Congress Orders Moratorium on Garrison Diversion Unit

Introduction

In June 1975, Congress finally diverted the Bureau of Reclamation's Garrison Diversion Unit, a massive irrigation project with potentially catastrophic environmental and diplomatic impacts. The House voted 377 to 28 to approve an appropriations bill for public water and power development that included an amendment calling for a temporary halt to the Garrison project, now 18 percent complete, and allocating one million dollars to study present plans and alternatives "in order to provide the basis for a sound environmental decision on whether or not to proceed with the project."¹ In part, the vote reflected urgent congressional concern which followed revelation of Reclamation Commissioner Gilbert Stamm's sub rosa suggestions that studies of potential alternatives be withheld from State Department officials who have been conducting GDU negotiations with Canada. Though the decision followed formal objection to the plan by Canadian officials, who predicted pollution in violation of the Boundary Waters Treaty of 1909,² the amendment is concerned with more than international legal issues. Publication of previously secret Interior Department memos also revealed that Reclamation had not actually run the economic-environmental analyses that supposedly proved all alternatives to the Garrison Diversion Unit to be "infeasible," as reported in the environmental impact statement (EIS). The proposed study will entail a thorough evaluation of the Unit's environmental impact on North Dakota and neighboring states, as well as on Canada, and a concrete economic analysis of costs and benefits. Because funds are not to be cut off until the end of the current fiscal year, which runs until September 30, 1976, the vote provides only a limited victory for environmentalists; 13.6 million dollars remain to be [5 ELR 10132] used for 1976 construction.

Background: Development of the Project³

The Garrison Diversion Unit was conceived by the Bureau of Reclamation amid great fanfare. The environmental impact statement described the project as a "model of complete multipurpose planning." An average of 871,000 acre-feet of water would be diverted annually from the Missouri River reservoir of Lake Sakakawea, behind Garrison Dam in central North Dakota, into the Souris River, James River, Sheyenne River and Devils Lake Basins. The water would be transported through more than 3000 miles of open and pipe distribution systems, which include 812 miles of canals, pumping stages, three major reservoirs, and channelized rivers and streams. The overall purpose, as envisaged in the EIS, is "to irrigate 250,000 acres of land and provide municipal and industrial water, fish and wildlife conservation and enhanced recreation and flood control." In response to the objection that irrigation return flows draining into the Souris and Red Rivers would increase the salinity of water flowing into Canada, Reclamation contends that Canada is neatly figured into the "multipurpose planning;" by stabilizing and augmenting the flow of the two rivers, which often run low or dry, the project will allegedly save Canada the estimated 200 million dollars necessary to construct its own storage system to regulate the rivers.

The project's perfection on paper masks a piecemeal real world approach by the Bureau. Reclamation originally proposed the Pick-Sloan Missouri River Basin Program over thirty years ago to a Congress unconcerned with long-range policy. Droughts had crippled the Northwest in the 1930's, while flooding was an ever present threat to human life and agricultural production. Congress supported quick construction of the Garrison Dam to protect seven states from Missouri River flooding. As a result, 500,000 acres of prime North Dakota farmland were lost under Lake Sakakawea. The Garrison Diversion Conservancy District, established by the state legislature to make contracts with Reclamation and levy taxes, lobbied to compensate North Dakota for its territorial sacrifice. In 1957, Reclamation proposed the Garrison Diversion Project to irrigate one million acres at the cost of 529 million dollars, which was rejected because of a low benefit-cost ratio. Instead, an independent — though curiously labeled "initial" — plan to irrigate only 250,000 acres at an estimated cost of 160 million dollars was authorized by Congress in 1965,⁴ though the Bureau of the Budget found the economic justification at best marginal. Presumably, pressure from North Dakota lobbyists and Reclamation officials encouraged Congress, in funding the initial stage of the project, to ignore certain harsh realities. First, many farmers would not need the water since rainfall produces adequate crops nine years out of ten. Second, 248,000 acres were needed to build a project that would reclaim only 250,000.

With domestic objections smothered in political compromise, Reclamation still had to meet legal obligations to Canada. Approximately 50 percent of the area to be irrigated lies in the watershed of the Souris River, which loops down out of Canada through North Dakota and then back up again into Canada, passing through the Canadian towns of Souris and Portage La Prairie, where the water is used for human and manufacturing needs. Heavy irrigation return flow would change both the volume and the quality of water crossing the border. The potential transnational environmental effects include flooding, increased total dissolved solids (tds) of the water, resulting in a high level of salinity, and exacerbation of eutrophication in Lake Winnipeg. Though the Red River, in the eastern section of the project, also flows to Canada, its abundant and steady flow will minimize impact of increased return flows.

