Lake, North Dakota, Integrated 

Planning Report and Environmental Impact Statement. 

U.S. Fish and Wildlife Service. 1997. Devils Lake Feasibility Study, Lake Stabilization, Devils Lake, North Dakota. Planning Aid Letter and Substantiating Report. Prepared by North Dakota Field Office, Bismarck, North Dakota. 46 pp. w/appendices. 

West Consultants, Inc. 2001. Final Report, Devils Lake Upper Basin Storage 

Evaluation. Prepared for the St. District, U.S. Army Corps of Engineers. 78 pp. 
97 

COMMENTS ON THE NORTH DAKOTA DEPARTMENT OF HEALTH’S JULY 15, 2009 PRO- POSAL TO ADOPT AN EMERGENCY RULE ADDING A NEW SECTION TO NORTH DAKOTA

ADMINISTRATIVE CODE CHAPTER 33–16–02.1 STANDARDS OF QUALITY FOR WATERS

OF THE STATE TO CHANGE THE CLASSIFICATION OF THE UPPER SHEYENNE RIVER

AND INCREASE THE MAXIMUM LIMIT FOR SULFATE IN THE RIVER FROM 450 MG/L 

TO 750 MG/L 

INTRODUCTION

On July 15, 2009, the North Dakota Department of Health (Department of 

Health, Department) issued a ‘‘Notice of Intent to Adopt Administrative Rule’’ relating to ‘‘the Standards of Quality for Waters of the State, ND Admin Code ch. 33– 

16–02.1’’ (Glatt, 2009a). According to the Notice of Intent: 

‘‘The purpose of the proposed rule is to change the maximum level of sulfate in 

a segment of the Sheyenne River. The rule will change the maximum level of sulfate 

in the segment of the Sheyenne River that runs from its headwaters to 0.1 mile 

downstream from Baldhill Dam, including Lake Ashtabula, from 450 mg/L to 750 

mg/L . . .’’ (Glatt, 2009a) 

The Department of Health is proposing to add a new section to North Dakota Administrative Code Chapter 33–16–02.1 dealing specifically and exclusively with the 

‘‘Maximum Sulfate Limit of Sheyenne River.’’ The proposed new section would provide that: 

‘‘The quality of water in the Sheyenne River shall be that of a Class 1A stream 

except that the maximum limit of sulfate in the segment of the Sheyenne River that 

runs from its headwaters to 0.1 mile downstream from Baldhill Dam, including 

Lake Ashtabula, shall be 750 mg/L.’’ 

The sole reason and justification cited in the Department of Health’s July 15, 

2009 ‘‘Finding and Statement of Reason of the North Dakota Department of Health 

Regarding Proposed Rule Relating to Water Quality Standards’’ for permanently increasing the sulfate limit in the Upper Sheyenne River from 450 milligrams per liter 

(mg/L) to 750 mg/L is that Devils Lake rose a foot-and-a-half this spring from its 

previous high 3 years ago of 1,449.2 feet above mean sea level (msl) (Glatt, 2009b), 

and the Department is proposing: 

‘‘. . . to initiate immediate action to address the situation by increasing flow from 

the Devils Lake outlet.’’ (Glatt, 2009c) 

The Department is proposing to accomplish this rule change under the authority 

of the emergency rules section of the Administrative Agencies Practice Act, North 

Dakota Century Code § 28–32–03 (Glatt, 2009c). 

North Dakota Administrative Code Chapter 33–16–02.1 establishes ‘‘Standards of 

Quality for Waters of the State,’’ and NDAC § 33–16–02.1–02 states: 

‘‘The purposes of this chapter are to establish a system for classifying waters of 

the State; provide standards of water quality for waters of the State; and protect 

existing and potential beneficial uses of waters of the State. 

‘‘The State and public policy is to maintain or improve, or both, the quality of the 

waters of the State and to maintain and protect existing uses. Classifications and 

standards are established for the protection of public health and environmental resources and for the enjoyment of these waters, to ensure the propagation and wellbeing of resident fish, wildlife, and all biota associated or dependent upon these 

waters, and to safeguard social, economical, and industrial development. Waters not 

being put to use shall be protected for all reasonable uses for which these waters 

are suitable. All known and reasonable methods to control and prevent pollution of 

the waters of this State are required, including improvement in quality of these 

waters, when feasible. 

‘‘The ‘quality of the waters’ shall be the quality of record existing at the time 

the first standards were established in 1967, or later records if these indicate 

improved quality. Waters with existing quality that is higher than established 

standards will be maintained at the higher quality unless affirmatively demonstrated, after full satisfaction of the intergovernmental coordination and public participation provisions of the continuing planning process, that a change in 

water quality is necessary to accommodate important social or economic development in the area in which the waters are located. In allowing the lowering 

of existing quality, the department shall assure that existing uses are fully protected and that the highest statutory and regulatory requirements for all point 

sources and cost-effective and reasonable best management practices for 

nonpoint sources are achieved. 
98 

‘‘Waters of the State having unique or high quality characteristics that may 

constitute an outstanding State resource shall be maintained and protected. 

‘‘Any public or private project or development which constitutes a source of 

pollution shall provide the best degree of treatment as designated by the department in the North Dakota pollutant discharge elimination system. If review of 

data and public input indicates any detrimental water quality changes, appropriate actions will be taken by the department following procedures approved 

by the environmental protection agency. (North Dakota Antidegradation Implementation Procedure, Appendix IV.)’’ 

On August 30, 2002, North Dakota State Engineer Dale Frink submitted an application to the North Dakota Department of Health, under section 402 of the Clean 

Water Act, for a North Dakota Pollutant Discharge Elimination System Permit for 

the North Dakota State Water Commission’s outlet from Devils Lake to the 

Sheyenne River (Frink, 2002a, 2002b). On the first U.S. Environmental Protection 

Agency form that he signed, Mr. Frink averred that: 

‘‘I certify under penalty of law that I have personally examined and am familiar 

with the information submitted in this application and all attachments and that, 

based on my inquiry of those persons immediately responsible for obtaining the information contained in the application, I believe that the information is true, accurate and complete. I am aware that there are significant penalties for submitting 

false information, including the possibility of fine and imprisonment.’’ (Frink, 2002a) 

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

‘‘I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to 

assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or 

those persons directly responsible for gathering the information, the information 

submitted is, to the best of my knowledge and belief, true, accurate, and complete. 

I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.’’ (Frink, 

2002b) 

In support of his application for a Clean Water Act section 402 permit for the 

State Water Commission’s Devils Lake outlet, State Engineer Dale Frink submitted 

to the Department of Health a ‘‘State of North Dakota Water Quality Report for the 

Devils Lake Outlet Project.’’ The only information submitted by Mr. Frink in support of his application dealing with the need to degrade water quality in the 

Sheyenne River by operation of the outlet in order to accommodate social or economic development was one cursory and unsubstantiated paragraph in the Water 

Quality Report for the Devils Lake outlet Project stating that: 

‘‘An outlet, if built and operated, reduces the chance of a natural overflow. This 

type of benefit could easily outweigh the cost of building and operating an outlet 

project. Under a wet scenario, if a State 100 cfs outlet project were to operate for 

10 years, it will remove approximately 171,000 acre-feet of water. At elevation 

1,447, that is approximately 17 inches off of Devils Lake. If the State’s project has 

a cost estimate of $20–25 million, that would be enough of a reduction to pay for 

the project.’’ (North Dakota State Water Commission, 2002) 

Nevertheless, in conducting its antidegradation review for Mr. Frink’s application, 

the Department answered, ‘‘Yes’’ to the question, ‘‘Has the applicant demonstrated 

that the proposed activity will provide important socioeconomic development in the 

area in which the affected waters are located?’’ 

In its ‘‘Response to Comments for the Devils Lake Outlet Project,’’ the department 

stated: 

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

However, Mr. Frink knew before he submitted the Water Quality Report on the 

Devils Lake Outlet Project to the Department of Health in support of his application 

for a Clean Water Act section 402 permit that the outlet operating for 10 years 

under a wet scenario would not remove 17 inches off the lake, that it would lower 

the level of the lake by only 4.8 inches, that it would not reduce the chance of a 

natural overflow, and that the reduction in the lake level would not pay for the 

project (Reinartz, 2002; Lee, 2007a, 2007b). Consequently Mr. Frink knowingly submitted deliberately false information in support of his application for a Clean Water 

Act section 402 permit for the outlet. 
99 

On August 22, 2003, North Dakota Department of Health Division of Water Quality Director Dennis R. Fewless approved North Dakota Pollutant Discharge Elimination System Permit ND–0026247 for the State Water Commission’s Devils Lake 

outlet authorizing the intermittent discharge of surface water from Devils Lake to 

the Sheyenne River. The Department’s issuance of a North Dakota Pollutant Discharge Elimination System permit for the outlet was based substantially on the deliberately false information submitted by Mr. Frink. 

Following receipt of requests to reconsider the Department’s approval of the permit, North Dakota Department of Health Environmental Health Section Chief L. 

David Glatt stated on January 28, 2004, that: 

‘‘Based on the additional comments received by this department, no changes are 

proposed for the Devils Lake Outlet Permit No. ND–0026247.’’ (Glatt, 2004) 

Under the conditions of the permit, which were designed to protect water quality 

in the Sheyenne River and preserve beneficial uses of the water (North Dakota Department of Health, 2003a), discharges from the outlet were limited to (1) May 

through November, (2) 100 cubic feet per second (cfs) or total flows in the Sheyenne 

River of 600 cfs, (3) maximum 7-day average sulfate concentrations in the Sheyenne 

River immediately downstream from the outlet of 300 mg/L, and (4) a maximum 

daily Total Suspended Solids level of 100 mg/L. The permit would expire on June 

30, 2008. Constrained by those criteria, the outlet removed a total of 38.46 acre-feet 

of water from Devils Lake in 2005 (Frink, 2005) and it did not operate at all in 2006 

(Frink, 2006). 

On May 25, 2006, the North Dakota Department of Health issued a ‘‘Public Notice 

to Modify NDPDES Permit, Notice of Public Hearing on NDPDES Permit Modification’’ announcing a public hearing June 26, 2006, on a request from the North Dakota State Water Commission for modification of the permit to discharge Devils 

Lake surface water into the Sheyenne River (North Dakota Department of Health, 

2006). The department proposed to modify the North Dakota Pollutant Discharge 

Elimination System permit that had been issued for the Devils Lake outlet on January 28, 2004, to: 

—Remove the limitation on operation of the outlet from May through November 

and replace it with a limitation to operation when the Sheyenne River is not 

ice-covered. 

—Remove the 100 mg/L maximum daily Total Suspended Solids limitation and replace it with a requirement that the outlet ‘‘shall be operated and maintained 

in accordance with sound engineering practices to minimize the contribution of 

suspended solids to the Sheyenne River.’’ 

—Replace the downstream monitoring location on the Sheyenne River at a point 

‘‘immediately downstream of the outlet’’ with the Bremen site approximately 15 

miles downstream of the outlet. 

—Remove the 300 mg/L instream sulfate limitation at the monitoring location immediately downstream of the outlet and replace it with sulfate limitations in 

the Sheyenne River at Bremen of: 

—300 mg/L when background sulfate concentrations in the river are < 260 mg/ 

L. 

—1.15 times the background sulfate concentrations when background sulfate 

concentrations in the river are ≥ 1260 mg/L and ≤ 390 mg/L. 

—450 mg/L when background sulfate concentrations in the river are > 390 mg/ 

L. 

The department approved these permit modifications on August 16, 2006. 

Operating under these modified permit conditions, the outlet removed a total of 

298.18 acre-feet of water from Devils Lake in 2007, and it removed a total of 1,241 

acre-feet in 2008. Therefore, the total amount of water removed from Devils Lake 

by the outlet operating under the conditions of the North Dakota Pollutant Discharge Elimination System permit issued and then modified by the Department of 

Health from 2005 through 2008 was 1,577.64 acre-feet. At a lake elevation of 1,450 

feet and surface area of 163,000 acres, that is equivalent to a 0.01 foot (0.12 inch) 

reduction in the level of Devils Lake. 

In June 2009, the North Dakota Department of Health vacated the North Dakota 

Pollutant Discharge Elimination System permit it had issued for the Devils Lake 

outlet (Anonymous, 2009a) and implemented an interim emergency rule raising the 

maximum sulfate level in the Sheyenne River to 750 mg/L (Glatt, 2009c; Browne, 

2009). 

The department is now proposing to add a new section to North Dakota Administrative Code § 36–16–02.1 to raise the maximum sulfate limit in the Upper 

Sheyenne River permanently to 750 mg/L in order to permit increased discharges 

from the Devils Lake outlet. 
100 

REASONS FOR THE PROPOSED EMERGENCY RULE AND THE DEPARTMENT’S FINDINGS ARE

NOT VALID

According to the ‘‘Statement of Reason’’ section of the department’s July 15, 2009, 

‘‘Finding and Statement of Reason:’’ 

‘‘The probability of a natural water discharge from the east end of Devils Lake 

has increased substantially over the last year.’’ (Glatt, 2009b) 

U.S. Geological Survey data based on stochastic simulation computer model runs 

show that the probability of Devils Lake exceeding its natural overflow elevation of 

1,459 feet within 10 years increased from 2.1 percent in October 2007 to 5.6 percent 

in May 2009. However, the department’s ‘‘Statement of Reason’’ fails to address two 

important and relevant points regarding the probability of a natural overflow occurring. First, Devils Lake would have to rise to an elevation of 1,460 feet before the 

volume of the discharge would reach 300 cfs, and the probability of that occurring 

was 2 percent less than the probability of the lake reaching 1,459 feet (U.S. Army 

Corps of Engineers, 2002). In other words, the lake would have to rise a foot above 

its natural overflow elevation before the discharge would exceed the downstream 

water quantity impacts of the 250 cfs planned discharge of the State Water Commission’s outlet. Second, the U.S. Army Corps of Engineers determined that there still 

would be a 4.6 percent chance of Devils Lake reaching its natural overflow elevation 

with its proposed 300 cfs Pelican Lake outlet in operation (U.S. Army Corps of Engineers, 2003). The Department claims that the probability of a natural discharge occurring from the east end of Devils Lake has increased substantially over the last 

year but it cites no data to demonstrate that operation of the State Water Commission’s outlet under the proposed emergency rule would substantially reduce that 

probability. 

In his July 13, 2009, letter to the chief of the department’s Environmental Health 

Section regarding the Devils lake outlet, North Dakota State Engineer Dale Frink 

said: 

‘‘USGS studies indicate that the Devils Lake basin is currently in a wet cycle and 

has a 5 percent chance of overflowing to the Sheyenne River in the next 5 years 

or a 1 percent chance of overflowing by 2011.’’ (Frink, 2009) 

Mr. Frink’s statement that Devils Lake currently is in a wet cycle is refuted by 

an April 23, 2008, Associated Press story reporting that: 

‘‘The past 6 months have been the direst on record in North Dakota, with the 

parched western part of the State suffering the most, the State climatologist says. 

‘‘Through Monday, the statewide average precipitation for the past 180 days was 

only 1.59 inches, or 39 percent of normal, and the direst since record keeping began 

113 years ago, said Adam Akuza, the State climatologist. 

‘‘The latest U.S. Drought Monitor shows the western half of the State in moderate 

to extreme drought, with the eastern half listed as abnormally dry.’’ (Associated 

Press, 2008) 

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

‘‘ ‘We have the start of a mild El Nin ̃ o now,’ says Klaus Wolter, climatologist with 

the University of Colorado at Boulder and the National Oceanic and Atmospheric 

Administration. ‘In short, just looking at winter weather, El Nin ̃ o weather tends to 

be a bit warmer, dryer and less windy on the northern plains.’ ’’ (Norman, 2009) 

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

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

The U.S. Geological Survey’s 2008 ‘‘Climate Simulation and Flood Risk Analysis 

for 2008–40 for Devils Lake, North Dakota’’ stated that: 

‘‘The generated traces were used to compute cumulative flood elevations for 2008– 

40 by computing the elevations that have a fixed probability of being exceeded sometime between now and a given future year. For example, there is about a 1-percent 

chance of Devils Lake exceeding 1,459.9 feet (0.9 foot above the natural spill elevation), a 5-percent chance of exceeding 1,455.7 feet, and a 10-percent chance of exceeding 1,453.8 feet sometime between 2008 and 2015. Although the risk of much 

higher lake levels in future years is relatively high there also is about a 50-percent 

chance it will not rise above 1,450 feet (less than 1 foot above the historical record 

level of 1,449.2 feet set in 2006) anytime during 2008–40.’’ (Emphasis added) 

(Vecchia, 2008) 
101 

The U.S. Geological Survey’s more recent data on cumulative exceedance probabilities based on stochastic simulation model runs show that the chance of Devils 

Lake exceeding its natural overflow elevation of 1,459 feet by 2010 is 0.2 percent 

and the chance of it exceeding 1,459 feet by 2014 is 3.2 percent. 

It is instructive to note that the U.S. Geological Survey’s recent cumulative exceedance probability data show that there is a 5.1 percent chance that Devils Lake 

will exceed elevation 1,458 feet by 2014 but the chance of it exceeding its natural 

overflow elevation of 1,459 feet by 2014 is only 3.2 percent. However, neither the 

State Water Commission nor the Governor, nor the Department of Health has taken 

any action to prevent the city of Devils Lake from pursuing a project to excavate 

one foot from the Tolna Coulee, the natural outlet from Devils Lake, to lower it from 

1,459 feet to 1,458 feet (Associated Press, 2009; Oleson, 2009a, 2009b, 2009c, 

2009d). What both Mr. Frink and the department fail to disclose is that the 5 percent chance of Devils Lake overflowing into the Sheyenne River in the next 5 years 

and the 1 percent chance of its overflowing by 2011 are the result of their failure 

to take action to prevent the excavation of a foot from the natural outlet, rather 

than the probability of the lake rising. By allowing the natural outlet to be lowered 

from 1,459 feet to 1,458 feet, the State Water Commission, the Governor and the 

Department of Health have deliberately tripled the probability of Devils Lake overflowing by 2011 from 0.2 to 0.6 percent, and they have increased the likelihood of 

Devils Lake overflowing by 2014 by 1.6 times from 3.2 percent to 5.1 percent. 

The department’s ‘‘Statement of Reason’’ states that: 

‘‘Just since the spring, Devils Lake has risen 3.8 feet to a record 1,450.7 feet, 

which is just 7 feet from an uncontrolled spill (at the recently excavated outlet elevation of 1,458 feet) into the Sheyenne and eventually the Red Rivers.’’ (Glatt, 

2009b) 

From 1997 until 2008, the level of Devils Lake ranged between 1,446.4 feet (October 11, 2003) and 1,449.2 feet (May 9, 2006), a fluctuation of 2.8 feet, and the level 

has averaged about 1,447.6 feet. This spring, the lake rose 3.1 feet above the previous 10-year average but only 1.5 feet above the previous high—a fact pointed out 

by State Engineer Dale Frink in the first sentence of his July 13, 2009, letter to 

Department of Health Environmental Health Section Chief L. David Glatt (Frink, 

2009). 

As the area of the lake increases, the volume of water required for each incremental increase in its elevation also increases dramatically. As the U.S. Army Corps 

of Engineers and the North Dakota State Water Commission pointed out earlier this 

year: 

‘‘. . . The lake currently covers 210 square miles. At an elevation of 1,459, it 

would be double in size and cover 423 square miles. It would take a large volume 

of water to reach this elevation. For comparison, to raise the lake from its current 

elevation of 1,446.8 to 1,450, would require 436,000 acre-feet of water. The 1997 

flood was 522,000 acre-feet in volume. The lake volume increased approximately 1.9 

million acre-feet between 1993 and 1999. To raise the lake to an elevation of 1,454 

would require 1.15 million acre feet or more than double the volume of the flood 

of 1997.’’ (U.S. Army Corps of Engineers and North Dakota State Water Commission, 2009) 

In other words, to raise the level of the lake 3.8 feet from its current elevation 

would require more than twice as much water as was needed to raise it 3.8 feet 

from its 2008 elevation. Of course, it is true that inflows this spring exceeded those 

in 1997, but it also is true that to raise the lake to an elevation of 1,459 feet would 

require the addition of another 1.9 million acre-feet of water. This means that for 

the lake to reach its natural overflow elevation by 2011, as much water would have 

to enter the lake in the next 2 years as entered in the 7 years from 1993 to 1999. 

In the meantime, natural evaporation from the lake would increase from 424,000 

acre-feet per year at its current area of 163,000 acres to 704,000 acre-feet per year 

at an area of 270,000 acres. That is 20 percent more than this year’s record inflow. 

It is instructive to note in this context that neither the Department of Health, nor 

the State Water Commission, nor the Governor has taken any action to prevent the 

city of Devils Lake from excavating a foot from the Tolna Coulee in order to lower 

the elevation at which Devils Lake would overflow to the Sheyenne River from 1,459 

feet to 1,458 feet (Associated Press, 2009; Oleson, 2009a, 2009b, 2009c, 2009d). The 

city of Devils Lake already is protected to a lake elation of 1,455 feet by a $54 million dike built at public expense and which may be raised another 5 to 10 feet at 

an additional $73 million to $150 million in largely Federal funds (Bonham, 2009a; 

Nicholson, 2009), so it is clear that the city is not acting on its own. The failure 

of the Department of Health, the State Water Commission, the State Engineer or 
102 

State Water Commission Chairman Governor John Hoeven to take action to prevent 

the lowering of the natural outlet from Devils Lake from 1,459 feet to 1,458 feet 

confirms the hypocrisy of their alleged concern about the ‘‘catastrophic impacts’’ of 

a natural overflow to the Sheyenne River (Glatt, 2009b) and of the justification offered for department’s proposed emergency rule. 

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

‘‘Although the probability of having 3 consecutive years with precipitation similar 

to 2008 may be low, it is apparent that a wet cycle increasing lake levels can be 

expected to occur.’’ (Frink 2009) 

However, with peak levels of Devils Lake declining from 2006 to 2008, and with 

the probability of 3 consecutive years with precipitation similar to 2008 being low, 

there is no evidence to support Mr. Frink’s claim that a ‘‘wet cycle increasing lake 

levels can be expected to occur.’’ 

In order to overflow to the Sheyenne River at the excavated outlet elevation of 

1,458 feet, the combined Devils Lake/Stump Lake would have to rise another 7.3 

feet from this year’s high of 1,450.7 feet, increase another 1.5 million acre-feet in 

volume, and increase 115,000 acres in area to 261,000 acres. The reason the probability of this occurring is so low is that evaporation in the Devils Lake area averages 30.9 inches (2.6 feet) per year and during the period of high precipitation in 

the Devils Lake Basin from 1993 to 1999, inflows to Devils Lake averaged 317,000 

acre-feet per year (U.S. Army Corps of Engineers, 2002) with a high of 522,000 acrefeet in 1997 (U.S. Army Corps of Engineers and North Dakota State Water Commission, 2008). At elevation 1,458 feet and an area of 261,000 acres, evaporation would 

remove 678,600 acre-feet of water per year from Devils Lake. 

The department’s ‘‘Statement of Reason’’ states that: 

‘‘A natural water discharge from the east end of the lake has the real potential 

of causing catastrophic impacts to downstream users due to the documented poorer 

water quality in the east end of Devils Lake.’’ (Glatt, 2009b) 

However, the department fails to weigh the one to 5 percent chance of adverse 

impacts to downstream users occurring as a result of a natural overflow against the 

100 percent chance of adverse impacts to downstream users and the Sheyenne River 

occurring as a result of increasing the maximum allowable sulfate level in the 

Sheyenne River from 450 mg/L to 750 mg/L (U.S. Army Corps of Engineers, 2003). 

The department’s ‘‘Statement of Reason’’ states that: 

‘‘In less than 5 months, Devils Lake has flooded an additional 40,000 acres, which 

includes roads, businesses, homes, farmsteads and high quality agricultural land.’’ 

(Glatt, 2009b) 

The department cites no data to substantiate or quantify the statement and the 

statement is misleading because it fails to consider that only approximately 13,000 

additional acres have been flooded since the lake’s previous high of 1,449.2 feet in 

2006, and it fails to mention that all of the land that has been flood since 1993 still 

is within the historic lake bed of Devils Lake. 

The department’s ‘‘Statement of Reason’’ states that: 

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

The statement is, again, unsubstantiated and speculative. The U.S. Geological 

Survey concluded in its 2008 flood risk analysis for Devils Lake: 

‘‘. . . there is a 1-percent chance of Devils Lake exceeding 1,459.9 feet (0.9 foot 

above the natural spillway elevation), a 5-percent chance of exceeding 1,455.7 feet, 

and a 10-percent chance of exceeding 1,453.8 feet sometime between 2009 and 

2015.’’ (Vecchia, 2008) 

The U.S. Geological Survey’s more recent cumulative exceedance probability data 

show that there is a 45.2 percent probability that the lake will not exceed elevation 

1,452 feet in 5 years, a 74.4 percent probability that it will not exceed elevation 

1,454 feet in 5 years, an 87.8 percent probability that it will not exceed 1,456 feet 

in 5 years, a 94.9 percent probability that it will not exceed elevation 1,458 feet in 

5 years and a 96.8 percent probability that it will not exceed 1,459 feet in 5 years. 

The department has cited no data to substantiate its claim that the lake is expected to continue to rise, or to identify or quantify which and how much land, 

buildings and infrastructure would be placed in immediate danger of inundation. It 

also does not specify how livelihoods would be ‘‘inundated.’’ 

The department’s ‘‘Statement of Reason’’ states that: 
103 

‘‘Rising lake levels are stressing the capacity of existing dike systems, roads acting as dikes and other structures not designed to retain water. Their failure would 

result in additional flooding of cities and rural areas, impacting land productivity 

as well as municipal and rural infrastructure.’’ (Glatt, 2009b) 

The dike protecting the city of Devils Lake is built to an elevation of 1,460 feet 

and is designed to provide protection to a lake elevation of 1,455 feet, with 5 feet 

of freeboard. Devils Lake currently is at an elevation of 1,450 feet. Clearly, the capacity of the existing dike system is not being stressed by a lake level 5 feet below 

its design capacity and 10 feet below its crest. Nevertheless, the U.S. Army Corps 

of Engineers currently is evaluating options for raising the crest of the dike protecting the city of Devils Lake by 5 to 10 feet to an elevation of 1,465 to 1,470 feet 

to provide protection to a lake level of 1,459 feet with 5 to 10 feet of freeboard 

(Bonham, 2009a, Nicholson, 2009). 

The department also neglects to mention that the Devils Lake Daily Journals reported on May 26, 2009, that: 

‘‘Senators Kent Conrad and Byron Dorgan announced last week that they have 

successfully secured emergency funding to shore up roads in the Devils Lake basin. 

The $40 million in Federal funding approved by Congress will be used to strengthen 

and raise the roads acting as dams in the Devils Lake basin. 

‘‘The funding announced today is in addition to the $42 million in Federal assistance the delegation announced on April 30 from the Emergency Relief for FederallyOwned Roads (ERFO) program. That funding was specifically targeted to repair and 

raise Bureau of Indian Affairs (BIA) roads . . .’’ (Anonymous, 2009b) 

The Department of Health and Environmental Health section chief L. David Glatt 

obviously were fully aware that measures to address the Devils Lake Dike and 

roads acting as dikes already were underway more than a month before they released their ‘‘Finding and Statement of Reason,’’ and that raising the specter of 

their failure was a deliberate fabrication designed to justify increasing the discharge 

from the Devils Lake outlet and degrading water quality in the Sheyenne River. 

The department’s ‘‘Statement of Reason’’ states that: 

‘‘Spring runoff added an additional 600,000 acre-feet of water to Devils Lake. Stabilizing the increasing lake levels may take several years to be effective, requiring 

the State to initiate immediate action to counteract the record volume increase.’’ 

(Glatt, 2009b) 

With the sulfate level at 700 mg/L in West Bay of Devils Lake and the department’s proposal to raise the maximum sulfate level in the Sheyenne River to 750 

mg/L, there would be no limit on the amount of water that could be discharged from 

the State Water Commission’s Devils Lake outlet. Operating at its current 100 cfs 

maximum capacity from May through November, the outlet theoretically would be 

able to remove 41,650 acre-feet of water per year from Devils Lake, which means 

that it would take 14 years for the outlet to remove the 600,000 acre-feet of water 

from this spring’s runoff. With the State Water Commission’s plan to increase the 

capacity of the outlet to 250 cfs (MacPherson, 2009), it would take 5.6 years to remove the 600,000 acre-feet of water from this spring’s runoff. However, the department’s justification for increasing the maximum sulfate limit in the Sheyenne River 

so the outlet can discharge more water is not based on just this spring’s runoff, 

which already is in the lake, but it is based on the unsubstantiated claim that ‘‘Devils Lake is projected to continue to rise.’’ But, with 5.6 to 14 years required just to 

remove this spring’s runoff, it is clear that the outlet will do little to ‘‘stabilize the 

increasing lake levels’’ or ‘‘counteract the record volume increase.’’ On the other 

hand, natural evaporation from the expanding surface area of the lake will be far 

more effective in stabilizing and eventually lowering the lake while avoiding the 

costs (increasing pumping capacity and operating costs and increased downstream 

water treatment costs) and adverse downstream environmental impacts associated 

with the Department’s proposal to increase the maximum sulfate limit in the Upper 

Sheyenne River from 450 mg/L to 750 mg/L. 

North Dakota Department of Health Environmental Health Section Chief L. 

David Glatt states in his ‘‘Finding’’ that: 

‘‘I find that emergency rulemaking to adopt a rule relating to the Standards of 

Quality for Waters of the State, ND Admin Code ch 33–16–02.1, was necessary because imminent peril threatened public health, safety, or welfare, which could be 

abated by emergency effectiveness.’’ (Glatt, 2009b) 

but nowhere in his ‘‘Statement of Reason’’ does Mr. Glatt cite any substantive evidence to support his finding that the rising level of Devils Lake threatens public 
104 

health, safety or welfare or that the alleged threats could be abated by increasing 

the maximum level of sulfates in the Sheyenne River from 450 mg/L to 750 mg/L 

in order to permit increased discharges from the Devils Lake outlet. Mr. Glatt’s 

‘‘Finding and Statement of Reason’’ are not only devoid of substance and substantiation, but they are refuted by the facts. 

THE DEPARTMENT’S FINDING THAT EMERGENCY RULEMAKING IS NECESSARY IS NOT

SUBSTANTIATED AND IS NOT VALID

North Dakota Department of Health Environmental Health Section Chief L. 

David Glatt states in his July 15, 2009, letter to North Dakota Governor John 

Hoeven that: 

‘‘In an effort to address the widespread flooding impacts in the Devils Lake region, the department finds that emergency rule making is necessary and is requesting the authority to implement interim emergency rules to reclassify stream water 

quality standards in a portion of the Sheyenne River. This action would allow an 

immediate increase of discharge from the west end of Devils Lake in an effort to 

stabilize or decrease lake levels, thus reducing the impact of flooding. Under the authority of NDCC § 28–32–03, emergency rules are appropriate if an imminent peril 

threatens public health, safety or welfare which would be abated by emergency effectiveness. With your approval, the Department of Health has the authority to determine that emergency rule-making is necessary. As part of the authority provided 

under NDCC 28–32–03, we must declare that the proposed rule be an interim final 

rule. It must be filed with the Legislative Council to be valid and finalized within 

6 months after the completion of an appropriate public participation process.’’ (Glatt, 

2009c) 

However, in the opening paragraph of his July 15, 2009, letter to the Governor, 

Mr. Glatt states: 

‘‘The North Dakota Department of Health recently received letters from the North 

Dakota State Water Commission and the city of Devils Lake describing widespread 

flood impacts affecting the environment, economic stability and public health in the 

Devils Lake region... The letters describe the need for an emergency response 

to flood conditions and request the department to initiate immediate action to address the situation by increasing flow from the Devils Lake outlet. 

The following issues are of concern:’’ (Glatt, 2009c) 

The issues of concern which Mr. Glatt says were raised in the letters from the 

State Water Commission and the city of Devils Lake and which he listed in his July 

15, 2009, letter to the Governor are exactly the same, word for word, as the reasons 

listed in Mr. Glatt’s July 15, 2009, ‘‘Findings and Statement of Reason for the North 

Dakota Department of Health Regarding Proposed Rule Relating to Water Quality 

Standards’’ discussed above. It is evident, therefore, that Mr. Glatt’s July 15, 2009, 

finding ‘‘that emergency rulemaking to adopt a rule relating to the Standards of 

Quality of Waters of the State, ND Admin Code ch 33–16–02.1, was necessary because imminent peril threatened public health, safety, or welfare, which could be 

abated by emergency effectiveness’’ was not based on an independent analysis by 

the department of the evidence, but was based simply on a reiteration of the unsubstantiated claims of parties with a vested interest in the Devils Lake outlet. 

It is instructive to note in this context that neither the July 7, 2009, letter to Mr. 

Glatt from the city of Devils Lake (Bott, 2009), nor the July 15, 2009, letter from 

the State Water Commission (Frink, 2009) cites any credible evidence that ‘‘imminent peril threatened public health, safety or welfare’’ as a result of the 3.8 feet rise 

in Devils Lake this spring, or that if an ‘‘imminent peril’’ did exist, it could be 

abated by the proposed rule to raise the maximum sulfate level in the Sheyenne 

River from 450 mg/L to 750 mg/L. 

The 587,000 acre-feet of increased volume in Devils Lake and Stump resulting 

from this past spring’s runoff cited in Mr. Frink’s letter (Frink, 2009) already is in 

the lake, so it is too late to abate any ‘‘imminent peril,’’ if one existed, from those 

inflows. And even if there were ‘‘imminent peril’’ from those inflows, it would take 

14 years operating at 100 cfs, or 5.6 years operating at 250 cfs, for the outlet to 

remove those in 587,000 acre-feet of water. 

