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People to Save the Sheyenne River v. North Dakota Dep't of Health

ELR Citation: 38 ELR 20056
Nos. No. 20070118, (N.D., 02/21/2008)

The Supreme Court of North Dakota affirmed in part and reversed in part a lower court judgment upholding modifications the state's health department made to the national pollutant discharge elimination system (NPDES) permit for Devils Lake. The department did not act arbitrarily, capriciously, or unreasonably in deciding an antidegradation review was not required to modify the permit. The department's decision about sulfate limitations and mass loading under its antidegradation regulations involves a complex subject and is entitled to deference. Likewise, the department reasonably concluded that there was cause to modify a sulfate limitation in the initial permit. The department, however, acted arbitrarily, capriciously, and unreasonably in deciding there was cause to modify the method for measuring total suspended solids (TSS) and the period of operation for the permit. The department failed to demonstrate that information about TSS standards was not available when the initial permit was issued. In the absence of any such evidence, the department's decision to modify the TSS standard with a "more appropriate" method of monitoring under the auspices of new information was not the product of a rational mental process by which the facts and the law relied upon were considered together for the purpose of achieving a reasoned decision. Similarly, there is no evidence in the record that modification of the period of operation involves information that was not available when the initial permit was issued or involves an error in mathematical calculation, computer error, clerical mistake, or the like.