ORDER APPROVING PARTIAL ABANDONMENT OF CASS COUNTY DRAIN NO.

Published May 12, 2021 at 3:01 AM

ORDER
APPROVING PARTIAL ABANDONMENT OF CASS COUNTY DRAIN NO. 27
AND APPROVING FINAL REASSESSMENT LIST
REGARDING CASS COUNTY DRAIN SC-2 DISTRICT
WHEREAS, the Southeast Cass Water Resource District (the "District"), or its predecessor, previously created, established, made assessments for, and constructed Cass County Drains 27 and 53 in Cass County, North Dakota (collectively, the "Drains"), and confirmed assessment lists for each of the Drains.
WHEREAS, the District previously determined that, in light of the common outlet shared by the Drains, and the common topography and watershed characteristics shared by the Drains, the District could more effectively and efficiently own, operate, manage, maintain, and control the Drains as a single and joint drainage system, and that consolidation of the Drains into a single drainage system would benefit the entire watershed area, including the landowners and properties that benefit from each of the Drains.
WHEREAS, the District previously consolidated Drains 27 and 53 into a single consolidated drainage system, and similarly consolidated their corresponding maintenance assessment districts into a single maintenance assessment district, known as CASS COUNTY DRAIN SC-2 DISTRICT.
WHEREAS, meanwhile, construction of the locally preferred plan for the Fargo-Moorhead Metropolitan Area Flood Risk Management Project (the "Comprehensive Project") for the Fargo-Moorhead Metropolitan Area was authorized by Section 7002(2) of the Water Resources Reform and Development Act of 2014, Public Law 113-121.
WHEREAS, the Metro Flood Diversion Authority (the "Authority"), the City of Fargo, North Dakota, and the City of Moorhead, Minnesota, are the Non-Federal Sponsors for the Comprehensive Project and have entered into a Project Partnership Agreement (the "PPA") with the United States Army Corps of Engineers (the "USACE") for the construction, operation, and maintenance of the Comprehensive Project.
WHEREAS, the PPA sets forth a split delivery method for the Comprehensive Project, establishing the respective responsibilities for both the Non-Federal Sponsors and the USACE.
WHEREAS, pursuant to the PPA, part of the Authority's responsibility is to design, construct, manage, operate, and maintain 30 miles of channel and associated features, the channel outlet, aqueducts, hydraulic structures, various local drainage inlets, various levees, railroad bridges, interstate bridges, county road bridges, recreational features, as well as environmental mitigation features located within the Storm Water Diversion Channel and Associated Infrastructure ("SWDCAI").
WHEREAS, pursuant to the PPA, the USACE is responsible for completing the Diversion Inlet Structure, the connecting channel, the Red River Structure and the Wild Rice River Structure, the Southern Embankment and Associated Infrastructure (the "SEAI"), the overflow embankment, construction of road raises associated with the staging area, and all environmental mitigation features that are not the responsibility of the Non-Federal Sponsors.
WHEREAS, as a component of the environmental mitigation responsibility for the Comprehensive Project, the USACE is planning the Drain 27 Wetland Restoration Project (the "Wetland Restoration Project") to restore historic wetlands along portions of Drain 27 in Stanley Township, Cass County, North Dakota.
WHEREAS, the Authority and the USACE have concluded the Wetland Restoration Project is necessary to mitigate wetland impacts caused by construction of the SEAI, and to comply with their respective regulatory obligations related to the Comprehensive Project.
WHEREAS, a portion of Drain 27 will be impacted by the Wetland Restoration Project and the Authority has directed the District to proceed with a partial abandonment of Drain 27 to allow for the USACE to develop the Wetland Restoration Project.
WHEREAS, more specifically, the Authority has directed the District to abandon approximately one mile of Drain 27 that will lie south of the SEAI, in Sections 28 and 29 of Stanley Township.
WHEREAS, if necessary, the Authority, through its member, Cass County Joint Water Resource District, has the power and authority to exercise the power of eminent domain pursuant to N.D.C.C. Section 61-16.1-09(2) and Article I, Section 16, of the North Dakota Constitution, to acquire real property interests necessary to create, construct, operate, and maintain flood control and protection projects.