Mr. Bott states in his July 7, 2009, letter that: 

‘‘. . . we are concerned about the economic vitality of the area should the lake 

continue to rise and inundate additional farmland and homes.’’ (Bott, 2009) 

However, his concern about the ‘‘economic vitality of the area’’ is not based on any 

‘‘imminent peril,’’ but on unfounded speculation about the lake continuing to rise. 
105 

It is relevant to note in this context that the influx of some $600 million of primarily 

Federal funds into the Devils Lake area since 1993 has ‘‘provided a significant boost 

to some elements of the local economy’’ (U.S. Army Corps of Engineers, 2002). It 

is not surprising, therefore, that the Devils Lake Daily Journal quoted Devils Lake 

Economic Director Jim Dahlen in 2000 as saying: 

‘‘The challenge we have is statistically the (flooding) impact doesn’t show up real 

well in areas of taxable sales and services. Our unemployment rate is very low, well 

below the national average. And the average wage continues to rise. It’s a hard 

thing to show what impact the flooding’s had.’’ (Anonymous, 2000) 

THE DEPARTMENT’S PROPOSED EMERGENCY RULE IS IMPROPER AND CONTRARY TO LAW

The Emergency Rule Does Not Comply With the Administrative Agencies Practices 

Act 

The department cites North Dakota Century Code Chapter 28–32, the Administrative Agencies Practice Act, as the authority ‘‘to implement interim emergency 

rules to reclassify stream water quality for a portion of the Sheyenne River’’ and 

states that: 

‘‘Under authority of NDCC § 28–32–03, emergency rules are appropriate if an imminent peril threatens public health, safety and welfare which would be abated by 

emergency effectiveness.’’ (Glatt, 2009c) 

However, as discussed above, neither the North Department of Health, nor the 

North Dakota State Water Commission, nor the city of Devils Lake has cited any 

evidence that ‘‘an imminent peril threatens public health, safety and welfare’’ at 

Devils Lake, or that any peril that might exist would be abated by the proposed 

emergency rule. 

The Emergency Rule Violates North Dakota Administrative Code § 33–16–02.1–02 

NDAC § 33–16–02.1–02 specifies that: 

‘‘The purposes of this chapter are to establish a system for classifying waters of 

the State; provide standards of water quality for waters of the State; and protect 

existing beneficial uses of waters of the State. 

‘‘The State and public policy is to maintain or improve, or both, the quality of the 

waters of the State and to maintain and protect existing uses. Classifications and 

standards are established for the protection of public health and environmental resources and for the enjoyment of these waters, to ensure the propagation and wellbeing of resident fish, wildlife and all biota associated or dependent upon these 

waters, and to safeguard social, economical, and industrial development. Waters not 

being put to use shall be protected for all reasonable uses for which these waters 

are suitable. All known and reasonable methods to control and prevent pollution of 

the waters of this State are required, including improvement in quality of these 

waters, when feasible.’’ 

Violation of State and Public Policy 

The proposed emergency rule to increase the maximum level of sulfate in the 

Upper Sheyenne River from 450 mg/L to 750 mg/L clearly violates the State and 

public policy to maintain or improve, or both, the quality of the waters of the State. 

Failure to Maintain and Protect Existing Uses and Safeguard Social, Economic and Industrial Development 

The Department of Health stated in its 2003 ‘‘Statement of Basis, Devils Lake 

Outlet ND–0026247’’ for the issuance of a North Dakota Pollutant Discharge Elimination System Permit for the State Water Commission’s Devils Lake outlet, that the 

U.S. Army Corps of Engineers’ Final Devils Lake, North Dakota, Integrated Planning Report and Environmental Impact Statement: 

‘‘. . . includes background information on hydrology, natural resources and other 

evaluations that are relevant to the consideration of this discharge permit.’’ 

and: 

‘‘A primary consideration when evaluating any outlet option has been the potential to degrade water quality in the Sheyenne River, Lake Ashtabula and the Red 

River. To consider the numerous variables and contributing factors governing the 

quality of water bodies extending across a large area, computer based models become a necessary tool. The Corps has developed a modeling system to evaluate Devils Lake outlet options. The model considerations and techniques are described in 

Appendix A of the Integrated Planning Report and Environmental Impact State-
106 

1 However, sulfate concentration in the Sheyenne River under the Department’s emergency 

rule increasing the maximum level to 750 mg/L is a major concern. (Browne, 2009; MacPherson, 

2009) 

ment for Devils Lake, North Dakota. The applicant, State Water Commission, provided the Corps model output specific to their outlet project as part of the permit 

application. The modeling results were considered by the department in selecting 

parameters for limiting and monitoring the permit.’’ (North Dakota Department of 

Health, 2003a) 

The department’s proposed emergency rule would allow the Devils Lake outlet to 

operate at its planned maximum capacity of 250 cfs with discharges constrained 

only by a 750 mg/L maximum sulfate limit in the Sheyenne River. The U.S. Army 

Corps of Engineers’ Final Devils Lake, North Dakota, Integrated Planning Report 

and Environmental Impact Statement (FEIS) did not evaluate the impacts of a 250 

cfs West Bay outlet constrained only by a 750 mg/L sulfate limit in the Sheyenne 

River, but it did examine the impacts of a 300 cfs Pelican Lake outlet constrained 

by a 300 mg/L limit in the Sheyenne River. Water quantity impacts of a State 

Water Commission West Bay outlet operating at 250 cfs under a 750 mg/L sulfate 

limit in the Sheyenne River would be significantly greater than those of a 300 cfs 

Pelican Lake outlet constrained by a 300 mg/L sulfate limit because, with sulfate 

in the West Bay at around 700 mg/L, the operation of the State outlet would be 

unrestricted, but the Pelican Lake outlet would be restricted by the 300 mg/L sulfate limit to discharges of 0 to 100 cfs for 3 months of the 7 month operating season 

(U.S. Army Corps of Engineers, 2002). The acute water quality impacts of the State 

Water Commission’s West Bay outlet constrained only by a 750 mg/L sulfate limit 

in the Sheyenne River would be proportionately (up to 250 percent) more severe 

than a Pelican Lake outlet constrained by a 300 mg/L limit in the Sheyenne River, 

and the cumulative impacts (pollutant loading) would be much more severe. It is 

instructive to note, therefore, that the impacts on existing uses of the Sheyenne 

River identified by the Corps for a 300 cfs Pelican Lake Outlet constrained by a 300 

mg/L sulfate limit in the Sheyenne River include: 

—‘‘An outlet to the Sheyenne River could also affect recreation along the river by 

increasing flows and perhaps hazardous condition for canoeists and swimmers. 

It could also reduce the aesthetics of the riparian zone by accelerating erosiondeposition processes along the river or by affecting vegetation with higher ambient salinity levels. (FEIS, p. 6–47) 

—‘‘. . . an outlet could exacerbate flooding along the Sheyenne River with consequent damage to transportation infrastructure, including roads and bridges. 

(FEIS p. 6–49) 

—‘‘As in the case of an overflow, farms that withdraw water from the Sheyenne 

River or the Red River for irrigation could suffer reduced crop yields from the 

lower river water quality associated with an outlet. Exacerbated flooding in the 

Sheyenne River could damage agricultural property, including lands, equipment, and structures... (FEIS p. 6–49) 

—‘‘An outlet from Devils Lake could diminish property values along the Sheyenne 

River. The potential adverse impacts to property values would be based on damage in the riparian zone, exacerbated flood risks, and reduced water quality for 

agriculture or recreation. 

—‘‘Based on analysis of the available data regarding the operations of the eight 

affected municipal water treatment facilities, a computer spreadsheet model 

was developed to estimate the annual increase in cost that can be expected at 

each facility due to the change in water quality. Hardness was identified as the 

major water user concern associated with an outlet. Ion exchange would be 

needed to treat sulfates but, due to the limited water quality effects resulting 

from a 300 mg/L sulfate constrained outlet, it was determined that softening 

was adequate treatment for water users. Cost increases would result from increased softening costs (due to increased chemical feed rates and increases in 

sludge handling and disposal), and increased capital and operations costs if 

treatment or an alternative water supply is required to restore the treatment 

facility finished water quality to without-outlet conditions. 

—‘‘Modeling showed the total annualized costs for increased softening would 

range from $25,000 per year to $56,000 per year, depending on the modeled 

water quality future. The total annualized cost for capital improvements or alternate source water development required to bring the with-outlet product 

water to the water quality of without-outlet product water ranged from 

$1,757,000 per year to $3,304,000 per year. Sulfate concentration is not a major 

concern along the Sheyenne or Red Rivers with the Pelican Lake outlet.1 In 
107 

most cases, treatment by ion exchange was found to be the least-cost alternative 

if without-outlet product water is required. (FEIS p. 6–51) 

—‘‘Interviews were conducted with all of the industrial river water users along 

the Sheyenne River and the Red River of the North. Two were expected to incur 

increased costs as a result of the Devils Lake outlet operations. The sugar beet 

processing facility is expected to have increased lime softening costs as a result 

of the outlet. The coal-fired power plant’s increased costs relate to additional 

need for ion exchange water purification for boiler water. On the basis of one 

of the sample water quality data sets, annualized costs would be expected to 

be $1,200 per year for the sugar beet processing facility and $30,700 per year 

for the power plant. (FEIS p. 6–52) 

—‘‘Extended high flows from Baldhill Dam may result in problems related to the 

ability to drain the fish ponds at Baldhill Dam and Valley City National Fish 

Hatcheries. Flows around 700 to 800 cfs will prevent the ponds from being 

drained. (FEIS p. 6–52) 

—‘‘Induced floodplain salinization resulting from the rising water tables of floodplain and adjacent soils in the Sheyenne River valley above a ‘critical depth.’ 

(FEIS p. 6–67) 

—‘‘Additional salt loading to the floodplain could result from both overbank flooding with mixed Devils Lake/Sheyenne River water and intrusion of this water 

into adjacent floodplain soils as infiltrated floodwater and groundwater flow. 

Seepage outflow of mixed Devils Lake/Sheyenne River water could produce additional salt loading to adjacent floodplain soils during periods when the river 

is contained within the channel. (FEIS p. 6–67) 

—‘‘The outlet would result in increased salinity hazards associated with use of the 

water for irrigation purposes.’’ (FEIS p. 6–72) 

Of course, increasing the costs of maintaining existing uses does not protect those 

uses. And, the Department of Health has cited no evidence to demonstrate that its 

proposed emergency rule to increase the maximum level of sulfates in the Sheyenne 

River to from 450 mg/L to 750 mg/L in order to permit higher discharges from the 

Devils Lake outlet will not result in even more severe adverse impacts to existing 

uses of the Sheyenne River and Red River than those identified by the U.S. Army 

Corps of Engineers for a 300 cfs Pelican Lake outlet constrained by a 300 mg/L sulfate limit in the Sheyenne River. 

Failure to Ensure Propagation and Well-being of Resident Fish, Wildlife and 

Biota 

In its Final Devils Lake, North Dakota, Integrated Planning Report and Environmental Impact Statement, the U.S. Army Corps of Engineers identified the following 

adverse impacts on fish, wildlife and biota resulting from the operation of a 300 cfs 

Pelican Lake outlet constrained by a 300 mg/L sulfate limit in the Sheyenne River. 

—‘‘Operation of the Pelican Lake outlet would result in a substantial change in 

the flow regime of the Sheyenne River. Discharges of up to 300 cfs over a major 

portion of the summer would result in a five to tenfold increase in summer/fall 

flows along the Sheyenne River. Increased flows throughout the summer would 

result in changes in river stage on the Sheyenne and Red Rivers. (FEIS p. 6– 

56) 

—‘‘. . . the outlet could result in up and down flows with sudden and extreme 

fluctuations in flow for much of a 50-year period of operation. These are the 

types of situations that make it difficult for species to adapt to habitat conditions. (FEIS p. 6–56) 

—‘‘Operation of a Pelican Lake outlet would affect both the water quality aspects 

and the physical characteristics of aquatic habitat on the Sheyenne River. While 

water quality constituents would not exceed tolerance levels for aquatic fauna 

in the Sheyenne or Red River, many constituent levels would be dramatically 

increased over baseline conditions. Water quality modeling indicates that the 

level of these constituents would increase as much as 100 percent during pumping. (FEIS p. 6–57) 

—‘‘Changes in habitat composition and availability would result in changes in 

species composition and abundance. There may be some lost year classes of fish 

and declines in invertebrate populations. (FEIS p. 6–59) 

—‘‘The changes on the Sheyenne River in water quality, hydrology, 

geomorphology, and habitat could result in substantial changes in or stress to 

aquatic biota... The outlet operation would also cause loss of spawning and 

nursery habitat, increased erosion, and changes in channel morphology. Increases in channel width may result in less available habitat once outlet operation ceases. (FEIS p, 6–59) 
108 

—‘‘The loss of habitat due to increased flows, changes in channel geometry, loss 

of overbank cover and sedimentation, coupled with changes in water quality and 

algal growth, would all contribute to a substantial change in the aquatic community present in the Sheyenne River. Projected water quality and quantity 

changes associated with outlet operation may adversely influence fish reproduction and result in lost-year classes. The threshold chloride levels for some 

aquatic species, such as mussels, would be approached with operation of an outlet; however, no direct effects due to increased chloride levels are anticipated. 

The cumulative result of all of these changes would be a decrease in diversity 

of aquatic species in the Sheyenne River. (FEIS p. 6–59) 

—‘‘With the increase in flow, some change is expected in width and depth, and 

erosion would probably increase. Expected habitat changes include a decline of 

shallow pool, shallow riffle, and medium pool habitats, and an increase in fast 

riffle, raceway, and deep pool habitats in spring, summer and fall. Increases in 

summer and fall discharges reduce the slower flowing fish nursery habitat (slow 

riffle, shallow and medium pool guilds.) (FEIS p. 6–59) 

—‘‘Monthly discharge would be highly altered during summer and fall, and then 

decline dramatically in winter... Fish would be affected by the change to 

deep/fast less usable habitat in all seasons, and the loss of summer and fall 

habitat for shallow, medium and deep pool guilds. Unionids and other invertebrates would be affected by the decrease in moderately flowing habitat. The increase in raceway and fast riffle habitat may benefit the tricopteran guild, but 

overall invertebrate diversity (low gradient guild) would be negatively affected. 

Macrophytes, although not common in this reach of the river, probably would 

be scoured by high flows. Unionids would most likely be affected by the dramatic decline between fall and winter flows. Many unionids would not survive 

these changes during outlet operation. (FEIS p. 6–60) 

—‘‘Effects in Lake Ashtabula include reduced retention time, increased nutrient 

loading, increased movement of fish out of the lake, increased salinity, and increased storage of water. The outlet would reduce the storage time in Lake Ashtabula and increase turnover rate. This could affect walleye production and increased movement of some fish out of Lake Ashtabula and into downstream 

habitats... (FEIS p. 6–60) 

—‘‘The operation of an outlet would affect river stages, groundwater levels near 

the river, erosion, availability of aquatic habitat, river access, and river crossings. (FEIS p. 6–60) 

—‘‘In summary, changes in hydrology would be significant with a Pelican Lake 

alternative because large amounts of water could be discharged during wet periods in the Devils Lake basin due to improved water quality. Erosion will be 

greater, summer nursery habitat will be less, unproductive habitat will increase 

in summer and fall, and change in flow magnitude between fall and winter will 

be greater. Therefore, aquatic communities may survive the water quality 

changes of the alternative, only to be affected by the change in habitat and hydrology. The changes in the aquatic community would persist for many years 

after outlet operation has ceased. (FEIS p. 6–61, 6–62) 

—‘‘After outlet operation ceases, slower flowing, shallow habitats would return 

and the upper reach would return to less hydrologically stable condition. In addition, after a number of years of outlet operation the channel would have 

changed, becoming wider and deeper, such that the reduced water levels would 

result in less available wetted habitat (and higher temperatures) during low 

flow conditions. The increased flow associated with the operation of an outlet 

would also alter habitat distribution and probably result in some erosion and 

deposition. These changes would affect habitat conditions and availability when 

the outlet ceases operation. Only a few small permanent tributaries drain into 

the upper Sheyenne River, and their suitability as unionid refugia is not known. 

Fish hosts are prevented from carrying glochidia upstream past Baldhill Dam. 

Unless unionid refugia occur in the small tributaries, fauna is unlikely to recolonize to pre-project conditions. Fish species that benefited from increased 

spawning and nursery habitat associated with higher flow would be negatively 

affected by the lack of those habitats with lower flows. Invertebrate fauna may 

recover over time. However, species composition would probably differ from prepumping conditions. (FEIS p. 6–62) 

—‘‘Vegetation in the riparian corridor may be affected by changes in groundwater 

elevation and quality, changes in frequency and duration of flooding and induced erosion associated with increased flows. Based on the assumption of a 

one-quarter mile area of influence, groundwater changes could potentially affect 

about 112,000 acres of riparian lands along the Sheyenne River . . . In rare 
109 

instances, there could be overbank flooding due to unforeseen rainstorms and 

the inability to turn the outlet off in time. (FEIS p. 6–63) 

—‘‘. . . it is likely that a large portion of the riparian vegetation would shift from 

woods to a more open community type, resulting in a concurrent change in animal species composition along the river. Changes in water quality to a more saline condition could also influence the amount and type of vegetation along the 

river. Some of the larger overstory forest trees may survive a year or longer, 

but with reduced vigor. Once the outlet operation is completed, recovery of these 

areas through succession would occur, which could take decades in some areas.’’ 

(FEIS p[. 6–65) 

The Department of Health has cited no evidence that the adverse impacts on fish 

and wildlife and biota resulting from its emergency rule to raise the maximum level 

of sulfate in the Sheyenne River to 750 mg/L will not be even more severe than 

these identified by the U.S. Army Corps of Engineers for a Devils Lake outlet operating under a 300 mg/L sulfate constraint in the Sheyenne River. 

Failure to Maintain and Protect Waters of the State Having Unique or High 

Quality Characteristics 

North Dakota Administrative Code § 33–16–02.1–02 requires that: 

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

The U.S. Army Corps of Engineers’ Final Devils Lake, North Dakota, Integrated 

Planning Report and Environmental Impact Statement describes the natural resource characteristics of the Sheyenne River as follows: 

‘‘The Sheyenne River provides spawning habitat and nursery areas for forage fish, 

as well as a migrational avenue for sport fish, including channel catfish, northern 

pike, walleye, bass, and crappie especially during high water conditions. The 

Sheyenne River contains more species of fish than any other North Dakota tributary, with over 50 identified. The river itself and a number of small reservoirs created by low-head dams provide fishing opportunities for nearby residents. About 3 

percent of the angler-days of fishing in North Dakota are spent on the Sheyenne 

River. Commonly harvested fish include northern pike, walleye, channel catfish, 

black bullhead, yellow perch, and bluegill. Baldhill Creek, a tributary to the 

Sheyenne River, contains the only known population of trout perch in North Dakota. 

There are nine species of freshwater mussels inhabiting the Sheyenne River. 

‘‘The riparian areas along the Sheyenne River provide valuable habitat for a variety of wildlife species. Game species found along the river’s riparian corridor and 

adjacent uplands include white-tailed deer, moose, wood duck, dabbling duck, pheasant, greater prairie chicken, turkey, squirrels and rabbits. Furbearing species and 

migratory non-game birds use the river corridor for breeding, feeding, and migration. 

‘‘In summary, the Sheyenne River provides significant and unique aquatic and terrestrial resources. It is one of the most heavily wooded areas of the State and contains one of the largest and most diverse fisheries.’’ (Emphasis added) (U.S. Army 

Corps of Engineers, 2003) 

However, the Department of Health summarily dismissed the overwhelming and 

unequivocal evidence that the Sheyenne River constitutes an outstanding State resource in its 2003 ‘‘Response to Comments for the Devils Lake Outlet Project’’ with 

the arbitrary and irrelevant assertion that: 

‘‘The Sheyenne River is not a designated outstanding State resource as defined 

in Appendix IV procedures for Category 3 Waters of the North Dakota Water Quality Standards. This section delineates the specific process which must be followed 

for a water body to be designated as outstanding.’’ (Emphasis added) (North Dakota 

Department of Health, 2003b) 

However, the requirements of NDAC § 33–16–02.1–02 ¶ 2c are not limited to 

waters of the State that have been ‘‘designated’’ as an outstanding State resource, 

but they apply to any waters that ‘‘may constitute’’ an outstanding State resource. 

The Department has cited no evidence what-so-ever to refute the information from 

the U.S. Army Corps of Engineers’ Final Devils Lake, North Dakota, Integrated 

Planning Report and Environmental Impact Statement documenting the Sheyenne 

River’s unique and high quality characteristics and the clear and overwhelming evidence that those unique and high quality characteristics will not maintained and 

protected under the department’s proposed emergency rule. 
110 

An Emergency Rule is Not the Proper Procedure for Modifying Water Quality 

Standards 

North Dakota Administrative Code § 33–16–02.1–02 states that: 

‘‘The State and public policy is to maintain or improve, or both, the quality of the 

waters of the State and to maintain and protect existing uses. Classifications and 

standards are established for the protection of public health and environmental resources and for the enjoyment of these waters, to ensure the propagation and wellbeing of resident fish, wildlife and all biota associated or dependent upon these 

waters, and to safeguard social, economical, and industrial development . . .’’ 

NDAC § 33–16–02.1–09, ‘‘Surface water classifications, mixing zones and number 

standards,’’ then establishes six classifications for surface waters of the State, including Class I, Class IA, Class II, and Class III streams, Wetlands and Lakes. The 

principal difference between Class I and Class IA streams is that, in addition to coagulation, settling, filtration and chlorination, Class IA streams ‘‘may also require 

softening to meet the drinking water requirements of the department.’’ For Class 

I streams, the maximum limit for chlorides is 100 mg/L and the maximum limit for 

sulfate is 250 mg/L. For Class IA streams, the maximum limit for chlorides is 175 

mg/L and the maximum limit for sulfate is 450 mg/L. The standards for Class II 

streams are the same as for Class IA streams except the maximum limit for 

chlorides is 250 mg/L, and for Class III streams the maximum limit for sulfate is 

750 mg/L. No exemptions from these standards are listed for any stream in the 

State. The Sheyenne River is classified as a Class IA stream throughout its length. 

It clearly is not sound public policy to establish water quality standards for the 

classification of streams in the State, and then add sections to the rules to provide 

piecemeal exceptions to those standards. However, the proposed emergency rule to 

raise the maximum sulfate limit for the Class 1A segment of Sheyenne River above 

Baldhill Dam and 0.1 mile below the dam to that of a Class III stream while leaving 

the rest of the river beginning 0.1 mile below the dam to its terminus at the Red 

River a Class IA stream is not simply bad public policy, but it is a scientific impossibility and regulatory nonsense because there is no way suddenly to lower the sulfate level in the river 0.1 mile below Baldhill Dam from 750 mg/L to 450 mg/L. Consequently, although the emergency rule applies only to the Upper Sheyenne River, 

it would result in automatic violation of the standard on the Lower Sheyenne River 

as well. 

North Dakota Administrative Code § 33–16–02.1–07, ‘‘Classification of waters of 

the State,’’ states that: 

‘‘Classification of waters of the State shall be used to maintain and protect the 

present and future beneficial uses of these waters. Classification of waters of the 

State shall be made whenever new or additional data warrant the classification or 

a change of an existing classification.’’ (Emphasis added) 

The language is clear that the purpose of the classification of waters of the State 

is to maintain and protect present and future beneficial uses of those waters, and 

there is no provision for changing the classification for reasons other than to maintain and protect those uses. Notably, there is no provision for changing the classification to permit degradation of the quality of the waters of the State. Moreover, 

the department has cited no new or additional data to warrant a change in the existing classification of the Upper Sheyenne River. Indeed, the only basis cited for 

the emergency rule to raise the maximum sulfate limit of the Upper Sheyenne River 

from 450 mg/L to 750 mg/L is requests from the State Water Commission and the 

city of Devils Lake to raise the sulfate limit in order to permit increased discharges 

from the Devils Lake outlet. There are no new or additional data on water quality 

constituents in the Upper Sheyenne River to warrant a change in its existing classification. 

Further evidence that NDAC Chapter 33–16–02.1 does not provide for changing 

the classification of streams to permit degradation of water quality is found in 

NDAC § 33–16–02.1–05, which includes a specific provision for ‘‘Variances’’ and 

states: 

‘‘Upon written application by the responsible discharger, the department finds 

that by reason of substantial and widespread economic and social impacts the strict 

enforcement of State water quality criteria is not feasible, the department can permit a variance to the water quality standard for the affected segment. The department can set conditions and time limitations with the intent that progress toward 

improvements in water quality will be made. This can include interim criteria which 

must be reviewed at least once every 3 years. A variance will be granted only after 
111 

fulfillment of public participation requirements and environmental protection agency approval. A variance will not preclude any existing use.’’ 

Clearly, instead of adopting an emergency rule permanently to increase the maximum sulfate level in the Upper Sheyenne River from 450 mg/L to 750 mg/L, the 

proper procedure would be for the responsible discharger, the State Water Commission, to submit a written application to the department for a variance of the water 

quality criteria for the affected segment of the Sheyenne River, and then for the department to set conditions and time limitations to assure progress toward improvements in the water quality in the river. It was improper for the department to propose the emergency rule to amend NDAC Chapter 33–16–02.1 when NDAC Chapter 

33–16–02.1 already contains a specific provision for addressing the subject of the 

emergency rule. Indeed, the emergency rule appears to be deliberately designed to 

circumvent NDAC § 33–16–02.1–05 in order to permit permanent degradation of 

water quality in the Sheyenne River. 

THE DEPARTMENT’S ASSERTION THAT A REGULATORY ANALYSIS IS NOT REQUIRED IS

ERRONEOUS

The new section of North Dakota Administrative Code Chapter 33–16–01.1 that 

the department is proposing to adopt through emergency rulemaking deals with the 

‘‘Maximum Sulfate Limit of Sheyenne River’’ and provides: 

‘‘The quality of water in the Sheyenne River shall be that of a Class 1A stream, 

except the maximum limit of sulfate in the segment of the Sheyenne River that runs 

from its headwaters to 0.1 mile downstream from Baldhill Dam, including Lake 

Ashtabula, shall be 750 mg/L.’’ 

However, no means is specified, and none is available, for reducing a maximum 

sulfate level of 750 mg/L in the Sheyenne River 0.1 mile downstream from Baldhill 

Dam to a maximum of 450 mg/L 0.2 mile downstream from Baldhill Dam. Indeed, 

the sulfate level in the Upper Sheyenne River and Lake Ashtabula will determine 

the sulfate level in the entire reach of the Lower Sheyenne River from Baldhill Dam 

to the Red River. 

The department states in its ‘‘Notice of Intent to Adopt Administrative Rule’’ 

signed by Mr. Glatt on July 15, 2009, that: 

‘‘The proposed rule is not expected to have an impact on the regulated community 

in excess of $50,000, so a regulatory analysis was not required.’’ (Glatt, 2009a) 

The statement that the proposed rule is not expected to have an impact on the 

regulated community in excess of $50,000 not only is unsubstantiated, but it is demonstrably false. 

The Notice does not identify the ‘‘regulated community,’’ but any rational interpretation would have to include the community affected by the adoption of the proposed 

administrative rule, i.e., the Upper Sheyenne River, Lake Ashtabula, the Lower 

Sheyenne River downstream from Lake Ashtabula to the Red River of the North, 

the Red River from Fargo to Winnipeg, and Lake Winnipeg. 

The sole purpose of the adoption of the department’s proposed administrative rule 

to raise the maximum level of sulfates in the Sheyenne River from 450 mg/L to 750 

mg/L is to permit ‘‘increasing flow from the Devils Lake outlet’’ (Glatt, 2009a). 

Therefore, additional costs associated with increasing the flows from the Devils 

Lake outlet will be a direct result of the adoption of the proposed rule. These costs 

include increased operation, maintenance and replacement costs which, in themselves, will exceed $50,000 by at least an order of magnitude within a few years. 

On August 19, 2009, the North Dakota State Water Commission approved a $16.5 

million project to increase the pumping capacity of the Devils Lake outlet from 100 

cfs to 250 cfs (MacPherson, 2009). The primary purpose of the proposed rule change 

is to make possible the expenditure of $16.5 million to increase the capacity of the 

outlet to discharge water into the Sheyenne River (Glatt, 2009c). Therefore, it would 

be ludicrous to suggest that the expenditure of $16.5 million to increase the discharge of water from the Devils Lake outlet to the Sheyenne River does not have 

an impact on the regulated community. 

On August 10, 2009, the Valley City Times Record reported that: 

‘‘News from the North Dakota Health Department has caused the Valley City 

Commission to suspend the design phase of a Water Plant expansion and consider 

new options. 

‘‘ ‘A couple of weeks ago we got a call from the State Department of Health about 

an emergency rule change,’ said City Administrator Jon Cameron on Thursday at 

a meeting regarding the change. 
112 

‘‘The Health Department’s 6-month emergency rule allows an increase in the level 

of sulfate that can enter the Sheyenne River from Devils Lake, from 450 milligrams 

per liter to 750 milligrams per liter. After 6 months, time in which the Health Department is taking public comments on the change, the change may be made permanent.’’ (Browne, 2009) 

The costs for redesigning the expansion of the Valley City water treatment plant 

are a direct result of the Department’s proposed emergency rule change and those 

costs alone will exceed $50,000. 

The Associated Press reported on August 19, 2009, that: 

‘‘Officials in Valley City, downstream of Devils Lake, have worried about the increased sulfate levels in that city’s water supply. The Water Commission on Tuesday also agreed to provide $9.2 million for that city’s new water treatment facility, 

which can lower sulfate levels through reverse osmosis. The State Health Department already has committed more than $2 million for the $15.6 million project.’’ 

(MacPherson, 2009) 

The $9.2 million approved by the State Water Commission to pay for a reverse 

osmosis system for the Valley City water treatment plant to lower sulfate levels is 

a direct impact of the department’s interim emergency rule and its proposal to adopt 

a new administrative rule permanently increasing the maximum allowable level of 

sulfate in the Sheyenne River from 450 mg/L to 750 mg/L. 

The U.S. Army Corps of Engineers has determined that the operation of a 300 

cfs Pelican Lake outlet constrained by a 300 mg/L sulfate limit in the Sheyenne 

River would result in significantly increase costs for eight affected downstream 

water treatment facilities. Hardness was identified as the major concern and ion exchange would be needed to treat sulfate levels of 300 mg/L (U.S. Army Corps of Engineers, 2003). According to the Corps’ analysis: 

‘‘Modeling showed the total annualized cost for increased softening would range 

from $25,000 per year to $56,000 per year, depending on the modeled water quality 

future. The total annualized cost for capital improvements or alternate source water 

development required to bring the with-outlet product water to the water quality 

of without-project water ranged from $1,757,000 per year to $3,304,000 per 

year . . .’’ (FEIS p. 6–15) 

The increased costs to downstream municipal water users resulting from the proposed emergency rule allowing increased discharges from the State Water Commission’s West Bay Devils Lake outlet will be substantially greater than those identified by the Corps of Engineers for a 300 cfs Pelican Lake outlet constrained by a 

300 mg/L sulfate limit in the Sheyenne River. 

The U.S. Army Corps of Engineers has determined that the operation of a 300 

cfs Pelican Lake outlet constrained by a 300 mg/L sulfate limit in the Sheyenne 

River would result in a $32,000 annual increase in costs to downstream industrial 

water users (U.S. Army Corps of Engineers, 2003). The increased costs to downstream industrial water users resulting from the proposed emergency rule allowing 

increased discharges from the State Water Commission’s West Bay Devils Lake outlet will be substantially greater than those identified by the U.S. Army Corps of Engineers for a 300 cfs Pelican Lake outlet constrained by a 300 mg/L sulfate limit 

in the Sheyenne River. 

The 300 mg/L sulfate constraint in the Sheyenne River would have limited the 

discharge from a 300 cfs Pelican Lake outlet to 0 to 100 cfs for 3 months of the 

7-month operating season (U.S. Army Corps of Engineers, 2002). However, because 

sulfate levels in West Bay are about 700 mg/L, the State Water Commission’s West 

Bay outlet will not be constrained by the 750 mg/L maximum sulfate limit in the 

Sheyenne River under the proposed emergency rule, so it will be able to operate at 

its planned full 250 cfs capacity and discharge much poorer quality water throughout the entire ice-free season. Consequently, it will have significantly more severe 

adverse impacts on downstream water quality and water treatment costs than those 

identified by the U.S. Army Corps of Engineers for its Pelican Lake outlet. 

The U.S. Army Corps of Engineers’ Final Devils Lake, North Dakota, Integrated 

Planning Report and Environmental Impact Statement determined that, with a Pelican Lake outlet operating under a 300 mg/L sulfate constraint in the Sheyenne 

River: 

‘‘The annual phosphorus load to Lake Ashtabula would increase by 40 metric tons 

(88,000 pounds) per year during the first 10 years of operation, which is variably 

a 60 to 100-percent increase over base conditions.’’ (FEIS p., 5–83) 
113 

In its June 2003 ‘‘Response to Comments for the Devils Lake Outlet Project,’’ the 

North Dakota Department of Health stated that the State Water Commission’s 100 

cfs West Bay Devils Lake outlet operating under a maximum a sulfate constraint 

of 300 mg/L in the Sheyenne River would export an average of 8,000 pounds of 

phosphorus and 40,000 pounds of nitrogen per year to the Sheyenne River, and: 

‘‘. . . the annual phosphorus load will increase; however, its impact on the 

Sheyenne River and Lake Ashtabula will likely be minimal. Primary productivity 

is largely controlled by a limiting substance which, in this situation, is likely to be 

nitrogen.’’ (North Dakota Department of Health, 2003) 

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

‘‘Cyanobacteria often comprise a large and important group of primary producers 

in aquatic ecosystems, but usually are viewed negatively because algae blooms are 

linked to eutrophication of water bodies, and cyanobacter account for more than 98 

percent of algal blooms in some waters (citations omitted). Eutrophication results 

from the enrichment of water bodies with limiting nutrients, usually nitrogen and 

phosphorus. Cyanobacter blooms are often a response to nutrient loading, but some 

species are especially responsive to excess phosphorus. This is because, unlike the 

vast majority of organisms, many cyanobacter can exploit (‘fix’) atmospheric nitrogen as a nutrient. When phosphorus becomes over-abundant, most species increase 

growth and reproduction until the next most-limiting nutrient, usually nitrogen, becomes scarce. In such an environment, nitrogen-fixers have an advantage so they 

soon outcompete other species and dominate the community. Human activity tends 

to increase the availability of nitrogen and phosphorus in ecosystems, thus increasing the frequency of cyanobacterial blooms.’’ (Peterson Environmental Consulting, 

Inc., 2002) 

With the Devils Lake outlet operating at the planned capacity of 250 cfs and with 

no effective sulfate constraint in Sheyenne River (sulfate levels in West Bay are in 

the range of 700 mg/L), the amount of nitrogen and phosphorous exported to the 

Sheyenne River and Lake Ashtabula will be substantially greater than under the 

Corps’ 300 cfs Pelican Lake outlet or the State Water Commission’s West Bay outlet 

operating under a 300 mg/L sulfate constraint. This means that Lake Ashtabula, 

which already is euthophic, will become a nutrient sink with even more severe and 

extensive algal blooms than already occur, resulting in decreased recreational use 

of the reservoir and corresponding negative economic impacts in the area. 

It is clear from just these few documented examples of the economic impacts of 

the emergency rule that the department’s unsubstantiated claim that: 

‘‘The proposed rule is not expected to have an impact on the regulated community 

in excess of $50,000, so a regulatory review is not required.’’ (Glatt, 2009a) 

is patently preposterous. 

