July 16, 2007

Manitoba prepares to sue over Devils Lake outlet operation

Manitoba and several U.S. environmental organizations have notified North Dakota that they will sue the state unless action is taken to ensure that operation of the Devils Lake outlet is not allowing fish to pass out of the lake.

The provincial government has joined with the People to Save the Sheyenne, Peterson Coulee Outlet Association and the United States National Wildlife Federation in filing a formal notice of intent. These same parties last month appealed a decision by North Dakota's Health Department to weaken environmental standards governing the operation of the Devils Lake outlet (EcoWeek July 2, 2007).

Manitoba Water Stewardship Minister Christine Melnick said the movement of fish, fish pathogens and parasites and other foreign organisms out of Devils Lake threaten to harm Manitoba's downstream waters. "The onus is on North Dakota to demonstrate adult fish did not pass through the outlet from Devils Lake," she said, adding, "So far, this has not been demonstrated, yet the state regulatory agency continues to allow the outlet to be operated."

Operation of North Dakota's outlet from Devils Lake began on June 11. Similar to its brief operation in August 2005, adult fish were soon discovered in the outlet channel below the gravel filter. Passage of fish through the outlet's intake screens would be a violation of North Dakota's permit governing operation of the outlet.

In cases where regulatory agencies fail to act, the U.S. Clean Water Act allows citizens to sue after providing 60 days notice. The Act further provides for fines of up to $32,500 each day for violations of discharge permits.

The six-page notice of intent to sue in part states that, initially, North Dakota officials were not able "...to locate or identify the size of fish shown in the pictures," that they told local press they had "checked the channel from top to bottom but couldn't find any fish," and then less than a week later were forced to admit they were incorrect and that adult fish were being found downstream of the intake.

"The Manitoba government will continue to take all available measures to protect our valuable water resources and environment including court action when upstream jurisdictions fail to act in responsible and reasonable ways," Melnick stated.

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