Garrison Diversion Faces New Challenges

The Garrison Diversion Unit (GDU), a massive $496 million irrigation project in North Dakota sponsored by the United States Bureau of Reclamation, continues to receive widespread criticism because of its alleged adverse economic and environmental impacts. The Environmental Protection Agency (EPA), Council on Environmental Quality (CEQ), and the House Government Operations Subcommittee on Conservation, Energy, and Natural Resources (Subcommittee) have requested a moratorium on project construction, of which 20 percent has been completed, pending full analysis of ecological hazards.¹ Other organizations, including the United States Fish and Wildlife Service, the South Dakota Legislature, the Minnesota Pollution Control Agency, and The Institute of Ecology have challenged the need for further work on the project. The most formidable challenge, however, may be a suit recently filed by the National Audubon Society which seeks to enjoin project-related purchases, site preparation, and construction because of alleged violations of the National Environmental Policy Act (NEPA) and other environmental statutes.²

Project Background — Surmounting Congressional Doubts

Following Bureau of the Budget criticism of the asserted economic benefits of the ambitious Pick-Sloan Missouri River Basin Project which had been authorized by the Flood Control Act of 1944,³ a more limited plan for the development of the Initial Stage of the Garrison Diversion Unit was approved by Congress on August 5, 1965.⁴ Project construction began in 1967, [6 ELR 10180] and completion is scheduled by the end of the century.

The approved Initial Stage calls for the development of a 200-mile section of waterways designed to transfer Missouri River water to portions of southern and central North Dakota. The water is to be used for irrigation, municipal and industrial use, recreation, flood control, and fish and wildlife conservation assistance.⁵

The project has been divided into six interrelated components: the Principal Supply Works, Souris Section, Central North Dakota Section, LaMoure-Oakes Section, Devils Lake Restoration, and the James River Restoration. Of the six segments, only the Principal Supply Works is under major development.

Separate environmental statements are planned for the first four segments. To date, only the Principal Supply Works, which includes the controversial Lonetree Reservoir, has been the subject of a final environmental impact statement.⁶ But a draft statement was recently issued on the LaMoure-Oakes Section.⁷

The Garrison Diversion has yet to receive the broad congressional support traditionally accorded projects designed to remedy the twin midwestern problems of drought and flood. Project delay has largely been the result of vigorous public criticism and intermittent congressional qualms. In June 1975, the House approved an appropriations bill amendment, later eliminated in a floor compromise, which would have required a temporary halt in project development at the end of fiscal 1976 pending investigation of alternatives less dangerous to the region.⁸ More recently Representatives Fraser (D.-Minn.) and Nolan (D.-Minn.) made an unsuccessful attempt to reduce the $23.5 million allotment for GDU construction in the 1977 Public Works Bill by deleting the $12.6 million authorization for construction of the Lonetree Reservoir.⁹

And on June 30, 1976 the House Government Operations Committee approved a Subcommittee recommendation that construction of the Lonetree Reservoir be temporarily suspended pending agreement of the International Joint Commission on minimizing pollutant flows into Canada.¹⁰ The Joint Commission will respond to Canadian charges that water drainage from irrigated lands will pollute rivers which flow across the border from North Dakota, in violation of the Boundary Waters Treaty of 1909.¹¹ Release of the study on this problem is scheduled for late October, 1976.

In addition, renewed congressional demands for complete analysis of alleged project deficiencies have resulted from recent hearings of the House Government Operations Subcommittee on Conservation, Energy, and Natural Resources. The Subcommittee recommended that construction be deferred until environmentally superior alternatives are found.¹² The Subcommittee contended further that construction and land acquisition for the three major undeveloped project sections — Souris, Central North Dakota, and LaMoure-Oakes — should be halted until a final supplemental environmental statement has been prepared for each of the areas.

Project Impact Criticisms

The Subcommittee report represents one in a series of critical studies which chronicle the Garrison Diversion's numerous deficiencies. The report focuses primarily on the issues of net project benefits, detrimental effects on wildlife, and NEPA impact statement adequacy.

The Bureau of Reclamation has claimed that the benefit-cost ratio of 2.9 to 1 supports full development of the irrigation and water supply systems.¹³ The Institute of Ecology, on the other hand, contends that because the final environmental statement incompletely analyzes cropland and grassland reduction and water quality deterioration, the project's substantial economic costs have been seriously underestimated. The Institute estimates that irrigation project operating costs will amount to a subsidy of $469,771 per farm.¹⁴ The Subcommittee took no position in this controversy, but noted that the General Accounting Office is currently analyzing these conflicting cost-benefit reports.

The Subcommittee report also attacks las misleading Bureau claims that the project will be self-sufficient in that it will "pay for itself" in revenues from the Missouri River Hydroelectric Power Dam.¹⁵ The report agrees that the irrigation project costs will be repaid mostly through federal power revenues, but noted that they will be generated from the 1944 dam project rather than from any segment of the Initial Stage of the GDU.

