Summary
The Supreme Court of North Dakota reviewed challenges to the North Dakota Department of Health's issuance of a pollutant discharge permit for an outlet transferring water from Devils Lake to the Sheyenne River. The court held that the permit hearing was conducted for public comment and was not an adjudicative proceeding requiring the full procedures of the Administrative Agencies Practices Act. Applying an arbitrary, capricious, or unreasonable standard of review, the court affirmed the permit decision.
Topics
Practice areas
Questions Presented
- Whether the Health Department's public-comment hearings on the NDPDES permit were adjudicative proceedings subject to the procedural requirements of North Dakota's Administrative Agencies Practice Act.
- Whether the Health Department's decision to issue the permit was arbitrary, capricious, or unreasonable because it allegedly failed to adequately consider phosphorus loading and downstream water-quality effects.
- Whether the permit violated North Dakota's antidegradation regulations.
- Whether the Health Department's decision not to require a sand filter or additional technology-based controls to minimize biota transfer was arbitrary, capricious, or unreasonable.
Holdings
- A permit hearing conducted under N.D.C.C. ch. 61-28 for the purpose of receiving public comment is not an adjudicative proceeding under N.D.C.C. ch. 28-32 when N.D.C.C. § 23-01-23 specifically excludes such hearings from the chapter's adjudicative-proceeding requirements.
- A Health Department permitting decision made through a public-comment process rather than an adjudicative proceeding must be upheld unless it is arbitrary, capricious, or unreasonable.
- The Health Department's determination that the permit's phosphorus loading would not adversely affect downstream beneficial uses was supported by the record and was not arbitrary, capricious, or unreasonable.
- The Health Department reasonably determined that phosphorus was not a parameter of concern for antidegradation review and adequately considered the social and economic importance of the outlet and less-degrading alternatives.
- The Health Department's determination that the state outlet posed a low risk of transferring alien or invasive biota, and its decision not to require a sand filter, were supported by the record and were not arbitrary, capricious, or unreasonable.
Key quotations
“A decision is arbitrary, capricious, or unreasonable if it is not the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.” (697 N.W.2d 329; ¶ 24)
“We decline Manitoba's invitation to reweigh the evidence.” (697 N.W.2d 333; ¶ 38)
Factual background
Devils Lake, a large lake in northeastern North Dakota, had risen nearly twenty-five feet since 1993 because of above-normal precipitation, causing extensive flooding and damage to homes, businesses, roads, and utilities. The North Dakota State Water Commission sought an NDPDES permit to construct and operate an outlet from Devils Lake's West Bay into the Sheyenne River. The Health Department issued a permit with phased discharge limits, adaptive-management requirements, biological assessments, seasonal restrictions, an elevation threshold, and an intake screen to reduce the risk of transferring fish and other biota. Opponents challenged the permit based principally on phosphorus loading, antidegradation requirements, and the risk of transferring alien or invasive species.
Procedural history
The Health Department issued the permit after environmental review, public notice, public hearings, written comments, and responses to comments. Opponents filed petitions for reconsideration, but the permit remained in effect. Separate appeals to the district court were consolidated, and the district court affirmed the agency decision. The North Dakota Supreme Court affirmed.