October 2, 2006

Manitoba joins U.S. legal challenge to modified Devils Lake outlet permit

The Manitoba government has joined with several North Dakota and U.S. federal organizations to appeal a recent decision by the North Dakota Department of Health to modify the operating permit for the Devils Lake outlet.

"The decision by North Dakota to allow these permit modifications lowers the environmental safeguards governing the operation of the Devils Lake outlet," said Water Stewardship Minister Steve Ashton, adding, "We have a solid basis for appealing this decision."

The organizations include People to Save the Sheyenne River, the Peterson Coulee Outlet Association and the National Wildlife Federation. The groups have been concerned about the potential environmental impact of the Devils Lake outlet. The appeal was filed in North Dakota District Court in the city of Devils Lake.

This legal challenge is in response to the recent decision by the North Dakota Department of Health to weaken the environmental standards contained in the Devils Lake outlet operating permit. The changes allow for higher levels of sulfate (up to 450 micrograms per litre) to be discharged from Devils Lake to the Sheyenne River, and expand the time period each year during which the outlet can be operated. These changes had been requested by the North Dakota State Water Commission.

The appellants maintain that raising the allowable limit for sulfate, in addition to extending the annual operating period, will increase the amount of water that can be discharged from Devils Lake. This increases the risk that alien and invasive species will be transferred into the Manitoba portion of the Hudson Bay basin. It also increases the frequency of exceedances of the International Joint Commission's water quality guidelines for salt content in the Red River at the border, noted Ashton.

He added that the legal challenge is based on assertions that North Dakota failed to demonstrate adequate cause for the permit modifications and failed to conduct an anti-degradation review as required for a major permit modification.

"The appeal asks the court for a reversal of the Department of Health's decision and a ruling that would prevent the State Water Commission from operating the Devils Lake outlet in excess of the original permit conditions," the minister continued.

Manitoba has also asked the Canadian government to call on the U.S. federal government to remove North Dakota's delegated authority over environmental licensing and to have the federal Environmental Protection Agency (EPA) intervene.

Devils Lake has dropped about 20 inches so far this year despite the fact the outlet has not operated due to high sulfate levels in the Sheyenne River.

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