Cablegate: Resolving Our Differences On Devils Lake

This record is a partial extract of the original cable. The full text of the original cable is not available.





E.O. 12958: N/A

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

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

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

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