In Devils Lake, an outlet pumps 100 cubic meters of salty, polluted water per second into a river system that eventually leads to Lake Winnipeg.

On June 5, 2009, the controversy grew when North Dakota’s Water Commission endorsed the idea of increasing the output to 250 cubic meters per second. $50,000 was put towards investigating this option's plausibility. The commission would also like to abolish the discharge permit needed to operate the outlet.

Devils Lake has no natural inlet or outlet, so the runoff water that constantly leaks into the stale lake has raised the water level to the point of chronic flooding; threatening the town's farming economy and residents' well-being.

The resulting outcome was the outlet - a US$28 million project which pumps excess floodwater from Devils Lake into the Sheyenne River, a Red River tributary. From here it flows north into Lake Winnipeg and Hudson Bay.

So far, lake levels have dropped the equivalent of ten sheets of paper.

The recreational and commercial fishing industries are concerned about the threat of pollution by incoming water containing high levels of sulfate and the risk of environmental harm through foreign species. Devils Lake is home to at least three types of fish parasites that are not known to exist in Lake Winnipeg.

A simple rock and gravel barrier is currently in place to filter out fish, fish eggs and plants, even though in 2005, Canada and the United States agreed to install an advanced filter that would more thoroughly cleanse the water of pollutants and organisms.

Manitoba officials and environmental groups on both sides of the border have long disproved of the diversion and have pressured the Canadian government to do something about the water entering Canada. At a question period in 2007, the federal government said it was discussing the matter with U.S. authorities.

Nathan Cullen, Member of Parliament and NDP critic for natural resources and energy, calls it a "disaster for Canada." He said that if the Canadian government stands by and allows this to happen, then citizens will lose faith in their government's ability to stand up for them.

"[The federal government] has no credibility and no punch," said Cullen, "They go and do and say what they want?[they're] always trying to push their dirty oil."

A large part of the controversy is the fact that North Dakota is violating the Boundary Waters Treaty of 1909, which dictates that cross-border water issues should be dealt with by the International Joint Commission. The treaty prohibits diversion of water without the commission's approval and calls for an end to cross-boundary pollution.

When the Americans continually try to deal with this water problem in a way that negatively affects their northern neighbours, it strains the two countries' relationship and gives the impression that the treaty agreement is not worth the paper it's written on, Cullen said.

"We have to take this campaign to both [governments]. It's not good for either side."

The Doer provincial government has fought with North Dakota for over five years on the issue and this newest development could spark fresh rounds of court proceedings.

Cullen said that as another course of action, concerned parties should educate the local people on what's happening and incite public debate and protest. He said the issue is a matter of sovereignty and international integrity.

"It's the fundamental and environmental principle."

Updated by Sabrina Doyle - 6/9/09

This article by international lawyer Michael Byers, published in the Globe and Mail on Jan 31, 2005 is, in our view, a good summary of the Devils Lake diversion battle. Read Complete Article

Few geographic features are as aptly named as Devils Lake. A shallow, stagnant pothole just south of Manitoba, the lake forms the centre of a landlocked basin that lies within, but does not flow into, the Hudson Bay watershed. Fed solely by runoff from the surrounding farmland, lacking an outlet, and subject to intense evaporation during the hot prairie summer, the water of Devils Lake is a noxious brew of salt, arsenic, boron, mercury, nitrogen, phosphorous and sulphate. It is so polluted that it is unsuitable for irrigating crops.

Since 1993, the waters of Devils Lake have risen by nine metres. The lake has tripled in size, 30,000 hectares of farmland have been inundated and 300 farmsteads lost -- at an estimated cost of $500-million (U.S.).

Much of this damage has been self-inflicted. Over the years, the Government of North Dakota has encouraged the draining of more than 80,000 hectares of wetlands in the Devils Lake basin. In the past, those wetlands had allowed large quantities of water to evaporate, or percolate into the ground, before they reached the lake. Today, runoff from snowmelt and heavy rains flows quickly through a series of 22,000 drains and canals, pushing the level of the lake ever higher, especially in wet years, which have become more frequent.

In 2003, the U.S. Army Corps of Engineers recommended that a diversion be built from Devils Lake into the nearby Sheyenne River. It made this recommendation in the face of opposition from the Government of Manitoba. Since the Sheyenne is a tributary of the Red River, which flows northward into Canada, any diversion would degrade the quality of the water that empties into Lake Winnipeg -- an inland freshwater sea that supports a commercial fishery worth $50-million (Canadian) annually, as well as a substantial tourist industry.

Devils Lake also contains species of fish and at least two fish parasites that are foreign to the Red River system. In the 1970s, the lake was stocked with striped bass, an aggressive competitor that could devastate the existing fishery in Lake Winnipeg. The risk of invasive species must be taken seriously: Zebra mussels in the Great Lakes cause roughly $3-billion in damage each year to boats, beaches, water-intake pipes and fisheries.

In response to Manitoba's concerns, the Army Corps of Engineers recommended that the diversion include a sand filter to prevent the transfer of species, and that construction be postponed until further studies were conducted. Frustrated with the delay, the North Dakota government last summer began constructing its own "temporary" diversion, involving six kilometres of pipeline, 16 kilometres of canal, and three siphons -- but no sand filter. The diversion will soon be finished, at which point 100 cubic feet per second of Devils Lake water could flow unfiltered into the Red River system.

Manitoba has challenged the state government's diversion in U.S. courts. Last August, a district judge in Valley City, N.D., held: "This court cannot and will not sit as some kind of super board to determine whether this outlet is a good thing or a bad thing." Manitoba Premier Gary Doer also pressed the Canadian government to refer the matter to the International Joint Commission, the bi-national panel that oversees the 1909 Boundary Waters Treaty. Last year, Ottawa asked Washington to join it in referring the matter to the IJC.

The U.S. State Department responded by requesting that North Dakota consult with it before proceeding, so as to "avoid unnecessary conflicts between the United States and Canada or its concerned provinces." But North Dakota has failed to do so, perhaps because it knows in advance that its diversion is illegal. Article IV of the Boundary Waters Treaty states that "waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other." In the past, the IJC has consistently applied this provision in a manner that favours environmental protection, even in situations of scientific uncertainty.

The situation at Devils Lake also raises difficult political considerations. The Devils Lake diversion will have an impact that extends beyond its direct effects on fish populations and water quality. If North Dakota transfers even a small amount of water into the Sheyenne River, its ability to violate the Boundary Waters Treaty without consequence would show that neither Ottawa nor Washington is firmly committed to that legal regime. Individual states and provinces would become more willing to challenge federal control over transboundary waters. The present transcontinental arrangement has worked well for almost 100 years, balancing each country's obligations on some waterways against rights elsewhere. But it could quickly and irreversibly unravel.