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The Devils' Diversion by Michael Byers, Academic Director
Description: Canada must act quickly to stop a North Dakota plan that threatens to harm Canadian waterways, says international-law expert, Michael Byers
Date: 30 January 2005
Source: The Globe and Mail, A13
An ecological time bomb could soon explode on the Great Plains of North Dakota, with dire consequences for Canada's ability to protect and preserve its fresh water.

Few geographic features are as aptly named as Devils Lake. A shallow, stagnant pothole just south of Manitoba, the lake forms the centre of a landlocked basin that lies within, but does not flow into, the Hudson Bay watershed. Fed solely by runoff from the surrounding farmland, lacking an outlet, and subject to intense evaporation during the hot prairie summer, the water of Devils Lake is a noxious brew of salt, arsenic, boron, mercury, nitrogen, phosphorous and sulphate. It is so polluted that it is unsuitable for irrigating crops.

Since 1993, the waters of Devils Lake have risen by nine metres. The lake has tripled in size, 30,000 hectares of farmland have been inundated and 300 farmsteads lost -- at an estimated cost of $500-million (U.S.).

Much of this damage has been self-inflicted. Over the years, the Government of North Dakota has encouraged the draining of more than 80,000 hectares of wetlands in the Devils Lake basin. In the past, those wetlands had allowed large quantities of water to evaporate, or percolate into the ground, before they reached the lake. Today, runoff from snowmelt and heavy rains flows quickly through a series of 22,000 drains and canals, pushing the level of the lake ever higher, especially in wet years, which have become more frequent.

In 2003, the U.S. Army Corps of Engineers recommended that a diversion be built from Devils Lake into the nearby Sheyenne River. It made this recommendation in the face of opposition from the Government of Manitoba. Since the Sheyenne is a tributary of the Red River, which flows northward into Canada, any diversion would degrade the quality of the water that empties into Lake Winnipeg -- an inland freshwater sea that supports a commercial fishery worth $50-million (Canadian) annually, as well as a substantial tourist industry.

Devils Lake also contains species of fish and at least two fish parasites that are foreign to the Red River system. In the 1970s, the lake was stocked with striped bass, an aggressive competitor that could devastate the existing fishery in Lake Winnipeg. The risk of invasive species must be taken seriously: Zebra mussels in the Great Lakes cause roughly $3-billion in damage each year to boats, beaches, water-intake pipes and fisheries.

In response to Manitoba's concerns, the Army Corps of Engineers recommended that the diversion include a sand filter to prevent the transfer of species, and that construction be postponed until further studies were conducted. Frustrated with the delay, the North Dakota government last summer began constructing its own "temporary" diversion, involving six kilometres of pipeline, 16 kilometres of canal, and three siphons -- but no sand filter. The diversion will soon be finished, at which point 100 cubic feet per second of Devils Lake water could flow unfiltered into the Red River system.

Manitoba has challenged the state government's diversion in U.S. courts. Last August, a district judge in Valley City, N.D., held: "This court cannot and will not sit as some kind of super board to determine whether this outlet is a good thing or a bad thing." Manitoba Premier Gary Doer also pressed the Canadian government to refer the matter to the International Joint Commission, the bi-national panel that oversees the 1909 Boundary Waters Treaty. Last year, Ottawa asked Washington to join it in referring the matter to the IJC.

The U.S. State Department responded by requesting that North Dakota consult with it before proceeding, so as to "avoid unnecessary conflicts between the United States and Canada or its concerned provinces." But North Dakota has failed to do so, perhaps because it knows in advance that its diversion is illegal. Article IV of the Boundary Waters Treaty states that "waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other." In the past, the IJC has consistently applied this provision in a manner that favours environmental protection, even in situations of scientific uncertainty.

The situation at Devils Lake also raises difficult political considerations. North Dakota Governor John Hoeven, a Republican, is a strong proponent of state rights. North Dakota voted overwhelmingly for George W. Bush last November, and he, too, was a strong proponent of state rights when he was governor of Texas. Add in the other unresolved cross-border files -- missile defence, softwood lumber and BSE -- and it is easy to understand why Ottawa might be reluctant to press Washington harder on this particular issue.

Yet press it must. The Devils Lake diversion will have an impact that extends beyond its direct effects on fish populations and water quality. If North Dakota transfers even a small amount of water into the Sheyenne River, its ability to violate the Boundary Waters Treaty without consequence would show that neither Ottawa nor Washington is firmly committed to that legal regime. Individual states and provinces would become more willing to challenge federal control over transboundary waters. The present transcontinental arrangement has worked well for almost 100 years, balancing each country's obligations on some waterways against rights elsewhere. But it could quickly and irreversibly unravel.

To cite but one example, North Dakota has plans for a second, longer diversion that would enable water to be moved into Devils Lake from the Missouri River during dry years to stabilize its level and reduce salinity. This second interbasin transfer, this time from the Mississippi River watershed, could introduce as many as eight new species of fish into the Red River system -- as well as a potent fish pathogen known as whirling disease.

It could even provide a conduit for species from the Great Lakes, because the Missouri River is connected to Lake Michigan via the Chicago Sanitation Canal. Species could also move in the opposite direction.

The environmental consequences of North Dakota's engineering work could reach as far away as Muskoka in Ontario and Milk River in Alberta.

I hope that Canada's new ambassador to the United States, Frank McKenna, has learned that Devils Lake, and not softwood lumber or BSE, is his most urgent file. Considerable efforts are required to ensure that Washington does everything it can to prevent the diversion of water this spring, including seeking a federal court injunction, until the matter is jointly referred to the International Joint Commission for resolution.

Inaction is not an option: Once the floodgates open, there is no going back.

Michael Byers holds the Canada Research Chair in global politics and international law at the University of British Columbia. He is also academic director of the Liu Institute for Global Issues.

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