Transboundary Water Disputes on an International and State Platform: a Controversial Resolution to North Dakota's Devils Lake Dilemma

Abstract

Since the early 1990's, the flooding of Devils Lake, located in central North Dakota, has been a hotly debated issue on a state, national, and international level. As opposing viewpoints come to a head, the most contentious issue involves the construction by the North Dakota Department of Health of a man-made water-diversion outlet. The outlet is designed to relieve flooding pressure on residents living near the growing lake. The outlet will re-direct water from Devils Lake into the nearby Sheyenne River which, in turn, flows east into the Red River of the North. Unfortunately, the Red River borders the states of North Dakota and Minnesota, and also flows north into the Canadian province of Manitoba. The creation of the outlet has raised concerns about the water quality of Devils Lake, and its potentially adverse impact on the waters of Minnesota and Manitoba. In June of 2005, the North Dakota Supreme Court struck down a challenge against the construction of the Sheyenne River outlet which was brought by several environmental groups, the government of Manitoba, and the Attorney General of Minnesota. In light of this case, this paper analyzes, on a legal and social level, many of the lingering questions involving the water re-direction of Devils Lake. On a legal level, the Devils Lake Dilemma involves a complicated measurement of legal doctrines, including: state sovereignty rights, federal preemption, international treaties, environmental law, public nuisance law, and, finally, international diplomacy between the governments of the United States and Canada. On a social level, the paper analyzes the inherent right of states to protect their citizens from harm, while, at the same time, outlining the environmental impacts caused by large-scale diversions of the natural environment.

Keywords: transboundary, clean water act, Devils Lake, water pollution, NEPA, nuisance, Manitoba, North Dakota, Minnesota, Sheyenne River, Treaty

JEL Classification: K00, K10, K11, K19, K32, K33, K30, K40, Q20, Q15