BISMARCK -- The state Health Department should have reviewed the risk of Devils Lake water degrading the Sheyenne River before it issued a revised permit for the Devils Lake outlet last year, outlet opponents argued at the North Dakota Supreme Court Wednesday.
The revised permit allowed the state Water Commission, which operates the outlet, to discharge more sulfates and suspended solids with the lake water than an original permit from 2003. It also granted a longer operating season per year.
Permitted sulfates were allowed to rise from 300 milligrams per liter of water to 450 milligrams per liter.
The Water Commission asked for a looser standard last year because from the time the outlet first began operating in 2005, water from the lake has often exceeded the original level of permitted sulfates.
State law dictates re-review of possible harm when major changes in a discharge permit are sought, said opponents' lawyer Bill Delmore said. Not doing a degradation review "does not seem like a way to protect the waters of the state," he said.
Delmore represents the government of Manitoba and three groups -- People to Save the Sheyenne River Inc., Peterson Coulee Outlet Association and the National Wildlife Federation.
But the state Health Department's attorney, Dean Haas, said Delmore's claim that a degradation review wasn't done is not true.
"It was done," Haas told the justices.
Sulfates are common in drinking water and higher sulfate concentrations have a diarrhea affect. They also render water unfit for irrigation, Delmore said. Total suspended solids refers to extremely small particles in water that do not settle out by gravity.
Delmore also said the outlet is essentially a failure and the efficacy of a project should be factored into whether it should have a permit to operate.
Based on the state Water Commission's own records, the outlet has, in three years of operating only occasionally, dropped the swollen Devils Lake by one-thirty-sevenths of an inch, Delmore said. He said that would have uncovered about an acre of flooded land.
That hardly justifies the outlet's $28 million cost, he said.
The lake, which has no natural outlet, began rising in 1993 and continued most years afterward, due to a wet cycle in the area. It has inundated cropland, houses, farmsteads and forests. The outlet is a system for lowering the lake by pumping the water into the Sheyenne River.
Chief Justice Gerald VandeWalle asked Haas, "Isn't it true the outlet didn't operate the way you -- the agencies (expected)," and that prompted a request for a revised permit?
Outlet opponents had also challenged the outlet's original Health Department permit and lost before the Supreme Court in 2005.
The court took this case under advisement after Wednesday's arguments and will issue a decision later.
Cole works for Forum Communications Co., which owns The Jamestown Sun