Workers investigating the discovery of fish on the wrong side of the Devils Lake water diversion have found a crack in the pipe that connects the outlet to a filtration screen.

The North Dakota water commission has been inspecting the outlet since fish were discovered below a gravel filter on the outlet in late June.

The Devils Lake outlet diverts water from the lake into the Sheyenne River, a tributary of the Red River, which flows north into Lake Winnipeg.
(CBC)

If the fish came through the filter, it is a violation of the permit allowing the outlet to operate, which states it must be fitted with a screen sufficient to filter out all adult fish species.

State engineer Dale Frink said workers lifted a screen on the outlet this weekend and found it was fine — but they did find a small crack in the pipe connected to the screen.

The crack was close to one centimetre wide — wide enough, in theory, to allow fish to get through the outlet, which diverts water from Devils Lake, N.D., into the Sheyenne River, a tributary of the Red River, which flows north into Manitoba and to Lake Winnipeg.

"What's been getting through are fathead minnows and stickleback minnows, and they didn't find any of those in that structure," Frink said Tuesday, though he conceded that "potentially a few of them could have gotten through there."

Workers are in the process of repairing the crack, Frink said. The state's inspections are not yet complete, but if all goes well, the outlet could be back in operation by Wednesday, he said.

Filter not adequate, Manitoba argues

Manitoba's senior federal cabinet minister, Vic Toews, plans to visit Devils Lake later this week to discuss the operation of the contentious outlet. He argues the outlet should not operate again until permanent and effective measures to keep out fish and other organisms can be found.

The Manitoba government and several environmental groups in the United States served formal notice last week of their intention to sue North Dakota over the potential breach. Manitoba has long opposed the outlet, raising concerns that foreign fish, parasites and other biota could end up in Canadian waters, possibly affecting the provincial fishery.

Bill Delmore, a North Dakota lawyer representing Manitoba in court over the outlet, said the diversion should have been closed as soon as fish were discovered — and the crack is not the main issue.

"It certainly shows a problem, but I don't necessarily think that's the problem that caused the minnows to go through," he said. "Even with the crack, that's a concern. But we're not sure that the existing screen and filter is adequate."

The outlet, which was completed and first used in 2005, should not be showing problems such as cracks this early in its life, Delmore added.

North Dakota has 60 days to respond to the legal challenge by the Manitoba government, and People to Save the Sheyenne, Peterson Coulee Outlet Association and the United States National Wildlife Federation.

Under the United States Clean Water Act, violations of discharge permits can result in fines of up to $32,500 each day.

North Dakota spent $28 million US on the 23-kilometre outlet, designed to ease chronic flooding of homes and businesses around Devils Lake, which has experienced unusually high levels over the past decade. The outlet has been used only once before this year: for 10 days in 2005.

In 2005, Canada and the United States agreed to install a more advanced filter on the outlet to filter out pollutants and organisms in the water, but that has not yet happened. The rock and gravel barrier currently in place is supposed to filter out fish, fish eggs and plants.

Officials with North Dakota's government maintain the outlet is a reasonable means of diverting some water to protect life and limb.