International Law Aspects

The Boundary Waters Treaty of 1909 does not adequately deal with problems concerning rivers that flow across the boundary. This agreement, the product of a compromise between two divergent drafts, created an International Joint Commission (IJC), consisting of three Americans and three Canadians, and endowed it with three types of power. First, the IJC has final decision-making authority in a case of use, obstruction or diversion of waters situated astride the boundary. Second, the Commission may investigate other matters of international water controversy referred to it by either nation. And third, the IJC is authorized to arbitrate any boundary issue presented by both countries.

The Treaty authorizes Commission encroachment on exclusive national sovereignty over rivers crossing the border only in Articles II and IV. Under Article II, when there is an "interference" with a river in one country, the citizens who are damaged in the other country have the same rights and remedies as if the harm had occurred in the defendant country. Article II effectively precludes a suit by Canada, as a sovereign state, to prevent interference with the Souris and the Red Rivers. Canadian citizens who chose to sue as individuals would have American rights and remedies, meaning that they would have to meet United States standards of damages. Since the only predicted "interference" causing harm to humans would be a higher level of salinity, and since many American public water supplies have a higher level of salt content than that expected in the Souris, individual Canadians would find it difficult to establish a prima facie case of actionable wrong.

In Article IV, the countries agree that "… waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the [5 ELR 10133] other."⁵ Before 1965, when GDU was authorized, the International Joint Commission had found violations of Article IV only in situations of blatant pollution, such as the Trail Smelter Case,⁶ a category into which increased salinity did not necessarily fall. If Canada did choose to file a pollution lawsuit under Article IV in the International Court of Justice, the burden of proof would be high.

Thus, Reclamation appeared to be safe from Canadian suit at least until actual interference caused transborder impacts. Though the Bureau of Reclamation had barely broken ground for the main pumping plant in North Dakota in 1968, by the time construction began in the Souris irrigation section the multi-million dollar American investment would make it difficult for Canadian diplomats toraise salinity objections tactfully.

Domestic Impacts under NEPA

Passage of the National Environmental Policy Act in 1969, however, and its subsequent application to ongoing federal programs, required Reclamation to evaluate the environmental impact of the project. GDU opponents expected the findings of an impact statement to postpone construction, which was ravaging North Dakota farms. The opposite result occurred.

Publication of the impact statement in 1974 revealed that estimated costs had risen to 340 million dollars. By spring 1975, figures had soared to 500 million — almost the cost of the original Pick-Sloan Missouri Basin proposal rejected by Congress as wasteful. Yet the EIS announced a benefit-cost ratio of 1.67 to 1, and Reclamation mentioned 2.5 to 1. The benefits that balloon the ratio are listed as environmental ones, supposedly unforseen by Reclamation at the planning stage. New wetlands farming would, it was claimed, increase private farm income by almost three percent over dry land farming. Though Reclamation will drain or alter 23,000 acres of wetlands, over 56,000 acres of more permanent wetlands to be developed would allegedly avoid disruption of waterfowl habitation and breeding. A total of 146,000 acres would be acquired for "fish and wildlife development." The project would open 170,000 acres to public hunting. In short, the impact statement presented an idyllic vision of American environmental improvement. But, surprisingly, the final impact statement was not final. A Canadian-American task force was appointed to study potential Canadian impact; Reclamation published the resulting report under the title of "Irrigation Return Flows to the Souris River and Canada, Garrison Diversion Unit," (Return Flows Study). Three additional impact statements are scheduled to be published in 1975, 1976 and 1977, to cover separate geographical subdivisions as funding becomes available.

Criticisms published with the statement point out major contradictions in its analysis. The primary economic beneficiaries, the 5000 farmers who own the land to be irrigated, are dead set against completion. The impact statement predicts costs of $30,000 per 160 acres for sprinklers, which are to be made mandatory though rainfall is almost always adequate for crops. Given the fixed costs of main systems any decrease in irrigated acreage, such as elimination of the Souris section, will multiply the cost per farmer. Moreover, use of 248,000 acres of rights-of-way and construction sites will destroy over 63,000 acres of presently productive farmland. Already, the creep of the McClusky Canal, with its right-of-way stretching from 360 feet to half a mile wide, has fragmented existing farms into unproductive parcels and driven farmers from their homes.⁷ Consequently, North Dakota farmers will probably be forced to sell to corporate farming interests.

