Diversion foes file new lawsuit, this time against Minnesota DNR
FARGO – Upstream opponents of the Fargo-Moorhead flood diversion have sued the state of Minnesota, claiming its environmental review was unlawful.
The Department of Natural Resources had deferred too much to the Diversion Authority’s narrow goals, which resulted in the elimination of better options, the Richland-Wilkin Joint Powers Authority opposed to the project argued in the suit filed Friday, July 22, with the state Court of Appeals.
Tim Fox, a retired Wilkin County attorney who advises the JPA, said the diversion protects not just Fargo but also allow the city to expand south, echoing a longstanding belief by upstream opponents.
The environmental review rejected nearly all options favored by the Richland-Wilkin opponents as unfeasible.
DNR Assistant Commissioner Barb Naramore said the suit was not unexpected because it’s the standard way organizations appeal the agency’s decisions. She said the typical appeal process takes about nine months.
The DNR will continue reviewing an application for permit that would allow the U.S. Army Corps of Engineers to build a dam straddling the Red River in Minnesota and North Dakota, Naramore said, unless the JPA is able to obtain an injunction. The DNR has also said it can also deny a permit.
Fox said he doesn’t expect the group will seek an injunction because a successful appeal would undo the permit.
All components of the $2.2 billion flood-protection project are in North Dakota except for the dam, which stretches across the Red River into Minnesota, giving that state some leverage in the project.
Fox said the DNR shouldn’t have allowed the Diversion Authority and the corps to decide the purpose of the project in a way that requires protecting land outside of Fargo. That would’ve allowed the DNR to look at more modest options such as a diversion channel in Minnesota, storing water on farmland and moving the dam farther north.
DNR Commissioner Tom Landwehr has said state laws don’t give the agency much discretion in an environmental review, though it has more latitude in the permitting process.
The state of Minnesota had earlier opposed a channel in Minnesota because landowners there would suffer too much to protect a city in North Dakota. The DNR also ruled out water storage because it would take far too long to get enough landowners to agree. The northern dam is one option that remains in the environmental review, which found it protected fewer buildings than the dam favored by the Diversion Authority.
At one time, it seemed the JPA had pinned its hopes on the DNR.
The group asked a federal judge to force the Diversion Authority to stop building a ring dike around the Oxbow area in North Dakota until the DNR can complete its environmental review. They argued that the dike would protect Oxbow from flooding caused by the dam and is therefore a part of the dam. The judge agreed and issued an injunction until the review is done.
Now that that has happened, both the DNR and the Diversion Authority believes the judge’s requirement has been met.