ANTIDEGRADATION REVIEW IS REQUIRED FOR THE PROPOSED EMERGENCY RULE

North Dakota Administrative Code § 33–16–02.1–01, ¶ 2c, specifies that: 

‘‘Any public or private project or development which constitutes a source of pollution shall provide the best degree of treatment as designated by the department in 

the North Dakota pollutant discharge elimination system. If review of data and public input indicates any detrimental water quality changes, appropriate actions will 

be taken following procedures approved by the environmental protection agency. 

(North Dakota Antidegradation Implementation Procedure, Appendix IV.)’’ 

It is important to note that this requirement of NDAC § 33–16–02.1–01 dealing 

with Standards of Quality for Waters of the State is independent, separate and distinct from the requirements of NDAC Chapter 33–16–01 dealing with the North Dakota Pollutant Discharge Elimination System, and it applies to any public or private 

project or development that results in detrimental water quality changes. 

Appendix IV of the North Dakota Antidegradation Procedure states: 

‘‘Under this implementation procedure, all waters of the State are afforded one 

of three different levels of antidegradation protection. All existing uses, and the 

water quality necessary for those uses, shall be maintained and protected. 

Antidegradation requirements are necessary whenever a regulated activity is proposed that may have some effect on water quality. Regulated actions include permits issued under section 402 (NDPDES) and 404 (Dredge and Fill) of the Clean 
114 

Water Act, and any other activity requiring section 401 water quality 

certification . . .’’ 

It is important to note that: 

‘‘Antidegradation requirements are necessary whenever a regulated activity is 

proposed that may have some effect on water quality.’’ 

Clearly, modifying water quality standards for the Sheyenne River to raise the 

maximum sulfate level from 450 mg/L to 750 mg/L constitutes ‘‘a regulated activity’’ 

that will have a significant effect on water quality. 

It also is important to note that the next sentence: 

‘‘Regulated actions include permits issued under section 402 (NDPDES) and 404 

(Dredge and Fill) of the Clean Water Act, and any other activity requiring section 

401 certification.’’ 

is inclusive and not exclusive, i.e., regulated actions include permits issued under 

sections 402 and 404 of the Clean Water Act and certifications under section 401, 

but are not limited to those actions and do not exclude other regulated actions. 

Section III of Appendix IV describes the Antidegradation Review Procedure and 

states, in part: 

‘‘The department will complete an antidegradation review for all proposed regulated activities. The findings of these reviews will be summarized using an 

antidegradation worksheet. A statement of basis for all conclusions will be attached 

to the completed worksheet. The level of detail of the review will depend upon the 

antidergradation protection applicable to the various classes of water.’’ 

Section III goes on to state: 

‘‘The level of antidegradation protection afforded each body of water in the State 

is consistent with beneficial uses of those water bodies. Appendix I and Appendix 

II of the Standards of Water Quality for the State of North Dakota identify rivers, 

streams, and lakes in the State with their classification. The classification shall be 

consistent with the following categories: 

‘‘Category 1—.Very high level of protection that automatically applies to Class I 

and Class IA streams and Class I, II, and III lakes, and wetlands that are functioning at their optimal level . . .’’ 

The Procedures for Category 1 Waters specify that: 

‘‘Regulated activities that result in a new or expanded source of pollutants to this 

category of water are subject to the review process, unless the source would have 

no significant effect on the quality and beneficial uses of those waters, or if the effects will be appropriately minimized and temporary.’’ 

and: 

‘‘The applicant may be required to provide available data or other information 

about the affected water body and/or proposed activity to help determine the significance of the proposed degradation for specific parameters. The information includes 

recent ambient chemical, physical, or biological monitoring data sufficient to characterize, during the appropriate conditions, the spatial and temporal variability of existing background quality of the segment for the parameters that would be affected 

by the proposed activity. The information would also describe the water quality that 

would result if the proposed activity were authorized.’’ 

The Department of Health has already confirmed that discharges from the North 

Dakota State Water Commission’s Devils Lake outlet meet the requirements for 

antidegradation review as is documented by its preparation of an Antidegradation 

Review Worksheet for the outlet on March 20, 2003 (Sauer, 2003). The 

Antidegradation Review Worksheet identifies the receiving water as the Sheyenne 

River and describes the proposed activity as: 

‘‘A temporary discharge of a maximum 100 cfs from West Bay of Devils Lake to 

the Sheyenne River. The discharge will be constrained to 300 mg/L sulfate at the 

point of insertion. The stated purpose is to reduce the potential for flooding.’’ (Sauer, 

2003) 

In answer to the question, ‘‘Will the proposed activity result in significant degradation?,’’ the reviewer indicates, ‘‘Yes.’’ (Sauer, 2003) 

Clearly, if discharges from the outlet limited to a maximum of 100 cfs and constrained to 300 mg/L of sulfate in the Sheyenne River would result in significant 

degradation, raising the sulfate limit in the Sheyenne River to 750 mg/L in order 
115 

to increase the discharge from the outlet to 250 cfs also would result in significant 

degradation. 

THE DEPARTMENT MAY NOT PERMIT DEGRADATION OF WATER QUALITY IN THE

SHEYENNE RIVER ABSENT AN AFFIRMATIVE DETERMINATION OF NECESSITY TO ACCOMMODATE IMPORTANT SOCIAL OR ECONOMIC DEVELOPMENT

North Dakota Administrative Code § 33–16–02.1–02 explicitly and unequivocally 

specifies that: 

‘‘The ‘quality of the waters’ shall be the quality of record existing at the time the 

first standards were established in 1967, or later records if these indicate an improved quality. Waters with existing quality that is higher than established standards will be maintained at the higher quality unless affirmatively demonstrated, 

after full satisfaction of the intergovernmental coordination and public participation 

provisions of the continuing planning process, that a change in quality is necessary 

to accommodate important social or economic development in the area in which the 

waters are located . . .’’ (Emphasis added). 

The Sheyenne River is classified as a Class IA stream and the current water quality standard for Class IA streams establishes a maximum sulfate limit of 450 mg/ 

L. The March 2006 report prepared for the North Dakota State Water Commission 

by Schuh and Hove on Sources and Processes Affecting Dissolved Sulfate Concentrations in the Upper Sheyenne River states: 

‘‘The percentage distribution of data in Fig. 13 includes additional Health Department data at Warwick. The distribution indicates that sulfate samples at Warwick 

never exceeded 300 mg/L before 2,000 and did so only about 25 percent of the time 

after 2000. Harvey samples, however, exceeded 300 mg/L about 40 percent of the 

time during the 1990s, and were below 300 mg/L only three times following the year 

2000. This would indicate that concentrations at the Warwick gauge are fairly robust with respect to the 300 mg/L standard. In fact, during the wet period they were 

below 250 mg/L 80 percent of the time and below 220 mg/L half the time.’’ (Emphasis added) (Schuh and Hove, 2006) 

The data in Figure 13 of the report show the maximum sulfate level in the 

Sheyenne River downstream from the Devils Lake outlet at Warwick before 2000 

at 230 mg/L and after 2000 at 307 mg/L (Schuh and Hove, 2006). Clearly, therefore, 

the quality of the water in the Sheyenne River in the segment affected by proposed 

emergency rule is higher than the established 450 mg/L maximum sulfate limit for 

Class IA streams. Consequently, the department must maintain the water quality 

in the Sheyenne River at the existing quality that is higher than the established 

standard unless it is affirmatively demonstrated that a change in quality is necessary to accommodate important social or economic development in the area in 

which the Sheyenne River is located. 

Neither the State Water Commission nor the Department of Health has cited any 

evidence that the proposed emergency rule is necessary to accommodate important 

social or economic development in the area of the Sheyenne River, and, indeed, none 

exists. In fact, the evidence cited above overwhelmingly demonstrates that the proposed emergency rule will adversely affect social and economic development in the 

area. 

The department’s July 15, 2009, letter to Governor Hoven states that the July 7, 

2009, letter from the city of Devils Lake (Bott, 2009) and the July 13, 2009, letter 

from the State Water Commission (Frink, 2009): 

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

The only information contained in the July 7, 2009 letter to the department from 

the president of the Devils Lake City Commission even remotely related to a need 

for adopting the proposed emergency rule in order to accommodate social or economic development are the statements that: 

‘‘. . . we will remain concerned about the economic vitality of the area should the 

lake continue to rise and inundate additional farmland and homes.’’ (Bott, 2009) 

and: 

‘‘. . . a natural overflow could result in future EXTREME water quality and 

flooding impacts downstream.’’ (Bott, 2009) 
116 

Both statements are hypothetical and speculative and are not supported by data 

or information on probability of occurrence or the severity of impacts to social or 

economic development. 

The July 13, 2009 letter to the department from the State Engineer contains even 

less information related to the need for adopting the proposed emergency rule in 

order to accommodate social or economic development. In fact, the only information 

contained in the State Engineer’s letter that could be construed to relate to social 

or economic development are the unsubstantiated statements that: 

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

and: 

‘‘The continual flooding of Devils Lake and Stump Lake constitutes an emergency 

condition, and the increasing outflows from the outlet is needed to assist in responding to the flooding. Operation of the outlet at its maximum capacity can provide an 

increase in water removed from Devils Lake reducing the risk of future flooding.’’ 

(Frink, 2009) 

The statements are unsubstantiated and speculative. No data are provided to 

demonstrate that the consequences of a natural overflow from Devils Lake would 

be any more ‘‘major’’ than those from the proposed emergency rule allowing the outlet to operate at 250 cfs with a 750 mg/L sulfate limit in the Sheyenne River. No 

information is provided to support the assertion that the flooding at Devils Lake 

constitutes an ‘‘emergency’’ or to indicate the severity of the alleged emergency. And, 

no data are provided to show exactly how much operation of the outlet under a maximum sulfate limit of 750 mg/L in the Sheyenne River and would reduce the risk 

of future flooding. 

Neither the letter from the city of Devils Lake (Bott, 2009) nor the letter from 

the State Engineer (Frink, 2009) addresses the fact the city of Devils Lake has been 

unable to show that the flooding has had an adverse economic impact. As the Devils 

Lake Daily Journal reported in 2000, the city’s economic director was quoted as saying: 

‘‘The challenge we have is statistically the (flooding) impact doesn’t show up real 

well in areas of taxable sales and services. Our employment rate is very low, well 

below the national average. And the average wage continues to rise. It’s a hard 

thing to show what impact the flooding’s had.’’ (Anonymous, 2000) 

It is even more difficult to show that the proposed emergency rule to increase the 

maximum limit of sulfate in the Sheyenne River from 450 mg/L to 750/mg/L would 

result in any significant social or economic development. The Associated Press reported 3 weeks after the department vacated the North Dakota Pollutant Elimination System permit it had issued for the outlet that even an engineer from the 

North Dakota State Water Commission acknowledged that the outlet was ‘‘expected 

to remove only a few inches of water this year.’’ In fact, operating at its current 

maximum capacity of 100 cfs from July to the end of November with the Department’s North Dakota Pollutant Discharge Elimination System permit vacated and 

the maximum sulfate limit in the Sheyenne River raised to 750 mg/L, the outlet 

would remove about 30,000 acre-feet of water, which is equivalent to about a 2 inch 

reduction in the level of the lake at its current area of 163,000 acres. As pointed 

out above, operating at a maximum capacity of 250 cfs for a 7-month period from 

May through November, it would take 5.6 years for the outlet to remove just the 

inflows from this spring. And because the outlet removes water only after it already 

is in Devils Lake, it does little to reduce the impacts of flooding. Indeed, if the high 

inflows of this past spring were to continue in future years, the outlet would only 

slightly delay an overflow to the Sheyenne River but would not prevent it. For example, the Corps of Engineers determined that, under a stochastic analysis, a 300 

cfs Pelican Lake outlet would reduce the chance of an overflow to the Sheyenne 

River from 9.4 percent to 4.6 percent (U.S. Army Corps of Engineers, 2003). 

It should be noted in this context that the influx of Federal funds into the Devils 

Lake area to deal with the rising level of the lake, coupled with the outstanding 

fishery that has developed as the lake has risen, have been a significant economic 

boon to the region (U.S. Army Corps of Engineers, 2003). Now the U.S. Army Corps 

of Engineers reportedly is considering two options for raising the dike protecting the 

city of Devils Lake. The option of raising the dike another 5 feet is estimated to 

cost $73,000,000 and the option of raising the dike another 10 feet is estimated to 

cost $150,000,000 (Bonham, 2009) with 75 percent being paid by Federal funds 

(Nicholson, 2009). Ironically, therefore, to whatever extent the outlet operating 

under the proposed emergency rule might lower the level of Devils Lake, it could 
117 

potentially reduce the influx of Federal funds into the area by $54,750,000 to as 

much as $112,500,000, thereby resulting in significant adverse impacts on social 

and economic development. 

In any event, it is clear that no substantive or credible evidence exists to support 

an affirmative determination that the emergency rule is necessary to accommodate 

important social or economic in the area. 

REFERENCES

Anonymous. 2000. City sponsors impact report. Devils Lake Daily Journal. March 

28. 

Anonymous. 2009a. Permit requirement dropped for Devils Lake outlet. The 

Grand Forks Herald. Grand Forks, North Dakota. June 26. 

Anonymous. 2009b. Senators secure funding to fight Devils Lake flood: Feds will 

release $40 million to DOT in effort to protect communities. Devils Lake Daily Journal. Devils Lake, North Dakota. May 26. 

Associated Press. 2008. Past 6 months driest on record in thirsty ND Bismarck, 

North Dakota. April 23. 

Associated Press. 2009. Gov. agrees with Devils Lake Land decision. Devils Lake, 

North Dakota. April 23. 

Bonham, Kevin. 2009a. NWS: Devils Lake likely will reach all-time high this 

year. The Grand Forks Herald, Grand Forks, North Dakota. February 11. 

Bonham, Kevin. 2009b. Devils Lake gets good news for dike system. The Grand 

Forks Herald. Grand Forks, North Dakota. June 12. 

Bott, Fred. 2009. Letter to Dave Glatt, North Dakota Department of Health, Bismarck, North Dakotafrom President, Devils Lake City Commission, Devils Lake, 

North Dakota. July 7. 1 p. 

Browne, Steve. 2009. Back to the drawing board. Valley City Times Record. August 10. 

Frink, Dale. 2002a. U.S. Environmental Protection Agency, General Information, 

Consolidated Permits Program. EPA Form 3510–1 (8–90). 2 pp. w/Attach. 

Frink, Dale. 2002b. EPA New Sources and New Discharges, Application for Permit to Discharge Process Wastewater. Form 2D NPDES. EPA Form 3510–2d (Rev. 

8–90). 5 pp. 

Frink, Dale L. 2005. Letter to Gary Pearson, Jamestown, North Dakota, from 

State Engineer, North Dakota State Water Commission, Bismarck, North Dakota. 

November 2, 1 p. w/attach. 

Frink, Dale. 2006. Memorandum to Governor John Hoeven and State Water Commission Members. Subject: Devils Lake Outlet Project Update. November 20. 1 p. 

Frink, Dale. 2009. Letter to L. David Glatt, Chief, Environmental Health Section, 

North Dakota Department of Health, Bismarck, North Dakota from State Engineer, 

North Dakota State Water Commission, Bismarck, North Dakota. July 13. 1 p. 

Glatt, L. David. 2004. Letter to Gary L. Pearson, Jamestown, North Dakota, from 

Chief, Environmental Health Section, North Dakota Department of Health, Bismarck, North Dakota. January 28. 2 pp. 

Glatt, L. David. 2009a. Notice of Intent to Adopt Administrative Rule. July 15. 

1 p. 

Glatt, L. David. 2009b. Finding and Statement of Reason of the North Dakota Department of Health Regarding Proposed Rule Relating to Water Quality Standards. 

Environmental Chief. July 15. 1 p. 

Glatt, L. David. 2009c. Letter to The Honorable John Hoven, Governor of North 

Dakota, Bismarck, North Dakota, from L. David Glatt, Chief, Environmental Health 

Section, North Dakota Department of Health, Bismarck, North Dakota. July 15. 2 

pp. 

Lee, Yankyoung. 2007a. Herald Exclusive: Exaggerated effectiveness. The Grand 

Forks Herald. Grand Forks, North Dakota. August 26. 

Lee, Yankyoung. 2007b. By the numbers. The Grand Forks Herald. Grand Forks, 

North Dakota. August 26. 

MacPherson, James. 2009. ND water panel approves Devils Lake projects. Associated Press. Bismarck, North Dakota. August 19. 

Nicholson, Blake. 2009. North Dakota approves money for Devils Lake levee. Associated Press. Bismarck, North Dakota. September 2. 

Norman, Keith. 2009. El Nin ̃ o could cause milder ND winter. The Jamestown 

Sun. August 8. 

North Dakota Department of Health. 2003a. Statement of Basis, Devils Lake Outlet, ND 0026347. 12 pp. 

North Dakota Department of Health. 2003b. Response to Comments for the Devils 

Lake Outlet, ND–0026247. 12 pp. 
118 

North Dakota Department of Health. 2006. North Dakota Department of Health 

Public Notice to Modify NDPDES Permit, Notice of Public Hearing on NDPDES Permit Modification. Public Notice Number ND–2006–026. 2 pp. 

North Dakota State Water Commission. 2002. State of North Dakota Water Quality Report for the Devils Lake Outlet Project. 7 pp. 

Oleson, Louise. 2009a. Tolna Coulee cleanout could be accomplished soon if all 

goes as Planned. Devils Lake Daily Journal. Devils Lake, North Dakota. August 5. 

Oleson, Louise. 2009b. Update on the Tolna Coulee cleanout project. Devils Lake 

Daily Journal. Devils Lake, North Dakota. August 6. 

Oleson, Louise. 2009c State flood meeting yields few answers. Devils Lake Daily 

Journal. Devils Lake, North Dakota. August 6. 

Oleson, Louise. 2009d. Devils Lake officials vote to go ahead with land purchase. 

Devils Lake Daily Journal. Devils Lake, North Dakota. August 21. 

Peterson Environmental Consulting, Inc. 2002. Biota Transfer Study: Devils Lake 

Flood Damage Reduction Alternatives. Prepared for the St. Paul District, U.S. Army 

Corps of Engineers. 

Reinartz, Daniel. 2002. Email to bengel@water.swc.state.nd.us on FW: Outlet 

Pumping Profiles. September 25. w/Attach. 

Sauer, Michael T. 2003. Antidegradation Review Worksheet (Sheyenne River). 3 

pp. w/attach. 

Schuh, W. M. and M. H. Rove. 2006. Sources and Processes Affecting Dissolved 

Sulfate//Concentrations in the Upper Sheyenne River. 53 pp. 

U.S. Army Corps of Engineers. 2002. Draft Devils Lake, North Dakota, Integrated 

Planning Report and Environmental Impact Statement. 

U.S. Army Corps of Engineers. 2003. Final Devils Lake, North Dakota, Integrated 

Planning Report and Environmental Impact Statement. 

U.S. Army Corps of Engineers and North Dakota State Water Commission. 2008. 

Devils Lake Study Newsletter. Issue#1, March. 4 pp. 

Vecchia, Aldo V. 2008. Climate Simulation and Flood Risk Analysis for 2008–40 

for Devils Lake, North Dakota. U.S. Department of the Interior, U.S. Geological 

Survey Scientific Investigations Report 2008–5011. 28 pp. 

West Consultants, Inc. 2001. Final Report, Devils Lake Upper Basin Storage 

Evaluation. Prepared for: St. Paul District, U.S. Army Corps of Engineers. 78 pp. 

COMMENTS ON THE NORTH DAKOTA STATE WATER COMMISSION’S APPLICATION NO. 

3457 TO DRAIN WATER FROM DEVILS LAKE TO THE SHEYENNE RIVER BY INCREASING THE CAPACITY OF THE EXISTING DEVILS LAKE OUTLET FROM 100 TO 250 CUBIC

FEET PER SECOND

INTRODUCTION

On July 13, 2009, North Dakota State Engineer Dale Frink sent a letter to North 

Dakota Department of Health (NDDH, department), Environmental Health Section 

Chief L. David Glatt stating: 

‘‘The continual flooding of Devils Lake and Stump Lake constitutes an emergency 

condition, and the increasing of outflows from the outlet is needed to assist in responding to the flooding. Operation of the outlet at its maximum capacity can provide an increase in water removed from Devils Lake reducing the risk of future 

flooding.’’ (Frink, 2009) 

On July 15, 2009, NDDH Environmental Health Section Chief L. David Glatt sent 

a letter to North Dakota Governor John Hoeven requesting authority for the department ‘‘to implement interim emergency rules to reclassify stream water quality 

standards for a portion of the Sheyenne River’’ in order to ‘‘allow an immediate increase of discharge from the east end of Devils Lake in an effort to stabilize or decrease lake levels, thus reducing the impact of flooding.’’ Mr. Glatt went on to explain that: 

‘‘As part of the authority provided under NDCC 28–32–03, we must declare that 

the proposed rule be an interim final rule. It must be filed with the Legislative 

Council to be valid and finalized within 6 months after the completion of an appropriate public participation process.’’ (Glatt, 2009a) 

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

that: 

‘‘The purpose of the proposed rule is to change the maximum limit of sulfate in 

a segment of the Sheyenne River. The rule will change the maximum level of sulfate 
119 

in the segment of the Sheyenne River that runs from its headwaters to 0.1 mile 

downstream from the Baldhill Dam, including Lake Ashtabula, from 450 mg/L to 

750 mg/L . . .’’ (Glatt, 2009b) 

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

‘‘The North Dakota Water Commission has approved a $16.5 million project aimed 

at controlling the level of swollen Devils Lake. 

‘‘Assistant Water Commission Engineer Todd Sando said the project involves installing additional pumps along the Devils Lake outlet that could remove more than 

6 inches of water annually from the lake. The upgrade would boost the outlet’s 

pumping capacity from 100 cubic feet per second to 250 cubic feet per second.’’ (MacPherson, 2009) 

Office of the State Engineer Water Development Division Application to Drain No. 

3457 was signed by North Dakota Governor and State Water Commission Chairman 

John Hoeven and was received by the State Water Commission on October 26, 2009. 

The purpose of the project stated on the application is: 

‘‘Upgrade of existing drain to address continue [sic] lake rise.’’ 

The Project Description, Devils Lake Outlet Upgrade, Drain Permit Application 

No. 3457, accompanying the application states, regarding the Proposed Upgrade,’’ 

that: 

‘‘In a July 7, 2009 letter, the Devils Lake City Commission requested that the 

NDDH and North Dakota State Water Commission (NDSWC) ‘work together to 

identify means of removing additional water from Devils Lake to reduce flood damages.’ Due to ongoing flooding and the potential for an uncontrolled overflow from 

the east end of the lake, the NDSWC responded by requesting the NDDH to implement emergency rules for the Sheyenne River to increase the amount of water discharged from the Devils Lake Outlet. The NDDH, on July 15, 2009, in accordance 

with North Dakota Century Code §28.32–02, implemented an emergency rule for a 

segment of the Sheyenne River. The NDDH amended the sulfate concentration level 

from 450 mg/L to 750 mg/L for the segment of the Sheyenne headwaters to a point 

just downstream of Baldhill Dam. 

‘‘The proposed upgrade involves increasing the capacity of the outlet from 100 cfs 

to 250 cfs. Two additional pumps are planned for the Round Lake pump 

station . . .’’ 

This is the only information provided by the applicant State Water Commission 

regarding the impacts of increasing the discharge of the Devils Lake outlet from 100 

cfs to 250 cfs and the maximum concentration of sulfate in the Sheyenne River from 

450 mg/L to 750 mg/L. 

The Associated Press reported on January 2, 2010 that: 

‘‘Part of the Sheyenne River that has been used to drain floodwaters from Devils 

Lake would have too much sulfate to be used for municipal drinking water under 

rules of the state Health Department is proposing...

‘‘The proposed rule would allow sulfate levels in part of the Sheyenne River as 

high as 750 milligrams per liter of water. Until July, the limit was 450 milligrams 

per liter...

‘‘Glatt said the changes were being proposed to allow the Devils Lake outlet to 

move greater amounts of water into the Sheyenne. 

‘‘The outlet diverts water from Devils Lake’s west end into the river. Last summer, it could move only 100 cubic feet of water per second, and its use was limited 

by sulfate standards until the ceiling was raised to 750 milligrams per liter. 

‘‘North Dakota’s Water Commission is planning $15 million worth of improvements, including larger pumps and water filtering equipment, to upgrade the outlet’s pumping capacity to 250 cubic feet per second.’’ (Wetzel, 2010) 

It is clear, therefore, that the North Dakota Department of Health’s proposed 

emergency rule to amend the Standards of Quality for Waters of the State to increase the maximum concentration of sulfate in the Sheyenne River from 450 mg/ 

L to 750 mg/L is tied directly to the State Water Commission’s application for a permit to increase the capacity of the Devils Lake outlet from 100 cfs to 250 cfs. 

According to the NOTICE OF HEARING ON APPLICATION TO DRAIN WATER 

FROM DEVILS LAKE TO THE SHEYENNE RIVER issued on December 30, 2009, 

by the Ramsey County Water Resource District: 

‘‘. . . the State Water Commission, 900 East Boulevard Avenue, Bismarck, ND 

58505, has filed an application for a permit to drain water from Devils Lake to the 

Sheyenne River to address flooding impacts of the rising level of Devils Lake. The 
120 

project involves upgrading the capacity of the existing Devils Lake Outlet from 100 

cfs to 250 cfs... The application has been determined by the State engineer to 

be of statewide or interdistrict significance’’ 

Presumably, the application was submitted and is being considered under North 

Dakota Century Code § 61–32–03 and North Dakota Administrative Code Chapter 

89–02–01. NDCC § 61–32–03 provides that: 

‘‘Any person, before draining a pond, slough, or lake, or sheetwater, or any series 

thereof, which has a watershed area comprising 80 acres (32.37 hectares) or more, 

shall first secure a permit to do so. The permit application must be submitted to 

the State engineer. The State engineer shall refer the application to the water resource districts within which is found a majority of the watershed or drainage area 

of the pond, slough, lake, or sheetwater for consideration and approval, but the 

State engineer may require that applications proposing drainage of statewide or 

interdistrict significance be returned to the State engineer for final approval. A permit may not be granted until an investigation discloses that the quantity of water 

which will be drained from the pond, slough, lake, or sheetwater, or any series thereof, will not flood or adversely affect downstream lands. If the investigation shows 

that the proposed drainage will flood or adversely affect lands of downstream landowners, the water resource board may not issue a permit until flowage easements are 

obtained. The flowage easements must be filed for record in the office of the recorder 

of the county or counties in which the lands are situated. An owner of land proposing to drain shall undertake and agree to pay the expenses incurred in making 

the required investigation . . .’’ (Emphasis added) 

It is important to note that, in the case of the application cited in the above notice, NDCC § 61–32–03 imposes an affirmative fiduciary duty on the State Water 

Commission to ‘‘undertake and agree to pay the expenses incurred in making the 

required investigation’’ to determine whether the quantify of water which will be 

drained from Devils Lake as a result of increasing the capacity of the State Water 

Commission’s Devils Lake outlet from 100 cubic feet per second (cfs) to 250 cfs will 

‘‘flood or adversely affect downstream lands.’’ 

It also is important to note that it is not sufficient under NDCC § 61–32–03 for 

the issuance of the permit to be based upon an absence of evidence that increasing 

the capacity of the outlet from 100 cfs to 250 cfs will flood or adversely affect downstream lands, or upon a finding that the flooding or adverse effects on downstream 

lands are not significant or that they are necessary or justified in order to address 

flooding at Devils Lake. Nor are there any provisions under the statute for issuing 

a permit based upon speculative and unsubstantiated claims that flooding or other 

adverse effects can be avoided. NDCC § 61–32–03 explicitly requires that, before the 

permit may be granted, an investigation must have been conduced and the results 

of that investigation must affirmatively demonstrate that increasing the capacity of 

the State Water Commission’s Devils Lake outlet from 100 cfs to 250 cfs ‘‘will not 

flood or adversely affect downstream lands.’’ 

Under NDAC § 89–02–01–09.2, Evaluation of applications—Factors considered: 

‘‘The State engineer, for applications of statewide or interdistrict significance, and 

the board for all applications to drain, shall consider the following factors: 

—‘‘The volume of water proposed to be drained and the impact of the flow or 

quantity of this water upon the watercourse into which the water will be 

drained. 

—‘‘Adverse effects that may occur to the lands of lower proprietors. This factor 

is limited to the project’s hydraulic effects such as erosion, duration of floods, 

impact of sustained flows, and impact on the operation of downstream control 

devices. 

—‘‘The engineering design and other physical aspects of the drain. 

—‘‘The project’s impact on flooding problems in the project watershed. 

—‘‘The project’s impact on ponds, sloughs, streams or lakes having recognized fish 

and wildlife values. 

—‘‘The project’s impact on agricultural lands. 

—‘‘Whether easements are required. 

—‘‘Other factors unique to the project.’’ 

ABSENCE OF INVESTIGATIONS AFFIRMATIVELY DEMONSTRATING THAT THE QUANTITY OF

WATER DRAINED BY THE PROJECT WILL NOT FLOOD OR ADVERSELY AFFECT DOWNSTREAM LANDS

As noted above, NDCC § 61–32–03, Permit to drain waters required—Penalty, 

specifies that: 
121 

‘‘A permit may not be granted until an investigation discloses that the quantity 

of water which will be drained from the pond, slough, lake, or sheetwater, or any 

series thereof, will not flood or adversely affect downstream lands.’’ 

The minutes of the December 8, 2009, meeting of the Devils Lake Outlet Monitoring Committee Modeling Subcommittee report that a simulation model is being 

developed by the U.S. Geological Survey to provide a ‘‘Stochastic Analysis of Devils 

Lake Outlet and Sheyenne River Sulfate Concentrations’’ and that plans are underway for linking the model with a deterministic model being developed by the U.S. 

Geological Survey and the North Dakota State Water Commission for ‘‘Monitoring 

and Modeling The Effects of Proposed Increase in Devils Lake Outlet Capacity on 

Future Flows and Sulfate Concentrations in Upper Sheyenne River and Lake Ashtabula’’ and for extending the model downstream of Lake Ashtabula. 

The documented fact that the development of the stochastic simulation model for 

Devils Lake will not be completed until February 2010 and the deterministic Upper 

Sheyenne River and Lake Ashtabula model will not be completed until May 2010 

constitutes unequivocal proof that the investigations required by NDCC 61–32–03 

to demonstrate that ‘‘the quantity of water which will be drained from (Devils Lake 

by the expanded Devils Lake outlet) will not flood or adversely affect downstream 

lands’’ have not been done. Consequently, on this basis alone, the Ramsey County 

and Towner County Water Resource Boards are prohibited by statute from approving the State Water Commission’s application for a permit to upgrade the capacity 

of the existing Devils Lake outlet from 100 cfs to 250 cfs. 

THE VOLUME OF WATER PROPOSED TO BE DRAINED AND THE IMPACT ON THE SHEYENNE

RIVER

The first factor that the Ramsey County and Towner County Water Resource 

Boards are required to consider under NDAC § 89–02–01–09.2 in evaluating the 

State Water Commission’s application for a permit to increase the capacity of its 

Devils Lake outlet from 100 cfs to 250 cfs is: 

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

Assistant North Dakota State Engineer Todd Sando claims that operation of the 

Devils Lake outlet at a capacity of 250 cfs ‘‘could remove more than 6 inches of 

water annually from the lake’’ (MacPherson, 2009). 

Application to Drain No. 3457 submitted by the State Water Commission lists the 

water area of Devils Lake at 163,000 acres. In order remove 6 inches of water from 

Devils Lake at an area of 163,000 acres, it would be necessary remove of 81,500 

acre-feet of water. Operating at 250 cfs, the Devils Lake outlet would remove 14,875 

acre-feet per month, so it would take 5.5 months for the outlet to remove 81,500 

acre-feet of water from the lake. 

Flows in the Sheyenne River flows averaged 36,000 acre-feet per year at Warwick 

from 1949–1971 (U.S. Bureau of Reclamation, 1974) and 87,380 acre-feet per year 

below Baldhill Dam from 1950–1992 (U.S. Bureau of Reclamation, 1997). Increasing 

the annual flows of the Sheyenne River by 81,500 acre-feet as a result of operation 

of the Devils Lake outlet would increase the average annual flow at Warwick by 

226 percent, and it would increase the average annual flow at Baldhill Dam by 93 

percent. 

The capacity of Lake Ashtabula at the top of the conservation pool is approximately 69,000 acre-feet (U.S. Bureau of Reclamation, 1999). Therefore, operation of 

the Devils Lake outlet at 250 cfs would replace the target volume of Lake Ashtabula 

with lower quality Devils Lake water every 4.6 months, or 1.2 times every 5.5 

months. 

The applicant State Water Commission has cited no investigations of the impacts 

of an additional 81,500 acre-feet water from the Devils Lake outlet on the Sheyenne 

River and Lake Ashtabula. 

ADVERSE EFFECTS THAT MAY OCCUR TO THE LANDS OF LOWER PROPRIETORS

The second factor that the Ramsey County and Towner County Water Resource 

Boards are required to consider under NDAC 89–02–01–09.2 in evaluating the State 

Water Commission’s application for a permit to increase the capacity of its Devils 

Lake outlet from 100 cfs to 250 cfs is: 

‘‘Adverse effects that may occur to the lands of lower proprietors. This factor is 

limited to the project’s hydrologic effects such as erosion, duration of floods, impact 

of sustained flows, and impact on the operation of downstream water control devices.’’ 
122 

1 Even larger quantities of water could be discharged by the Devils Lake outlet during both 

wet and dry periods because the 250 cfs discharge of water from West Bay with 600 mg/L to 

The applicant State Water Commission has cited no investigations demonstrating 

that adverse effects will not occur to the lands of lower proprietors as a result of 

increasing the capacity of the Devils Lake outlet from 100 cfs to 250 cfs. However, 

other investigations indicate that the adverse effects to the lands of lower proprietors resulting from increasing the capacity of the outlet to 250 cfs will be severe. 

