North Dakota's Health Department ignored its own rules in approving major changes to the Devils Lake outlet's operating permit, an attorney told the state Supreme Court. The revisions give the outlet more time to channel saltier lake water into the Sheyenne River.

Bill Delmore, who is representing the Manitoba provincial government and three groups that oppose the outlet, said state rules required the Health Department to conduct an "anti-degradation" review of the modified permit.

The outlet was built for $28 million to divert excess Devils Lake water into the Sheyenne.

At best, the outlet has kept the lake a half-inch lower than it would otherwise be in the three years it has been operating, Delmore said during Supreme Court arguments Wednesday. He is a private attorney in Mandan who once worked as the Health Department's top environmental lawyer.

"That's probably less than an acre. A $28 million acre," he said.

Dean Haas, a Health Department attorney, contended the review was not required. Sulfate levels in Devils Lake's west bay are not substantially different from those found in Sheyenne water where the outlet channel empties into the river, Haas said. The water is freshened as it moves downstream, he said.

"Manitoba tends to leave the impression … that the problem is high sulfate in Devils Lake itself. That actually isn't the case," Haas said. "North Dakota soils and waters are naturally high in sulfate."

The outlet has been able to operate only sporadically even with the higher sulfate standards, which have been in effect for more than a year.

It was able to pump water for about 20 days after its construction and testing was completed in August 2005. It was shut down all last year because of dry conditions that caused elevated Sheyenne sulfate levels.

Chief Justice Gerald VandeWalle said the permit changes suggested that the North Dakota Water Commission, which operates the outlet, was searching for ways to divert more Devils Lake water into the river.

"From the overall standpoint, it looks as if, 'Well, this didn't work the way we thought it (would), so now we've got to find another way to see if we can't make it work the way we think it ought to,'" VandeWalle said. "The only way we're going to do this is by adjusting these factors."

The Supreme Court will make its ruling later. In June 2005, the court unanimously concluded the Health Department followed North Dakota law and was not unreasonable in issuing the outlet's original operating permit.

The outlet is a 14-mile network of open channels, pipes and pumping stations. Devils Lake has tripled in size since the early 1990s, fed by rain, melting snow and farmland water drainage. The flooding has caused more than $500 million in damage.

Manitoba has challenged the project because the Sheyenne is a tributary of the Red River, which flows north into Lake Winnipeg. Canadian officials worry the outlet will harm water quality and transfer unwanted aquatic organisms into Canadian waters.

The National Wildlife Federation and two North Dakota groups, People to Save the Sheyenne River and the Peterson Coulee Outlet Association, also are contesting the permit changes.

The outlet's first operating permit, issued in August 2003, said it could not divert Devils Lake water into the Sheyenne if river sulfate levels averaged more than 300 milligrams per liter over seven days. It said the outlet could operate only from May 1 through Nov. 30.

Federal Environmental Protection Agency guidelines limit sulfates to 250 milligrams per liter for drinking water, although livestock can tolerate greater salinity.

In May 2006, North Dakota's Water Commission, which operates the outlet, asked the Health Department to raise the maximum sulfate amount to 450 milligrams per liter over seven days and allow the outlet to pump water as long as the Sheyenne had not iced over.

Last year, the relaxed outlet operating standards would have allowed it to begin pumping water on April 6, rather than waiting until May 1, Delmore told the Supreme Court.

"That's a lot more time for the adverse impacts, and a lot more (water) flow to be going into the river," he said.