US embassy cable - 04OTTAWA3133

UNCLAS OTTAWA 003133 
 
SIPDIS 
 
SENSITIVE 
 
STATE FOR WHA DAS LINDA JEWELL, WHA/CAN TERRY BREESE, OES 
CLAUDIA MCMURRAY, AND L/OES HIM DAS 
 
E.O. 12958: N/A 
TAGS: SENV, CA, Environment, Devils Lake 
SUBJECT: RESOLVING OUR DIFFERENCES ON DEVILS LAKE 
 
1. At the top of our environmental agenda's list of 
unfinished business and disasterous consequences of inaction 
is Devils Lake.  With the U.S. elections now behind us and 
the President planning to visit Ottawa later this month, it 
is time for us to revisit this issue and our long-overdue 
response to the Canadian request that it be referred to the 
International Joint Commission (IJC) for study and 
recommendations.  The Prime Minister and other senior 
Canadian officials have raised the Devils Lake issue 
repeatedly and they are likely to raise it again during the 
President's upcoming visit. In the past, we always had the 
luxury of putting off a decision pending the outcome of 
various legal challenges and the fact that no water transfer 
was imminent.  We no longer have the luxury of delaying our 
decision.  North Dakota's outlet is expected to be completed 
shortly and the state reportedly will be ready to start 
pumping water into the Sheyenne River next spring. 
 
2. It is the Embassy's view that a reference on Devils Lake 
to the IJC is in the best interests of both countries and 
offers an opportunity to resolve our differences amicably. 
The IJC was created under the Boundary Waters Treaty for just 
this type of situation.  Unfortunately, the Canadians were 
unwilling to move ahead with a reference when we made the 
initial proposal a couple of years ago.  In April this year, 
they recognized their mistake (although they wouldn't put it 
quite that way) and requested a broad reference on Devils 
Lake and other water issues involving North Dakota. 
 
3. While we see no basis for including those other North 
Dakota water issues or the proposed federal outlet project at 
Devils Lake, which was the subject of a separate review 
process for compliance with the Boundary Waters Treaty (BWT), 
 we should agree to a reference on the state outlet at Devils 
Lake, strictly limited in scope and time frame.  Failure to 
do so will leave us open to Canadian accusations that the 
state outlet does not comply with U.S. obligations under the 
BWT and could lead to acts of retaliation by the provincial 
government of Manitoba.  The Premier of Manitoba reportedly 
has asked his engineers to look at the possibility of 
blocking some cross-border water flows if North Dakota starts 
pumping water from Devils Lake.  This issue clearly has the 
potential to become a major irritant between our two 
countries.  Premier Doer has, however, said that he would 
abide by the outcome of an IJC reference on this issue, a 
position which represents significant movement on his part. 
Both countries rely heavily on the BWT to challenge projects 
and activities that could potentially pollute our shared 
water resources.  It is important in this case, that we act 
to preserve confidence in the treaty. 
 
4. We recognize the damage that rising water levels and 
flooding have caused in North Dakota around Devils Lake.  The 
state and federal governments have had to expend hundreds of 
millions of dollars to move buildings, rebuild roads and 
dikes and compensate farmers and local residents.  We would 
like to see the state project proceed, but we should be sure 
that it complies with our treaty obligations to Canada before 
it begins pumping water.  Therefore, we propose that the U.S. 
position contain the following elements. 
 
a) We should agree to a joint reference to the IJC, limited 
in scope to the state outlet and strictly limited in its time 
frame. 
 
b) We should further frame the reference so as not to derail 
the state outlet.  If the IJC finds that the outlet fails to 
meet U.S. obligations under the BWT, its recommendations 
should be directed at what can be done to correct 
deficiencies. 
 
c) The reference should address the still outstanding issue 
of the possible transfer of invasive species not already in 
the Sheyenne and Red Rivers. A biota study, as provided for 
in the Secretary's letter of January 2004 on the proposed 
federal outlet, is a must, but it should be on a very tight 
time schedule to avoid unnecessarily delaying operation of 
the state outlet. 
 
5. The Canadians are likely to raise Devils Lake during the 
President's visit, either directly with the President or 
separately in the Secretary's meetings.  We should be 
prepared to give the Canadians a positive response to their 
request for a reference to the IJC along the lines noted 
above. 
 
Visit Canada's Classified Web Site at 
http://www.state.sgov.gov/p/wha/ottawa 
 
DICKSON