The North Dakota Department of Health stated in its 2003 ‘‘Statement of Basis, 

Devils Lake Outlet ND–0026247’’ for issuance of a North Dakota Pollution Discharge Elimination System Permit for the State Water Commission’s Devils Lake 

outlet that the U.S. Army Corps of Engineers’ April 2003 Final Devils Lake, North 

Dakota, Integrated Planning Report and Environmental Impact Statement: 

‘‘. . . includes background information on hydrology, natural resources and other 

evaluations that are relevant to the consideration of this discharge permit.’’ (North 

Dakota Department of Health, 2003) 

The Corps of Engineers’ April 2003 Final Devils Lake, North Dakota, Integrated 

Planning Report and Environmental Impact Statement (FEIS) (U.S. Army Corps of 

Engineers, 2003) did not evaluate the impacts of a 250 cfs West Bay outlet constrained only by a 750 mg/L sulfate limit in the Sheyenne River, but it did evaluate 

the impacts of a 300 cfs Pelican Lake outlet constrained by a 300 mg/L sulfate limit 

and 600 cfs total flows in the Sheyenne River. However, the water quantity impacts 

of the State Water Commission’s West Bay outlet operating at 250 cfs with a 750 

mg/L sulfate limit in the Sheyenne River would be significantly greater than those 

of a 300 cfs Pelican Lake outlet because operation of the Pelican Lake outlet would 

be limited to discharges of 0 to 100 cfs for 3 months of its 7 month operating season 

(U.S. Army Corps of Engineers, 2002). Nevertheless, it is instructive to consider the 

hydrologic effects identified by the Corps for a 300 cfs Pelican Lake outlet, recognizing that the effects of the State Water Commission’s West Bay outlet operated 

at 250 cfs would be even more severe: 

—‘‘An outlet to the Sheyenne River... could also reduce the aesthetics of the 

riparian zone by accelerating erosion-deposition processes along the 

river . . . (Emphasis added) (FEIS p. 6–47) 

—‘‘. . . an outlet could exacerbate flooding along the Sheyenne River with consequent damage to transportation infrastructure, including roads and bridges. 

(Emphasis added) (FEIS p. 6.49) 

—‘‘Exacerbated flooding in the Sheyenne River could damage agricultural property, including lands, equipment and structures. (Emphasis added) (FEIS p. 6– 

49) 

—‘‘An outlet from Devils Lake could diminish property values along the Sheyenne 

River. The potential adverse impact to property values would be based on damage in the riparian zone, exacerbated flood risks, and reduced water quality for 

agriculture or recreation. (Emphasis added) (FEIS p. 6–50) 

—‘‘Extended high flows from Baldhill Dam may result in problems related to the 

ability to drain the fish ponds at Baldhill Dam and Valley City National Fish 

Hatcheries. Flows around 700 to 800 cfs will prevent the ponds from being 

drained. (Emphasis added) (FEIS p. 6–52) 

—‘‘Operation of the Pelican Lake outlet would result in substantial change in the 

flow regime of the Sheyenne River. Discharges of up to 300 cfs over a major portion of the summer would result in a five- to tenfold increase in summer/fall 

flows along the Sheyenne River. Increased flows throughout the summer would 

result in changes in river in river stage on the Sheyenne and Red Rivers. (Emphasis added) (FEIS p. 6–56) 

—‘‘With the increase in flow, some change is expected in width and depth, and 

erosion would probably increase. (Emphasis added) (FEIS p. 6–59) 

—‘‘Effects in Lake Ashtabula include reduced retention time, increased nutrient 

loading, increased movement of fish out of the lake, and increased storage of 

water. The outlet would reduce storage time in Lake Ashtabula and increase 

turnover rate. (Emphasis added) (FEIS p. 6–60) 

—‘‘The operation of the outlet would affect river stages, groundwater levels near 

the river, erosion, availability of aquatic habitat, river access, and river crossings. (FEIS p. 6–60) 

—In summary, changes in hydrology would be significant with a Pelican Lake alternative because large amounts of water could be discharged during wet periods 

in the Devils Lake basin due to improved water quality.1 Erosion will be greater . . .’’ (Emphasis added) (FEIS p. 6–60) 
123 

700 mg/L of sulfate would not be constrained under the proposed 750 mg/L sulfate limit in the 

Sheyenne River. 

It is important to note that the analysis of the hydrologic impacts of the Corps 

of Engineers’ 300 cfs Pelican Lake was based on the assumption that: 

‘‘The channel capacity (of the Sheyenne River) is estimated at about 600 cfs upstream of Lake Ashtabula.’’ (FEIS p. 5–10) 

The State Water Commission’s Project Description, Devils Lake Outlet Upgrade, 

Drain Permit Application No. 3457 also cites ‘‘the 600 cfs channel capacity of the 

Sheyenne River,’’ so it is clear that any information from the State Water Commission regarding the hydrologic impacts of the outlet would be based on the assumption that the channel capacity of the Sheyenne River is 600 cfs. 

However, the channel capacity of the Sheyenne River at Warwick, 30 miles downstream from the insertion point of the Devils Lake outlet, is only 300 cfs (U.S. Bureau of Reclamation, 2003) and the channel capacity upstream from Warwick is 

even less. Consequently, because the channel capacity of the Upper Sheyenne River 

downstream from the insertion point of the outlet is half or less than that assumed 

by the Corps, the hydrologic impacts of the Corps’ 300 cfs Pelican Lake outlet would 

be far greater than indicated in the FEIS, and the impacts of increasing the capacity of the State Water Commission’s Devils Lake outlet to 250 cfs would be significantly more severe than those for a 300 cfs Pelican Lake outlet. 

Because the applicant has cited no investigations quantifying and qualifying the 

hydrologic effects such as erosion and flooding to the lands of lower proprietors resulting from increasing the capacity of the Devils Lake outlet to 250 cfs, and because the preponderance of the evidence unequivocally demonstrates that increasing 

the capacity of the State Water Commission’s Devils Lake outlet to 250 cfs will flood 

and adversely affect downstream lands, the Ramsey County and Towner County 

Water Resource Boards may not issue the permit until the required investigations 

have been conducted and flowage easements have been obtained from all of the affected downstream landowners. 

FAULTY ENGINEERING DESIGN

The third factor that the Ramsey County and Towner County Water Resource 

Boards are required to consider under NDAC § 89–02–01–09.2 in evaluating the 

State Water Commission’s application for a permit to increase the capacity of its 

Devils Lake outlet from 100 cfs to 250 cfs is: 

‘‘The engineering design and other physical aspects of the drain.’’ 

The North Dakota State Water Commission’s 2001 Devils Lake (Peterson Coulee) 

Outlet Request for Proposal stated explicitly that: 

‘‘. . . The State’s primary goal is to have an outlet operating as quickly and at 

as low a cost as possible. Also, it is quite possible that the current wet cycle may 

end within the next 10 to 15 years at which point the outlet may no longer be operated. Therefore, the cost and efficiency of the pumps and short delivery time are 

more important than the reliability and long life span of the pumps . . .’’ (Emphasis added) 

Because the State Water Commission’s goal was to build an outlet at as low a 

cost as possible while compromising reliability, numerous problems have developed 

with operation of the outlet. For example, in a September 17, 2009, letter to the 

State Water Commission, the Benson County Water Resource Board outlined some 

of the problems resulting from the substandard engineering design and faulty construction of the outlet: 

‘‘Primarily what we speak of is what we have seen on how the water is leaching 

outside of the canal project and remaining on the adjacent farmland. Culverts have 

been installed to divert water, either directly into the pipeline project or under the 

pipeline project. However, the culverts remain plugged and water impounds on the 

farmers’ fields. In addition, we believe that the canal project itself is allowing waters 

to leach out and salinize adjacent farmland. As a water resource board, we would 

ask that you take care of the existing problems which this project has either created, uncontrollably caused, or compounded prior to increasing the outflow of water 

down this unique project.’’ (L. Olson, 2009) 

The applicant State Water Commission has cited no investigations of the design 

and construction deficiencies of the current Devils Lake outlet or how the problems 
124 

caused by those deficiencies will be exacerbated when the capacity of the outlet is 

increased from 100 cfs to 250 cfs. 

THE PROJECT’S IMPACT ON FLOODING PROBLEMS IN THE PROJECT WATERSHED

The fourth factor that Ramsey County and Towner County Water Resource 

Boards are required to consider under NDAC § 89–02–01–09.2 in evaluating the 

State Water Commission’s application for a permit to increase the capacity of its 

Devils Lake outlet from 100 cfs to 250 cfs is: 

‘‘The project’s impact on flooding problems in the project watershed.’’ 

The applicant State Water Commission has neither submitted nor cited substantive information regarding the impact of increasing the capacity of the Devils 

Lake outlet from 100 cfs to 250 cfs on flooding problems in the project watershed, 

i.e., the 3,814 square mile Devils Lake Basin. The Application to Drain No. 3457 

submitted by Governor and State Water Commission Chairman John Hoeven states, 

under Purpose, only: 

‘‘Upgrade of existing drain to address continue [sic] lake rise.’’ 

and the only information regarding the impact on flooding problems in the project 

watershed contained in the State Water Commission’s Project Description, Devils 

Lake Upgrade, Drain Permit Application No. 3457 submitted with its application for 

the permit is the statement that: 

‘‘In a July 7, 2009, letter, the Devils Lake City Commission requested that the 

NDDH and North Dakota State Water Commission (NDSWC) ‘work together to 

identify means of removing additional water from Devils Lake to reduced flood damages.’ ’’ 

The July 7, 2009, letter from the Devils Lake City Commission provided no information on the impact of the project on flooding in the project watershed. (Bott, 

2009) 

The July 13, 2009, letter from State Engineer Dale Frink to the North Dakota 

Department of Health did not mention increasing the capacity of the Devils Lake 

outlet to 250 cfs and stated only that: 

‘‘Operation of the outlet at its maximum capacity can provide an increase in water 

removed from Devils Lake reducing the risk of future flooding.’’ (Frink, 2009) 

The letter provides no information on how much water could be removed from 

Devils Lake by operating the outlet at its maximum capacity, which at the time was 

100 cfs, or how much it would reduce the risk of future flooding. 

The only information regarding flooding in the watershed contained in NDDH Environmental Health Section Chief L. David Glatt’s July 15, 2009, letter to Governor 

Hoeven was the statement that: 

‘‘In an effort to address the widespread flood impacts in the Devils Lake region, 

the department finds that emergency rulemaking is necessary and is requesting the 

authority to implement interim emergency rules to reclassify stream water quality 

standards for a portion of the Sheyenne River. This action would allow an immediate increase of discharge from the west end of Devils Lake in an effort to stabilize 

or decrease levels, thus reducing the impact of flooding.’’ (Glatt, 2009a) 

The letter does not mention increasing the capacity of the Devils Lake outlet from 

100 cfs to 250 cfs nor does it provider any information regarding the actual effects 

of the proposed emergency rulemaking to reclassify stream water quality standards 

for a portion of the Sheyenne River in stabilizing or decreasing the levels of the lake 

or reducing the impact of flooding. 

The Finding and Statement of Reason of the North Dakota Department of Health 

Regarding Proposed Rule Relating to Water Quality Standards signed by NDDH 

Environmental Health Section Chief L. David Glatt on July 15, 2009, states only 

that emergency rulemaking ‘‘was necessary because imminent peril threatened public health or safety, or welfare, which could be abated by emergency effectiveness,’’ 

but it does not mention increasing the capacity of the Devils Lake outlet to 250 cfs, 

nor does it provide any information regarding the impact of the proposed emergency 

rule on flooding in the Devils Lake Basin, on the alleged imminent peril or on public 

health, safety or welfare (Glatt, 2009c). 

Indeed, the only information on the impact of increasing the capacity of the Devils 

Lake outlet from 100 cfs to 250 cfs on flooding in the Devils Lake Basin appears 

to the unsubstantiated statement by Assistant State Engineer Todd Sando that it: 
125 

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

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

outlet that: 

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

State Water Commission Devils Lake Outlet Project Engineer Bruce Engelhardt 

also was quoted on July 21, 2005, as stating that: 

‘‘If we could run at 100 cfs it would take 7 months to take 4 inches off the lake.’’ 

(Johnson, 2005) 

However, instead of lowering the lake between 8 to 16 inches (2–4 inches per 

year) in the 4 years of operation from 2005 through 2008, the Devils Lake outlet 

removed the equivalent of just over one-tenth of an inch of water from the lake, and 

in 2009 the lake was 10 inches higher than it was before the outlet began operation. 

In fact, on September 24, 2002, Devils Lake Project Engineer Bruce Englehardt 

had submitted a request to the U.S. Army Corps of Engineers for the ‘‘actual numbers’’ used by the Corps in generating Devils Lake elevations with operation of the 

State Water Commission’s Devils Lake outlet under three different (Moderate 1,450, 

Moderate 1,455 and Wet) lake level scenarios (Engelhardt, 2002). The next day, September 25, 2002—15 months before SWC Water Resource Engineer Julie Prescott 

prepared her June 26, 2003, memorandum on the SWC’s Application to Drain No. 

2986 and 25 months before Mr. Englehardt told The Grand Forks Herald that the 

outlet would take 4 inches off the lake per year—Mr. Daniel Reinarts of the U.S. 

Army Corps of Engineers sent Mr. Engelhardt an e-mail stating, ‘‘Attached are the 

lake level plots that you requested’’ (Reinartz, 2002). The lake level plots provided 

to Mr. Engelhardt by the U.S. Army Corps of Engineers on September 25, 2002, 

show that after 10 years of operation under a Moderate 1,450 feet lake level scenario, the State Water Commission’s Devils Lake outlet would lower the level of the 

lake by 2.4 inches, under a Moderate 1,455 feet lake level scenario, the outlet would 

lower the lake by 3.6 inches, and under a Wet scenario, the outlet would lower the 

level of the lake by 6 inches. Of course, we now know that even the Corps of Engineers’ projections grossly over-estimated the efficacy of the outlet. 

On August 27, 2007, The Grand Forks Herald reported the evidence confirming 

that North Dakota State Engineer Dale Frink and his staff knew before their Application to Drain No. 2986—Devils Lake Outlet was submitted to the Ramsey County 

and Towner County Water Resource Districts on April 11, 2003, that the State 

Water Commission’s Devils Lake outlet would not remove 4 inches of water per year 

from the lake and that it would not have a significant impact on the level of the 

lake (Lee, 2007a, 2007b). 

Consequently, because of the marked disparity between the hypothetical and the 

actual operation of the outlet, and, indeed, between what the State Engineer and 

his staff knew about the lack of efficacy of the outlet and what they stated on their 

Application to Drain No. 2986—Devils Lake Outlet and what they told the public, 

it is appropriate to examine the Assistant State Engineer’s current claim that increasing the capacity of the outlet to 250 cfs ‘‘could remove more than 6 inches of 

water annually from the lake.’’ 

If the outlet were to operate at 250 cfs continuously for 5.5 months, it would remove 81,500 acre-feet of water from Devils Lake, which would be equivalent to 6 

inches at a lake area of 163,000 acres. However, removing the equivalent of 6 inches 

of water from the lake is not the same as lowering the level of the lake by 6 inches. 

For example, inflows to Devils Lake averaged 317,000 acre-feet per year from 1993 

to 2000 (U.S. Army Corps of Engineers, 2002) and were 418,000 acre-feet in 1997. 

In the spring of 2009 the inflows were a record 587,000 acre-feet (Frink, 2009). At 

81,500 acre-feet per year, it would take 7.2 years for the outlet operating at 250 cfs 

to remove just last spring’s inflows. In the meantime, additional inflows would be 

occurring every year, so after 7 years of operation of the outlet at 250 cfs the lake 

still would not necessarily be any lower, just as the lake was 10 inches higher in 

2009 than it was before the outlet began operating in 2005. On the other hand evaporation in the Devils Lake area averages 30 inches per year, which is equivalent 

to the removal of 407,000 acre-feet of water per year at a lake area of 163,000 

acres—five times the volume that would be removed by the outlet operating at 250 

cfs, and at no cost. 
126 

It is important to recognize, however, that, just as with the previous claims about 

the outlet operating at 100 cfs being able to remove 4 inches of water annually from 

the lake, it is highly unlikely that the outlet would be able to operate continuously 

at 250 cfs for 8 months from April through November or even for 5.5 months as 

Assistant State Engineer Todd Sando implies without violating the 450 mg/l sulfate 

limit on the Lower Sheyenne River. 

The North Dakota Department of Health’s proposed emergency rule would: 

‘‘. . . change the maximum level of sulfate in the segment of the Sheyenne River 

that runs from its headwaters to 0.1 mile downstream from the Baldhill Dam from 

450 mg/L to 750 mg/L.’’ (Glatt, 2009b) 

Sulfate levels in West Bay of Devils Lake range between 600 mg/L and 700 mg/ 

L. Operation of the outlet at 250 cfs would replace the 69,000 acre-feet volume at 

the top of Lake Ashtabula’s conservation pool with 600–700 mg/L sulfate Devils 

Lake water in just 4.2 months, at which time operation of the outlet would have 

to be suspended because releases of water with 600–700 mg/L of sulfate could not 

be made from Lake Ashtabula without violating the 450 mg/L sulfate limit in the 

Lower Sheyenne River beginning 0.1 mile downstream from Baldhill Dam. Consequently, once sulfate levels in Lake Ashtabula reached 450 mg/L, subsequent discharges from the outlet would be limited by dilution of sulfate levels in Lake Ashtabula by natural flows in the Sheyenne River, as well as by management of the 

reservoir for flood control, downstream municipal water supply and recreation. 

With discharges from the outlet running at 600–700 mg/L of sulfate and natural 

flows in the Sheyenne River at Warwick exceeding 300 mg/L of sulfate 25 percent 

of the time since 2000 (Schuh and Hove, 2006), it is apparent that Lake Ashtabula 

would reach 450 mg/L of sulfate long before 69,000 acre-feet of Devils Lake water 

were discharged from the outlet. 

Of course, flows and sulfate concentrations in the Sheyenne River, inflows to Lake 

Ashtabula and evaporation and releases from the reservoir occur in a dynamic state, 

so it is very difficult to balance all of the constantly changing variables in a simple 

calculation to show the impact of operating the outlet at 250 cfs on the level of Devils Lake. Nevertheless, it appears unlikely that the outlet would be able to remove 

the equivalent of more than an inch or two of water from Devils Lake in most years 

even with its capacity increased to 250 cfs. 

It is precisely because of the complexity of balancing natural flows in the 

Sheyenne River with discharges from the outlet and releases from Lake Ashtabula 

to maintain acceptable levels of sulfate in the Sheyenne River downstream from 

Baldhill Dam that the computer simulation models discussed at the December 8, 

2009, Devils Lake Outlet Monitoring Committee Modeling Subcommittee meeting 

need to be developed before the amount of water that the outlet actually would be 

able to remove from Devils Lake can be determined. 

What is abundantly clear, however, is that the investigations required to evaluate 

objectively the impact of the proposed increase in the capacity of the Devils Lake 

outlet to 250 cfs on flooding in the Devils Lake Basin have not yet been done. Consequently, no objective evidence is available to demonstrate that increasing the capacity of the Devils Lake outlet to 250 cfs will have a significant impact on the level 

of Devils Lake, that it will stabilize the lake, that it will decrease lake levels, or 

that it will reduce the impact of flooding. 

For the State Water Commission to submit an application for a permit to increase 

the capacity of its Devils Lake outlet from 100 cfs to 250 cfs without having factual 

information available on the efficacy of the project is irresponsible. To do so after 

making deliberately misleading statements regarding the efficacy of its original 100 

cfs outlet is inexcusable. 

THE PROJECT’S IMPACT ON STREAMS OR LAKES HAVING RECOGNIZED FISH AND

WILDLIFE VALUES

The fifth factor that the Ramsey County and Towner County Water Resource 

Boards are required to consider under NDAC § 89–02–01–09.2 in evaluating the 

State Water Commission’s application for a permit to increase the capacity of its 

Devils Lake outlet from 100 cfs to 250 cfs is: 

‘‘The project’s impact on ponds, sloughs, streams, or lakes having recognized fish 

and wildlife values.’’ 

The U.S. Army Corps of Engineers’ Final Devils Lake, North Dakota, Integrated 

Planning Report and Environmental Impact Statement describes the fish and wildlife values of the Sheyenne River as follows: 
127 

‘‘The Sheyenne River provides spawning habitat and nursery areas for forage fish, 

as well as a migrational avenue for sport fish, including channel catfish, northern 

pike, walleye, bass, and crappie especially during high water conditions. The 

Sheyenne River contains more species of fish than any other North Dakota tributary, with over 50 identified. The river itself and a number of small reservoirs created by low-head dams provide fishing opportunities for nearby residents. About 3 

percent of the angler-days of fishing in North Dakota are spent on the Sheyenne 

River. Commonly harvested fish include northern pike, walleye, channel catfish, 

black bullhead, yellow perch, and bluegill. Baldhill Creek, a tributary to the 

Sheyenne River, contains the only known population of trout perch in North Dakota. 

There are nine species of freshwater mussels inhabitating the Sheyenne River. 

‘‘The riparian areas along the Sheyenne River provide valuable habitat for a variety of wildlife species. Game species found along the river’s riparian corridor and 

adjacent uplands include white-tailed deer, moose, wood duck, dabbling duck, pheasant, greater prairie chicken, turkey, squirrels and rabbits. Furbearing species and 

migratory non-game birds use the river corridor for breeding, feeding and migration. 

‘‘In summary, the Sheyenne River provides significant and unique aquatic and 

terrestrial resources. It is one of the most heavily wooded areas of the State and 

contains one of the largest and most diverse fisheries.’’ (U.S. Army Corps of Engineers, 2003). 

The Corps of Engineers’ FEIS did not evaluate the impacts on fish and wildlife 

of a 250 cfs West Bay outlet constrained only by a 750 mg/L sulfate limit in the 

Sheyenne River, but it did evaluate the impacts of a 300 cfs Pelican Lake outlet 

constrained by a 300 mg/L sulfate limit and 600 cfs total flows in the Sheyenne 

River. As discussed above, the water quality and water quantity impacts of a 250 

cfs West Bay outlet constrained only by a 750 mg/L sulfate limit in the Sheyenne 

River would potentially be significantly more severe than those of a 300 cfs Pelican 

Lake outlet constrained by a 300 mg/L sulfate limit and 600 cfs total flows in the 

Sheyenne River. The Corps identified the following impacts on fish and wildlife resources in the Sheyenne River resulting from the operation of a 300 cfs Pelican Lake 

outlet: 

—‘‘Operation of the Pelican Lake outlet would result in substantial change in the 

flow regime of the Sheyenne River. Discharges up to 300 cfs over a major portion of the summer would result in a five to tenfold increase in summer/fall 

flows along the Sheyenne River. Increased flows throughout the summer would 

result in changes in river stage on the Sheyenne and Red Rivers. (FEIS p. 6– 

56) 

—‘‘. . . the outlet could result in up and down flows with sudden and extreme 

fluctuations in flow for much of the 50-year period of operation. These are the 

types of situations that make it difficult for species to adapt to habitat conditions. (FEIS p. 6–56) 

—‘‘Operation of a Pelican Lake outlet would affect both the water quality aspects 

and the physical characteristics of aquatic habitat on the Sheyenne River. While 

water quality constituents would not exceed tolerance levels for aquatic fauna 

in the Sheyenne River, many constituent levels would be dramatically increased 

over baseline conditions. Water quality modeling indicates that the level of 

these constituents would increase as much as 100 percent during pumping. 

(FEIS p. 6–57) 

—‘‘Changes in habitat composition and availability would result in changes in 

species composition and abundance. There may be some lost year classes of fish 

and declines in invertebrate populations. (FEIS p.6–59) 

—‘‘The changes on the Sheyenne River in water quality, hydrology, 

geomorphology, and habitat could result in substantial changes in or stress to 

aquatic biota... The outlet operation would also cause loss of spawning and 

nursery habitat, increased erosion, and changes in channel morphology. Increases in channel width may result in less available habitat once outlet operation ceases. (FEIS p. 6–59) 

—‘‘The loss of habitat due to increased flows, changes in channel geometry, loss 

of overbank cover and sedimentation, coupled with changes in water quality and 

algal growth, would all contribute to substantial changes in the aquatic community present in the Sheyenne River. Projected water quality and quantity 

changes associated with outlet operation may adversely influence fish reproduction and result in lost-year classes. The threshold chloride levels for some 

aquatic species, such as mussels, would be approached with operation of an outlet; however, no direct effects due to increased chloride levels are anticipated. 

The cumulative result of all of these changes would be a decrease in diversity 

of aquatic species in the Sheyenne River. (FEIS p. 6.59) 
128 

2Or, in the case of the State Water Commission’s West Bay outlet, as a result of lowering 

the water quality standard by raising the sulfate limit in the Sheyenne River from the 300 mg/ 

L constraint for the Corps’ Pelican Lake outlet to 750 mg/L under the North Dakota Department 

of Health’s proposed emergency rule. 

—‘‘With the increase in flow, some change is expected in width and depth, and 

erosion would probably increase. Expected habitat changes include a decline of 

shallow pool, shallow riffle, and medium pool habitats, and an increase in fast 

riffle, raceway, and deep pool habitats in spring, summer and fall. Increases in 

summer and fall discharges reduce the slower flowing fish nursery habitat (slow 

riffle, shallow and medium pool guilds.) (FEIS p. 6–59) 

—‘‘Monthly discharge would be highly altered during summer and fall, and then 

decline dramatically in winter... Fish would be affected by the change to 

deep/fast less usable habitat in all seasons, and the loss of summer and fall 

habitat for shallow, medium and deep pool guilds. Unionids and other invertebrates would be affected by the decrease in moderately flowing habitat. The increase in raceway and fast riffle habitat may benefit the tricopteran guild, but 

overall invertebrate diversity (low gradient guild) would be negatively affected. 

Macrophytes, although not common in this reach of the river, probably would 

be scoured by high flows. Unionids would most likely be affected by the dramatic decline between fall and winter flows. Many unioids would not survive 

these changes during outlet operation. (FEIS p. 6–60) 

—‘‘Effects in Lake Ashtabula include reduced retention time, increased nutrient 

loading, increased movement of fish out of the lake, increased salinity, and increased storage of water. The outlet would reduce the storage time in Lake Ashtabula and increase turnover rate. This could affect walleye production and increased movement of some fish out of Lake Ashtabula and into downstream 

habitats... (FEIS p. 6–60) 

—‘‘The operation of the outlet would affect river stages, groundwater levels near 

the river, erosion, availability of aquatic habitat, river access, and river crossings. (FEIS p. 6–60) 

—‘‘In summary, changes in hydrology would be significant with a Pelican Lake 

alternative because large amounts of water could be discharged during wet periods in the Devils Lake basin due to improved water quality.2 Erosion will be 

greater, summer nursery habitat will be less, unproductive habitat will increase 

in summer and fall, and change in flow magnitude between fall and winter will 

be greater. Therefore aquatic communities may survive the water quality 

changes of the alternative, only to be affected by the change in habitat and hydrology. The changes in the aquatic community would persist for many years 

after outlet operation has ceased. (FEIS pp. 6–61, 6–62) 

—‘‘After outlet operation ceases, slower flowing, shallow habitats would return 

and the upper reach would return to less hydrologically stable condition. In addition, after a number of years of outlet operation the channel would have 

changed, becoming wider and deeper, such that the reduced water levels would 

result in less available wetted habitat (and higher temperatures) during low 

flow conditions. The increased flow associated with the operation of the outlet 

would also alter habitat distribution and probably result in some erosion and 

deposition. These changes would affect habitat conditions and availability when 

the outlet ceases operation. Only a few small permanent tributaries drain into 

the upper Sheyenne River, and their suitability as unionid refugia is not known. 

Fish hosts are prevented from carrying glochidia upstream past Baldhill Dam. 

Unless unionid refugia occur in the small tributaries, fauna is unlikely to recolonize to pre-project conditions. Fish species that benefited from increased 

spawning and nursery habitat associated with higher flow would be negatively 

affected by the lack of those habitats with lower flows. Invertebrate fauna may 

recover over time. However, species composition would probably differ from prepumping conditions. (FEIS p. 6–62) 

—‘‘Vegetation in the riparian corridor may be affected by changes in groundwater 

elevation and quality, changes in frequency and duration of flooding and induced erosion associated with increased flows. Based on the assumption of a 

one-quarter mile area of influence, groundwater changes could potentially affect 

about 112,000 acres of riparian lands along the Sheyenne River . . . In rare 

instances, there could be overbank flooding due to unforeseen rainstorms and 

the inability to turn the outlet off in time. (FEIS p. 6–63) 

—‘‘. . . it is likely that a large portion of the riparian vegetation would shift form 

woods to a more open community type, resulting in a concurrent change in animal species composition along the river. Changes in water quality to a more saline condition could also influence the amount and type of vegetation along the 
129 

river. Some of the larger overstory forest trees may survive a year or longer, 

but with reduced vigor. Once the outlet operation is completed, recovery of these 

areas through succession would occur, which could take decades in some areas.’’ 

(FEIS p. 6–65) 

The U.S. Army Corps of Engineers’ Final Devils Lake, North Dakota, Integrated 

Planning Report and Environmental Impact Statement determined that, with a 300 

cfs Pelican Lake outlet operating under a 300 mg/L sulfate constraint and total 

flows of 600 cfs in the Sheyenne River: 

‘‘The annual phosphorus load to Lake Ashtabula would increase by 40 metric tons 

(88,000 pounds) per year during the first 10 years of operation, which is variably 

a 60 to 100 percent increase over base conditions.’’ (FEIS, p. 5–83) 

The State Water Commission has provided no information on phosphorous loading 

of the Sheyenne River and Lake Ashtabula from its Devils Lake outlet discharging 

250 cfs of West Bay water containing 600 mg/L to 700 mg/L of sulfate and constrained only by a 750 mg/L sulfate limit on the Sheyenne River. However, it appears reasonable to assume that the phosphorous loading would be at least as great 

as, and probably greater than, from a 300 cfs Pelican Lake outlet constrained by 

a 300 mg/L sulfate limit and 600 cfs total flows in the Sheyenne River. 

In its June 2003 Response to Comments for the Devils Lake Outlet Project, the 

North Dakota Department of Health dismissed the contribution of a 100 cfs Devils 

Lake outlet constrained by a 300 mg/L limit and 600 cfs total flows in the Sheyenne 

River to eutrophication and algal blooms in Lake Ashtabula with the statement 

that: 

‘‘. . . the annual phosphorous load will increase; however, its impact on the 

Sheyenne River and Lake Ashtabula will likely be minimal. Primary productivity 

is largely controlled by a limiting substance which, in this situation, is likely to be 

nitrogen.’’ (North Dakota Department of Health, 2003) 

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

‘‘Cyanobacteria often comprise a large and important group of primary producers 

in aquatic ecosystems, but usually are viewed negatively because algal blooms are 

linked to eutrophication of water bodies, and cyanobacter account for more than 98 

percent of algal blooms in some waters (citations omitted). Eutrophication results 

from the enrichment of water bodies with limiting nutrients, usually nitrogen and 

phosphorous. Cyanobacter blooms are often a response to nutrient loading, but some 

species are especially responsive to excess phosphorous. This is because, unlike the 

vast majority of organisms, many cyanobacter exploit (‘fix’) atmospheric nitrogen as 

a nutrient. When phosphorus becomes over-abundant, most species increase growth 

and reproduction until the next most-limiting nutrient, usually nitrogen, becomes 

scarce. In such an environment, nitrogen-fixers have an advantage so they soon 

outcompete other species and dominate the community. Human activity tends to increase the availability of nitrogen and phosphorus in ecosystems, thus increasing 

the frequency of cyanobacterial blooms.’’ (Emphasis added) (Peterson Environmental 

Consulting, Inc., 2002) 

The State Water Commission has neither provided nor cited results of investigations of the impacts on the fish and wildlife values of the Sheyenne River of operation of the Devils Lake outlet at 250 cfs constrained only by a 750 mg/L sulfate 

limit in the river. Nor has the State Water Commission provided any evidence that 

those adverse impacts will not be even more severe than those identified by the U.S. 

Army Corps of Engineers for a 300 cfs Pelican Lake outlet constrained by a 300 mg/ 

L sulfate limit and 600 cfs total flows in the Sheyenne River. Indeed, the only way 

for the impacts of the State Water Commission’s 250 cfs outlet to be less severe 

would be if its operations were limited to the point where its effect on the level of 

Devils Lake would be virtually nil. 

IMPACT ON AGRICULTURAL LANDS

The sixth factor that the Ramsey County and Towner County Water Resource 

Boards are required to consider under NDAC § 89–02–01–09.2 when evaluating the 

State Water Commission’s application for a permit to increase the capacity of its 

Devils Lake outlet from 100 cfs to 250 cfs is: 

‘‘The project’s impact on agricultural lands.’’ 
130 

Because the State Water Commission has neither provided nor cited results of investigations demonstrating that increasing the capacity of the Devils Lake outlet 

from 100 cfs to 250s cfs would have a significant effect in lowering the level of the 

lake, there is no evidence that it would have a positive impact on agricultural lands 

in the Devils Lake Basin. On the other hand, the U.S. Army Corps of Engineers’ 

Final Devils Lake, North Dakota, Integrated Planning Report and Environmental 

Impact Statement has identified the following impacts to agricultural lands along 

the Sheyenne River resulting from operation of a 300 cfs Pelican Lake outlet constrained by a 300 mg/L sulfate limit and 600 cfs total flows in the Sheyenne River: 

—‘‘As in the case of an overflow, farms that withdraw water from the Sheyenne 

River or the Red River for irrigation could suffer reduced crop yields from the 

lower river water quality associated with an outlet. Exacerbated flooding in the 

Sheyenne River could damage agricultural property, including lands, equipment 

and structures... (FEIS p. 6–49) 

—‘‘An outlet from Devils Lake could diminish property values along the Sheyenne 

River. The potential adverse impacts to property values would be based on damage in the riparian zone, exacerbated flooding risks, and reduced water quality 

for agriculture or recreation. (FEIS p. 6–49) 

—‘‘Induced flood plain salinization resulting from the rising water tables of floodplain and adjacent soils in the Sheyenne River above a ‘critical depth.’ (FEIS 

p. 6–67) 

—‘‘Additional salt loading to the floodplain could result from both overbank flooding with mixed Devils Lake/Sheyenne River water and intrusion of this water 

into adjacent floodplain soils as infiltrated floodwater and groundwater flow. 

Seepage outflow of mixed Devils Lake/Sheyenne River water could produce additional salt loading to adjacent floodplain soils during periods when the river 

is contained within the channel. (FEIS p. 6–67) 

—‘‘The outlet would result in increased salinity hazards associated with use of the 

water for irrigation purposes.’’ (FEIS p. 6–72) 

The impacts on agricultural lands along the Sheyenne River resulting from the 

operation of a 250 cfs Devils Lake outlet constrained only by a 750 mg/L limit in 

the Sheyenne River obviously would be much more severe than those of a 300 cfs 

Pelican Lake outlet constrained by a 300 mg/L sulfate limit and 600 cfs total flows 

in the Sheyenne River, but the State Water Commission has neither provided nor 

cited results of investigations qualifying and quantifying those impacts. 

REQUIREMENT FOR EASEMENTS

The seventh factor that the Ramsey County and Towner County Water Resource 

Boards are required to consider under NDAC § 89–02–01–09.2 when evaluating the 

State Water Commission’s application for a permit to increase the capacity of its 

Devils Lake outlet from 100 cfs to 250 cfs is: 

‘‘Whether easements are required.’’ 

