US embassy cable - 05OTTAWA412

UNCLAS SECTION 01 OF 02 OTTAWA 000412 
 
SIPDIS 
 
SENSITIVE 
 
STATE FOR WHA/CAN, OES/ENV, L AND H 
 
APP WINNIPEG MSG 05/02 
 
E.O. 12958: N/A 
TAGS: SENV, PREL, CA, Manitoba 
SUBJECT: DEVILS LAKE: MANITOBA DIGS IN ITS HEELS 
 
Ref: 2004 Ottawa 3133 
 
1. (U) SENSITIVE BUT UNCLASSIFIED -- PROTECT ACCORDINGLY. 
 
2. (U) This is a joint cable from APP Winnipeg and 
Embassy Ottawa.  See action requests paras 10 and 11. 
 
3. (SBU) SUMMARY: North Dakota is expected to begin 
moving water from Devils Lake to the Sheyenne River in 
July 2005, in an effort to address chronic flooding in 
the region.  The water will flow from there into the Red 
River and across the Canadian border to Lake Winnipeg. 
The Manitoba government strongly objects to the operation 
of such an outlet, and insists the only amicable venue to 
resolve the issue is the International Joint Commission 
(IJC).  Failure to refer the matter to the IJC "will suck 
the life out of the Boundary Waters Treaty," in the words 
of Manitoba's Water Stewardship Minister.  Mission Canada 
agrees that reference to the IJC would be the preferred 
way of dealing with questions about the state outlet, but 
recognizes the there would be significant domestic 
political opposition to a reference.  If a reference is 
not possible, we request that the Department respond as 
soon as possible to Canada's diplomatic note of April 
2004, detailing our reasons for not accepting the 
Canadian proposal.  In addition, Mission Canada suggests 
that Washington consider offering to conduct a joint 
biota study with Canada to address concerns about biota 
transfer from Devils Lake. END SUMMARY. 
 
4. (SBU) DCM engaged key players on the Devils Lake issue 
during a February 3-4 visit to Winnipeg, including a 
North Dakota proponent of the project and Manitoba Water 
Stewardship Minister Steve Ashton.  Both sides made one 
point consistently -- that the "other guy" had for years 
refused to engage constructively in any effort to 
amicably resolve the dispute.  Other than that, all other 
views on efforts to reduce flooding at Devils Lake by 
constructing an outlet to the Sheyenne River were 
diametrically opposed. 
 
5. (SBU) The project proponent, a long-time resident of 
Devils Lake, shared with DCM some of the dramatic images 
created by the lake's nearly 27 foot rise over the past 
12 years, and reviewed the history of the Sheyenne River 
outlet projects as envisioned first by the U.S. Army 
Corps of Engineers (USACE) and then by the ND State Water 
Commission (NDSWC).  He said the NDSWC felt compelled to 
act when it became clear that the USACE project would 
never be fully funded despite the continually rising 
waters (which hit new record highs last spring, and with 
even higher levels predicted this year).  He also 
reviewed some of the political steps ND was taking to 
prevent delay of the expected July operation of the 
outlet, including a recent meeting between ND Senator 
Conrad and Secretary Rice. 
 
6. (SBU) In meetings with MB Water Stewardship Minister 
Ashton and members of his staff, Dickson heard familiar 
themes repeated, including concerns over increased levels 
of phosphates and other pollutants in the Red River as a 
result of the outlet, and concerns over the potential 
release of biota from Devils Lake into the Red River and 
Lake Winnipeg (notwithstanding the fact that the 
Environmental Impact Statement prepared for the USACE 
project reported there was no biota in Devils Lake that 
did not exist elsewhere in the Red River Basin).  Ashton 
indicated that the MB government had one legal action in 
process against the state outlet, and was prepared to 
vigorously pursue all legal options to prevent the outlet 
from being completed and/or operated. 
 
7. (SBU) Leaving the technical matters aside, Ashton 
repeated Manitoba's long held position that if a review 
of the project by the International Joint Commission 
(under the purview of the Boundary Waters Treaty (BWT) of 
1909) said that the project could go ahead, then Manitoba 
would drop all its objections.  He noted that the BWT had 
been a model for many nations in the resolution of just 
this kind of dispute.  Echoing an editorial by Michael 
Byers published in the Globe and Mail on January 31, 
Ashton said that a decision by the USG to not refer the 
project to the IJC would "suck the life out of the 
Boundary Waters Treaty," and set a precedent for every 
other jurisdiction along the border.  When reminded that 
Canada itself had earlier  refused an IJC reference, 
Ashton offered an excuse that a reference at that stage 
would have been "premature" as the Army Corps of 
Engineers design was incomplete.  Further, he assiduously 
rejected suggestions that compromise or resolution to the 
matter could be found in a venue other than a reference 
to the IJC.  He said that the Secretary of State has two 
options -- referral or no referral. 
 
8. (SBU) COMMENT:  After the DCM's departure, the 
Washington DC District Court handed down a decision in a 
separate case Manitoba had brought against a ND water 
project (the Northwest Area Water Supply project, or 
NAWS).  The case suggested that Environmental Impact 
Statements prepared for the project were insufficiently 
rigorous.  Although the facts of the two situations are 
substantially different, the Manitoba Government has 
trumpeted the decision, saying that it significantly 
strengthens their case against the Devils Lake outlet. 
 
9. (SBU) COMMENT CONTINUED: As far as options should 
there be no IJC reference, Manitoban officials only paint 
a picture of increasing confrontation and retaliation, 
including lawsuits which could, in Ashton's words, dwarf 
the cost the state and federal governments have already 
incurred as a result of the flooding.  There is little 
contact between provincial and state representatives, who 
reserve their harshest language for each other.  Post did 
engage with Canadian Embassy officer Colin Robertson who 
seemed willing to explore ways in which the two federal 
governments could contribute to a resolution.  END 
COMMENT. 
 
10. (SBU) ACTION REQUEST:   Mission requests Washington 
Agencies again review April 2004 request by the Canadian 
Government to refer the Devils Lake question to the IJC. 
While Mission believes a reference to the IJC is the 
preferred course of action, we also realize that such a 
step would  draw significant domestic opposition.  If it 
is determined that an IJC reference is not a viable 
option, Mission strongly recommends Department prepare a 
formal response to the Canadian request, setting out in 
detail our reasons for not referring the matter to the 
IJC.  In so doing we would be able to reiterate the USG 
commitment to the spirit and the letter of the Boundary 
Waters Treaty. 
 
11. (SBU) We note that upcoming consultations in 
Washington, February 24/25 offer an opportunity to review 
with Foreign Affairs Canada options other than an IJC 
reference.  We recommend that the Department consider the 
possibility of proposing to Canada a joint biota study. 
While Manitoba would probably reject this proposal 
immediately, we are not certain that the Canadian 
Government would.  Either way, we would be able to claim 
some high ground by having offered to address a central 
concern about the state outlet.  As suggested in reftel 
prior to the President's visit to Canada, such a study 
would, of course, have to be strictly time limited and 
focused on determining whether there are species of 
concern in Devils Lake. 
 
12. APP WINNIPEG SENDS. 
 
CELLUCCI