FARGO - In early October, a couple of days after Minnesota environmental regulators denied a permit for a dam that will be part of the Fargo-Moorhead flood diversion, the U.S. Army Corps of Engineers announced it would build one anyway.
Then, last week, three months after the Minnesota Department of Natural Resources joined a lawsuit opposing the diversion project, the agency broke ground on a part of the dam in North Dakota knowing they'd have to eventually build the dam into Minnesota.
What makes the corps so confident in the outcome of the lawsuit?
"We get sued all the time," said Aaron Snyder, the corps project manager overseeing the $2.2 billion diversion project. "Once in awhile, we probably lose, but once Congress tells us to do something we do it. That's the bottom line."
The diversion project, he noted is authorized and funded by Congress.
Asked how often the corps has a project crossing state lines that's opposed by at least one of the states, he said it happened most recently in a project to deepen a ship channel in the Delaware River. "The corps proceeded pretty much the exact same way we proceeded in this case," he said.
The port of Philadelphia wanted it but two states along the river, Delaware and New Jersey, sued on environmental grounds to block the dredging. The corps invoked a rarely used federal rule to override state regulations and emerged victorious in a 2012 appeals court opinion.
In March, the corps invoked the same rule for the diversion project.
A search of federal court records for suits involving the corps turned up some 2,200 civil suits going back more than four decades. There are likely more, as online records are incomplete. Many cases involved environmental groups that opposed its projects or state agencies that opposed its regulations.
The Fargo-Moorhead diversion lawsuit and the Delaware ship-channel lawsuit are among just a handful involving the corps where a state uses its regulatory authority to try to shut down a project that another state or local government wants.
According to court records, the corps determined in 1992 after decades of study that the best way to improve shipping on the Delaware River was to deepen by five feet the existing ship channel from Philadelphia to the sea, allowing bigger ships to reach the port. The economic benefits were huge while, it said, environmental harm very small. Congress authorized the project and provided funding.
At first, the states of Delaware and New Jersey concurred with the project. But during a decade-and-half project delay caused, in part, by disagreement among local sponsors, the states decided the harm was actually greater than once thought.
When they tried to use their environmental regulations to block the project, the corps invoked two federal rules to override them.
One was Section 404(r) of the Clean Water Act, which allows the corps to discharge dredge and fill material without regard to state regulations if the project had an environmental review at the time Congress authorizes it.
"The purpose of Section 404(r) is for Congress to receive sufficient information in order to make an informed judgment about whether to authorize a federal project," the the U.S. Court of Appeals for the Third Circuit said in 2012. That did happen with the ship-channel project, it said.
Like the ship-channel project, the diversion project once had the support of all states involved and not just the Fargo-Moorhead Diversion Authority, which represents metro-area local governments threatened with flooding.
Under Gov. Tim Pawlenty, the state of Minnesota supported the diversion so long as it was built in North Dakota and not in Minnesota, as the corps wanted. Gov. Mark Dayton, who was elected after the corps agreed to a North Dakota alignment, opposes the project because he believes it violates state laws and floods more land in Minnesota than it protects.
The challenge his DNR poses to the diversion includes a variety of permits. Among the most critical are the dam permit, which it has already denied, and the water-quality certification, which corps officials believe it would likely deny.
In the lawsuit filed in 2013, the group representing local governments upstream of the dam, the Richland-Wilkin Joint Powers Authority, argued the project must follow all state laws, as required by federal laws and the corps' own rules. The DNR has argued much the same.
U.S. District Judge John R. Tunheim, the judge presiding over the suit, is now considering a request for an injunction halting all work on the diversion on the grounds that the project isn't authorized by the DNR.
The corps has asserted that it is immune to DNR regulations as a federal agency working on a project authorized by Congress. When it invoked Section 404(r) in a March letter to Congress, it overrode Minnesota's requirement for a water-quality certification, Snyder said. He also noted that while the Diversion Authority applied for the dam permit in the spirit of cooperation with the DNR, the corps has never applied because it doesn't have to.
In its court filings, the DNR argues that, while the corps might build the dam, the Diversion Authority will be the owner. The authority, which includes Minnesota local governments, is not immune from state laws, and the DNR won't allow it to operate the dam.
Snyder asserted that the dam would still be a federal project.
It's entirely normal for the corps turn projects over to local sponsors to operate because of laws Congress passed in 1986 to reduce federal spending, he said. The corps, however, maintains ultimate control because local sponsors must operate projects exactly as the corps directs, he said.
"If they don't follow that they'll be in breach of our agreements with them and then the corps will have the rights and ability to step in and take control," he said.