Because the evidence is unequivocal and unrefuted that operation of the Devils 

Lake outlet at 250 cfs will flood and adversely affect downstream lands, it is instructive to note what the U.S. Army Corps of Engineers’ Final Devils Lake, North Dakota, Integrated Planning Report and Environmental Impact Statement stated 

about the need for easements for a 300 cfs Pelican Lake outlet constrained by a 300 

mg/L sulfate limit and 600 cfs total flows in the Sheyenne River: 

‘‘Exacerbated flooding along the Sheyenne River could damage agricultural property, including lands, equipment and structures; however, the purchase of flowage 

easements has been included in the project first cost to address these impacts. 

(FEIS p. 6–49) 

‘‘The outlet alternative identified may cause some induced flooding along the 

Sheyenne River. The selected plan involves a 300 cfs constrained flow. The channel 

capacity of the Sheyenne River between the outflow pipeline and Lake Ashtabula 

is generally 600 cfs. Below Lake Ashtabula, the channel capacity is approximately 

2,000 cfs. Flows form the proposed outlet are not expected to induce flooding below 

Lake Ashtabula. At some areas on the upper Sheyenne River, 600 cfs would be outof-bank. The NDSWC completed a channel capacity study in June 1997. This study 

identified some areas, through cross-sections, that were low. Most of the areas are 

old ox-bows and meander areas of the river. One area would be able to handle the 

600 cfs flow if a set of culverts were removed or replaced with larger culverts. The 

report concluded: ‘Aerial photos of the channel from Maddock to the Warwick (sic) 

showed that 600 cfs to 700 cfs could be contained within the channel. Downstream 

of Warwick, the river meanders significantly, resulting in oxbow flooding at lower 
131 

flows. In this reach, there is the potential for small, isolated over-bank flow at 600 

cfs, mainly in the areas of marshy low lands that are not farmland.’ Areas of overbank flow at 600 cfs have been identified, and flowage easements are proposed for 

those areas. 

‘‘The cost of easements along the upper Sheyenne River, sufficient to cover projected out-of-bank induced flooding between the outlet of the pipeline at Peterson 

Coulee and Lake Ashtabula, is estimated to be $3,810,000. Approximately 191 owners may be involved. These owners would include the Fort Totten Reservation and 

the State of North Dakota. Administrative costs appear high because of the large 

number of owners (191), and anticipated large number of condemnations, and a 

higher contingency because of the uncertainties in this project. Current data and 

projections indicate minimal to no appreciable impacts downstream of Lake Ashtabula; thus there is little to no discernable need for flowage easements in that section.’’ (FEIS pp. 7–10, 7–11) 

The Corps’ estimate of the need and costs for flowage easements is based on erroneous information from the State Water Commission in 1997 indicating that the 

channel capacity of the Sheyenne River from Maddock to Warwick is 600 cfs to 700 

cfs. However, the capacity of the channel was subsequently determined by the U.S. 

Bureau of Reclamation to be 300 cfs at Warwick (U.S. Bureau of Reclamation, 2003) 

and the channel capacity of the 30 miles of the Sheyenne River upstream from Warwick is even less. Consequently, the $3,810,000 estimated by the U.S. Army Corps 

of Engineers in 2003 to be needed to acquire flowage easements from 191 landowners along the Upper Sheyenne River for its 300 cfs Pelican Lake outlet undoubtedly substantially underestimates both the number and the cost of flowage easements for a 250 cfs Devils Lake outlet. 

It is important to note again that under NDCC 61–32–03: 

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

However, the State Water Commission not only has not obtained flowage easements from the 191 landowners identified by the Corps of Engineers as being required for the operation of a 300 cfs Pelican Lake outlet constrained by a 300 mg/ 

L sulfate limit and total flows of 600 cfs in the Sheyenne River, but it has provided 

no information what-so-ever on the number, extent or cost of flowage easements required for its 250 cfs Devils Lake outlet constrained only by a 750 mg/L sulfate on 

the Sheyenne River. 

OTHER FACTORS UNIQUE TO THE PROJECT

Finally, in evaluating the State Water Commission’s application for a permit to 

increase the capacity of its Devils Lake outlet from 100 cfs to 250 cfs, NDAC § 89– 

02–01–09.2 requires the Ramsey County and Towner County Water Resource 

Boards to consider: 

‘‘Other factors unique to the project.’’ 

Certainly, one of the greatest concerns about increasing the capacity of the Devils 

Lake outlet to 250 cfs expressed by communities along the Sheyenne River downstream from the project has been the adverse impacts on water quality and the increased cost of water treatment for those utilizing the Sheyenne River for their municipal supplies (MacPherson, 2009; Oleson, 2009; Bonham, 2009; Associated Press, 

2009a, 2009b, 2009c; D. Olson, 2009; Schmidt, 2009a, 2009b; Browne, 2009; Wetzel, 

2010). 

It is both relevant and instructive, therefore, to consider what the U.S. Army 

Corps of Engineers concluded in its Final Devils Lake, North Dakota, Integrated 

Planning Report and Environmental Impact Statement regarding the impacts of a 

300 cfs Pelican Lake outlet constrained by a 300 mg/L sulfate limit and 600 cfs total 

flows in the Sheyenne River on downstream municipal and industrial water supplies: 

‘‘Based on analysis of available date regarding the operations of the eight affected 

municipal water treatment facilities, a computer spreadsheet model was developed 

to estimate the annual increase in cost that can be expected at each facility due to 

the change in water quality. Hardness was identified as the major water user concern associated with an outlet. Ion exchange would be needed to treat sulfates but, 

due to the limited water quality effects resulting from a 300 mg/L sulfate constrained outlet, it was determined that softening was adequate treatment for water 

users. Cost increases would result from increased softening costs (due to increased 

chemical feed rates and increases in sludge handling and disposal), and increased 
132 

3Sulfate concentration is a major concern with a 250 cfs Devils Lake outlet constrained only 

by a 750 mg/L sulfate limit in the Sheyenne River (Browne, 2009; MacPherson, 2009; Wetzel, 

2010), and the increased sulfate concentrations would be accompanied by higher levels other 

constituents, including TDS and hardness, thus increasing the water treatment costs estimated 

by the Corps for those constituents as well. 4These costs also would be increased as a result of further degradation of water quality 

caused by increased discharges from the outlet. 

capital and operations costs if treatment or an alternative water supply is required 

to restore the treatment facility finished water quality to without-outlet conditions. 

‘‘Modeling showed the total annualized costs for increased softening would range from $25,000 per year to $56,000 per year, depending on the modeled water quality 

future. The total annualized cost for capital improvements or alternate source water 

development required to bring the with-outlet project water to the water quality of 

without-outlet product water ranged from $1,757,000 per year to $3,304,000 per 

year. Sulfate concentration is not a major concern along the Sheyenne or Red Rivers 

with the Pelican Lake outlet.3 In most cases, treatment by ion exchange was found 

to be the least-cost alternative if without-outlet water is required.’’ (Emphasis 

added) (FEIS p. 6–51) 

However, it is just not municipal water supplies that are affected by operation of 

the Devils Lake outlet: 

‘‘Interviews were conducted with all of the industrial river water users along the 

Sheyenne River and Red River of the North. Two were expected to incur increased 

costs as a result of the Devils Lake outlet operations. The sugar beet processing facility is expected to have increased lime softening costs as a result of the outlet. The 

coal-fired power plant’s increased costs relate to additional need for ion exchange 

water purification for boiler water. On the basis of one of the sample water quality 

data sets, annualized costs would be expected to be $1,200 per year for the sugar 

beet processing facility and $30,700 per year for the power plant.4 (FEIS p. 6–52) 

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

‘‘David Glatt, environmental health chief for the Department of Health, said no 

community along the affected stretch of the Sheyenne River currently uses it for 

drinking. 

‘‘ ‘You could go to (750 milligrams per liter), but only if it’s not designated as a 

municipal water supply,’ Glatt said. ‘That stretch, there is no municipality pulling 

water out of the Sheyenne.’ 

‘‘Glatt said that the higher sulfate levels should be safe for fish, livestock and riverbank vegetation. In any case, the upper Sheyenne River has naturally high sulfate 

levels that go above 450 milligrams per liter in spots, he said.’’ (Emphasis added) 

(Weixel, 2010) 

At best, Mr. Glatt’s statements constitute a deliberate misrepresentation of the 

facts in an attempt to obfuscate and evade addressing the impacts of a 250 cfs Devils Lake outlet on downstream municipal water users. 

First, as a fundamental consideration, it is important to note that North Dakota 

Administrative Code § 33–16–02.1–02 dealing with Standards of Quality of Waters 

of the State states explicitly, in part, that: 

‘‘The State and public policy is to maintain or improve, or both, the quality of 

waters of the State and to maintain and protect existing uses... Waters not being 

put to use shall be protected for all reasonable uses for which these waters are suitable.’’ (Emphasis added) 

Prior to operation of the Devils Lake outlet, the waters of the Sheyenne River 

downstream from the outlet were suitable for use as domestic or municipal water 

supplies, and they are being used as a municipal water supply by eight communities 

downstream from Baldhill Dam. By Mr. Glatt’s own admission, increasing the level 

of sulfate in the Upper Sheyenne River as a result of operation of the outlet will 

cause those waters no longer to be suitable for domestic or municipal water supplies—a clear violation of State policy. 

Second, Mr. Glatt’s statement that no community along the ‘‘affected stretch’’ of 

the Sheyenne River currently uses it for drinking not only is demonstrably false, 

but also is deliberately misleading. In an attempt to evade the issue, Mr. Glatt apparently defines the ‘‘affected stretch’’ of the Sheyenne River as only the portion upstream from Baldhill Dam where the Department of Health is proposing permanently to increase the sulfate limit from 450 mg/L to 750 mg/L. Although that may 

be the portion included in the Department of Health’s proposed emergency rule, the 

entire length of the Sheyenne River, as well as the Red River, downstream from 
133 

Baldhill Dam also will be ‘‘affected’’ by the increased load of sulfate and other pollutants resulting from the increasing the discharges of the Devils Lake outlet from 

100 cfs to 250 cfs. 

Indeed, the fallacy of Mr. Glatt’s claim that no community along the ‘‘affected 

stretch’’ of the Sheyenne River uses it for drinking is clearly demonstrated by the 

fact that his own agency has committed $2 million—and the State Water Commission has committed another $9.2 million—to install a reverse osmosis water treatment system in Valley City’s new $15.6 million water treatment plant to reduce the 

high levels of sulfate in the Sheyenne River resulting from operation of the Devils 

Lake outlet (MacPherson, 2009). In addition, West Fargo estimates that installing 

a system to treat sulfates could add $14 million to the cost of a new water treatment 

plant (Schmidt, 2009b) and Fargo will receive $9 million from the State to enhance 

treatment of sulfates in its new water treatment plant (Schmidt, 2009a). All of these 

additional water treatment expenditures are made necessary by the increased levels 

of sulfate in the Sheyenne River caused by operation of the Devils Lake outlet. 

Mr. Glatt’s statement that the Upper Sheyenne River has naturally high sulfate 

levels that go above 450 mg/L ‘‘in spots’’ also is deliberately misleading and designed 

to obscure and misrepresent the facts. It is true that sulfate levels have occasionally 

exceeded 450 mg/L in some ‘‘spots’’ in the Upper Sheyenne River, but most of those 

have been in the extreme Upper Sheyenne River above the Devils Lake outlet. For 

example, Schuh and Hove reported that: 

‘‘. . . sulfate samples at Warwick (30 miles downstream from the Devils Lake 

outlet) never exceeded 300 mg/L before 2,000 and did so only about 25 percent of 

the time after 2000. Harvey samples (approximately 30 miles upstream from the 

Devils Lake outlet), however, exceeded 300 mg/L about 40 percent of the time during the 1990s, and were below 300 mg/L only three times following the year 

2000 . . .’’ (Schuh and Hove, 2006) 

Data presented in their report show that the maximum levels of sulfate reached 

in the Sheyenne River at two Harvey sites were 480 mg/L and 610 mg/L, but the 

maximum levels reached at two Warwick sites were 230 mg/L and 307 mg/L (Schuh 

and Rove, 2006). Of course, what Mr. Glatt did not say was that sulfate levels in 

the Sheyenne River downstream of the Devils Lake outlet never reached 450 mg/ 

L before July 2009 when the North Dakota Department of Health vacated the North 

Dakota Pollution Discharge Elimination System permit it had issued for the outlet 

and implemented an emergency rule increasing the sulfate limit in the Upper 

Sheyenne River from 450 mg/L in order to allow the outlet to discharge 100 cfs of 

water from West Bay containing 600–700 mg/L of sulfate. What Mr. Glatt also did 

say is that, by increasing the sulfate limit in the Upper Sheyenne River from 450 

mg/L to 750 mg/L, the Department of Health is ensuring that sulfate levels, not just 

‘‘in spots,’’ but in throughout the entire length of the Upper Sheyenne River from 

the outlet to Lake Ashtabula will exceed 450 mg/L when the outlet is operating, and 

they will increase from 300 mg/L or less to nearly 450 mg/L in the Lower Sheyenne 

River. 

CONCLUSIONS

North Dakota Governor and State Water Chairman John Hoeven has submitted 

Application to Drain No. 3457 to the Ramsey County and Towner County Water Resource Boards for a permit to increase the capacity of the Sate Water Commission’s 

Devils Lake outlet from 100 cfs to 250 cfs. However, the State Water Commission 

has failed to provide or to cite the results of the investigations required by North 

Dakota Century Code § 61–32–03 to disclose whether the quantity of water which 

will be drained from Devils Lake will flood or adversely affect lands of downstream 

landowners. The State Water Commission also has failed to obtain flowage easements from the downstream landowners whose lands will be adversely affected, as 

required by NDCC § 61–32–03. 

The State Water Commission also has failed to provide any substantive information regarding the volume of water proposed to be drained as a result of increasing 

the capacity of the Devils Lake outlet from 100 cfs to 250 cfs, and the resulting impact on the Sheyenne River, regarding adverse impacts that may occur to the lands 

of lower proprietors, regarding the project’s impact on flooding in the project watershed, regarding the project’s impact on waters having recognized fish and wildlife 

values, regarding the project’s impact on agricultural lands, regarding easements 

that will be required, and regarding other factors unique to the project that would 

permit the Ramsey County and Towner County Water Resource Boards to evaluate 

the application objectively under the provisions of North Dakota Administrative 

Code § 89–02–01–09.2. 
134 

Although the State Water Commission has failed to provide substantive information to enable the Ramsey County and Towner County Water Resource Boards to 

discharge their responsibilities in evaluating the application under NDCC § 61–32– 

03 and NDAC § 89–02–01–09.2, the preponderance the evidence available from investigations conducted by other agencies, notably the U.S. Army Corps of Engineers, 

unequivocally demonstrates that increasing the capacity of the Devils Lake outlet 

from 100 cfs to 250 cfs will adversely impact the Sheyenne River, flood and adversely affect the lands of lower proprietors, adversely impact fish and wildlife, adversely impact agricultural lands, require at least 191 flowage easements costing in 

excess of $3.8 million, increase downstream municipal water treatment costs by at 

least $1.7 to $3.3 million per year, and will not have a significant effect in reducing 

flooding problems in the Devils Lake Basin. 

Because the State Water Commission has failed to conduct the investigations and 

to provide the information required under NDAC § 61–32–03 and NDAC § 89–02– 

01–09.2 and because the available evidence overwhelmingly and unequivocally confirms that the State Water Commission’s proposal to increase the capacity of its 

Devils Lake outlet from 100 cfs to 250 cfs is devoid of merit or justification, the 

Ramsey County and Towner County Water Resource Boards have no alternative 

under the applicable statutes and regulations except to deny the State Water Commission’s Application to Drain No. 3457 for a permit to increase the capacity of its 

Devils Lake outlet to 250 cfs. 

REFERENCES

Associated Press. 2009a. Hearing on Devils Lake draws questions. The Grand 

Forks Herald. Grand Forks, North Dakota. October 6. 

Associated Press. 2009b. ND studying comments on Devils Lake outlet. The Fargo 

Forum. Fargo, North Dakota. October 8. 

Associated Press. 2009c. Engineer: Devils Lake outlet could pump more water by 

June. The Grand Forks Herald. November 12. 

Bonham, Kevin. 2009. residents voice opposition to raising flow of Devils Lake. 

The Grand Forks Herald. Grand Forks, North Dakota. October 6. 

Bott, Fred. 2009. Letter from President, Devils Lake City Commission, Devils 

Lake, North Dakota, to Dave Glatt, North Dakota Department of Health, Bismarck, 

North Dakota. July 7. 1 p. 

Browne, Steve. 2009. Outlet plan unchanged. Valley City Times Record. Valley 

City, North Dakota. November 24. 

Engelhardt, Bruce. 2002. Email from Bruce Engelhardt 

(mailto:bengel@water.swc.state.nd.us) To Loss, David C MVP; cc: 

msauer@state.nd.us; jlanden@water.swc.state.nd.us. Subject: RE Outlet Pumping 

Profiles. September 24, 10.57 a.m. 

Frink, Dale. 2009. Letter from State Engineer, North Dakota State Water Commission, Bismarck, North Dakota, to L. David Glatt, Chief, Environmental Health 

Section, North Dakota Department of Health, Bismarck, North Dakota. July 13. 1 

p. 

Glatt, L. David. 2009a. Letter from Chief, Environmental Health Section, North 

Dakota Department of Health, Bismarck, North Dakota, to John Hoeven, Governor 

of North Dakota, Bismarck, North Dakota. July 15. 2 pp. 

Glatt, L. David. 2009b. Notice of Intent to Adopt Administrative Rule. July 15. 

1 p. 

Glatt, L. David. 2009c. Finding and Statement of Reason of the North Dakota Department of Health Regarding Proposed Rule Relating to Water Quality Standards. 

1 p. 

Johnson, Rona K. 2005. Devils Lake outlet set to begin operation despite objections of neighbors. The Grand Forks Herald, Grand Forks, North Dakota. July 21. 

Lee, Yankyoung. 2007a. By the numbers. The Grand Forks Herald. Grand Forks, 

North Dakota. August 27. 

Lee, Yankyoung. 2007b. Herald Exclusive: Exaggerated effectiveness. The Grand 

Forks Herald. Grand Forks, North Dakota. August 27. 

MacPherson, James. 2009. ND water panel approves Devils Lake projects. Associated Press. August 19. 

Morris, Lee. 2009. Residents petition to stop flow. Valley City Times Record. Valley City, North Dakota. November 12. 

North Dakota Department of Health. 2003a. Statement of Basis, Devils Lake Outlet, ND 0026347. 12 pp. 

North Dakota Department of Health. 2003b. Response to Comments for the Devils 

Lake Outlet, ND–0026247. 12 pp. 
135 

Oleson, Louise. 2009. Meetings set for public comments on changing Sheyenne 

River classification. Devils Lake Journal. Devils Lake, North Dakota. September 3. 

Olson, Dave. 2009. Unease on the Sheyenne. The Fargo Forum. Fargo, North Dakota. November 13. 

Olson, Jean. 2009. Letter signed by the Secretary, Benson County Water Resource 

Board, Minnewaukan, North Dakota, to the North Dakota State Water Commission, 

Bismarck, North Dakota. 1 p. 

Peterson Environmental Consulting, Inc. 2002. Biota Transfer Study: Devils Lake 

Flood Damage Reduction Alternatives. Prepared for the St. Paul District, U.S. Army 

Corps of Engineers. 

Reinartz, Daniel. 2002. Email from Reinartz, Daniel J. 

MVP(Daniel.J.Reinartz@mvp02.usac.army.mil), To bengel@water.swc.stte.nd.us, 

Copies to ‘‘Loss, David C MVP’’ (david.c.loss@mvp02.usace.army.mil. Subject: FW: 

Outlet Pumping Profiles. 25 Sep 08:46:20–0500. 

Schmidt, Helmut. 2009a. Rising sulfates could upset stomachs. The Fargo Forum. 

Fargo, North Dakota. November 19. 

Schmidt, Helmut. 2009b. West Fargo, Fargo plan talks on water. The Fargo 

Forum. Fargo, North Dakota. December 30. 

Schuh, W.M. and M.H. Hove. 2006. Sources and Processes Affecting Dissolved 

Sulfate Concentrations in the Upper Sheyenne River. 53 pp. 

U.S. Army Corps of Engineers. 2002. Draft Devils Lake, North Dakota, Integrated 

Planning Report and Environmental Impact Statement. 

U.S. Army Corps of Engineers. 2003. Final Devils Lake, North Dakota, Integrated 

Planning Report and Environmental Impact Statement. 

U.S. Bureau of Reclamation. 1974. Final Environmental Statement, Initial Stage 

Garrison Diversion Unit, Pick-Sloan Missouri Basin Program, North Dakota. Department of the Interior INT FES 74–3. 

U.S. Bureau of Reclamation. 1999. Red River Valley Water Needs Assessment 

Phases 1A and 2 Hydrology Appendix. Thomas R. Bellinger. Department of the Interior, Denver Technical Services Center, Water Resources Service, Water Supply, 

Use, and Conservation Group. Denver, Colorado. 

U.S. Bureau of Reclamation. 2003. Report on Red River Valley Water Supply 

Project Needs and Options. Bureau of Reclamation, Dakotas Area Office, Bismarck, 

North Dakota. 

Wetzel, Dale. 2010. Change would allow more sulfate in Sheyenne River. Associated Press. January 2, 2010. 

LETTER FROM GARY L. PEARSON, D.V.M. 

APRIL 29, 2009. 

Ms. KATHY STEINER, 

Managing Editor, The Jamestown Sun, P.O. Box 1760, Jamestown, North Dakota 

58402–1760. 

TO THE EDITOR: With Jamestown and Pipestem reservoirs reaching record levels 

this spring, thousands of man-hours and millions of dollars are being expended in 

dealing with the flood. Although there is great concern about where all the water 

will go, it seems that little attention is being paid to where it came from. 

A 1981 study by scientists at North Dakota State University determined that wetland drainage had resulted in a 64–180 percent increase in the drainage areas of 

tributaries of the Red River and a 36 percent increase in their maximum daily 

flows. The study concluded that, ‘‘land drainage is a factor aggravating the flooding 

problem in eastern North Dakota.’’ 

In commenting in 1985 on the 37,000-acre Oak Creek Drain in Wells and Eddy 

counties, the U.S. Army Corps of Engineers stated specifically that, ‘‘the cumulative 

effects of various drainage projects such as this would indeed have an adverse effect 

on the regulation of Jamestown Reservoir for flood control.’’ 

A dozen wetland drainage projects, including the Oak Creek drain, developed by 

the Wells County Water Resource Board and approved by the State Engineer drain 

some 200,000 acres into the James River. Additional tens of thousands of acres have 

been drained in other public and private projects throughout the Upper James River 

Watershed in Wells, Eddy, Foster and Stutsman counties, and that water also ends 

up in Jamestown Reservoir. 

Just how great is this ‘‘adverse effect’’? The water content of the snow in the 

Upper James River Watershed this spring was estimated at 4 to 4.5 inches. The 

area of Jamestown Reservoir at elevation 1,454 feet is 13,206 acres. Four inches of 

runoff from 200,000 acres would contribute 66,667 acre-feet of water to the reservoir. This means that the drainage from just those 12 projects in Wells and Eddy 
136 

counties may have increased the level of Jamestown Reservoir by over 5 feet, raising 

the crest from 1,449 feet to the top of the emergency spillway at 1,454 feet. This 

also means that an additional 2.5 weeks of 1,800 cubic feet per second releases will 

be required to remove that additional water from the reservoir. Add in all of the 

other tens of thousands of acres that have been drained in the Upper James River 

Watershed and the cumulative effects on the regulation of Jamestown Reservoir for 

flood control are what Jamestown and those living downstream are dealing with 

right now. 

Sincerely, 

GARY L. PEARSON. 

LETTER FROM GARY L. PEARSON, D.V.M. 

JULY 13, 2009. 

The Honorable HILLARY CLINTON, 

Secretary of State, 

Washington, DC 20520. 

DEAR SECRETARY CLINTON: According to information from North Dakota Senator 

Byron Dorgan’s office: 

‘‘U.S. Senator Byron Dorgan (D-ND) said Thursday, July 9, 2009, that Secretary 

of State Hillary Clinton informed him she has initiated contacts with the Canadians 

about the dike on the U.S.-Canada border that has caused significant flooding in 

eastern North Dakota. 

‘‘Senator Dorgan talked to Secretary Clinton last evening about the issue. Dorgan 

had previously asked the Secretary of State to initiate contacts with the Canadian 

Government to resolve the dispute. 

‘‘Dorgan said he believes the dike on the northeastern border clearly violates the 

Boundary Waters Treaty . . .’’ 

Based on the information from Senator Dorgan’s office, it appears that he may 

have neglected to mention additional relevant information regarding this Boundary 

Waters Treaty issue. 

For example, Senator Dorgan goes on to say: 

‘‘The desire of Canadians to protect themselves against flooding is understandable, but it is not understandable that they keep in place a barrier that maximizes 

flooding on the North Dakota side and minimizes flooding on the Canadian side. 

That is something that I believe violates the Boundary Waters Treaty and needs 

to be resolved in consultations between the U.S. State Department the Canadian 

government.’’ 

A fundamental fact of obvious importance is that the water that causes the flooding on the south side of the border comes from North Dakota, not Canada. However, 

Senator Dorgan also neglects to mention the significant contribution to the flooding 

on the North Dakota side of the border resulting from the drainage of tens of thousands of acres of wetlands throughout the Pembina River watershed in North Dakota over the past 50 years. Much of this drainage was done without permits or regulation so exact figures on the acreage of wetlands drained and resulting volume 

of water contributing to downstream flooding are not readily available. However, the 

drainage of Rush Lake in Cavalier County, North Dakota, provides one concrete example of the contribution of wetland drainage to the flooding on the North Dakota 

side of the border. 

Rush Lake is located in Cavalier County, North Dakota, approximately 6 miles 

south of the Canadian border at the headwaters of Snowflake Creek and West 

Snowflake Creek, which flow northeastward to join the Pembina River on the north 

side of the border in Canada. The Rush Lake wetland complex originally consisted 

of the 650-acre main lake and an additional 6,500 acres of adjacent wetlands. The 

lake was approximately 3.5 feet deep and the adjacent marshes had a depth of approximately 2.5–3 feet. The Rush Lake watershed included an additional 23,000 

acres of non-contiguous wetlands. 

In the early 1960s, evidence of illegal wetland drainage into Rush Lake was reported by one of the adjacent landowners. However, instead of addressing this illegal drainage, the Cavalier County Water Management Board developed a plan in 

1967 simply to pass the problem on downstream by draining most of the Rush Lake 

complex into Snowflake and West Snowflake Creeks. Since then, most of the 23,000 

acres of additional non-contiguous wetlands in the Rush Lake watershed also have 

been drained into Rush Lake and then on into the Snowflake Creeks. The same 
137 

thing has happened throughout the rest of Cavalier County and much of the 

Pembina River watershed in North Dakota. 

Because North Dakota water management agencies do not compile reliable data 

on wetland drainage, it is difficult to know the exact contribution of this one drainage project to the flooding problem at the border. However, if it is assumed that 

the 30,000 acres of wetlands drained in the Rush Lake watershed had an average 

maximum depth of 20 inches (as in the Devils Lake Basin to the south), their drainage would contribute an additional 50,000 acre-feet of water to the flooding downstream at the Canadian border in years of high runoff such as this year. That is 

enough to cover an area of 78 square miles with another foot of water. 

Not only is it understandable that Canadians would have a desire to protect 

themselves against flooding, but they also arguably have a right to protect themselves against exacerbated flooding resulting from North Dakota’s failure to regulate 

wetland drainage that contributes to that flooding. 

If Senator Dorgan is correct that the flooding at the Canadian border constitutes 

a violation of the Boundary Waters Treaty of 1909, then the violation is the result 

of North Dakota’s failure to comply with the Treaty and with its own drainage regulations, which require consideration of: 

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

‘‘Adverse effects that may occur to the lands of lower proprietors. This factor is 

limited to the project’s hydraulic effects such as erosion, duration of floods, impact 

of sustained flows, and impact on the operation of downstream water control devices. 

‘‘The project’s impact on flooding problems in the project watershed.’’ (North Dakota Administrative Code § 89–02–01–09.2) 

Consequently, I would encourage you, in your discussions with Canadian officials 

regarding this alleged violation of the Boundary Waters Treaty, to propose either 

referral of the issue to the International Joint Commission or the establishment of 

a bi-national panel with representatives of the U.S. Environmental Protection Agency and Environment Canada to conduct a comprehensive, scientific study of the contribution of wetland drainage in North Dakota to the flooding problem at the Canadian border. 

Sincerely, 

GARY L. PEARSON, 

Jamestown, North Dakota. 

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

STATE OFFICIALS NOT DEALING TRUTHFULLY WHEN IT COMES TO DEVILS LAKE

OUTLET

North Dakota Department of Health administrator Dr. Terry Dwelle, Environmental Health section chief L. David Glatt and assistant state engineer Todd 

Sando’s February 8 letter responding to the Times-Record’s February 2 editorial on 

the Devils Lake outlet warrants a factual response. 

They claim State agencies have informed numerous Federal agencies, including 

the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, U.S. Department of State, the White House Council on Environmental Quality and Canadian officials about flooding at Devils Lake and operation of the outlet. What they 

fail to say is that much of the information they have provided to Federal agencies, 

Canadian officials and the public regarding the operation of the outlet has been incomplete, misleading and frequently deliberately false. 

For example, based on information provided by North Dakota agencies, Senators 

Byron Dorgan and Kent Conrad and Congressman Earl Pomeroy told U.S. Department of State officials on July 12, 2005 that it was imperative to disregard the concerns of Canadian officials and allow immediate operation of the outlet because: 

‘‘The longer we postpone the solution to this flooding crisis, the more danger North 

Dakota, Canada, and surrounding areas will face. The Devils Lake outlet project 

needs to be in full operation as soon as possible.’’ 

By 2008, the $28 million outlet had removed the equivalent of one-tenth of an 

inch of water from the lake at an annual operating cost of over a quarter of a million dollars, and by 2009 the lake was 10 inches higher than it was before the outlet 

began operation. 

They neglect to mention that State Engineer Dale Frink made deliberately false 

statements regarding the operation and efficacy of the outlet in his August 30, 2002 
138 

application for a North Dakota Pollution Discharge Elimination System permit for 

the project, or that the Department of Health knew the statements were false but 

approved the permit anyway. The statement that, ‘‘More than $800 million of State and Federal funds have 

been spent in recent years on storing more water in the upper basin, raising and 

protecting infrastructure, and building an outlet’’ is seriously misleading. Most of 

the $800 million that have been spent dealing with the rising level of Devils Lake 

have been Federal taxpayer funds. From 1996 to 1999, while inflows to Devils Lake 

were averaging 317,000 acre-feet per year, the State spent $3.5 million annually to 

store an average of only 17,345 acre-feet of water per year. By 2009, when record 

inflows occurred to Devils Lake, the State’s upper basin water storage program was 

down 769 acre-feet. 

Dwelle, Sando and Glatt also neglect to mention the $1.5 million U.S. taxpayer 

dollars that the State squandered on an experimental irrigation project to utilize 

water in the upper basin that anyone with a $4.95 calculator could see would be 

worthless in lowering the lake. 

They ignore the contribution of the drainage of 358,000 acres of wetlands in the 

Upper Devils Lake Basin—condoned and frequently promoted by the State engineer—to the rise of Devils Lake. Because wetlands in the Devils Lake Basin have 

the capacity to store an average of 1.7 feet of water and because the area had been 

in a drought for 4 years, 623,500 acre-feet of storage were no longer available as 

a result of wetland drainage when high levels of precipitation hit the area in 1993. 

The drainage of those 358,000 acres of wetlands has reduced the net loss of water 

in the Upper Basin through evaporation by another 239,000 acre-feet per year, indicating that as much as 75 percent of the inflows from 1993 to 1999—and 40 percent 

of the record inflows in 2009—were the result of the loss of evaporation capacity 

from drained wetlands. 

They say that Devils Lake is ‘‘within just 8 feet of an uncontrolled release of the 

poorest quality, high-sulfate water from the east end,’’ but they neglect to mention 

that it would take another 1.9 million acre-feet of water to raise Devils Lake to its 

natural overflow elevation of 1,459 feet, and by that time, evaporation would be removing over 700,000 acre-feet per year—seven times what the outlet operating at 

250 cubic feet per second for 7 months would remove. They also do not mention that 

it would take 6 years for the outlet operating at 250 cfs just to remove last spring’s 

inflows. 

They claim that their objective is to avoid a catastrophic uncontrolled overflow 

from Devils Lake, but by not taking action to prevent the city of Devils Lake from 

lowering the natural outlet to 1,458 feet, they have actually doubled the chance 

(from 3.2 to 6.1 percent) of a major uncontrolled overflow (where the discharge 

would exceed those of the State’s 250 cfs outlet by another 50 cfs) to the Sheyenne 

River within 10 years. Lowering the outlet to 1,458 feet means that an additional 

269,000 acre-feet of poor quality Devils Lake water would be discharged initially 

into the Sheyenne River as a result of lost storage if the lake should rise to its overflow elevation, and the discharge would be increased by 23,000 acre-feet every year 

as a result of lost evaporation from the lake because of its smaller surface area. 

They claim that the proposed increase of the sulfate limit in the Sheyenne River 

to 750 parts per million ‘‘is protective of aquatic life, as well as recreational and agricultural uses,’’ but they ignore the numerous serious adverse impacts to aquatic 

life and recreational and agricultural use of the Sheyenne River identified by the 

U.S. Army Corps of Engineers for an outlet constrained by a much lower 300 ppm 

sulfate limit in the Sheyenne River. 

They neglect to mention that data from the State Water Commission show that 

the 450 ppm sulfate limit originally established by the Department of Health for the 

Sheyenne River was never reached in the area downstream from the outlet before 

operation of the outlet began. Nor do they mention that the department’s own regulations require it to maintain water quality in streams when it is better than the 

established standards. 

They say that the awarding of $12 million to incorporate reverse osmosis in Valley 

City’s new water treatment plant in order to remove sulfates and other minerals 

‘‘is a clear signal from the State that the interests of Valley City are important and 

will be protected.’’ They do not mention that the reason a reverse osmosis system 

is necessary is to treat the increased levels of sulfates and other minerals from the 

Devils Lake outlet. Nor do they mention that the Corps of Engineers has determined that operation of an outlet constrained by a much lower 300 ppm sulfate 

limit in the Sheyenne River would increase downstream water treatment costs by 

$1.7 to $3.3 million annually. 

