It's time to ask whether opponents of the Fargo-Moorhead diversion, including local politicians like Rep. Paul Marquart and Moorhead City Council member Heidi Durand, are working in good faith toward a solution or if their true goal is to kill the project entirely.
It's also time to wonder if they and upstream opponents of the diversion are violating a federal rule by leaking information from private conversations.
At the least, they are being disingenuous in their concern for rural residents impacted by flooding.
Marquart, a state representative from Dilworth, was a guest on my 970 WDAY radio show Tuesday, March 13, and said he doesn't believe the Diversion Authority's latest plan, publicly revealed just a few days ago, will be permitted by the Minnesota Department of Natural Resources.
It is the DNR that has held up the project to this point, saying it will not issue a permit for the diversion until plans for the project meet state law and the agency's liking.
"I don't know if they are quite there for DNR approval," Marquart said. "I know they were working with the DNR and the DNR would say 'we're close' and so forth. I don't know that this plan quite makes it because it still takes land out of the floodplain, which is the DNR's biggest complaint."
Where Marquart is forming such strong opinions on the latest iteration of the project is baffling, because multiple Diversion Authority sources said he refused meetings with them in recent weeks while other local legislative members like Rep. Ben Lien of Moorhead and Sen. Kent Eken of Twin Valley willingly met with diversion supporters for updates. Moorhead mayor Del Rae Williams said she has a meeting scheduled with Marquart on Wednesday, March 14.
Durand spoke out against the Diversion Authority's newest plan at a Moorhead City Council meeting Monday night, parroting Marquart's opinions about taking land out of the floodplain and, like Marquart, touting a plan favored by upstream opponents of the diversion.
Marquart and Durand seemed to be following the same talking points, saying that changes to the northern end of the diversion channel-near Harwood, N.D.-would likely make the project more palatable to the DNR because it would remove natural floodplain from being protected by the diversion. It's a plan supported by Richland-Wilkin Joint Powers Authority-selected engineer Charlie Anderson, who was added to the Diversion Authority's technical team at the request of upstream opponents.
Anderson's plan would shorten the diversion channel and keep Harwood and the surrounding area-the so-called floodplain referred to by Marquart and Durand-outside the protected area. Marquart said letting that area flood would reduce upstream and downstream impacts.
The current plan includes Harwood inside the diversion channel, protecting it from flooding. There's good reason for that, according to Diversion Authority members-because it protects the estimated 1,500 residents in Harwood and the surrounding area from flooding.
"To believe that Harwood should not have flood protection doesn't make sense," Williams said. "It would be no different than saying we were going to carve out an area of Moorhead or Fargo where 1,500 people live and say, 'OK, you're not going to have flood protection.'"
Williams and others on the Diversion Authority are careful about what they say regarding negotiations and bargaining because they believe they are covered by federal Rule 408, which allows parties in litigation to have private discussions without threat of having those discussions used against them in public. With some of the things being said publicly by the JPA and its surrogates like Marquart and Durand, there's a question whether they are violating Rule 408.
Whether Marquart is accurate in his belief the DNR will not approve the latest version of the diversion will have to wait. The Diversion Authority hasn't even re-applied for a permit yet. A DNR spokesman did not reply to an email seeking comment on Marquart's statement.
So a couple of things could be happening. Either Marquart has already talked with the DNR and has a sense of where it stands, which would be tragic to diversion supporters, or he's trying to wield his political influence to sway the agency, which would be underhanded.
Or, there's always the chance he's woefully uninformed. Which, for diversion opponents, would not be unusual.
"I like where they are moving. I just don't know that they are quite there yet to get DNR approval," Marquart said. "I think the Diversion Authority might be jumping the gun here when they are really, really close."