FARGO — The Metro Flood Diversion Authority is appealing a Minnesota water board's refusal to issue a permit for the $2.75 billion diversion project.
The appeal was filed in a complaint with the Minnesota District Court in Becker County, diversion officials announced Tuesday, July 16, and contends the watershed board violated Minnesota law.
The legal action comes after a divided Buffalo-Red River Watershed District board, based in Barnesville, voted 4 to 2 to deny a proposed permit and conditions. The denial followed six months of negotiations with diversion officials aimed at resolving concerns in order to win permit approval.
In December, the Minnesota Department of Natural Resources granted a permit to enable construction of a dam across the Red River, south of the Fargo-Moorhead, to temporarily store water during extreme floods to enable a controlled release of water through the diversion channel, which would bypass the metro area.
The Minnesota DNR permit came with 54 conditions, including a requirement that the project must obtain local permits.
"It is our understanding that the Minnesota DNR stated that a local watershed board cannot prohibit a regional project like the diversion," Mary Scherling, chairwoman of the Diversion Authority and a Cass County commissioner, said in a statement. "The DNR commissioner stated that clearly in the DNR permit order last year."
Diversion officials would prefer not to have to go to court, but believe it offers the best avenue, Scherling said.
"Solving problems through litigation is not ideal," she said, "but the court system exists for a reason and can be a resource when state law is not being adhered to."
Kevin Campbell, vice chairman of the Diversion Authority and a Clay County commissioner, said in a statement that he has the responsibility to ensure that those he represents "cannot continue to let us be held hostage by non-elected representatives of our own watershed."
He added: "The county has done everything we could to work with the watershed district within the well-established state laws and rules for these things, and frankly it's a bit outrageous we now have to ask taxpayers in Minnesota to fund both sides of a lawsuit."
To bolster their argument, diversion officials cite a provision of the Minnesota DNR's findings of fact accompanying its permit. The provision said local authorities cannot block a regional flood project when local ordinances conflict with "the legislative intent that flood risk reduction in the Red River Basin should be addressed from a regional perspective. Such ordinances are in conflict with state law, state plans, and the 1998 Mediation Agreement and cannot be imposed on regional projects such as the Revised Project."
After the Minnesota DNR initially refused to grant a permit, the project was extensively revised to address Minnesota concerns, resulting in what's often called "Plan B," the project the Minnesota DNR approved in December.
The Minnesota Buffalo-Red board is challenging the state permit in an administrative appeal along with the communities of Comstock and Wolverton.