Governor John Hoeven appointed the administrator of the Health Department 

and, as chairman of the State Water Commission, he was instrumental in appoint-
139 

ing the State engineer and is responsible for oversight of the State engineer and 

his staff. It is time for State officials to start dealing responsibly and truthfully with 

the problem of rising water levels at Devils Lake. 

PREPARED STATEMENT OF THE CITY-COUNTY HEALTH DISTRICT, VALLEY CITY, ND 

Senate Energy and Water Appropriations Subcommittee of the U.S. Senate: As 

the Health Board which governs City-County Health District, the public health unit 

for Barnes County and Valley City, we have several serious concerns regarding Devils Lake outlet water being pumped into the Sheyenne River and the implementation of an interim emergency rule (ND Century Code 28–32–03) allowing increased 

sulfate concentrations from the headwaters of the Sheyenne to 0.1 miles south of 

Baldhill Dam. 

We are primarily concerned about the lack of an environmental impact study. 

Even the most minor city or county projects require studies to determine the impact 

on the environment and/or anthropological artifacts. Yet this project, which will 

have an enormous impact on downstream users, lacks any kind of impact statement. 

We are concerned about, but not limited to the following: 

—The Ecology of the Sheyenne River; 

—The increase in contaminants in the Sheyenne coming from Devils Lake which 

can affect people and animals; 

—Cost of treating the water in the Sheyenne with increased contaminants; 

—Increase risk of flooding of the Sheyenne River; 

—Ineffective, costly attempts at solutions without thoroughly evaluating the problem. 

The Sheyenne River, and hence, Valley City, currently has good water quality 

(with sulfates in the 200 mg/L range). We strongly urge a comprehensive, scientific 

study of both the root causes for the rising of Devils Lake and the impact on the 

Sheyenne River and those who come in contact with it. The study must be done by 

unbiased out-of-State professionals. It should include an expert hydrologic assessment of the entire Devils Lake and Sheyenne River areas, and the LIDAR flight 

study which has been authorized and appropriated by the Senate Energy and Water 

Appropriations Subcommittee. 

This is not just about an increase in sulfate levels—this is about the life of the 

Sheyenne River in the future and all those who depend on it, in Barnes County and 

those who live down stream. 

PREPARED STATEMENT OF JOE STICKLER, VALLEY CITY, ND 

DEVILS LAKE OUTLET & UPPER BASIN STORAGE AND THE NEED TO PREVENT HARM TO

THE SHEYENNE RIVER

The Devils Lake outlet concept has never appeared like intelligent water management. The testimony to this assertion is voluminous and doesn’t need to be detailed 

here. This is particularly alarming because water management is the one of the 

highest of priorities for human civilization. If this current wet cycle is a regional 

effect of global climate change, many more of area residents will realize they have 

properties too close to the waterways. Meager information of the impact on the environment exists. It’s as if we’re being told, ‘‘It’s OK nothing bad is going to happen, 

trust us.’’ Most distressing is the plan (unless recently modified) does not include 

any component for ongoing study of the environment if the outlet flows are increased. There are some data bases on various components both inorganic and biological that are present in the Sheyenne River. Any plan should include funding for 

continued monitoring of these components. There should be prior agreements about 

what limits in various parameters (not just sulfate concentrations) would necessitate the closure of the outlet. 

Thank you for considering this testimony. 

PREPARED STATEMENT OF SHARON E. AND JAMES B. BUHR, MD, MERITCARE CLINIC, 

VALLEY CITY, ND 

Chairman/Senator Dorgan and the U.S. Senate Energy and Water Appropriations 

Subcommittee: Thank you for allowing us to offer testimony by e-mail related to the 

2–19–10 Hearing on Devils Lake Outlet that was held in West Fargo. As residents 

of Valley City we have grave concerns over the fact that North Dakota has not con-
140 

ducted a comprehensive study of the Devils Lake and Sheyenne River basins, not 

has a comprehensive plan been established. 

A great deal of money has been spent on trying to solve a problem without a comprehensive study. Dikes around Devils Lake ($800 million) have been built and $28 

million has been spent building an outlet from the west end of Devils Lake into the 

Sheyenne, yet that has taken off only a miniscule amount of water. Neither of these 

so-called solutions have attacked the root problem: the water coming into the lake. 

We agree with what Senator Dorgan said at the February 19 hearing: ‘‘more work 

needs to be done to retain water in the upper Devils Lake basin.’’ Wetlands restoration has always been a good idea for the benefits it provides for wildlife and the 

health of the environment. Now it seems imperative to avert a catastrophe. 

OUR REQUEST.—Before any additional Devils Lake water is discharged through 

the outlet, a comprehensive, scientific study of both the root causes of the rising 

lake level and all the impacts of Outlet water on the Sheyenne River must be conducted. This must be done in a swift manner, and the study conducted by outside, 

(out-of-State) independent experts who do not have any of the political pressures 

that dominate North Dakota water issues. 

As part of this study we ask that the soil in and around the area where the Tolna 

Coulee would overflow into the Sheyenne River be evaluated, to learn whether this 

area needs to be ‘‘armored’’, in order to avoid a devastating wash-out. 

We ask that this study along with the LIDAR technology that has been indicated 

would be also used for part of the assessment, would then be the basis for a strategic plan for Devils Lake and Sheyenne River areas. 

The North Dakota State Water Commission claims that they have done the necessary studies to evaluate these issues, but this is not true. We ask that this subcommittee provides oversight and funds to see that this study is conducted properly. 

Thank you for your interest and for allowing us to send you this testimony. 

RESOLUTION—DISTRICT 24 DEM-NPL PARTY—FEBRUARY 28, 2010 

PROBLEMS FROM DEVILS LAKE OUTLET

WHEREAS the North Dakota Department of Health recently proposed an emergency rule to permanently raise the maximum sulfate in the upper Sheyenne River 

from 450 mg/L to 750 mg/L in order to increase the amount of water being discharged from Devils Lake to the Sheyenne via the Outlet; 

WHEREAS the proposed increase in maximum sulfates in the Sheyenne would 

violate the Department of Health’s statutory mandate to ‘‘act in the public interest 

to protect, maintain, and improve the quality of the waters in the State’’ (NDCC 

61–28–01); 

WHEREAS incoming Devils Lake water, much more polluted than water in the 

Sheyenne River, contains twice the amount of phosphorous, nitrate, and arsenic as 

in the Sheyenne—along with 10 times the chloride and 4 times as much sulfate; 

WHEREAS the city of Devils Lake does NOT use lake water to drink, but Valley 

City would be forced to do so under the proposed rule change; and Valley City residents would have to bear substantial increases in water-treatment costs due to the 

much-higher levels of contaminants in incoming Devils Lake water; 

WHEREAS, while harming the Sheyenne and the people living along the river, 

the proposed rule change would not prevent Devils Lake from rising and, in fact, 

would further divert attention away from taking truly-effective preventative action 

by restoring many of the 358,000 acres of wetlands that have been artificially 

drained INTO Devils Lake; 

WHEREAS the Sheyenne River contains more species of fish (50) than any other 

North Dakota tributary, but Devils Lake contains only 11 species of fish; and the 

Sheyenne also contains critical water-filtration species of mussels that cannot survive in Devils Lake; but as water in the Sheyenne becomes contaminated like that 

of Devils Lake, aquatic species will inevitably be lost from the Sheyenne; 

WHEREAS many downstream families were forced to evacuate their homes during the devastating flooding of the Sheyenne River last spring, and the impact of 

the proposed increase in water from the Devils Lake basin will worsen future flood 

events and riverbank erosion; 

WHEREAS, in 6 short days last fall, more than 700 people signed a petition asking for completion of a comprehensive environmental impact study; 

WHEREAS, it is unknown what impacts increasing the flow of contaminated Devils Lake water into the Sheyenne would impose: on the health of people who drink 

downstream water, on the costs downstream people pay for water treatment, on the 

health of the 50 fish species currently inhabiting the waters of the Sheyenne, on 
141 

the severity of future downstream flooding, on the speed with which downstream 

riverbanks are eroding, on the tourism and recreational industries that currently 

flourish downstream, and on the magnificent beauty of the Sheyenne River; 

NOW, THEREFORE BE IT RESOLVED THAT District 24 of the North Dakota 

Dem-NPL Party calls on the State to refrain from discharging ANY additional water 

through the controversial Devils Lake Outlet until after an independent, outside 

body that is free of the political pressures that dominate North Dakota water issues 

has completed a comprehensive, scientific review of both the root causes of rising 

water on Devils Lake and all the effects of Outlet water on the Sheyenne River; and 

until the harms and problems thus documented have been completely removed. 

PREPARED STATEMENT OF MATTHEW PEDERSEN, VALLEY CITY, ND 

Dear Senator Dorgan, I would like to first thank you and your staff for conducting 

the formal hearing in West Fargo to discuss the matters associated with the Devils 

Lake outlet and the associated chronic flooding. 

I am a resident of Valley City, North Dakota and I have grave concerns about 

the management of Devils Lake. My primary concern is that I don’t feel we have 

a strategic plan on how to address the rising waters. I see absolutely no coordinated 

effort to develop a comprehensive plan of controlling the inflows or creatively and 

safely draining it. The $800 million spent on levees appears to be working properly 

and thanks for your efforts in this multi-year project. However, all of the other efforts appear to be tactical failures not aligned to a long-term strategy. The State 

Water Commission needs some additional leadership to drive the challenging conversations on options of controlling inflows and exploring additional outflow scenarios. The risks are too great not to act on stopping artificial drainage and working 

to reverse the negative results of such actions. This will require that the State Legislature and State Water Commission demonstrate a new level of leadership and bipartisanship. 

I am a firm believer in external consultants to infuse some fresh perspective into 

an organization. I believe the State Water Commission is in dire need of a comprehensive hydrological assessment of the Devils Lake and Sheyenne River basins. 

Hopefully this study can also take advantage of your LIDAR technology. The core 

objective of this external, scientific-facts based study would be to develop the strategic plan for Devils Lake with tactical, yearly solutions/approaches that map to the 

overall strategy. The plan would identify the triggers that would initiate a certain 

pre-planned tactic to address the matter at hand. This study would need to be a 

collaborative effort of communities at risk of Devils Lake and Sheyenne River flooding. The impacted communities would be part of the planning process and the triggers driving certain courses of action would be widely known and agreed upon by 

these communities. 

The timing of this study is immediate as I feel the State Water Commission has 

a horrible natural (plus human influenced) disaster on their hands. In parallel to 

this strategic planning and comprehensive study, swift action is necessary to stop 

additional dredging of the Tolna Coulee and equally important evaluations should 

be conducted on the stability of the soil in this Tolna Coulee and need for armoring 

it to avoid a catastrophic wash-out flooding the entire Sheyenne River valley destroying historic communities like Valley City in its horrific path. 

I thought it was embarrassing and pathetic that the State Water Commission 

could not answer fundamental questions posed to them by yourself as well as members of the audience. I unfortunately have no faith in the leadership of the State 

Water Commission or their problem-solving abilities and I urge you to secure funds 

for this comprehensive study to develop a strategic plan to instill some direction and 

leadership into the State Water Commission. I also urge you to lobby for an immediate assessment of the vulnerabilities lying under the surface of the Tolna Coulee 

as I feel immense armoring of this area to be required in 2010 to avoid a horrible 

wash-out and further embarrassment to the State Water Commission. 

Thank you Senator Dorgan and your colleagues on the Senate Energy and Water 

Appropriations Subcommittee for the opportunity to provide my testimony. 

PREPARED STATEMENT OF SUSAN KRINGLIE, VALLEY CITY, ND 

Dear Senate Energy and Water Appropriations Subcommittee, I strongly believe 

that before any additional Devils Lake water is discharged through the outlet, independent, outside experts must complete a comprehensive, scientific study of both the 

root causes of rising lake level and all the impacts of Outlet water on the Sheyenne 

River. This study must include an expert hydrologic assessment of the entire Devils 
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Lake and Sheyenne River areas, and the LIDAR flight study which has been authorized and appropriated by Senate Energy and Water Appropriations Subcommittee. This study must be carried out by out-of-State professionals who are free 

of the political pressures that dominate North Dakota water issues. These are the 

following valid points of discussion from my hometown, Valley City, North Dakota. 

—The Outlet is Not Effective.—North Dakota constructed an outlet costing $28 

million, and wants to add another set of pumps at a cost of $16.2 million. Its 

basic operating cost comes to $250,000 per year. Yet from 2005–2008, pumping 

at 100 cfs, this outlet removed only a bit over 0.1 inch from the lake. By 2009 

the lake was 10 inches higher than it was before the outlet began operation. 

—It is Time to Prevent the Lake From Continuing to Rise.—So far, at least $800 

million in taxpayer funds have been spent trying to deal with the results of the 

rising level of Devils Lake—not even counting the cost of the outlet! But the 

underlying causes, including artificial drainage into the lake, remain largely 

unaddressed. 

—Shut Off ‘‘The Faucet’’ (i.e., the water coming into Devils Lake).—Annually, 

water from 358,000 Upper Basin acres of artificially drained wetlands pours 

into Devils Lake. Viewing Devils Lake as a bathtub, it makes no sense to discharge highly polluted water from the tub’s drain without first TURNING OFF 

the faucet artificially dumping water in. Corps of Engineers conservatively 

states that reinstating the water-storing capacity of the Upper Basin wetlands 

would prevent Devils Lake from rising 1 foot each year. 

—No More Dredging in the Tolna Coulee.—Even though we’re told the lake might 

ultimately overflow at the Tolna Coulee, the city of Devils Lake was allowed 

to dredge out 1 foot this year, thus significantly INCREASING the possibility 

that such an overflow could occur. Please mandate that the Tolna Coulee cannot 

be further dredged, and that the comprehensive study include an evaluation as 

to whether the Tolna Coulee needs to be ‘‘armored’’ (reinforced so that it will 

not wash out). 

PREPARED STATEMENT OF RICHARD AND TERRY LEE, ADAM AND ANNIE JOHNSON, 

WANDA ETZELL, AND DENNIS AND BONNIE ROWELL, VALLEY CITY, ND AND

ENDERLIN, ND 

Americans do not want to believe that their government would implement any 

major project having serious harmful consequences without first having thoroughly 

studied (and disclosed) all of the issues contributing to the problem being addressed, 

and all of the impacts resulting from the project—and without having exhausted all 

less-harmful alternatives. Yet we now know that when it constructed the Devils 

Lake Outlet to discharge highly-polluted water into the Sheyenne River, our government did exactly that: It implemented a very costly project WITHOUT having completed comprehensive studies (including hydrologic studies) to determine the real 

causes of the rising level of Devils Lake, WITHOUT having determined the damages 

that would result to the Sheyenne River system and everyone using it, and WITHOUT implementing the most-obvious less-harmful alternative—restoration of artificially drained wetlands in the Devils Lake Upper Basin. 

Now we know that the 358,000 acres of upper-basin wetlands that have been artificially drained into Devils Lake once had the capacity to store over 623,000 acrefeet of water in periods of high precipitation (such as 2009), which is 6 percent 

MORE than the entire, record 587,000 acre-feet of inflows during last year’s spring 

flood. 

Now we know that if the sulfate standard for the Upper Sheyenne River is, in 

fact, raised to 750 mg/L in order to support increasing Devils Lake discharges from 

100 cfs to 250 cfs, the beautiful Sheyenne River will be essentially trashed. Fish and 

mussel species will be lost. Downstream flooding will be exacerbated. Spawning and 

nursery habitat will be lost. Water treatment costs for downstream municipalities 

will increase. Bank erosion will worsen. Large trees along the river will die. All because Devils Lake’s highly-polluted water contains twice as much phosphorous, nitrate, and arsenic as are found in the Sheyenne—and 10 times the chloride and 4 

times as much sulfate. 

Now we know that the $28 million outlet does NOT work as its promoters claimed 

it would, and that the State knew it could not work as claimed even before they 

built it. As a matter of fact, by 2008, the outlet had removed only one-tenth of an 

inch of water from the lake (at an annual operating cost of over a quarter of a million dollars), and by 2009 the lake was 10 inches higher than it was before the outlet began operation. 
143 

Enough is enough. We urge that there be absolutely no increase in the volume 

of water discharged through the Devils Lake Outlet, and no increase in allowable 

levels of contaminants in any part of the Sheyenne River. Instead, we urge that outof-State, objective experts be commissioned to complete a thorough, scientific study 

of all the real causes of the rising lake level; and of all the potential downstream 

effects/impacts of discharging Devils Lake water into the Sheyenne River—so that 

we can proceed rationally, truthfully and responsibly to manage the issue of the rising level of water in Devils Lake. 

Thank you for your consideration. 

PREPARED STATEMENT OF MARY ANN SHEETS-HANSON, DIRECTOR, ASANTE NETWORK

Dear subcommittee members: As a citizen of Valley City, North Dakota, living 

next to the Sheyenne River, I have a request. ‘‘Before any additional Devils Lake 

water is discharged through the Lake outlet, I request that independent, outside experts complete a comprehensive, scientific study of both the root causes of rising 

lake level and all the impacts of Outlet water on the Sheyenne River. This study 

should include an expert hydrologic assessment of the entire Devils Lake and 

Sheyenne River areas, and the LIDAR flight study which has been authorized and 

appropriated by Senate Energy and Water Appropriations Subcommittee. This must 

be carried out by out-of-State professionals who are free of the political pressures 

that dominate North Dakota water issues! Why the study? 

—The Outlet is Ineffective.—North Dakota has spent millions on an outlet and 

wants to spend millions more to add another set of pumps. From 2005–2008, 

pumping at 100 cfs, this outlet removed only a bit over 0.1 INCH from the lake. 

By 2009 the lake was 10 INCHES HIGHER than it was before the outlet began 

operation. 

—Greater Pollution.—Devils Lake water, is much more polluted than water in the 

Sheyenne, contains two times the amount phosphorous, nitrate and arsenic as 

in the Sheyenne—along with 10 times the chloride and 4 times as much sulfate. 

Why pollute a healthy river? 

—Valley City’s drinking water source is the Sheyenne River! Devils Lake’s drinking water source is not Devils Lake. Why not? 

There are other reasons to conduct this study. I’m certain you have that list. 

Is it possible that the problem with the rise in Devils Lake could have a solution 

that’s been missed because of a ‘‘not seeing the forest for the trees’’ syndrome? 

I recently went to the city of Devils Lake Web site to find out where that city 

gets its water. I learned it’s from underground wells and that the city has recently 

spent millions to lay new pipe to transport that water. Idea: instead of spending billions of additional assets in money, time and energy with no good solution, consider 

spending those same assets to build two or more super reverse osmosis plants in 

Devils Lake. Stop using precious underground water to supply that city with drinking water. Use the water from Devils Lake for that city’s and the surrounding community’s drinking water. 

DRINK THE DEVILS LAKE—LAKE LEVEL DOWN! 

Thank you for your consideration of this testimony. 

PREPARED STATEMENT OF THE PETERSON COULEE OUTLET ASSOCIATION

Thank you for the opportunity to submit outside witness testimony to the Senate 

Committee on Appropriations; Subcommittee on Energy and Water Development; 

the subcommittee’s February 19 field hearing in West Fargo, North Dakota, on the 

potential negative impacts on the downstream environment and human communities from the suggested increased release of polluted waters from the Temporary 

Emergency Devils Lake Outlet. 

First let us again, clarify that the lake of Devils Lake is not flooding, it is filling. 

The lake of Devils Lake has not reached its Natural Overflow Spill Elevation 

(NOSE). Until the lake of Devils Lake reaches it’s NOSE it is not proper to proclaim 

that the lake is flooding. 

In the January 29, 2010, a news article announcing the February 19, 2010, Senate 

Committee on Energy and Water Development’s field hearing on the potential impacts on the downstream aquatic environment and human communities from the 

suggested increased release of polluted waters from the Temporary Emergency Devils Lake Outlet, Subcommittee Chairman Senator Byron Dorgan of North Dakota 

was quoted as saying: ‘‘We have made all kinds of efforts . . . to help provide the 
144 

funding necessary to mitigate the damages of flooding at Devils Lake. But I have 

always insisted, I am not interested in transferring the problem from one region of 

our State to another.’’ (Daum, 2010) 

However this is exactly what the Temporary Emergency Devils Lake Outlet has 

been doing, with absolutely no benefits, what-so-ever, to the lake bed ‘‘landowners’’ 

adjacent to the present shores of Devils Lake. 

At this time, as we understand the situation, the Senate Subcommittee on Energy 

and Water Development’s only concern with the suggested, increased flows from the 

Temporary Emergency Devils Lake Outlet is whether or not to appropriate a portion 

of the ever dwindling, very limited Federal money for the upgrade of only two of 

the downstream North Dakota cities’, which use the Sheyenne River as a municipal 

water source, water treatment facilities. It is estimated that these water treatment 

facility upgrades that will cost the United States Federal Taxpayers approximately 

$60 million. Sixty million dollars the United States Federal Taxpayers can ill afford 

in these financially troubling times, (with absolutely no tangible benefits to the 

United States Federal Taxpayers from the expenditure of their monies). 

The only solution a reasonably thinking person could logically conceive would be 

for the anticipated downstream North Dakota cities’ water treatment facility dilemma, is to immediately order the discontinuation of discharges of the polluted 

Devils Lake waters from the Temporary Emergency Devils Lake Outlet. 

The Temporary Emergency Devils Lake Outlet is indeed, without any reasonable 

doubt, transferring one community’s manmade problem to many other downstream 

communities, including the ongoing, unwanted, bulk biota transfers along with the 

sulfates and other pollutants. 

When one’s bath tub is filling and may overflow, one does not drill a hole in the 

side of the tub and in the floor to drain the potential overflow water onto the people 

living beneath them, one simply turns off the faucet. The Devils Lake Upper Basin 

storage program now in place, to prevent unwanted inflows into the lake of Devils 

Lake (turning off the faucet, so to speak) is a joke! At the present time and since 

the year 2000, the Devils Lake Upper Basin, Extended Storage Acreage Program 

(ESAP) has only been able to enroll 395 acres of land, capable of storing a potential 

total of 769 acre-feet of water. Preventing 769 acre-feet from entering a lake that 

already contains approximately 3,375,692 acre-feet, at the present elevation of approximately 1,450 means sea level (msl) (see attachment), is an insult and a joke. 

That joke is being played on the United States Federal Taxpayers. The State of 

North Dakota (one of the only States in the United States of America, that is not 

awash in Red Ink, during these financially troubling times) seemingly refuses to use 

its own money for this Temporary Emergency Devils lake dilemma. 

In fact it appears to any reasonably thinking person, that the State of North Dakota has been deliberately exacerbating the Devils Lake dilemma for the sole purpose of using the manmade Temporary Emergency as an economic development 

project to bring in United States Federal Taxpayers dollars to the State, by discontinuing the Available Storage Acreage Program (ASAP). The Executive Summary 

of the 2006, Devils Lake Basin Water Management Plan, page 3, third paragraph, 

states; 

‘‘The Water Commission enacted ASAP (Available Storage Acreage Program) in 

1996. This program paid landowners to store water that would have contributed to 

the flooding around Devils Lake. The program ran from 1996–1999 and stored 

8,000–22,000 acre-feet per year at a total cost of $3.5 million. In 2000, the ASAP 

evolved into the Extended Storage Acreage program (ESAP), which involved extended (typically 10-year, rather than 1-year) contracts. Under ESAP, the Water 

Commission signed contracts for 8 sites in 2,000 which covered 395 acres, and had 

an approximate storage volume of 800 acre-feet. Those contracts are scheduled to 

expire on December 31, 2008. In 2003, an additional ESAP contract was signed for 

18 acres, with 35 acre-feet of storage. That contract will also run through December 

31, 2008.’’ 

As far as we know, all (all eight, only eight) of the ESAP contracts that had expired on December 31, 2008, have all been renewed for another 10 years. If the 

State of North Dakota deemed it prudent, necessary and had the where-with-all to 

pay for and store 8,000–22,000 acre-feet from entering the lake of Devils Lake, from 

1996 through 1999, the State of North Dakota must now have other undisclosed reasons for not continuing the ASAP program, especially now when the State of North 

Dakota is awash in Oil Tax Revenue money! 

The United States of America is, has been and will continue to be, facing an imminent Health Care Crisis, meanwhile the North Dakota State Water Commission 

used the majority of North Dakota’s share of the Tobacco Lawsuit Settlement money 
145 

to finance, build, operate and maintain the Temporary Emergency Devils Lake Outlet as a solution to a North Dakota manmade disaster. 

Now the State of North Dakota, through its effected downstream cities, is asking 

for even more United States Federal Taxpayers dollars to continue this manmade 

disaster, economic development project. 

We pray that you the members of the Senate Committee on Appropriations, Subcommittee on Energy and Water Development do not allow this fiscal irresponsibility be continued. 

ATTACHMENTS

PETERSON COULEE OUTLET ASSOCIATION, 

Maddock, ND, February 26, 2010. 

Mr. DENNIS FEWLESS, 

Director, Division of Water Quality, Environmental Health Section, North Dakota 

Department of Health, Gold Seal Center, 918 E. Divide Ave. Bismarck, North 

Dakota 58501–1947. 

DEAR SIR: Thank you for the opportunity to provide comments to the North Dakota Department of Health’s (ND DoH) Triennial Review of the Standards of Quality for Water of the State as Required by 33 U.S.C. 1313(c). 

The ND DoH’s Web site’s home page public notice of the announcement of the 

(ND DoH) Triennial Review of the Standards of Quality for Water of the State as 

Required by 33 U.S.C. 1313(c) appears to be deliberately misleading by only emphasizing and discussing the effects of the ‘‘intent to amend administrative rules relating to standards of water quality’’ for the proposed Sheyenne River segment reclassification in order to accommodate the discharging of even more polluted Devils 

Lake waters, for a longer period of time into an out of basin location, to a point 

source in the Sheyenne River. However that is not our understanding of the purpose 

of a Triennial Review. The ND DoH’s statutory and fiduciary responsibilities to 

maintain and improve the quality of waters of the State of North Dakota as required by 33 U.S.C. 1313(c), as we understand a Triennial Review, are to include 

all of the ND DoH’s handling of water quality issues in the State of North Dakota 

for the last three (3) years. 

The North Dakota Department of Health has a seemingly, long, unimpressive history of upholding the Standards of Quality for Water of the State as Required by 

33 U.S.C. 1313(c). 

Examples of this unimpressive history are numerous, only a few will be cited in 

these comments, at this time. 

An example of the failure of the ND DoH’s statutory and fiduciary responsibilities 

to maintain and improve the quality of waters of the State of North Dakota as required by 33 U.S.C. 1313(c), is the ever changing, site specific, study standards of 

groundwater aquifers for the needed ND DoH’s permit approval of private or public 

projects, such as the Grand Forks Landfill and the many Confined Animal Feeding 

Operations’ (CAFOs, Animal Factories) sewage ponds scattered around the State. 

The study standards appear to be tailored to meet the very lowest, if even that, of 

the newly lowered acceptable limit of each of the individual projects’ required needs 

for permit approval. 

Another example(s) of the abysmal failure of the ND DoH’s statutory and fiduciary responsibilities to maintain and improve the quality of waters of the State of 

North Dakota as required by 33 U.S.C. 1313(c), is the lack of substantive, regular 

inspections of facilities, infrastructures and procedures that are capable of producing 

irrevocable harm to the Quality for Waters of the State of North Dakota are the 

two oil well, salt water spills into the Charbonneau Creek, a tributary of the Yellowstone River. ‘‘(David) Glatt said the company did not report the August 2005 spill, 

and regulators learned of it only while investigating the spill that occurred more 

than a year later.’’ Quote taken from the Associated Press—Monday, October 27, 

2008, article titled ‘‘Federal lawsuit filed in huge saltwater spill’’. Enclosed. 

The lack of awareness by the ND DoH of the aforementioned incident(s) does not 

appear to be an isolated incident. Again, another example; ‘‘But the department’s 

water quality director, Dennis Fewless, said he hadn’t even heard about the practice 

until asked about it this week by The Associated Press.’’... ‘‘Transportation engineer Brad Darr said the saltwater has been used on State roads in the Dickinson 

area of southwestern North Dakota since the late 1960s, and the practice has expanded to some other parts of the State in the past decade.’’ For approximately 40 

plus years, the ND DoH’s statutory and fiduciary responsibilities to maintain and 

improve the quality of waters of the State of North Dakota as required by 33 U.S.C. 

1313(c) has been seriously compromised by the ND DoH’s (willful?) lack of awareness due to the ND DoH’s lack of substantive, regular inspections of facilities, infra-
146 

structures and procedures that are capable of producing irrevocable harm to the 

Quality for Waters of the State of North Dakota. Quotes taken from the Associated 

Press—Saturday, February 03, 2007, article titled ‘‘ND State de-ices highways with 

oil well saltwater’’. Enclosed. 

With the ongoing and anticipated long lasting oil boom in North Dakota’s Bakken 

Shale Formation, the Three Forks-Sanish Formation and a crude-bearing cache 

known as the Birdbear, and with the ND DoH’s history of the lack of awareness, 

the ND DoH’s lack of substantive, regular inspections of facilities, infrastructures 

and procedures, are the North Dakota citizens really expected to entrust the ND 

DoH to inspect, regulate, and enforce generally accepted industrial standards & procedures for oil well produced water, produced water transportation, storage and disposal, the regulation of coal ash ponds, etc., for another 3 years without an on-going 

program of intensive over-sight of the ND DoH’s activities in regulating water quality in the navigable waters of the United States within North Dakota? The oil boom 

is so intense that there is now talk by the oil industry, in their rush to exploit all 

possible oil bearing formations, of their intentions of constructing offshore oil drilling and pumping platforms in the middle of Lake Sakakawea?, under the bed of the 

Missouri River. With the potential to allow and permit such activities the ND DoH 

risks that pollutants, such as drilling mud, petroleum products, the BTEX chemicals 

and other pollutants may be released, whether intentionally or accidentally, into the 

Waters of the State of North Dakota, the Waters of the United States causing irrevocable harm to the Quality of the Waters. 

Since none of our, Peterson Coulee Outlet Association (PCOA), previous concerns 

dealing with the Temporary Emergency Devils Lake Outlet (TEDLO, Outlet) have 

ever been substantively addressed, we would like to submit those concerns at this 

time. A great number of these concerns have been published in the form of Letters 

to the Editor(s) in the local county newspapers of record and are therefore, a matter 

of public record which can be found in the local county newspaper of records’ archives; the ND DoH must consider those previous Letters to the Editor(s), PCOA’s 

oral testimony at the February 17, 2010, ND DoH’s Bismarck, North Dakota, hearing and PCOA’s written submitted comments of November 4, 2009, along with the 

new concerns outlined in this document when considering the desirability of the ND 

DoH’s Intent to Amend Administrative Rules Relating to Standards of Water Quality in a Segment of the Sheyenne River. 

By the ND DoH’s approval of the Amending of Administrative Rules to change 

the Classification of a Segment of the Sheyenne River, for the sole purpose of allowing the uninterrupted, continual discharge of polluted Devils Lake water into the 

Sheyenne River, the ND DoH is also approving the construction of a permanent 

Round Lake intake structure and is therefore, willfully attempting to change the 

North Dakota legislative policy and intent of a Temporary (not intermittent) Emergency Devils Lake Outlet. 

Page 3 and 4 of the of the 52 page ND DoH’s ‘‘Notice Of Intent To Amend Administrative Rules Relating To Standards Of Water Quality’’ states in part: 

North Dakota Administrative Code 33–16–02.1(2)(a), specifies that: ‘‘The ‘quality 

of waters’ (of the State) shall be the quality of record at the time the first standards 

were established in 1967, or later if these indicate improved quality. Waters with 

existing quality that is higher than established standards will be maintained at the 

higher standard unless affirmatively demonstrated, after full satisfaction of the 

intergovernmental coordination and public participation provisions of the continuing 

process, that a change is necessary to accommodate important social or economic development in the area which the waters are located. In allowing the lowering of existing quality, the (North Dakota Department of Health) shall assure that existing 

uses are fully protected and that the highest statutory and regulatory requirements 

for all point sources and cost-effective and reasonable best management practices 

for nonpoint sources are achieved.’’ [Emphasis Added] 

In February of 2006, the Peterson Coulee Outlet Association asked the United 

States Army Corps if the closed basin of Devils Lake was now considered connected 

to the Red River/Sheyenne River system because of the operation and discharge 

flows from the Temporary Emergency Devils Lake Outlet. The United States Army 

Corps response letter is attached and states in part, ‘‘When Devils Lake is below 

elevation 1,459, Devils Lake is considered ‘non-contributing’ and, therefore, not 

hydrologically connected to the Sheyenne or Red River basins’’. And will not be considered ‘‘contributing’’ to the Sheyenne or Red river basins, until the lake of Devils 

Lake naturally overflows the elevation of 1,459 msl., therefore, it is the PCOA’s contention that the ND DoH can not legally change the Sheyenne River classification, 

because the closed basin of Devils Lake is not in ‘‘in the area which the waters are 

located’’ which are the waters that will be degraded by the proposed Sheyenne River 

reclassification. 
147 

Due to the diminutive size and the minute discharges from the Temporary Emergency Devils Lake Outlet, the Outlet is too small to ever be considered any real relief to the Devils Lake lakebed’s inundated acres. With the lake of Devils Lake at 

a present level, of approximately 1,450 msl, with a prediction of an additional two 

(2) foot rise this spring and the Temporary Emergency Devils Lake Outlet, discharging at 100 cubic feet per second (cfs) or even at a discharge rate of 250 cfs, 

the Outlet will not have any substantive effect on lowering a lake with a volume 

of approximately 3,375,692 acre feet (at the 1,450 msl elevation) or even substantially slowing the rate of rise of a lake that has had averaged inflows into the lake 

of Devils Lake of 317,000 acre-feet per year from 1993 to 2000 (U.S. Army Corps 

of Engineers, 2002). The Temporary Emergency Devils Lake Outlet is more symbolic 

than significant. The Temporary Emergency Devils Lake Outlet’s Application to 

Drain, No. 3457 and the ND DoH’s Intention to Amend Administrative Rules Relating to Standards of Water Quality for a Segment of the Sheyenne River may be 

some sort of a psychological relief but it is not any real relief to the inundated lake 

bed acres. A psychological relief is not a legally, defensible reason that accommodates important social or economic development in the area, for the granting of a 

permit for the Application to Drain, No. 3457 or for the ND DoH’s Intention to 

Amend Administrative Rules Relating to Standards of Water Quality for a Segment 

of the Sheyenne River. 

At the present time, Devils Lake’s current elevation of approximately 1,450 means 

sea level (msl), has a vast number of acres above the numerous various meanderline 

elevations, yet below the Ordinary High Water Mark and are owned in fee simple, 

by private individuals and by the deliberate actions by man, to cause the draining 

of Sovereign Lands, by the granting of a permit for the Application to Drain, No. 