American environmentalists uniformly view the project's impact statement as vague, inadequate, and perhaps intentionally deceptive. In response to a Reclamation request to evaluate the Draft Environmental Statement (DES), the North Dakota chapter of the Wildlife Society complained that

… the existing environment is considered in a most cursory manner, numerous pertinent studies are admittedly incomplete or absent while others haven't been considered, the major adverse environmental impacts are ignored while others are listed but not quantified or evaluated in a meaningful way, leaving the distinct impression that the DES was prepared as a justification for the Garrison Diversion Unit rather than a detailed statement of its environmental impacts.⁸

The Environmental Protection Agency observed that the effects of additional water in wetlands are currently unknown; the implication is that such shuffling of wildlife and habitats, however expertly planned, will have severely damaging results. Because waterfowl live and breed only in marshy wetlands that are periodically dry — not in the large permanent lakes envisaged by the project — there will be net loss of fowl habitat. Input of fresher water will alter saline lakes used by the nearly extinct whooping crane. Increased flow in the James River will affect its use as stopping over point for nearly all snow geese in the Central Flyway. Though the impact statement assured no increased use of pesticides, the Wildlife Society pointed out that cropfields under sprinkler provide optimum breeding habitat for crop destroying insects.

In sum, deletion of illusory environmental benefits [5 ELR 10134] from the cost-benefit analysis and use of the 10 percent discount rate required by the Office of Management and Budget would lower the benefit-cost ratio .42 to 1. As a result of the numerous shortcomings in the EIS, federal agencies, environmental groups, and North Dakota farmers have all demanded a re-evaluation of the entire project. Though the North Dakota state government continues to lobby for the Unit, bordering states have joined other opponents in demanding a moratorium. The South Dakota State Department of Health and South Dakota Committee on Water Pollution have protested expected flooding and degradation of water quality in the James River Basin area. The Minnesota Pollution Control Agency (MPCA), which was denied a role in American talks with Canada concerning projected impact on the Red River, the boundary line between Minnesota and North Dakota, charged in a January 1975 memo that the GDU violated NEPA by segmenting a unitary project and providing post facto identification of environmental impacts.⁹ By April, the Citizen's Board of the MPCA had authorized the Agency to sue the federal government on grounds of NEPA violations.

Canadian Impacts

It is, however, Canada which continues to raise the strongest objections to the project. The impact statement virtually ignored Canadian impact, while the Return Flows Study offered a mass of inconclusive figures. First, Reclamation countered Canadian concern about flooding with the argument that increased flow will prevent the flooding and high salinity levels that accompany low flow seasons. Yet, droughts such as those of the 1930's occur only once every 217 years, a period which may prove longer than the expected life of GDU lakes. The high salinity levels that result from rainfall variation occur naturally and the environment has developed around such rhythms.

Second, the impact statement and the Return Flows Study failed to pinpoint the quantity and quality of the total dissolved solids increase, so the projected effects of higher salinity levels can be no more than conjecture. The EIS estimated an increase in tds from 796 parts per million (ppm) to 1320 ppm, with temporary levels reaching 1800 ppm during the initial leaching stage; the Return Flows Study corrected figures to report a projected increase from 796 ppm to only 885 ppm. Neither report assessed what effect increased use of pesticides, herbicides, and fertilizers will have on tds, especially if chemicals are applied inefficiently by farmers. Though Reclamation stressed that the tds of the Souris naturally fluctuates as high as 1200 ppm, it failed to make clear that its figures of 885 ppm to 1800 ppm are average increases which must be added to the minimum and maximum fluctuations of the Souris to appreciate full environmental impact.

Third, Reclamation handled Canadian economic advantages deceptively. The estimated $682,125 cost of providing an alternative or purified source of water to the towns of Souris and Portage La Prairie was contrasted with the 200 million dollars necessary for Canada to build its own river stabilization system. Yet the assumption that Canada has any desire to build such a system was nowhere substantiated. In addition, Reclamation offered no long-range evaluation of effects on future Canadian irrigation projects, though the projected change in water quality will certainly hamper or prevent further use of the Souris waters for irrigation.

Fourth, the impact statement cheerfully predicted an externalized benefit to Canada of improved wildlife habitat and recreational possibilities. To the contrary, the substitution of lakes for wetlands in the lower Souris nesting grounds will limit the number of waterfowl in the Canadian Souris section. Rough fish such as carp, which dig roots for food and thereby raise mud, predominate in the general area, but do not inhabit the Souris. Introduction of rough fish to the Souris from the Missouri through the canals would result in increasingly turbid water, which would discourage waterfowl feeding and deplete Canadian gamefish populations. Phosphates and fertilizers absorbed by runoff may raise the natural eutrophication of Lake Winnipeg to harmful concentrations.

