FARGO - The U.S. Army Corps of Engineers and the state of Minnesota are again on a collision course over the Fargo-Moorhead flood diversion.
U.S. District Judge John R. Tunheim said in an order Friday, Feb. 24, that he has agreed to bring the corps back into the suit because circumstances have changed since his earlier dismissal.
The corps has argued that, as a federal agency, it's immune from state regulations, something the judge has agreed with. The Minnesota Department of Natural Resources, which has refused to issue a permit for the diversion dam, said the agency is still required to ensure that its non-immune partners, such as the Fargo-Moorhead Diversion Authority, get the proper permits.
That permit denial as well as the corps starting work on a portion of the dam near Horace are among the circumstances cited by Tunheim.
But he declined, for now, to issue an injunction halting construction on the $2.2 billion metro-wide flood-control project as requested by the Richland-Wilkin Joint Powers Authority, representing property owners upstream of the dam.
The corps declined to issue a statement, citing the ongoing litigation. Shannon Bauer, a corps spokeswoman, said in an email that she could only say that the judge's decision didn't come as a surprise.
Darrell Vanyo, one of the Diversion Authority's two executive directors, said he's not unhappy about the judge's decision since the federal government is again involved in the suit with his group.
At the DNR, Assistant Commissioner Barb Naramore said in an email that the state agency is "pleased" with the ruling. By reinstating the corps in the suit, the court makes it easier to establish if the project could be built without state permits.
Nathan Berseth, a spokesman for the RWJPA, said it's a "huge victory" for his group because he believes it shows the judge doesn't think federal projects are immune from state regulations.
A major focus of the lawsuit, first filed by the RWJPA in 2013, is a 12-mile dam the corps plans to build south of Fargo. The corps added it to the project as a way to control the flow of floodwater into the diversion channel to avoid harming downstream communities. But the dam has the potential to impact upstream property owners and it stretches into Minnesota, which has a different philosophy on flood control than North Dakota.
One of the many twists and turns in the case over the years is a 2015 injunction halting work on a ring dike around the communities of Oxbow, Hickson and Bakke, which would be on the wet side of the dam. The RWJPA argued that the ring dike is needed because of the dam and therefore cannot be built lest it creates a precedent for the rest of the dam. The judge agreed, noting that the plaintiff had a "fair chance of prevailing" in some of its complaints.
On Friday, the judge declined to lift the injunction. Instead, he asked all parties to meet with a magistrate judge to determine if the ring dike is only needed for the dam or if it also protects against natural flooding, as the city of Oxbow argues.
Vanyo said he's happy that there is now some movement on the ring dike and he's hopeful it will be resolved soon.
Another twist happened a year ago in March when the judge dismissed the corps from the case. The RWJPA had argued the corps didn't follow federal policies in deciding to build the diversion project. The judge decided it had even if the end result was not pleasing to the RWJPA.
Now, the judge has reinstated the corps on a claim brought by the DNR that the corps must require its non-federal partners to follow state laws. And there may be other claims down the road as the judge has invited the DNR and RWJPA to file more.
While Tunheim didn't issue an injunction to halt work on the diversion project this time, Vanyo said he was wasn't going to get "too excited" because he expects one will come with the new claims.
Berseth said it was "more than likely" another request for an injunction is ahead.
In the meantime, the Diversion Authority and the DNR will continue to work out their differences.
Authority officials said Thursday, Feb. 23, that the first of several meetings took place recently. The meetings are meant to be informal discussions about how the DNR interprets the reports the authority has submitted and if there was a basis for issuing a permit after all. DNR officials have said the current configuration of the project with the dam so far south of Fargo and removing so much land from the floodplain wasn't acceptable.
Naramore said the state "remains committed to working cooperatively with all affected parties to find an approach to enhanced flood protection for developed portions of the Fargo-Moorhead area that can meet Minnesota's public safety and environmental standards."