3457 and the ND DoH’s Intention to Amend Administrative Rules Relating to 

Standards of Water Quality for a Segment of the Sheyenne River, it would be considered the willful conversion of the Sovereign Lands to private ownership in the 

judicial system. Sovereign Lands are lands held in perpetual trust for the benefit 

of all the citizens of the State of North Dakota, the conversion of Sovereign Lands 

for the sole benefit of a select few private individuals’ economic enjoyment is in itself 

an illegal act. Only through acts of nature, such as evaporation, could the lake bed 

acres perhaps, perhaps legally revert back to those select few private individuals. 

The laws of North Dakota are quite clear; 

North Dakota Administrative Code, Article 89–10, Sovereign Lands, chapter 89– 

10–01, section 89–10–01–02. Prohibition on permanent relinquishment. Sovereign 

lands may not be permanently relinquished but must be held in perpetual trust for 

the benefit of the citizens of the State of North Dakota. All structures permitted or 

otherwise allowed for private use on sovereign lands are subordinate to public use 

and values. 

and; 

North Dakota Century Code 61–33–01, Definitions, No. 3, ‘‘Sovereign Lands’’ 

means those areas, including beds and islands, laying within the ordinary high watermark of navigable lakes and streams. 

The ND DoH’s ‘‘Intent to Amend Administrative Rules Relating to Standards of 

Water Quality’’ for the proposed Sheyenne River segment reclassification is not; Legally Defensible, Economically Defensible, Morally Defensible or, Environmentally 

Defensible! 

For all of the afore mentioned cases cited above and because North Dakota Department of Health officials have failed miserably to act in a professional, truthful 

and responsible manner to meet their statutory and fiduciary responsibilities to 

maintain and improve the quality of the water of waters of the State of North Dakota as required by 33 U.S.C. 1313(c), and have instead decided to compromise their 

professional integrity, the ND DoH clearly lacks the credibility and the competence 

to regulate the administering, inspecting and enforcing the Standards of Quality for 

Waters of the State. Therefore, the Administrator of the United States Environmental Protection Agency should immediately implement a comprehensive review of 

all of the department’s actions under the Federal Clean Water Act and establish an 

on-going program of intensive over-sight of the department’s activities in regulating 

water quality in the navigable waters of the United States within North Dakota. 

We will leave you with this one parting comment to ponder, taken from the Final 

Biennial Report for 1911–1912, North Dakota State Engineer to the Governor, 

which states in part: 

‘‘The water level of any lake possessing no outlet depends on the amount of evaporation, seepage, rainfall and runoff into the Lake from the drainage area tributary 
148 

to it. The drainage area of Devils Lake is nearly 2,000 square miles, but the land 

lies so nearly level, and there are so many marshes, meadows, small ponds and 

lakes which arrest the flow of the water and from which it evaporates that it is not 

likely that the runoff from more than 700 or 800 square miles of the total area ever 

reaches the lake.’’ [Emphasis Added] 

The PCOA would also humbly request that our comments and enclosures be included in any submissions that the ND DoH makes to the Untied States Environmental Protection Agency in connection with the Triennial Review of the Standards 

of Quality for Waters of the State of North Dakota under 33 U.S.C. 1313(c). 

Sincerely, 

MRS. THELMA PAULSON, 

President. 

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

FEDERAL LAWSUIT FILED IN HUGE SALTWATER SPILL

A rancher is suing an Oklahoma oil company over a pipeline that twice spilled 

saltwater into a creek and on land where she runs her cattle in northwestern North 

Dakota. 

Linda Monson, of Alexander, said nothing but weeds have grown where Zenergy, 

Inc., of Tulsa, Oklahoma, spilled salty water. 

‘‘There’s nothing growing where they had those spills, and my cows still refuse 

to drink from the creek,’’ she said. 

Monson was one of about a dozen ranchers affected by the saltwater spill near 

Alexander that was discovered in January 2006. The spill has been described as the 

worst in North Dakota’s oil history. 

The saltwater, a byproduct of oil production, flooded a stock pond and a beaver 

dam, and flowed into Charbonneau Creek, a tributary of the Yellowstone River. 

Monson said a similar spill occurred in August 2005 that never was reported to 

authorities. 

Saltwater from the pipeline, containing water 10 times as salty as sea water, 

killed fish, turtles and plants along the creek after both spills, she said. 

Monson’s Federal lawsuit seeks at least $75,000 from Zenergy. 

Company officials did not return telephone calls on Monday seeking comment. 

State officials last year reached a $123,000 settlement with Zenergy, said Dave 

Glatt, the director of the State Health Department’s environmental health section. 

A fine of $31,750 was suspended ‘‘for following through on their corrective action 

plan,’’ Glatt said. 

Glatt said the company did not report the August 2005 spill, and regulators 

learned of it only while investigating the spill that occurred more than a year later. 

Zenergy is continuing with the cleanup, which has cost the company more than 

$2 million so far, Glatt said. 

The company has excavated tons of contaminated soil from the spill site. It has 

said the creek is as clean as it was before the spill and has been repopulated with 

turtles and fish. 

‘‘That’s my understanding, and leads us to believe the cleanup is headed in the 

right direction,’’ Glatt said. 

Monson and her attorney, Derrick Braaten of Bismarck, are not convinced. They 

worry about the long-term effect of the spills.‘‘One of the main concerns is that there 

is still saltwater underground and it’s not static—it can move,’’ Braaten said. 

Monson and Braaten also said the company’s cleanup operation has worsened the 

flow of water into the creek.‘‘They’ve cut off the main water veins that feed the 

creek,’’ Monson said.‘‘A fairly large chunk of the creek is dried up now,’’ Braaten 

said. 

The creek had never been dry before the spills, Monson said. 

Zenergy has offered a total of about $7,000 to Monson to settle the issue, though 

she has declined, Braaten said. ‘‘I haven’t taken anything from them,’’ Monson said. 

The company has one oil well on Monson’s land. She says the horizontal well is 

aimed at government land adjacent to her property and says she receives no royalties from the well’s production. 

Zenergy has drilled a new water well on Monson’s ranch so she can water her 

cattle without the creek. She says it’s not enough.‘‘I just want some fairness,’’ she 

said. 
149 

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

NORTH DAKOTA—STATE DE-ICES HIGHWAYS WITH OIL WELL SALTWATER

For about 40 years, State workers have dumped saltwater left over from oil production on some North Dakota roads, including those in the Devils Lake area. 

That’s news to the Health Department, which wants the practice stopped. 

The Transportation Department claims oil well wastewater up to 10 times saltier 

than sea water is a safe, effective and cheap deicer. 

Environmentalists are stunned that workers have dumped tens of thousands of 

gallons of the potentially contaminated stuff on roads every year, causing unknown 

harm to wetlands, streams and water supplies. 

SIERRA CLUB VIEW

‘‘I can’t imagine anybody would sign off on this,’’ said Wayde Schafer, a North Dakota spokesman for the Sierra Club. 

‘‘When it leaves the well site and is in an oil company truck, it’s considered toxic 

material,’’ he said. ‘‘If they have just one drip from the truck, they’re fined. But 

when it’s transferred to a State truck, it’s spread wholesale along the interstate. It 

definitely makes one wonder.’’ 

HEALTH DEPARTMENT VIEW

Transportation spokeswoman Peggy Anderson said the State Health Department 

had approved the use of the salty wastewater for deicing. But the department’s 

water quality director, Dennis Fewless, said he hadn’t even heard about the practice 

until asked about it this week by The Associated Press. 

‘‘In our opinion, we did not give them our blessing on this practice,’’ Fewless said 

Friday. 

Fewless said the wastewater pulled from oil wells may contain oil and chemicals 

from drilling operations. ‘‘The bottom line is, we need to look to the future and look 

for better options and phase this process out,’’ Fewless said. 

NORTH DAKOTA DOT’S VIEW

Transportation Department officials say they have not seen any ill effects caused 

by the saltwater, such as dead vegetation along highways or rustier-than-normal vehicles. 

Transportation engineer Brad Darr said the saltwater has been used on State 

roads in the Dickinson area of southwestern North Dakota since the late 1960s, and 

the practice has expanded to some other parts of the State in the past decade. 

SALTWATER IS FREE

Darr said the Transportation Department had no exact figure, but uses ‘‘tens of 

thousands of gallons’’ of the saltwater each year, at no charge from the oil companies who otherwise would have to pay someone to haul it off. ‘‘They can have all 

they want,’’ said Dave Wanner, a manager at Missouri Basin Well Service in 

Belfield, North Dakota. 

Darr said the use of the oil field wastewater has been expanded in the past decade to State roads in Williston, Minot and Devils Lake. 

Larry Gangl, the district engineer for the Transportation Department in Dickinson, said about 30 gallons of the undiluted saltwater is applied each mile to slick 

highways. Sometimes, it is mixed with sand, he said. ‘‘It cuts through the ice and 

helps sand stick to the ice,’’ Gangl said. 

Gangl said the salty water has been applied in just the past couple of years before 

a predicted storm. That led to a few complaints, he said, but he believes it helps 

keep roads safe. ‘‘We’re doing it for the safety of the traveling public,’’ Gangl said. 

‘‘Once they hear that, they are pretty fine with it.’’ 

Schafer, of the Sierra Club, said his group has found no other States that use oil 

well saltwater for deicing. 

MONTANA DOT’S VIEW

Charity Watt Levis, a spokeswoman for the Montana Department of Transportation, said the State does not use the salt brine from oil wells. ‘‘It is something 

that we looked at not something that we’ve really studied closely but on the surface, 

it looks as though the heavy metals that might be in there wouldn’t meet the Montana Department of Transportation specifications,’’ she said. 
150 

Wanner, a manager at Missouri Basin Well Service in Belfield, North Dakota said 

the saltwater may contain traces of oil residue with a ‘‘little tiny film to it,’’ but that 

it is not dangerous to the environment if applied sparingly. ‘‘It’s not that nasty at 

all. You don’t see dead grass along the highways out here,’’ Wanner said. ‘‘They 

don’t put it on that heavy.’’ 

PETERSON COULEE OUTLET ASSOCIATION, 

Maddock, North Dakota, February 22, 2010. 

Mr. JIM HERDA, 

Office Manager, 524 4th Avenue North East, Unit #12, Devils Lake, North Dakota 

58301–2490. 

DEAR SIR: Thank you for the opportunity to provide comments to the Application 

to Drain, No. 3457. 

Since none of our, Peterson Coulee Outlet Association (PCOA), previous concerns 

dealing with the Temporary Emergency Devils Lake Outlet have ever been substantively addressed, we would like to resubmit those concerns at this time. A great 

number of these concerns have been published in the form of letters to the Editor(s) 

in the local county newspapers of record and are therefore, a matter of public record 

which can be found in the local county newspaper of records’ archives; you must 

consider those previous Letters to the Editor(s) along with the new concerns outlined in this document when considering the desirability of approving the Application to Drain, No. 3457. 

Clearly, the Governor of North Dakota, in conjunction with the North Dakota 

State Water Commission, is attempting to shift the liability for any and all damages 

caused by the Temporary Emergency Devils Lake Outlet to the Joint RamseyTowner County Water Resource Board. The Governor of North Dakota has the legal 

power, granted to him by the people of North Dakota, to proclaim an Executive 

Order, for the greater good of the all the citizens of North Dakota and proceed with 

this drainage scheme, Application to Drain, No. 3457, without the need for the solicitation and involvement of any local County Water Resource Board(s). Are the individual board members of the Joint Ramsey-Towner County Water Resource Board 

willing to accept their fiduciary responsibilities associated with the potential liabilities of the Application to Drain, No. 3457? 

By the granting of a permit for the Application to Drain, No. 3457, the Joint 

Ramsey-Towner County Water Resource Board is also approving the construction of 

a permanent Round Lake intake structure and is therefore, willfully attempting to 

change the North Dakota legislative policy and intent of a Temporary (not intermittent) Emergency Devils Lake Outlet. The PCOA has not been able to find, anywhere, the Joint Ramsey-Towner County Water Resource Board’s legally required 

reclamation plan for the Temporary Emergency Devils Lake Outlet real properties, 

after the emergency has passed. 

The Joint Ramsey-Towner County Water Resource Board is premature in considering the Application to Drain, No. 3457, until all of the other necessary components 

(that is permits, reclassifications, etc., which are needed for the workability of the 

application to Drain, No. 3457), have been obtained, such as the interconnection permit, from the Western Area Power Administration (WAPA, along with WAPA’s Federally required cost/benefit for the entire drainage scheme), needed for the additional electricity to power the pumps for the proposed increase in the drainage discharge flows, the North Dakota Department of Health’s (ND DoH) permanent reclassification standards for the Sheyenne River, the application is incomplete without the obtaining of all of the required downstream flowage easements by the petitioners for the approval of the Application to Drain, No. 3457, to name just a few. 

North Dakota Administrative Code 33–16–02.1(2)(a), specifies that: ‘‘The ‘quality 

of waters’ (of the State) shall be the quality of record at the time the first standards 

were established in 1967, or later if these indicate improved quality. Waters with 

existing quality that is higher than established standards will be maintained at the 

higher standard unless affirmatively demonstrated, after full satisfaction of the 

intergovernmental coordination and public participation provisions of the continuing 

process, that a change is necessary to accommodate important social or economic development in the area which the waters are located. In allowing the lowering of existing quality, the (North Dakota Department of Health) shall assure that existing 

uses are fully protected and that the highest statutory and regulatory requirements 

for all point sources and cost-effective and reasonable best management practices 

for nonpoint sources are achieved.’’ [Emphasis Added] 

In February of 2006, the Peterson Coulee Outlet Association asked the United 

States Army Corps if the closed basin of Devils Lake was now considered connected 
151 

to the Red River/Sheyenne River system because of the operation and discharge 

flows from the Temporary Emergency Devils Lake Outlet. The United States Army 

Corps response letter is enclosed and states in part, ‘‘When Devils Lake is below 

elevation 1,459, Devils Lake is considered ‘non-contributing’ and, therefore, not 

hydrologically connected to the Sheyenne or Red River basins’’. And will not be considered ‘‘contributing’’ to the Sheyenne or Red river basins, until the lake of Devils 

Lake naturally overflows the elevation of 1,459 msl., therefore, it is the PCOA’s contention that the ND DoH can not legally change the Sheyenne River classification, 

because the closed basin of Devils Lake is not in ‘‘in the area which the waters are 

located’’ which are the waters that will be degraded by the proposed Sheyenne River 

reclassification. 

The Application to Drain, No. 3457, forum is incomplete. Question number nine 

of the application forum reads; 

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

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

And the partial answer was; 

Majority of the land is sovereign land held in trust by the State of North Dakota 

A ‘‘Majority of the land’’ . . . is not all of the land, the other names and addresses 

of the legal landowner(s) have not been provided with the Application to Drain, No. 

3457. Until such time when the other names and addresses of all of the legal landowner(s) have been provided, the Joint Ramsey-Towner County Water Resource 

Board can not legally grant a permit for the Application to Drain, No. 3457. 

At the present time, Devils Lake’s current elevation of approximately 1,450 means 

sea level (msl), has a vast number of acres above the various meanderline elevations 

and are owned in fee, by private individuals, by the deliberate actions by man, to 

cause the draining of Sovereign Lands, by the granting of a permit for the Application to Drain, No. 3457, it would be considered the willful destruction of the Sovereign Lands, in the judicial system. Sovereign Lands are lands held in perpetual 

trust for the benefit of the citizens of the State of North Dakota, the destruction 

of Sovereign Lands for the sole benefit of a select few private individuals’ economic 

enjoyment is in it-self an illegal act. Only through acts of nature, such as evaporation, could the lake bed acres perhaps, perhaps legally revert back to those select 

few private individuals. The laws of North Dakota are quite clear; 

North Dakota Administrative Code, Article 89–10, Sovereign Lands, chapter 89– 

10–01, section 89–10–01–02. Prohibition on permanent relinquishment. Sovereign 

lands may not be permanently relinquished but must be held in perpetual trust for 

the benefit of the citizens of the State of North Dakota. All structures permitted or 

otherwise allowed for private use on sovereign lands are subordinate to public use 

and values. 

and; 

North Dakota Century Code 61–33–01, Definitions, No. 3, ‘‘Sovereign Lands’’ 

means those areas, including beds and islands, laying within the ordinary high watermark of navigable lakes and streams. 

Since the Temporary Emergency Devils Lake Outlet has been operating and discharging the drained waters from the large wetland, that is referred to by the name 

of Devils Lake, (whether the Temporary Emergency Devils Lake Outlet has been effective at draining and maintaining the lake at a set elevation or not) the Untied 

States Department of Agriculture (USDA) through its subordinate agencies, the 

Farm Service Agency (FSA) and the Natural Resources Conservation Service 

(NRCS) will consider any drained, inundated croplands recovered, to be 

unpermitted, drained, converted wetlands and unless those drained, converted wetlands are properly mitigated with an equal number of restored wetland acres, within the same hydrological area, a landowner, farmer, operator will not be able to harvest agricultural commodities from those drained, converted wetlands. To do so 

would put the landowner, farmer, operator out of compliance with the USDA’s subordinate agencies’ regulations. The potential consequence of such compliance violations, the landowner, farmer, operator will lose all of their USDA, FSA, NRCS Federal agricultural subsidies for the year in which the violation occurred, all future 

subsidy payments will be withheld until the violation has been corrected or mitigated and the mandatory repayment of all agricultural subsidies received for the 

previous 10 years from/for the USDA’s FSA, NRCS Federal agricultural subsidy programs, if the landowner, farmer, operator had so chosen to enroll in the USDA’s 

FSA, NRCS Federal agricultural subsidy programs. The Joint Ramsey-Towner 
152 

County Water Resource Board will be putting their constituents at a great risk of 

harm by granting the permit for the Application to Drain, No. 3457. 

Due to the diminutive size and the minute discharges from the Temporary Emergency Devils Lake Outlet, the Outlet is too small to ever be considered any real relief to the Devils Lake lakebed’s inundated acres. With the lake of Devils Lake at 

a present level, of approximately 1,450 msl, and the Temporary Emergency Devils 

Lake Outlet discharging at 100 cubic feet per second (cfs) or even at a discharge 

rate of 250 cfs, the Outlet will not have any substantive effect on lowering a lake 

with a volume of approximately 3,375,692 acre feet (at the 1,450 msl elevation) or 

even substantially slowing the rate of rise of a lake with averaged inflows to the 

lake of Devils Lake of 317,000 acre-feet per year from 1993 to 2000 (U.S. Army 

Corps of Engineers, 2002). The Temporary Emergency Devils Lake Outlet is more 

symbolic than significant. The Temporary Emergency Devils Lake Outlet’s Application to Drain, No. 3457 may be some sort of a psychological relief but is not a real 

relief to the inundated lake bed acres. A psychological relief is not a legally, defensible reason that accommodates important social or economic development in the 

area for granting a permit for the Application to Drain, No. 3457. 

As of today’s date, the PCOA has not found anywhere a social/economic report of 

the potential costs/impacts/benefits of the proposed Application to Drain, No. 3457. 

As of today’s date, the PCOA has found no evidence of any attempt by Joint 

Ramsey-Towner County Water Resource Board to obtain the required downstream 

flowage easements for the Application to Drain, No. 3457. 

As of today’s date, the PCOA is aware of less than 10 general public comments 

indicating the desire for the approval of Application to Drain, No. 3457. This lack 

of general public support in favor of approval for the Application to Drain, No. 3457, 

indicates an overwhelming desire by the public to not grant the permit for the Application to Drain, No. 3457. 

The Application to Drain, No. 3457, is not; Legally Defensible, Economically Defensible, Morally Defensible or, Environmentally Defensible! 

For all of the above reasons the Peterson Coulee Outlet Association opposes the 

approval and granting of the permit associated with the Application to Drain, No. 

3457. 

We will leave you with this one parting comment to ponder, taken from the Final 

Biennial Report for 1911–1912, North Dakota State Engineer to the Governor, 

which states in part: 

‘‘The water level of any lake possessing no outlet depends on the amount of evaporation, seepage, rainfall and runoff into the lake from the drainage area tributary 

to it. The drainage area of Devils Lake is nearly 2,000 square miles, but the land 

lies so nearly level, and there are so many marshes, meadows, small ponds and 

lakes which arrest the flow of the water and from which it evaporates that it is not 

likely that the runoff from more than 700 or 800 square miles of the total area ever 

reaches the lake.’’ [Emphasis Added] 

Sincerely, 

MRS. THELMA PAULSON, 

President. 

PETERSON COULEE OUTLET ASSOCIATION, 

Maddock, North Dakota, February 12, 2010. 

Mr. DIRK SHULUND, 

P.O. Box 35800, Billings, Montana 59107–5800. 

DEAR MR. SHULUND: We are aware that the North Dakota State Water Commission (ND SWC) is required to obtain and has requested, an interconnection permit 

for the electricity that will travel through the newly constructed electrical transmission line to power the additional electrical motors needed to increase the discharge of Devils Lake waters through the Temporary Emergency Devils Lake Outlet 

(TEDLO) project. 

—What is the status of the requested ND SWC’s TEDLO interconnection permit? 

—If the requested ND SWC’s TEDLO interconnection permit has been granted 

what is the cost/impact/benefit ratio for the ND SWC’s TEDLO associated with 

the granted interconnection permit? 

—What is the estimated additional newly created ‘‘carbon foot print’’ associated 

with the granting of the ND SWC’s TEDLO interconnection permit? 

—What is the estimated increase of the cost of electricity to the other consumers 

of electricity in the region, because of the increased demand for the limited 
153 

available, existing electrical capacity in North Dakota, associated with the 

granting of the ND SWC’s TEDLO interconnection permit? 

—What provisions by the Western Area Power Administration (WAPA) are in 

place or are being proposed by WAPA, for achieving compliance with the requirement of the National Environmental Policy Act (NEPA), section 102 (C), 

for an Environmental Impact Statement (EIS) covering the issuance of the 

interconnection permit? 

Sincerely, 

MRS. THELMA PAULSON, 

President. 

PETERSON COULEE OUTLET ASSOCIATION, 

Maddock, North Dakota, November 4, 2009. 

L. DAVID GLATT, 

P.E., Chief, Environmental Health Section, North Dakota Department of Health, 

Gold Seal Center, 918 E. Divide Ave. Bismarck, North Dakota 58501–1947. 

DEAR SIR: Thank you for the opportunity to address a few of the numerous concerns from the citizens of North Dakota in the form of comments to the North Dakota Department of Health’s, July 15, 2009, Proposal to Adopt an Emergency Rule 

adding a New Section to North Dakota Administrative Code Chapter 33–16–02.1, 

Standards of Quality for Waters of the State to Change the Classification of the 

Upper Sheyenne River and Increase the Maximum Limit for Sulfate in the River 

From 450 mg/L to 750 mg/L. 

North Dakota State law states: ‘‘Sovereign lands may not be permanently relinquished but must be held in trust for the benefit of the citizens of North Dakota’’. 

This has not been the case with the lake bed of Devils Lake, located in the State 

of North Dakota. Since the time of North Dakota statehood, the North Dakota State 

government has known that the lake of Devils Lake’s Ordinary High Water Mark 

(OHWM) is between 1,458 to 1,459 means sea level (msl), with a Natural Overflow 

Elevation (NOE) of 1,459 msl. The Lake of Devils Lake’s natural tendency is to fluctuate. Devils Lake has not yet reached its OHWM or its NOE. Sometime in the 

past, during one of the lake’s naturally occurring low fluctuations, the North Dakota 

State government, in all its combined wisdom, deeded, permanently relinquished, 

the temporarily dried lake bed bottom, Sovereign lands, to private individuals for 

their personal economic gains. At that time the North Dakota State government had 

breeched the trust of the citizens of North Dakota by condoning the illegal sale of 

the People of North Dakota’s lands. Now the North Dakota Department of Health 

(ND DoH), by declaring an Emergency, with an Imminent Peril to life and property 

on the, privately owned, illegally deeded lake bed, and because of the lake’s natural 

fluctuation, the lake is now filling its previously dry lake bed area, the ND DoH 

is now an active accomplice to this illegal act of stealing the Sovereign Land’s away 

from the good citizens of North Dakota. If the ND DoH had been unbiased and by 

actually taking their responsibilities seriously, thereby doing their required due diligence of taking a hard look at the laws of North Dakota, the ND DoH would have 

known better than to declare an Emergency of Imminent Peril for lands below the 

OHWM and NOE. This comment is not beyond the scope of the issues regarding 

the North Dakota Department of Health’s, July 15, 2009, Proposal to Adopt an 

Emergency Rule adding a New Section to North Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for Waters of the State to Change the Classification of the Upper Sheyenne River and Increase the Maximum Limit for Sulfate 

in the River from 450 mg/L to 750 mg/L. 

The proposed PERMANENT Upper Sheyenne River Reclassification by the ND 

DoH, runs counter intuitive to the clear intent of the North Dakota’s 58th Legislative Assembly to construct a TEMPORARY Emergency Devils Lake Outlet. The ND 

DoH is deliberately attempting to circumvent the desires of the North Dakota citizen’s legislature by this permanent Upper Sheyenne River Reclassification in order 

to allow the operation of the Temporary Emergency Devils Lake Outlet to be come 

in reality a Permanent Emergency Devils Lake Outlet. This comment is not beyond 

the scope of the issues regarding the North Dakota Department of Health’s, July 

15, 2009 Proposal to Adopt an Emergency Rule adding a New Section to North Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for Waters of 

the State to Change the Classification of the Upper Sheyenne River and Increase 

the Maximum Limit for Sulfate in the River from 450 mg/L to 750 mg/L. 

The ND DoH’s proposed, Permanent Upper Sheyenne River Reclassification is seriously lacking statewide support. There has been absolutely no overwhelming 

North Dakota public out cry demanding a Permanent Upper Sheyenne River Reclas-
154 

sification. None, absolutely none, of the State’s major population centers, the cities 

of Fargo, Grand Forks, Bismarck, Minot, Williston, Dickinson have passed any resolutions in support of, petitioned the North Dakota legislature for, or even sent letters to the Environmental Protection Agency begging, for this degrading Upper 

Sheyenne River Reclassification, which would permanently allow the pumping 

greater quantities, of ever lower quality waters, into the Upper Sheyenne River. If 

the ND DoH would have taken their responsibilities seriously, had taken a hard 

look and did their required due diligence, the ND DoH would have known better 

than to suggest that the filling of a lake is an Emergency of Imminent Peril and 

of State Wide Significance therefore a proposed permanent river reclassification for 

a temporary emergency would never have been considered. This comment is not beyond the scope of the issues regarding the North Dakota Department of Health’s, 

July 15, 2009, Proposal to Adopt an Emergency Rule adding a New Section to North 

Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for Waters 

of the State to Change the Classification of the Upper Sheyenne River and Increase 

the Maximum Limit for Sulfate in the River from 450 mg/L to 750 mg/L. 

If the ND DoH had seriously taken a hard look, completed their required due diligence, for the citizens of North Dakota, the ND DoH would be aware that they are 

premature in proposing a Permanent Emergency Upper Sheyenne River Reclassification. The North Dakota State Water Commission (ND SWC) (one, of the only two 

entities, petitioning for the Permanent Emergency Upper Sheyenne River Reclassification, the other being the city of Devils Lake) has applied for, months ago, but 

has not yet, at this time, received the approval for an Interconnection Permit from 

the Western Area Power Administration (WAPA, a Federal Governmental Agency) 

that is needed for the additional electrical power to operate the four additional Temporary Emergency Devils Lake Outlet discharge pumps in order to increase the outlet’s discharge capacity to 250 cubic feet per second (cfs). The granting of an Interconnection Permit from WAPA is highly unlikely. If WAPA grants an Interconnection Permit for the electricity to operate the four additional Temporary Emergency 

Devils Lake Outlet discharge pumps, the Temporary Emergency Devils Lake Outlet 

automatically becomes a Federal project. In order for a Federal Governmental Agency to grant a permit for a project, the project must first meet the Federal Government’s, mandated, stringent legal, environmental and economical requirements. In 

order for WAPA to insure that the Public’s resources will not be wasted on an uneconomical endeavor, the project must be determined to have a positive cost/benefit 

ratio. At the last Devils Lake Task Force meeting, October 29, 2009, in the city of 

Devils Lake North Dakota, an engineer from the ND SWC was asked (and we are 

paraphrasing here), ‘‘That if the Temporary Emergency Devils Lake Outlet could 

have been discharging at the full 250 cfs for the full operating season this year, how 

much would the operation of the outlet lowered the lake elevation (assuming that 

the Permanent Upper Sheyenne River Reclassification was in effect for the whole 

season)?’’ He answered hesitantly, and finally said about 4 to 6 inches, depending 

on the beginning lake level of course and any additional inflows to the lake during 

the pumping season. A better question to have asked would have been, ‘‘How many 

inches of shore line, from around the whole of the lake (or the combined aggregate 

of acres, derived from the inches of shoreline recovered), would have been recovered 

due to the discharges attributed to the Temporary Emergency Devils Lake Outlet?’’ 

The question wasn’t asked, so there is no official answer, to the question. According 

to our calculations the answer would be, very few inches of shoreline recovered, less 

than 5 acres would have been recovered. Not many bushels of agricultural commodities can be raised (at below cost of production, hence the need for agricultural commodity subsidizations) on less than 5 acres of recovered, unproductive, saline lake 

bed. These factors do not meet the Federal Government’s permitting requirements 

for a positive cost/benefit ratio. It is highly unlikely that WAPA will grant the Interconnection Permit. This comment is not beyond the scope of the issues regarding 

the North Dakota Department of Health’s, July 15, 2009 Proposal to Adopt an 

Emergency Rule adding a New Section to North Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for Waters of the State to Change the Classification of the Upper Sheyenne River and Increase the Maximum Limit for Sulfate 

in the River from 450 mg/L to 750 mg/L. 

The ND DoH has not, beyond a reasonable doubt, begun to not even have consider, in a substantive manner, any of the numerous downstream ecological damages to the beneficial uses of, not only the Upper Sheyenne River, but the entire 

Sheyenne River and Red River, that are being and will continue to be, caused by 

the degradation of the excessive amounts of nutrient loading in the Rivers by the 

enactment of the ND DoH’s, July 15, 2009, Proposal to Adopt an Emergency Rule 

adding a New Section to North Dakota Administrative Code Chapter 33–16–02.1, 

Standards of Quality for Waters of the State to Change the Classification of the 
155 

Upper Sheyenne River and Increase the Maximum Limit for Sulfate in the River 

from 450 mg/L to 750 mg/L. On Tuesday, 10:58 a.m., September 29, 2009, a member 

of the Peterson Coulee Outlet Association (PCOA) e-mailed a request for information 

from the ND NoH. After not having received a reply from the ND DoH in a timely 

manner, the PCOA then sent a written letter to the ND DoH on October 8, 2009 

(enclosed). On October 22, 2009, the PCOA received a reply letter from the ND DoH, 

dated October 20, 2009 (enclosed). The POCA did not believe that the ND DoH’s 

October 20, 2009, was a substantive answer to the PCOA’s ‘‘Request for Information 

on the Background studies for the North Dakota Department of Health’s July 15, 

2009 proposal to Adopt an Emergency Rule... ’’. On October 27, 2009, the PCOA 

sent yet another letter to the ND DoH informing the ND DoH of such (enclosed). 

On November 2, 2009, PCOA received a Federal Express Airmail, certified letter 

(only 4 days before the ND DoH’s, July 15, 2009, Proposal to Adopt an Emergency 

Rule . . . comment deadline date) dated October 30, 2009, from the ND DoH (enclosed). Although the October 30, 2009, letter from the ND DoH, did contain a computer disc of spreadsheets compiled from the, 2005–2009, United States Geological 

Survey (USGS) and the North Dakota State Water Commission (ND SWC) of the 

raw data of nutrient loads gathered from the various monitoring gauges along the 

Sheyenne River, the disc did not contain any interpretations of the data or the estimated increase in the nutrient loads being introduced by the additional flows of the 

polluted waters from the lake of Devils Lake or the effects of the additional nutrient 

load will have on the receiving navigable waters, the Sheyenne and Red Rivers. This 

is not the Due Diligence required by the ND DoH under North Dakota statutes for 

a July 15, 2009, Proposal to Adopt an Emergency Rule adding a New Section to 

North Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for 

Waters of the State to Change the Classification of the Upper Sheyenne River and 

Increase the Maximum Limit for Sulfate in the River from 450 mg/L to 750 mg/L. 

The ND DoH’s October 30, 2009, still seems to confuse the PCOA’s request for information with North Dakota’s Open Records law by stating a public entity is not required ‘‘to create or compile a record that does not exist’’. Be that as it may, the 

ND DoH did admit that ‘‘At this time, the Department does not have in its possession 

any records that contain the results of these calculations or that specifically answer 

PCOA’S questions.’’ Nor did the ND DoH October 30, 2009 letter offer any general 

answers to the PCOA’s questions either. This is not the Due Diligence required by 

the ND DoH under North Dakota statutes. The ND DoH has not begun to attempt 

any, hard look, and begin under taking any substantive studies of the effects on the 

receiving waters beneficial uses by the introduction of massive amounts of extremely low quality water, that are being caused by their own, North Dakota Department of Health’s, July 15, 2009, Proposal to Adopt an Emergency Rule adding 

a New Section to North Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for Waters of the State to Change the Classification of the Upper 

Sheyenne River and Increase the Maximum Limit for Sulfate in the River from 450 

mg/L to 750 mg/L. The ND DoH’s stead-fast refusal to fulfill, or even acknowledge, 

its legal responsibility to ‘‘maintain or improve, or both, the quality of the waters 

of the State and to protect existing uses’’ under NDAC Chapter 33–16–02.1. Clearly, 

the ND DoH cannot assure that existing uses of the Sheyenne River will be protected unless the impacts of the proposed emergency rule on those existing uses are 

identified and quantified through the review and analysis of scientific data regarding the resulting changes in water quality in the river. NDAC section 33–16–02. 1– 

02 2c states explicitly: ‘‘Any public or private project or development which constitutes a source of pollution shall provide the best degree of treatment as designated by the ND DoH in the North Dakota pollutant discharge elimination system. (Note that this requirement is under the ‘‘Standards of Quality for Waters of 

the State’’ and is separate from the regulations in NDAC 33–16–01 governing the 

North Dakota Pollution Discharge Elimination System permit.) If review of data and 

public input indicates any detrimental water quality changes, appropriate actions 

will be taken by the department following procedures approved by the Environmental Protection Agency. (North Dakota Antidegradation Implementation Procedure, appendix IV.)’’ (Emphasis added) Clearly, the regulation requires ‘‘review of 

data’’ to determine whether ‘‘detrimental water quality changes’’ will occur and their 

severity, and the failure to review that data will result in failure of the ND DoH 

to discharge its responsibilities under its own regulations to ‘‘take appropriate actions following procedures approved by the Environmental Protection Agency.’’ The 

statement by Mr. Glatt that ‘‘the department does not have in its possession any 

records that contain the results of these calculations’’ constitutes his admission of 

the ND DoH’s willful failure to perform the review required by NDAC chapter 33– 

16–02.1. Moreover, by failing to ‘‘specifically answer PCOA’s questions’’ about the 

impacts of the proposed emergency rule on water quality in the Sheyenne River, the 
156 

ND DoH is deliberately thwarting the very ‘‘public input (regarding) detrimental 

water quality changes’’ provided in its own regulations. This comment is not beyond 

the scope of the issues regarding the North Dakota Department of Health’s, July 

15, 2009, Proposal to Adopt an Emergency Rule adding a New Section to North Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for Waters of 

the State to Change the Classification of the Upper Sheyenne River and Increase 

the Maximum Limit for Sulfate in the River from 450 mg/L to 750 mg/L. 

