Legal showdown is set in 4-year-old Red River diversion dispute

Published 12:21 pm Sunday, July 16, 2017

FARGO, N.D. — A legal battle by North Dakota and Minnesota residents opposed to a Red River diversion project in the Fargo area has lasted nearly four years and resulted in nearly 500 court documents, with no end in sight. Both sides are expecting some clarity in the next week.

U.S. District Judge John Tunheim of Minnesota will hear arguments Tuesday on whether construction of the project should be halted until the Fargo-Moorhead Diversion Authority and U.S. Army Corps of Engineers receive the necessary permits from the Minnesota Department of Natural Resources.

What’s the project?

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It’s a big ditch, actually, that would carry the north-flowing Red River around the Fargo area.

The metro area of Fargo, North Dakota, and Moorhead, Minnesota, has faced several flood threats over the years that were averted only by major sandbagging. While the $2.2 billion project would solve the cities’ problem, serious flooding would mean farmland to the south winds up under water.

Big moment

In 2013 a group of upstream residents formed the Richland-Wilkin Joint Powers Authority and sued to stop the 36-mile diversion channel. The group says it’s not opposed to flood protection for the metro area, but want a cheaper project that wouldn’t inundate farmland like this one would.

Despite refusal by the Minnesota DNR to grant a permit for the high-hazard dam, the diversion authority has said it will start construction on the North Dakota side anyway. The authority argues the project is authorized by Congress and the Corps doesn’t need a state permit for its work.

Opponents want Tunheim to stop both the authority and the corps.

“I definitely think it’s a seminal moment,” said Cash Aaland, a Fargo attorney and diversion opponent. “It is a preliminary matter, but if the judge were to grant our motions for a temporary injunction, it’s kind of acknowledging that the law is such that the Army corps can’t build this without a Minnesota permit.”

Fargo Mayor Tim Mahoney said the diversion authority is working on a public-private partnership for federal funding, known as P3, and that a favorable ruling by Tunheim would help that process.

“I’m glad we’re finally getting to the point of getting to court,” Mahoney said. “I think both sides want to have some movement so we know which way we’re headed or how we’re going to move forward.”

Permit debate

Technical experts from the Minnesota DNR and diversion authority had been exploring an alternative for the project that the agency could sign off on, but DNR Commissioner Tom Landwehr broke off discussions last month. Landwehr said the authority was wasting Minnesota money by asking for numerous documents for the court case and its plans to pursue construction are “beyond acting in bad faith.”

In response, the Moorhead City Council and Clay County Commission said the move penalizes the city and county and asked Minnesota Gov. Mark Dayton to order the DNR back to the table. Mahoney said the Fargo technical team believes it can find a solution that would satisfy the Minnesota requirements. He said he could not elaborate because of a confidentiality agreement.

Delay costs money

To pay for the project, the diversion authority is counting on $1.1 billion from local sources, including a sales tax that voters approved through 2084; $570 million from the North Dakota, of which $304 million has been appropriated; $43 million from Minnesota, to be requested; and $450 million from the federal P3 plan.

A consultant for the project on Thursday recommended the authority award a bid of nearly $3.2 million to a Minnesota company to realign two roads near the inlet structure.

Mahoney said that every year the project is delayed adds $60 million in interest and project costs, based on long-term construction inflation rates of about 3 percent. Supporters say that makes Tunheim’s ruling even more important.

The Corps put $20 million toward the project this year but there is no money for the diversion in President Donald Trump’s 2018 budget plan.