US embassy cable - 05OTTAWA1411

C O N F I D E N T I A L SECTION 01 OF 02 OTTAWA 001411 
 
SIPDIS 
 
CONFIDENTIAL 
 
SIPDIS 
STATE FOR WHA A/S NORIEGA, WHA DAS LINDA JEWELL, WHA/CAN 
TERRY BREESE, OES CLAUDIA MCMURRARY, AND L/OES HIM DAS 
 
E.O. 12958: DECL: 05/10/2015 
TAGS: SENV, CA, Devils Lake 
SUBJECT: DEVIL'S LAKE: CONTAINING THE DAMAGE 
 
REF: OTTAWA 03133 
 
Classified By: Charge John Dickson. Reason 1.4 (b) and (d). 
 
1. (C)  Summary - The U.S. and Canada are clearly on a 
collision course over Devils Lake, one that could have been 
avoided in a number of ways over the past two years.  We 
continue to believe that a reference to the International 
Joint Commission (IJC) would have been the most constructive 
approach, but Canada,s failure to accept our request for a 
reference in 2002 and our apparent inability to agree to one 
now have essentially removed that best-case option.  For its 
part, Canada is considering a number of &unilateral 
actions8 to achieve its aims ) including seeking an 
injunction in U.S. federal court and/or bringing greater 
media attention to the issue.  Assuming that the Department 
will not agree to the Canadian request for an IJC reference 
at this late date, we recommend that the USG start planning 
quickly to counter the official outcry and media assault that 
will undoubtedly follow in Canada.  We need to prepare the 
best possible defense of our position, which is increasingly 
coincident with that of the state, and ensure that North 
Dakota authorities adhere rigorously to the water quality 
standards included in the permit for the state outlet.  End 
Summary 
 
2. (C) The problem we face over the outlet at Devil,s Lake 
now is one of reduced options, due to our failure over the 
past several years to agree with Canada on a reference to the 
IJC or to some other mutually agreed mechanism for resolving 
concerns about an outlet from Devils Lake.  Construction of 
the outlet is nearly complete at significant cost to the 
state.  There is no reason to believe that North Dakota would 
agree to postpone operation of the project at this late date 
unless forced to do so.  That, of course, is still a 
possibility, if the Canadian or the Manitoban Government can 
obtain an injunction from a U.S. federal court. (Note: We 
understand from Canadian officials that they are considering 
filing such a motion with a federal court in Washington DC.) 
 
3.  (C)  Canadian behavior on Devils Lake over the past 
several years has been unfortunately disingenuous.  Their 
strategy shows little concern for the very real plight of 
their neighbors, despite a fairly long history of cooperation 
over flooding issues in the Red River Basin.  In view of 
Canada,s decision not to refer an earlier Army Corps of 
Engineers project to the IJC in 2002 and by aggressively 
demanding an IJC reference on the state project now, the 
Canadian Government,s arguments about the integrity of the 
Boundary Waters Treaty have taken on the air of empty 
moralizing.  Their actions reflect more a strategy of delay 
or cancellation of the project at all costs, using whatever 
argument seems convenient at a given moment.  Furthermore, 
the angry rhetoric and intransigence of the provincial 
government in Manitoba, now escalating at the federal level 
in Ottawa, has served to harden the attitude in North Dakota, 
rather than help move toward a solution. 
 
4. (C) The federal government in Ottawa is now seized with 
this issue, even though outside of Manitoba it still has not 
taken on as high a profile as beef or softwood lumber.  A 
decision by the USG not to refer this issue to the IJC may 
well make it the third major complaint (after softwood lumber 
and BSE) against the U.S., especially as Canada moves toward 
an electoral campaign when both government and opposition 
will want to show -- rhetorically anyway -- how strong a 
stance they will take for Canadian interests against their 
southern neighbor. 
 
5. (C) Discussions with contacts at Foreign Affairs reveal 
that Canada is still not looking for a mutually agreeable 
solution short of an IJC reference. They are now studying 
options to prevent the release of the water, including direct 
appeals to multiple offices at the Department and White 
House, enlisting members of Congressional delegations 
neighboring North Dakota to appeal to senior USG officials, 
filing for an injunction in federal court, and recruiting 
high profile Americans to travel to North Dakota to publicize 
the issue. 
 
6. (C) If, as we expect, the Department decides not to agree 
to an IJC reference, we need to move quickly to limit the 
damage to our bilateral relationship and to counter the 
official and media assault that will undoubtedly follow. 
Once the water starts flowing through the outlet, there will 
be no way to put the genie back in the bottle, but we should 
be prepared to make the best case possible that water from 
the outlet has not introduced alien invasive species to the 
Sheyenne and Red Rivers and that the outlet has not had a 
significant negative impact on water quality downstream.  We 
should be ready to respond quickly and forcefully to 
complaints from Manitoba, the Canadian Government and the 
media with our own message ) one that will depend to a large 
extent on North Dakota,s compliance with EPA water quality 
standards and the best possible research on the alleged 
invasive species in Devils Lake.  On the latter issue, North 
Dakota authorities have already shared publicly some 
information indicating that two species of fish pathogens of 
concern are already present in Manitoba and/or the Red River 
in Minnesota.  North Dakota officials have also said that the 
striped bass, introduced into Devils Lake many years ago, 
have not been seen in the lake since 1993.  Canadian 
officials and media seem to be unaware of this information or 
willing to ignore/discount it because of its source.  To make 
an impact and to be credible on this issue, we will need much 
more detailed information than we currently have. 
 
7. (C) As we understand it, North Dakota has monitoring 
stations at several locations along the Sheyenne and Red 
Rivers.  We need to ensure that the state has taken steps to 
establish a water quality baseline for the river.  We should 
emphasize to state authorities the importance of adhering 
rigorously to the tolerances for phosphorus, total dissolved 
solids and other pollutants included in the state,s permit 
for the outlet.  The more open, transparent and timely the 
state is in sharing monitoring information and 
reducing/stopping water flow when necessary to stay within 
established tolerances, the more chance we have of countering 
erroneous claims of pollution from the lake.  Some of the 
state,s monitoring data is already available on a state 
website, but should be made more accessible and user- 
friendly to be effective in countering Manitoba,s 
allegations on water quality.  We believe it would also be 
useful for North Dakota to invite Canadian/Manitoban water 
officials to participate in ongoing monitoring activities as 
a means of establishing transparency and credibility with our 
Canadian counterparts -- as well as starting to rebuild trust 
in this terribly strained relationship. 
 
8. (C) This issue is a prime example of failed diplomacy, in 
that there have been no direct discussions between Canada and 
the U.S. or the two major parties (North Dakota and Manitoba) 
on solutions beyond referring this to the IJC.  Our best 
course of action now lies in trying to limit damage to the 
relationship and to stop further escalation of the situation. 
 We need to communicate at the highest levels our 
disappointment at having been unable to agree on a bilateral 
solution to this issue and our determination not to let this 
disagreement damage our long-standing efforts to cooperate on 
cross-border water issues.  To this end, we suggest that the 
Secretary convey our views directly to Foreign Minister 
 
SIPDIS 
Pettigrew and that we make an effort to reinforce that view 
at all levels of the Canadian and Manitoban Governments. 
 
 
Visit Canada's Classified Web Site at 
http://www.state.sgov.gov/p/wha/ottawa 
 
DICKSON