WHEREAS, the Authority, through its member, Cass County Joint Water Resource District, may use the power of eminent domain pursuant to N.D.C.C. Section 61-16.1-09(12), in conjunction with N.D.C.C. Sections 61-16.1-09(6), (7), and (9), to acquire by condemnation or other lawful means real property for all purposes authorized by law or necessary to the exercise of any other stated power.
WHEREAS, in addition, the Authority, through its member, Cass County Joint Water Resource District, has the legal authority pursuant to N.D.C.C. Section 32-15-04(3) to obtain property appropriated for public use, where the public use is more "necessary" than to which it has been appropriated already.
WHEREAS, the Authority and the USACE concluded acquisition of a portion of Drain 27 is necessary to accommodate the Wetland Restoration Project, as a component of the Comprehensive Project.
WHEREAS, during construction of the SEAI, the USACE will construct borrow ditches that will run parallel and south of the SEAI to provide fill material necessary for construction of the SEAI, and to accommodate local drainage.
WHEREAS, the borrow ditches will benefit the property owners in CASS COUNTY DRAIN SC-2 DISTRICT that will be impacted by the partial abandonment.
WHEREAS, more specifically, the properties that will no longer have the benefit of drainage from Drain 27 as a result of the Wetland Restoration Project will instead drain into the borrow ditches, the borrow ditches will continue to allow for agricultural drainage of the existing Drain 27 watershed area impacted by the Wetland Restoration Project, and the borrow ditches will replace the benefits Drain 27 currently provides to those properties.
WHEREAS, in accordance with N.D.C.C. Section 61-16.1-09(3), the District has the following authority:
61-16.1-09. Powers of water resource board. Each water resource board shall have the power and authority to:
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3. Accept funds and property or other assistance, financial or otherwise, from federal, state, and other public or private sources for the purposes of aiding the construction or maintenance of water conservation, distribution, and flood control projects; and cooperate and contract with the state or federal government, or any department or agency thereof, or any municipality within the district, in furnishing assurances and meeting local cooperation requirements of any project involving control, conservation, distribution, and use of water.
WHEREAS, the District has specific authority under North Dakota law, including Section 61-16.1-09(3), to cooperate with the Authority, the USACE, and the Non-Federal Sponsors regarding the construction of the Comprehensive Project, including the Wetland Restoration Project.
WHEREAS, the Wetland Restoration Project and the partial abandonment of Drain 27 will modify the benefits of Drain 27 for some properties, and, with that in mind, the District conducted proceedings to reassess the CASS COUNTY DRAIN SC-2 DISTRICT in accordance with North Dakota law, to accurately reflect the modification of benefits of Drain 27 caused by the modification and partial abandonment of Drain 27.
WHEREAS, the District published notice and mailed notices as required by law; conducted a public hearing on April 7, 2021; and otherwise conducted all of the requisite proceedings under North Dakota law.
WHEREAS, following the requisite proceedings, the District concluded the Comprehensive Project is necessary to provide long-term and comprehensive flood risk reduction for the Fargo-Moorhead Metropolitan Area.
WHEREAS, the District further concluded the Wetland Restoration Project is necessary for USACE to mitigate wetland impacts caused by construction of the SEAI, and to comply with their respective regulatory obligations related to the Comprehensive Project.
WHEREAS, the District ultimately concluded modifications to Drain 27 are necessary to accommodate the Wetland Restoration Project, including a partial abandonment of approximately one mile of Drain 27 south of the SEAI, in Sections 28 and 29 of Stanley Township.
WHEREAS, on May 11, 2021, the District adopted, approved, and confirmed a Final Reassessment List regarding the CASS COUNTY DRAIN SC-2 DISTRICT; the Final Reassessment List is on file with the District.
NOW, THEREFORE, IT IS ORDERED that the District hereby authorizes and approves of modifications to Drain 27 by USACE and the Authority to accommodate the Wetland Restoration Project, including a partial abandonment of approximately one mile of Drain 27 south of the SEAI, in Sections 28 and 29 of Stanley Township.
APPROVED:
Dan Jacobson, Chair
ATTEST:
Carol Harbeke Lewis
Secretary-Treasurer
Date: May 11, 2021
(May 12, 2021)2887294