North Dakota Governor John Hoeven wrote a letter to Secretary of State, the 

Honorable Condoleezza Rice, dated April 20, 2005, (enclosed) assuring the Secretary 

of State that all beneficial uses of waters downstream of the Temporary Emergency 

Devils Lake Outlet will be protected. Paragraph five of that letter reads; ‘‘The permit to discharge water from Devils Lake to the Sheyenne River is designed to protect all beneficial uses of the water downstream. It has extensive compliance requirements including establishment of baseline conditions, monitoring, adaptive 

management and reporting. As part of the adaptive management plan, the permit 

includes a mechanism for recognizing and rapidly addressing issues that may arise.’’ 

Although North Dakota Governor Hoeven was at the time speaking about the first 

ND DoH’s discharge permit, there were at least some minor protections to all of the 

downstream water’s beneficial uses. The North Dakota Department of Health’s, July 

15, 2009, Proposal to Adopt an Emergency Rule adding a New Section to North Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for Waters of 

the State to Change the Classification of the Upper Sheyenne River and Increase 

the Maximum Limit for Sulfate in the River from 450 mg/L to 750 mg/L, willfully 

and totally disregards Governor Hoeven’s previous commitment to the Secretary of 

State, the citizens of the United States of America, the citizens of North Dakota and 

Minnesota, the Federal Canadian Government and the Province of Manitoba. This 

comment is not beyond the scope of the issues regarding the North Dakota Department of Health’s, July 15, 2009, Proposal to Adopt an Emergency Rule adding a 

New Section to North Dakota Administrative Code Chapter 33–16–02.1, Standards 

of Quality for Waters of the State to Change the Classification of the Upper 

Sheyenne River and Increase the Maximum Limit for Sulfate in the River from 450 

mg/L to 750 mg/L. 

The Lake of Devils Lake is filling, according to its own normal natural fluctuation 

cycle. The North Dakota Department of Health is deliberately, shifting, perpetuating and intensifying the problems of this natural fluctuation cycle of the closed 

basin lake of Devils Lake, by this ill-conceived, July 15, 2009, Proposal to Adopt an 

Emergency Rule adding a New Section to North Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for Waters of the State to Change the Classification of the Upper Sheyenne River and Increase the Maximum Limit for Sulfate 

in the River from 450 mg/L to 750 mg/L, to the artificially created (by way of the 

man made, Temporary Emergency Devils Lake Outlet) connection to the downstream Upper Sheyenne River regions. The Temporary Emergency Devils Lake Outlet is not a natural phenomenon; it takes an act of man to throw the switch and 

turn on the discharge pumps. This comment is not beyond the scope of the issues 

regarding the North Dakota Department of Health’s, July 15, 2009, Proposal to 

Adopt an Emergency Rule adding a New Section to North Dakota Administrative 

Code Chapter 33–16–02.1, Standards of Quality for Waters of the State to Change 

the Classification of the Upper Sheyenne River and Increase the Maximum Limit 

for Sulfate in the River from 450 mg/L to 750 mg/L. 

Hence, the North Dakota Department of Health’s, July 15, 2009, Proposal to 

Adopt an Emergency Rule adding a New Section to North Dakota Administrative 

Code Chapter 33–16–02.1, Standards of Quality for Waters of the State to Change 

the Classification of the Upper Sheyenne River and Increase the Maximum Limit 

for Sulfate in the River from 450 mg/L to 750 mg/L is not; Legally Defensible, Economically Defensible or, Environmentally Defensible! 

Sincerely, 

THELMA PAULSON, 

President. 
157 

PETERSON COULEE OUTLET ASSOCIATION, 

Maddock, North Dakota, October 8, 2009. 

Mr. MIKE ELL, 

Environmental Health Section, Surface Water Quality/Lakes/Rivers, North Dakota 

Department of Health, Gold Seal Center, 918 E. Divide Ave. Bismarck, North 

Dakota 58501–1947. 

DEAR MR. ELL: On Tuesday, 10:58 a.m., September 29, 2009, you were sent the 

following e-mail from the Peterson Coulee Outlet Association. As of today’s date, October 8, 2009, we have not had any type of reply from you, perhaps you did not receive our letter. Hence we feel it necessary to send this written letter, to rectify the 

uncertainty. 

We request substantive answers to our questions within fifteen (15) calendar days 

from today’s date, October 8, 2009. 

We realize that no reply or non answers, to these questions are, yet another indication of the North Dakota Department of Health’s lack of background studies for 

the proposed adoption of an Emergency Rule, Adding a New Section to North Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for Waters of 

the State, to Change the Classification of the Upper Sheyenne River and will be 

viewed as such. 

Thank you in advance. 

Sincerely, 

THELMA PAULSON, 

President. 

FW: Devils Lake Downstream Issues Question. What’s Ugly, Smells, Kills Dogs? 

Blue-Green Algae? 

From: Leo Walker (ndleo@hotmail.com) 

Sent: Tue 9/29/09 10:58 a.m. 

To: mell@nd.gov; thomas.scherer@ndsu.edu; roxanne.m.johnson@ndsu.edu 

GOOD MORNING, It was suggested (see the following) that maybe you folks would 

be able to answer our simple questions in a meaningful manner. 

Thank you in advance. 

Sincerely, 

LEO WALKER, 

Peterson Coulee Outlet Association. 

From: John.Glover@wdc.usda.gov 

To: ndleo@hotmail.com; keith.weston@nd.usda.gov; dennis.reep@nd.usda.gov; 

Andy.Wingenbach@nd.usda.gov; toni.yow@nd.nacdnet.net; 

Mike.Collins@nd.usda.gov; Brent.Gustafson@nd.usda.gov 

Date: Tue, 29 Sep 2009 11:27:58–0400 

Subject: Re: Devils Lake Downstream Issues Question. What’s Ugly, Smells, Kills 

Dogs? Blue-Green Algae 

MR. WALKER, In response to your following e-mail message, the Natural Resources Conservation Service does not have the technical background to address 

questions you have posed. 

Some of the questions being asked may very well require detailed literature research or even new scientific study to adequately address the issue. I am recommending you contact North Dakota State University, Water Quality Staff, Thomas 

Scherer, Associate Professor, Thomas.Scherer@ndsu.edu 701–231–7239 

<mailto:Thomas.Scherer@ndsu.edu 701–231–7239> or Roxanne Johnson Roxanne.M.Johnson@ndsu.edu 701–231–8926. 

The North Dakota Department of Health would be another source with such expertise, and have the legal statutory authority to address such an issue. Mike Ell, 

Environmental Administrator, would be an excellent contact for this concern. His 

number is 701–328–5214. 

JOHN GLOVER. 

From: Leo Walker <ndleo@hotmail.com> 

To: Glover, John—Washington, DC; Weston, Keith—Bismarck, ND; Reep, Dennis— 

Bismarck, ND; Wingenbach, Andy—Devils Lake, ND; Yow, Toni—Fessenden, 

ND; Collins, Mike—Jamestown, ND; Gustafson, Brent—Valley City, ND. 

Sent: Mon Sep 28 14:54:02 2009. 
158 

Subject: Devils Lake Downstream Issues Question. What’s Ugly, Smells, Kills Dogs? 

Blue-Green Algae. 

GOOD MORNING, The following article comes to you from the September 27, 2009, 

Grand Forks Herald. Quotes: 

‘‘Blue-green algae are common in waters but not every lake develops serious problems until plentiful ‘‘man-induced’’ nutrients like phosphorous arrive, said Jim 

Vennie, a Wisconsin Department of Natural Resources expert.’’. . .

‘‘Some people say they have gotten nauseous and vomited from smelling it,’’ said 

Ken Schreiber, a Wisconsin Department of Natural Resources water quality specialist.’’. . .

‘‘John Plaza, president of the Chetek Lakes Protection Association, which represents six lakes in northwest Wisconsin, said farm runoff, lawn fertilizers, septic 

systems and even ashes from leaves being burned on the shorelines are among factors contributing to the algae problems.’’ 

We are attempting to write comments concerning the North Dakota Department 

of Health’s reclassification of the Sheyenne River (North Dakota) in order to increase the discharges from the Temporary Emergency Devils Lake Outlet into the 

Sheyenne River. October 16, 2009, is the deadline. 

Can anyone help us calculate; 

—How much phosphorous, phosphates (in mg/L or tons, whichever is more appropriate for illustration purposes) from the West Bay of Devils Lake that Lake 

Ashtabula can accommodate before the Blue-Green algae takes over and poisons 

Lake Ashtabula? 

—How many years it will take, at the following estimated rate inflows from Devils 

Lake, before the accumulation of phosphates reaches critical mass in Lake Ashtabula? 

—Will the downstream receiving cities’ water treatment facilities be able to remove the Blue-Green algae toxins? 

When the North Dakota State Water Commission completes it’s scheme to increases the Temporary Emergency Devils Lake Outlet pumping capacity from 100 

cfs (cubic feet a second) to 250 cfs (approximately 100,000 acre/feet a year), Lake 

Ashtabula’s waters will be replaced over 11⁄2 times a year with Devils Lake water. 

The volume of Lake Ashtabula is approximately 60,000 acre/feet. 

We believe most of the phosphorous, phosphates from Devils Lake will accumulate 

and remain in Lake Ashtabula and will not be flowing through Baldhill Dam. We 

believe Lake Ashtabula is, will become more of, a nutrient trap for Devils Lake 

waters, the cumulative effects on Lake Ashtabula will be devastating and irreversible. 

WEST BAY of DEVILS 

LAKE (mg/L) 

SHEYENNE RIVER 

(mg/L) 

Total Dissolved Solids ............................................................................................. 1,200–2,000 600–700 

Calcium ................................................................................................................... 70–75 50–60 

Magnesium .............................................................................................................. 80–85 30–35 

Sodium .................................................................................................................... 240–250 75–85 

Arsenic ..................................................................................................................... 12–15 4–5 

Phosphorous ............................................................................................................ .400 .175–.250 

Chloride ................................................................................................................... 125–150 10–20 

Hardness ................................................................................................................. 450–550 250–300 

There is Mercury, Strontium, Cadmium, Aluminum and others that we don’t 

know about, that need to be considered also. 

Thank you in advance. 

Best Regards, 

LEO WALKER, 

Peterson Coulee Outlet Association. 

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

WHAT’S UGLY, SMELLS, KILLS DOGS? BLUE-GREEN ALGAE

Waterways across the upper Midwest are increasingly plagued with ugly, smelly 

and potentially deadly blue-green algae, bloomed by drought and fertilizer runoffs 

from farm fields, that’s killed dozens of dogs and sickened many people. 
159 

Aquatic biologists say it’s a problem that falls somewhere between a human 

health concern and a nuisance, but will eventually lead to more human poisoning. 

State officials are telling people, who live on algae-covered lakes to close their windows, stop taking walks along the picturesque shorelines and keep their dogs from 

drinking the rank water. 

Peggy McAloon, 62, lives on Wisconsin’s Tainter Lake and calls the algae blooms 

the ‘‘cockroach on the water.’’ ‘‘It is like living in the sewer for 3 weeks. You gag. 

You cannot go outside,’’ she said. ‘‘We have pictures of squirrels that are dead underneath the scum and fish that are dead. . . . It has gotten out of control because 

of the nutrient loads we as humans are adding to the waters.’’ 

Blue-green algae are common in waters but not every lake develops serious problems until plentiful ‘‘man-induced’’ nutrients like phosphorous arrive, said Jim 

Vennie, a Wisconsin Department of Natural Resources expert. The toxins released 

by the algae can be deadly. Symptoms include rash, hives, runny nose, irritated eyes 

and throat irritation. 

No people have died in the United States from the algae’s toxins, according to 

Wayne Carmichael, a retired aquatic biologist and toxicology professor in Oregon. 

Many, however, have gotten sick: ‘‘Sooner or later, we are going to have more 

acute human poisoning,’’ Carmichael said. 

The scum has killed dozens of dogs over the years—including at least four in Oregon, three in Wisconsin and one in Minnesota this summer. Wisconsin wildlife experts are warning duck hunters with dogs to be extra cautious this fall. ‘‘If the 

water is pea-soup green, be sure to have clean water along to wash the dog off,’’ 

Vennie said. ‘‘Don’t let it drink the water.’’ 

Fewer than 100 lakes in Wisconsin typically have some problems with algae 

bloom each summer and the ones in western Wisconsin causing so much discomfort 

this year are being fueled by a perfect storm, Vennie said. The last month has seen 

little rain, warm, sunshiny days and little wind. 

The blooms just sit there, growing, then decaying and smelling. ‘‘Some people say 

they have gotten nauseous and vomited from smelling it,’’ said Ken Schreiber, a 

Wisconsin Department of Natural Resources water quality specialist. 

Officials have banned recreational activities at some lakes in Washington State 

because of blooms. And in Oregon, the blue-green alga is the No. 1 water quality 

issue, Carmichael said. 

Yet other countries have worse problems, Carmichael said, because many have 

waters with even more nutrients than exist in U.S. lakes. 

In France, a horse died on a beach in July after falling into some decaying algae 

sludge. Last year, the Chinese Government brought in the army to remove the slimy 

growths so the Olympic sailing competition could be held. 

Stephanie Marquis, a spokesman for the Wisconsin Department of Health Services, said her agency had received 41 complaints related to health concerns with 

blue-green algae so far this season. Rashes, sore throats and eye irritation among 

the problems, she said. 

In Minnesota, Matt Lindon is a pollution control specialist for the State and he 

called 2009 a typical year for complaints about algae scums. But for some reason 

this summer, Bagley Lake in northwest Minnesota, an ‘‘historically clean lake,’’ generated respiratory and odor problems, he said. ‘‘It may be related to the water level 

or some new runoff source,’’ he said. 

Loren Hake, 71, has lived about two blocks from a Lake Menomin in western Wisconsin since 1963. 

He feels like a prisoner in his own home, isolated by a stench ‘‘something like a 

pig pen’’ that forces he and his wife to run the air conditioner although it’s not that 

hot because they can’t leave the windows open, he said. For the first time, the couple hasn’t sat on an outside deck because of the smell from the algae-covered bay. 

‘‘I don’t know what they can do about it,’’ Hake said. 

There’s little anybody can do besides wait for cooler temperatures, Vennie said. 

John Plaza, president of the Chetek Lakes Protection Association, which represents six lakes in northwest Wisconsin, said farm runoff, lawn fertilizers, septic 

systems and even ashes from leaves being burned on the shorelines are among factors contributing to the algae problems. ‘‘I have been a user of these lakes since 

1962,’’ he said. ‘‘I have never experienced anything like this before. It’s nasty. People 

are saying we can’t live with this any more.’’ 
160 

This photo provided by John Kuglin shows some green algae on Thursday, Sept. 

3, 2009, on Lake Pokegama near Chetek, Wisconsin Waterways across the upper 

Midwest are increasingly plagued with ugly, smelly and potentially deadly bluegreen algae, bloomed by drought and fertilizer runoffs from farm fields, that’s killed 

dozens of dogs and sickened many people. (AP Photo/John Kuglin) 

ROBERT IMRIE, 

Wausau, WI. 

PETERSON COULEE OUTLET ASSOCIATION, 

Maddock, North Dakota, October 27, 2009. 

Mr. DENNIS FEWLESS, 

Director, Division of Water Quality, Environmental Health Section, North Dakota 

Department of Health, Gold Seal Center, 918 E. Divide Ave. Bismarck, North 

Dakota 58501–1947. 

DEAR MR. DENNIS FEWLESS: On October 8, 2009, the Peterson Coulee Outlet Association (PCOA) sent the North Dakota Department of Health (ND DoH) a written 

request for information. See enclosed. 

PCOA has now received a letter in response to our request for information from 

the ND DoH dated October 20, 2009. (See enclosed) 

It appears to PCOA that the ND DoH has mistakenly confused the PCOA’s request for information as a comment to the North Dakota Department of Health’s, 

July 15, 2009, Proposal to Adopt an Emergency Rule, Adding a New Section to 

North Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for 

Waters of the State to Change the Classification of the Upper Sheyenne River and 

Increase the Maximum Limit for Sulfate in the River from 450 mg/L to 750 mg/L. 

This is not case. 

PCOA’s request for information is simply that, a request for information. If the 

ND DoH feels the need to include the public’s requests for information in the public 

record as comments to the North Dakota Department of Health’s, July 15, 2009, 

Proposal to Adopt an Emergency Rule, Adding a New Section to North Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for Waters of the State 

to Change the Classification of the Upper Sheyenne River and Increase the Maximum Limit for Sulfate in the River from 450 mg/L to 750 mg/L, the ND DoH may 

certainly do so. 

However, PCOA’s October 8, 2009, request for information has not been substantively answered in the ND DoH October 20, 2009, response. 

Therefore, by the ND DoH apparent refusal to provide the information to the 

PCOA, in a timely manner, information that the PCOA had requested well in ad-
161 

vance of the public’s comment deadline period, the ND DoH is preventing the PCOA 

from substantively commenting on a major issue involving the North Dakota Department of Health’s, July 15, 2009, Proposal to Adopt an Emergency Rule, Adding 

a New Section to North Dakota Administrative Code Chapter 33–16–02.1, Standards of Quality for Waters of the State to Change the Classification of the Upper 

Sheyenne River and Increase the Maximum Limit for Sulfate in the River from 450 

mg/L to 750 mg/L. 

Hence, it appears that the ND DoH is thereby deliberately subverting and thwarting the public participation process mandated by law. 

At this time, POCA, again will make the request for substantive information to 

answer our questions (to be received well in advance of the public comment deadline), so that we, PCOA, will be able to fully participate and make factual, informed 

comments in the Public Comment process mandated by law. 

Thank you in advance. 

Sincerely, 

THELMA PAULSON, 

President, Peterson Coulee Outlet Association. 

NORTH DAKOTA DEPARTMENT OF HEALTH, 

ENVIRONMENTAL HEALTH SECTION, 

Bismarck, ND, October 20, 2009. 

THELMA PAULSON, 

President, Peterson Coulee Outlet Association, 3321 54 Ave N.E. Maddock, ND 

56348. 

DEAR MS. PAULSON: Thank you for your letter dated October 8, 2009 regarding 

a ‘‘Request for Information on Background Studies for the North Dakota Department of Health’s July 15, 2009 Proposal to Adopt an Emergency Rule. . . .’’ which 

also includes a request for answers to questions sent in an e-mail to me from Mr. 

Leo Walker dated September 29, 2009. Since this letter and the attached questions 

are directly related to the Department’s proposed actions related to the Devils Lake 

outlet and proposed changes in our water quality standards for a portion of the 

Sheyenne River, the Department has determined that it is appropriate to enter this 

letter and the attached questions into the public record as part of the public comment period regarding this proposed rule change. 

For your information the public comment period ends on November 6, 2009. Following the end of the comment period the Department will thoughtfully consider 

and prepare responses to all of the comments received, including the questions 

posed in your letter and Mr. Walker’s e-mail. In this way, your questions and the 

Department’s response will be part of the public record. 

If you have any further questions concerning this matter, please contact Mr. Dennis Fewless, Director, Division of Water Quality, at 701–328–5210. 

MICHAEL J. ELL, 

Environmental Administrator, Division of Water Quality. 

NORTH DAKOTA DEPARTMENT OF HEALTH, 

ENVIRONMENTAL HEALTH SECTION, 

Bismarck, ND, October 30, 2009. 

THELMA PAULSON, 

President, Peterson Coulee Outlet Association, 3321 54 Ave. NE, Maddock, ND 

58348. 

DEAR MS. PAULSON: Thank you for your October 27, 2009 letter informing the Department that it mistakenly confused the Peterson Coulee Outlet Association’s 

(PCOA) September 29, 2009 e-mail and October 6, 2009 letter as ‘‘comments’’ in the 

Department’s ongoing emergency rulemaking for the proposed new section to North 

Dakota Administrative Code Chapter 33–16–02.1. 

Because you said that the PCOA’s October 6, 2009 letter, and September 29, 2009 

e-mail are not ‘‘comments’’ on the emergency rule, the Department will not treat 

them as such and will remove them from the written record of comments on the 

rule. If this is not correct, and you would, in fact, like the Department to treat the 

PCOA’s October 6, 2009 letter and September 29, 2009 e-mail as comments to the 

rule, please inform the Department by the end of the public comment period, which 

is close of business on November 6, 2009. Of course, the PCOA may also submit any 

other written or oral comments on the proposed rule before the end of the comment 

period. 
162 

After reading your most recent letter, it is my understanding that the PCOA is 

making an open records request. Specifically, PCOA wants the Department to provide answers to the three questions posed in the September 29, 2009 e-mail, which 

was also sent as an attachment to the October 6, 2009 letter. These questions ask 

for the results of specific calculations and the impact of those results on Lake Ashtabula and cities along the Sheyenne River. 

At this time, the Department does not have in its possession any records that contain the results of these calculations or that specifically answer PCOA’s questions. 

Under North Dakota’s open records law, a public entity is not required to create or 

compile a record that does not exist.’’ NDCC § 44–04–18(4). In the future, as part 

of its review of comments, the Department may make or acquire records that may 

relate to PCOA’s questions. This will depend upon the nature of the comments received. 

The enclosed disk may be of assistance to PCOA in making the calculations needed to answer its questions. The disk contains the data relied on by the Department 

in proposing the rule, including data on phosphorus concentrations in the Sheyenne 

River. 

L. DAVID GLATT, 

Environmental Health Section, North Dakota Department of Health. 

DEPARTMENT OF THE ARMY, 

ST. PAUL DISTRICT, CORPS OF ENGINEERS, 

St. Paul MN, March 16, 2006. 

Mrs. THELMA PAULSON, 

President, Peterson Coulee Outlet Association, 3321 54th Avenue NE, Maddock, 

North Dakota 58348. 

DEAR MRS. PAULSON: Thank you for your February 15, 2006, letter regarding the 

relationship between the Devils Lake and Sheyenne River watersheds. The key in 

assessing hydrologic connections lies with what is considered the natural, functioning system. 

When Devils Lake is below elevation 1,459, Devils Lake is considered ‘‘non-contributing’’ and, therefore, not hydrologically connected to the Sheyenne or Red River 

basins. Drainage areas may include ‘‘non-contributing’’ areas that, under normal 

conditions, would not contribute directly to surface runoff to the stream. Non-contributing drainage areas can become contributing during large runoff events. 

The Devils Lake basin connection to the Red River of the North basin does not 

happen naturally until Devils Lake reaches an elevation of 1,459 feet above mean 

sea level. At this point, the surface runoff would naturally flow through Tolna Coulee to the Sheyenne River and, in effect, hydrologically connect to the Red River 

basin. Devils Lake was above this natural spill elevation at least twice in the past 

4,000 years (North Dakota Geological Survey Report of Investigation No. 100, 1997). 

The State of North Dakota’s outlet from Devils Lake to Peterson Coulee has a 

pump station that ‘‘lifts’’ water from Devils Lake over the divide to a constructed 

outlet channel. Without the pump, water from Devils Lake could not flow naturally 

to the outlet channel. 

If you have additional questions, please contact Ms. Bonnie Greenleaf at 651–290– 

5476. 

WILLIAM L. CSAJKO, 

Chief, Project Management Branch. 

PEPARED STATEMENT OF LEON PYTLIK, VALLEY CITY, ND 

DEVILS LAKE DRAINAGE INTO SHEYENNE RIVER, NORTH DAKOTA

Dear subcommittee members: Back in the mid-1960s I worked in Devils Lake. 

Just south of the railroad trestle, there was a sign very high on a pole that showed 

the level of Devils Lake at some time in the past. 

In the late 1980s and early 1990s they were pleading for more water because Devils Lake was so low. To remedy that situation, they drained several hundred thousand acres of wetlands into Devils Lake. About that time the weather cycled into 

a normal to slightly above normal moisture pattern, and the lake begin to rise. 

Now, several hundreds of millions of dollars have been spent to raise dikes, roads, 

etc. The only thing that hasn’t been tried is turning off the drains. 
163 

The water in Devils Lake is so bad that the city of Devils Lake doesn’t use the 

water for their drinking water. But, they want to send it down river, where Valley 

City gets its water from the Sheyenne River. 

The Federal guideline for sulfates is 250. The North Dakota Health Department 

has approved 450 and intends to increase that to 750. This says nothing of other 

pollutants such as mercury, lead, cadmium, arsenic, chloride, etc. that are also in 

the Devils Lake water. This is contrary to what the Health Department should be 

doing. 

It is imperative that there be an independent, out-of-state environmental impact 

study done on the effects of Devils Lake water on those of us downstream from Devils Lake, as well as farm animals and wildlife. The Sheyenne River has about 50 

species of fish. About 11 can survive in Devils Lake. There are 9 mussel species in 

the Sheyenne, none in Devils Lake. There has to be a reason! 

I want to thank you for considering this testimony. 

PREPARED STATEMENT OF ALICE BEAUCHMAN, VALLEY CITY, ND 

Senate Energy and Water Appropriations Subcommittee: As a resident of Valley 

City I am very concerned with the Devils Lake outlet sending mass quantities of 

water into the Sheyenne River. I am worried no one has a complete understanding 

at this point of what this will do to the Sheyenne. I think further study by a nonpartial agency is in order. It would be very sad to adversely affect the Sheyenne 

River and perhaps Lake Ashtabula to solve problems on Devils Lake. I am a little 

resentful that with this outlet their problems are shifted downstream. I am also concerned with the quality of the water we will be drinking in Valley City, and the 

cost to make that water safe. 

Please consider doing an out-of-state, nonbiased impact statement to gather more 

knowledge before decisions are made. 

PREPARED STATEMENT OF THE NORTH DAKOTA CHAPTER OF THE WILDLIFE SOCIETY

Dear Senator Dorgan, The North Dakota Chapter of the Wildlife Society shares 

many of the concerns that were raised by you and others at the February 19 hearing 

in of the U.S. Senate Energy and Water Development Subcommittee. These concerns include the growing water quality and flooding problems downstream from 

Devils Lake. We wish to express our strong support for your comment that upper 

basin storage be included as a key tool to help solve the growing crisis caused by 

the ongoing flooding at Devils Lake. As you aptly noted at the hearing, Devils Lake 

is like a full bathtub that is not being contained at the faucet. Historically, the 

upper basin naturally carried out upper basin water storage, with wetlands and 

grasslands serving as the catalyst. These intact wetlands held back a major part of 

the run-off within the watershed. Research has shown that evaporation typically removes 2–3 feet from the water column of wetlands in the northern plains through 

evaporation; additional water is removed as it percolates downward, recharging 

aquifers. In this situation of intact wetlands, water storage capacity remains high 

in virtually all years. Currently, an estimated 101,000–189,000 wetland acres in the 

Devils Lake Basin have been drained, as cited in a fact sheet by Bob Anfang with 

the Corps of Engineers in an April 1998 memo to participants at an Upper Basin 

Management meeting. Major inflows into Devils Lake occur every spring after a significant snow pack, as well as after every major rain event during the spring, summer, and fall. Your work securing funding for LIDAR coverage of the Devils Lake 

Basin has made it possible to rapidly assess where the best opportunities exist for 

upper basin water retention expediting steps to relieve the ongoing flooding situation at Devils Lake as soon as possible. 

Both Devils Lake and the Sheyenne River are being taxed to their limits. Unless 

ways are found to control the faucet, the problem will continue to grow in complexity and severity. The Sheyenne River and its biota are a highly valued natural 

resource that provides much recreation to fishermen, hunters, sightseers, and 

birders throughout its length in the State. The value of the River is reflected in its 

designation as a scenic byway along some of its most unique sections. 

On a much broader scale, similar water storage efforts are needed in upper parts 

of watersheds across the entire Red River Basin to help stem the serious flooding 

problems that now occur almost annually in the Red River Valley. A comprehensive 

program increasing upper basin storage throughout the Red River Basin can enhance many societal values including not only flood mitigation but also provide 

water quality improvements, ground water recharge, reduce erosion, carbon sequestration, and provide wildlife habitat while supporting an important recreation and 
164 

tourism industry. Such a program needs to be balanced, providing adequate compensation and consideration of needs of upper basin landowners, while at the same 

time protecting the lives, property, and quality of life of both rural and urban residents living downstream. 

We appreciate the opportunity to provide comments to the hearing record and 

stand ready to assist in any way we can to ensure the highly valuable natural resources threatened by the current flooding situation remain available to present and 

future generations of North Dakotas. 

PREPARED STATEMENT OF ANDRE DELORME, VALLEY CITY, ND 

CONCERN ABOUT THE PROPOSED CHANGES IN THE DEVILS LAKE OUTLET PERMIT

I would like to express my concerns to the plans to increase the flow of the Devils 

Lake outlet as well as increase the allowable limits of sulfates in the river. These 

decisions have been made with very little preliminary study and are based more on 

political pressure than on scientific examination of the situation. While there is definitely a problem in the Devils Lake Basin, this solution will have very little effect 

in the short term and will possibly cause more harm than good. I will limit my testimony to the effect on the river biota. I am an aquatic biologist with considerable 

experience working on the Sheyenne River. 

The Sheyenne River has one of the most diverse populations of organisms in the 

State of North Dakota. Not only does it have a rich diversity of fish species, it also 

has numerous types of aquatic macroinvertebrates including the most diverse populations of mussels of any river in the State. There are 7 species of mussels in the 

upper Sheyenne and up to 10 in the lower Sheyenne. This is two to three times the 

number seen in other mid-size rivers in North Dakota. Mussels are important as 

water filters and biodiversity sentinels. I feel that these populations will be threatened to some extent with the increase of Devils Lake water into the Sheyenne via 

the Devils Lake outlet. I see the increase to 250 cfs for the outlet as having two 

main effects on the Sheyenne, high water levels and high dissolved solids. 

Rivers have a seasonal ebb and flow, they have high flows during the spring and 

low flows in late summer and early fall. Rivers also have changes in populations 

as you move downstream. Rivers gradually increase in size and discharge the further downstream, these changes provide differing habitats and lead to different assemblages of organisms. In the case of the Sheyenne, you would not expect the same 

assemblage of organisms in the river near Warwick as you would find near Kindred, 

which is located much farther downstream. In the upper Sheyenne flows are usually 

below 60 cfs in late summer-early fall. By running the outlet at 250 cfs you will 

be changing the dynamics of the river in the upper Sheyenne. Population assemblages adapted to low flows in the fall will no longer see those low flows. In fact, 

at 250 cfs you will have flows that are even higher than what is normally seen at 

Kindred during this time of the year. I feel this change in flow will change the assemblage of organisms over time in the upper Sheyenne River. If you take this 

stress on the environment due to erosion and scouring and couple it with increased 

dissolved solids, the cumulative effects could be devastating. 

All aquatic organisms can be susceptible to high dissolved solids. They place a 

metabolic load on ion transport systems and can interfere with reproduction. It is 

up for debate as to what levels of dissolved solids, and sulfates in particular, are 

toxic to aquatic organisms. The currently proposed new standard for sulfates is well 

under the known acute toxicity for most organisms to sulfate. However, acute toxicity addresses the short term affect of these levels on an organism, basically it addresses the question of ‘‘does this directly kill the organism’’. A more difficult question is what are the chronic toxicities for aquatic organisms? Since this is a long 

term proposal, organisms are going to be exposed to these for long periods of time. 

Unfortunately there is not a lot of data for sulfates on that question. I have been 

told there is a rough 10 percent rule, that you will see chronic effects at 10 percent 

of the acute toxicity levels. This would indeed put the chronic toxicity levels in the 

realm of 750 mg/L for many aquatic organisms. There should be a wide range of 

chronic toxicity tests done on desirable species such as mayfly larvae, caddisfly larvae, and mussel species before we can truly say what is a safe, chronic level for sulfates. To my knowledge those studies have not been done. 
165 

PREPARED STATEMENT OF WILLIAM MOORE, ROGERS, ND 

DEVILS LAKE OUTLET AND UPPER BASIN STORAGE RESULTING IN HARM TO SHEYENNE

RIVER

Due to the lack of accurate data on the impacts of the operation of the Devils 

Lake and the minimal effect on reducing the rise of the lake and the outlet should 

not be operated. At the least if it is not shut down it should only be operated under 

the conditions of the original permit. 

This is not an emergency and the rising level of the lake is not justification for 

adversely impacting the Sheyenne River. The North Dakota State Health Department is mandated to act in the public interest to protect, maintain, and improve 

the quality of the waters in the State (NDCC 61–28–01). 

Increasing the outlet flows will seriously degrade the Sheyenne River. In North 

Dakota, water management (mismanagement) has historically been to pass water 

problems (quantity-quality) on to others. This is not acceptable. 

Before considering increasing the output of the outlet beyond the current permit 

standards, much more accurate data is needed. At this time sulfate levels have been 

the main consideration in the permitting and operation of the outlet. 

The State health department and State water commission have acted more as political entities rather than objective scientific bodies basing decisions on accurate 

data. For this reason a thorough, accurate EIS conducted by independent out-ofstate experts is needed. This position is supported by the Barnes County Health 

Board, the Barnes County Commission, and more than 700 concerned citizens in a 

very brief petition drive. 

Some of the areas where accurate information is needed are: 

—Impacts of water quality in Lake Ashtabula and the Sheyenne River (sulfates, 

phosphates, mercury, arsenic, chlorides, and others) 

—U.S. Fish Hatchery at Valley City 

—Water treatment costs for Valley City and Fargo 

—Biota 

—Recreation 

—Impacts of Increased flows (Quantity and Timing) 

—Summer Flooding 

—Biota 

—Bank Erosion 

—Sedimentation 

—Serious consideration of upper basin water management and storage 

—Management of the outlet and Baldhill Dam: Will it be the Corps of Engineers 

or the State Water Commission 

—The allowable level of sulfates in Lake Ashtabula 

—The amount of water that would be removed from Devils Lake 

—The cost and effectiveness of armoring the Tolna Coulee 

Thank you for this opportunity to provide testimony. 

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