Richland County water board appeals ND approval of diversion dam permit

FARGO - A month after the state of North Dakota gave a permit to the Fargo-Moorhead Diversion Authority for a dam south of the metro, opponents of the $2.2 billion project have appealed in a lawsuit.It's the third lawsuit filed by diversion oppon...

FARGO - A month after the state of North Dakota gave a permit to the Fargo-Moorhead Diversion Authority for a dam south of the metro, opponents of the $2.2 billion project have appealed in a lawsuit.

It's the third lawsuit filed by diversion opponents, all three of which are still up in the air.

In a brief filed in state district court Aug. 3, the Richland County Water Resource District accused the State Engineer's Office of infringing on the district's right to regulate flood-control projects within the county and failing to give proper notification.

The dam would temporarily submerge farmland, mostly in Cass and Clay counties, when the Red River floods. But it could also flood 10,400 acres, or 16 square miles, of farmland in Richland County.

The state said in a brief filed Thursday, Aug. 11, that the water district needs to first seek a hearing with an administrative law judge, who presides over a separate court system, and asked the state district judge to dismiss the case for now.

Richland County and its neighbor in Minnesota, Wilkin County, are involved in the other two lawsuits as a joint power authority. The counties sued the U.S. Army Corps of Engineers and the Diversion Authority in 2013 and was eventually able to convince the judge to require an environmental review from the Minnesota Department of Natural Resources.

The DNR has completed the mostly favorable review, but the Richland-Wilkin group appealed in a lawsuit, saying the review isn't good enough.

The state of Minnesota is still reviewing the permit application for the diversion dam.

The North Dakota permit signed by State Engineer Garland Erbele July 8 listed the dam and its various components but allowed immediate construction only of an inlet structure that controls how much water from the dam enters the diversion channel. The dam is meant to reduce the Red River's flows into the diversion channel, which would route floodwater away from the metro area through a massive ditch to its west.

Each of the other components, such as the dam itself, also called an embankment, and inlets on several Red River tributaries, will require separate approval by the State Engineer.

Crucially for the Richland County water board, the only local water district the North Dakota permit mentioned the Diversion Authority must work with is the Southeast Cass County Water Resource District. That district is effectively a part of the Diversion Authority through its membership in Cass County Joint Water Resource District, a voting member on the authority board.

While some water will be stored in Richland County, the dam structures regulated by the State Engineer are all in Cass County. The Richland County district argues it must also be consulted because of the water stored within its jurisdiction.

The permit also mentioned another point of contention for diversion foes. The State Engineer had required that the Diversion Authority show it had the ability to acquire all land needed for the project, including in Richland County. Authority attorneys argued state courts have set precedent that allow entities like the Cass County Joint Water Resource District to exercise eminent domain outside their jurisdiction. The Cass County district is the Diversion Authority member charged with buying land for the project.

The Richland County water district argued that such a simple assertion was insufficient.

In a memo accompanying the permit, the State Engineer noted that the Attorney General's Office has said the state won't take a position on the legal validity of the assertion. Nevertheless, the State Engineer agreed the authority did have a "realistic plan for the procurement of the necessary property rights."

The state district court has not set a hearing date yet. In the meantime, the state has filed for a hearing in front of an administrative law judge.