Diplomatic Negotiations and the Cover-up

Within the impact statement, Reclamation promised that if the Canadian government will not accept the Garrison project as planned, alternative measures will be considered. Main alternatives to the project listed were exploitation of ground or surface water, weather modification, and use of substituted routes or methods. Reclamation did not even consider curtailed development and nondevelopment to be alternatives, given the advanced stage of construction and funding. GDU modifications designed to avoid harm to Canada included: 1) dilution of return water with additional Missouri River water; 2) treatment of return flows in the United States or Canada; 3) rerouting return flows back into the Missouri River or Devils Lake Basin; 4) a shift in the irrigation service to alternate lands within the Pick-Sloan area, still exploiting major Unit facilities; and 5) staged development of irrigation areas, with Souris area construction restricted until effects are monitored. Cost-benefit analyses of these alternatives and modifications were crudely done, using gross rather than marginal amounts when numbers appeared at all, and were not interrelated. Not surprisingly, the major cost foreseen was increased salinity in United States rivers. Though Reclamation labeled all listed alternatives and modifications as infeasible, the haphazard analyses suggest that the language was more conclusory than factual.

American State Department officials began the most recent major round of Garrison policy negotiations with Canadian representatives in January 1975, briefed only [5 ELR 10135] with the skewed Reclamation view that the GDU was the only feasible plan. Canadian Ambassador Cadieux shattered their false confidence when he announced that the project "would cause injury to health and property in Canada."¹⁰ His choice of words conveyed the unspoken message that Souris area construction, in the Canadian view, would violate Article IV of the Boundary Waters Treaty.¹¹ The State Department promised not to start construction in the Souris section until the two countries agreed on an acceptable plan.

The Bureau of Reclamation did not view negotiation results as a setback to the Garrison project. Since neither Cadieux nor State Department officials mentioned halting the project pending arbitration, the project would continue for the three or four years required for an IJC study or until construction in the Souris section became imminent. And by such a time, Reclamation probably calculated, construction on the project would be so far advanced that even a Commission cost-benefit study would find Souris area development necessary to a unitary project.

Reclamation's secret strategy was revealed in June by reports that the Department of the Interior had deliberately withheld memos concerning alternatives from the State Department. A January 14 memo, written only two days before the main negotiations, suggested that cost-benefit analyses be kept secret from State until Interior had better indications of the Canadian position. In a March 11 memo, the Assistant Secretary of the Interior for Land and Water Resources acknowledged that the International Joint Commission would play the decisive role and recommended that Interior negotiate "the appropriate question" to be handled by the Commission. He requested an economic and environmental analysis of the actual feasibility of alternatives and modifications, to be kept "informal" and "unavailable" to both local and Canadian interests. On April 25, Commissioner of Reclamation Stamm "wholeheartedly" concurred in the strategy of secrecy. Noting that a study of the feasibility of alternatives would require three to four years, Stamm suggested that a less intensive study be completed in time to request 1976 funding.

The memo recommendations above imply that Reclamation has not yet seriously evaluated the feasibility of alternatives, and therefore, "infeasible" labels in the impact statement are not backed with scientific evidence. Consequently, there is a greatly increased chance of implementing an alternative or modification to lessen adverse impact on Canada. After disclosure of the memos, Representatives Vanik (D-Ohio) and Fraser (D-Minn.) proposed an appropriations bill amendment freezing Garrison funding until the United States and Canada agreed on a specific plan. Then, the Canadian Embassy released a position paper¹² restating its view that the GDU would cause injury to health and property in Canada, but also expressing pleasure that consideration was indeed being given to alternatives.

According to Interior officials, their intent in withholding the information was merely to avoid complicating an eventual IJC study with "back of the envelope" estimates. Few outsiders believe the analyses to have been so imprecise. The House vote means that GDU will be stopped until everyone's stories are straightened out. The three to four year period of study that Reclamation has been avoiding as a waste of time has finally come, after perhaps ten yrars have been invested in haphazard construction of a project that may not deserve to be continued.

What Happens Now

The future direction of negotiations is unclear. Canada could technically sue for a treaty violation in the International Court of Justice. A direct suit would be an international parallel to Fletcher v. Rylands, with the United States causing the dangerous unnatural substance of newly saline river water to escape from American land and harm its neighbor Canada. Given American legal procedure, such activity would leave the United States strictly liable for damages, which would be higher than the predicted $682,125 once environmental losses were included. If allowed for treaty violations, punitive damages could prove high in view of the above-mentioned record of American deception. The chances of such a suit actually being filed are not great, for, as speculation on its grounds shows, the stakes surrounding further construction of the GDU are high. The reason Canada will presumably not elect this course is that both Canada and the United States place a high priority on maintaining amicable diplomatic relations with each other. Rather, it is more likely that the IJC will use American and Canadian input to weigh alternatives and choose a compromise plan. The Commission has been politically neutral, but stern, with polluters, so Garrison opponents may finally find a responsive listener.