The Subcommittee also challenges Bureau claims that $2.7 million in benefits will be generated annually through the use of improved management techniques to increase the number of birds and wild animals. The Fish and Wildlife Service has estimated that the project will produce substantial wildlife losses through destruction of eight major wildlife areas.¹⁶

[6 ELR 10181]

But the Subcommittee reserved its major criticism for the adequacy of the final environmental impact statement for the Principal Supply Works portion of the GDU. According to the report, the incomplete nature of the environmental impact statement prevents the Bureau from making an informed evaluation of possible project alternatives in deciding whether to proceed as planned. The report thus reinforces the contention of CEQ and EPA that the Principal Supply Works final impact statement failed to analyze adequately project alternatives and system impacts.¹⁷

Project Faces Court Challenge

The National Audubon Society suit represents the most formidable marshaling of environmental degradation and NEPA statement inadequacy arguments. It largely paraphrases earlier congressional, administrative, and private environmental group findings on the lack of economic justification for the project, wildlife depletion, and improper cost-benefit analysis. The complaint also undertakes a detailed analysis of Bureau violations of NEPA.

The complaint centers on the allegedly illegal segmentation for the purposes of environmental analysis of a project whose components lack the independent viability which might justify the filing of a separate statement for each section. Plaintiff National Audubon Society argues that this piecemeal analysis prevents the detailed administrative consideration of cumulative project impacts that must preceed commitments to project construction and operation.

The complaint goes even further, alleging that the final impact statement filed for the Principal Supply Works fails to provide the information necessary for a complete analysis of environmental impact, adverse effects, and alternatives to that section of the project.¹⁸ The central focus of the allegation is the incomplete analysis of methods to mitigate water quality, wetland, and wildlife diminution resulting from the addition of salts and agricultural chemicals in irrigation use. Specifically, plaintiff charge the Bureau with failure to analyze such project options as desalinization systems and alternative irrigation flow patterns.

An additional charge raised by the complaint is that alteration of project plans has rendered the analysis in the final environmental statement obsolete and incomplete. The Bureau also allegedly failed to circulate for comment and review a supplemental statement containing the criticisms by the Fish and Wildlife Service, a federal agency havidng "special expertise" with respect to the environmental impact of wildlife depletdion.

In a final series of charges, the National Audubon Society claims that the Bureau has violated statutory provisions governing wildlife protection. It contends that plans covering conservation of wildlife resources and mitigation of wildlife damage have not been submitted as required for water diversion projects under the Fish and Wildlife Coordination Act.¹⁹ Plaintiff charges the Bureau with violation of the provisions of the Migratory Bird Treaty Act through failure to gain permission of the Secretary of the Interior for destruction of the habitats and nesting grounds of migratory birds.²⁰

Can the Project Survive?

The legal action instituted by the National Audubon Society may in itself prove a stumbling block to continued project construction, but it may also serve as one more catalyst for reevaluation of the Garrison Diversion Unit by the Bureau of Reclamation. Congress appears genuinely concerned about the dangers of authorizing a dubious project which has so deeply antagonized the Canadian Government. Though the Congress has yet to enact a complete suspension of further work on the project, the reasoned and detailed analysis contained in the Subcommittee report may provide the necessary ammunition to counter previously successful claims of project utility.

1. Washington Post, June 14, 1976, at A1, Col. 3.

2. National Audubon Society v. Kleppe, No. 76-0943, digested, ELR 65351 (D.D.C., filed May 27, 1976).

3. 58 Stat. 887.

4. 79 Stat. 433.

5. Revised Initial Stage Plan, February 1965.

6. Filed January 10, 1974, the statement attempts to assess cumulative environmental impacts while covering only the Supply Works and related recreation and wildlife projects.

7. 41 Fed. Reg. 24437 (June 16, 1976).

8. 121 Cong. Rec. H6088 (daily ed. June 24, 1975). For a detailed analysis of this temporary reprieve, see Comment, Congress Orders Moratorium on Garrison Diversion Unit, 5 ELR 10131 (Aug. 1975).

9. The vote on the amendment to H.R. 14236 was 156-244 122 Cong. Rec. H5890 (daily ed. June 15, 1976).

10. 122 Cong. Rec D943-4 (daily ed: June 30, 1976).

11. Treaty Between His Majesty and the United States of America Relating to Boundary Waters and Questions Arising Along the Boundary Between Canada and the United States, 36 Stat. 2448, U.S.T. 548, signed at Washington, D.C., January 11, 1909. For a further discussion of international impacts, see Gaines, The International Law Aspects of the Garrison Diversion Project, 4 ELR 50085 (Nov. 1974).

12. H.R. Rep. No. 94-1335, 94th Cong., 2d Sess. (1976).

13. Statement of Assistant Bureau Commissioner James J. O'Brien, reported in Washington Post, supra, at A2, Col. 5.

14. Environmental Impact Assessment Project of The Institute of Ecology, 1 Final Environmental Statement for the Initial Stage, Garrison Diversion Unit, v (Jan. 1975).

15. Statement, supra n. 13.

16. Special Memorandum from Assistant Interior Secretary Nathanial Reed to Chairmen of House Government Operations Subcommittee on Conservation, Energy and Natural Resources (Mar. 1976).

17. Washington Post, supra n. 1.

18. 42 U.S.C. § 4332(2)(C), ELR 41009.

19. 16 U.S.C. §§ 662-3, ELR 41801.

20. § 3, 16 U.S.C. § 704.