The steady progress of the project shows that, in this case, NEPA has failed to influence the stubborn governmental planning and politicking that have traditionally disregarded environmental balance in order to achieve shortisighted ends. Though economic realities make GDU a single project of interconnected facilities, Reclamation has segmented it geographically and chronologically in order to publish impact statements after funding and construction are well advanced. The environmental impact statement ignores environmental damage that will accompany the project, while benefits to land and animals are exaggerated or misrepresented. Reclamation glorifies the Unit's advantages to small farmers, though only conglomerate farming [5 ELR 10136] concerns can afford to take advantage of the completed project. In order to avoid domestic objection from North Dakota farmers or neighboring state governments, it proved convenient for Reclamation to focus direct environmental harm towards Canada. It is ironic that, in attempting to avoid domestic roadblocks to the project, the Bureau of Reclamation encountered Canadian objections which will stop, at least temporarily, the destruction of American lands.

The international implications of the controversy are troubling. The Department of Interior, which is responsible for final evaluation of water resource pollution, has attempted to restrict the State Department in its diplomatic role by withholding crucial information during Garrison negotiations. Interior assumes that Canada wants a river stabilization system without documenting such an assumption. Reclamation officials have treated international treaty obligations and NEPA standards as annoyances. The Interior Department attempted to irretrievably commit resources in a situation where there is not a logical national reason for continuing a project with high international environmental and political costs.

The Garrison Diversion Unit is unique in the sense that it offers no net benefits to either the United States or Canada. There are currently four transborder projects in which American enthusiasm is justified by expected national economic benefit: expansion of the Skagit Reservoir along the Washington-British Columbia border, construction of a superport in the Machias-Eastport area of Maine, use of Straits of Juan de Fuca near Seattle by tankers serving the Alaska pipeline, and American oil drilling in the fishing grounds between Cape Cod and Nova Scotia. The Garrison precedent of inter-agency deception and misinformed State Department diplomats will not serve the United States well in negotiations concerning these projects. However, publication of the Interior Department memos may strengthen the American position by forcing a change in diplomatic operating procedures before progress of the other projects is jeopardized by the mistakes made in Garrison diplomacy. The way in which Interior resolves or fails to resolve the GDU dispute in the months to come will influence how tolerant the Canadian government will be with our diplomats in the future. An open attitude and honest factual presentation will count more than the particular irrigation plan chosen. While it is true that national prerogatives do determine the end results of diplomatic bargaining, an overall environmental concern should at least guide international water negotiations and perhaps even define their parameters. Both countries must be willing to accept initial delays in proposed projects in order to make careful long-range plans. International environmental resources and goodwill cannot long bear the strain placed on them by the type of piecemeal and secret development strategy thus far employed for the Garrison Diversion Unit.

1. 121 Cong. Rec. H6088 (daily ed. June 24, 1975).

2. Treaty Between His Majesty and the United States of America Relating to Boundary Waters and Questions arising Along the Boundary Between Canada and the United States, 36 Stat. 2448, U.S.T. 548, signed at Washington, D.C., January 11, 1909.

3. For a thorough discussion of the GDU, see Sanford E. Gaines, The International Law Aspects of the Garrison Diversion Project, 4 ELR 50085 (Nov. 1974).

4. House Doc. No. 325, 86th Cong. 2d Sess., Feb. 4, 1960, p. 1 et seq.

5. Supra, n. 2.

6. Decision, Trail Smelter Arbitral Tribune, March 11, 1941. (IJC Docket No. 25). Where a smelter in British Columbia resulted in pollution of air in a United States valley downwind, the IJC enunciated the doctrine that "… [N]o state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence."

7. See Josephy Jr., Dr. Strangelove Builds a Canal, Audubon, March 1975, p. 76.

8. Final Environmental Statement filed by the Bureau of Reclamation of the Department of the Interior with the Council on Environmental Quality, Jan 10, 1974, Appendix B at p. 165.

9. Minnesota Pollution Control Agency, Division of Water Quality, memo on the Garrison Diversion Unit being constructed by the Bureau of Reclamation, January 21, 1975.

10. Washington Post, June 20, 1975 at A4, col. 1.

11. See discussion, 5 ELR 10132-10133, supra.

12. Diary No. 219, Embassy of Canada to Department of State, p. 2, June 23, 1975.