A local watershed board's vote to contest the Minnesota Department of Natural Resources permitting of the Red River diversion could delay the project for a year or more, project supporters say, and possibly threaten funding from the North Dakota Legislature.
But the vote itself could be contested through a lawsuit because, apparently, diversion backers don't believe the board followed its own bylaws.
The Buffalo-Red River Watershed District board of managers voted Monday to contest a decision recently announced by the DNR that would allow the controversial flood-control project to be built if more than 50 conditions were met, among them obtaining permits from local watersheds. A state administrative board would review the watershed district's request and grant a decision whether the challenge has merit based on fact. Other entities that oppose the diversion, such as the the towns of Comstock and Wolverton south of Moorhead, are also expected to contest the DNR decision.
The watershed's action has diversion supporters upset because they believe if the process plays itself out, it could take a year or more for the state to make a decision, adding critical time to what they see as an already drawn-out timeline on the estimated $2.75 billion project. The delay and further questions about the future of the diversion could threaten potential funding from North Dakota and possibly the federal government, supporters say.
"We're disappointed," said Fargo Mayor Tim Mahoney. "We're going to go ahead and review all of our options, but we're disappointed because we were under the impression they wanted to work with us."
Watershed district administrator Bruce Albright said that remains the case.
"It was never our intention to tie this thing up for a year or two, but we have a handful of questions that need to be addressed," Albright said.
Mahoney didn't say it, nor did Diversion Authority Vice-Chairman and Clay County Commissioner Kevin Campbell who was at the meeting, but one of the options might be a lawsuit. Project supporters are questioning whether the vote followed the watershed district's bylaws because board president Jay Leitch of Moorhead called for a voice vote instead of a roll call vote and, according to Campbell, Leitch did not vote.
Leitch disputes that, saying he logged a voice vote with the majority and the motion to contest the permit was approved 4-2 by the seven-member board. Board member Mark Anderson of Moorhead abstained from voting under protest because, Anderson said, BRRWD attorney Tammy Norgaard advised that he might have a conflict of interest because he lives in an area directly affected by the diversion.
But Campbell said Leitch did not vote and announced that the motion had passed 3-2.
"I voted!" Leitch said in a text message seeking comment.
When asked if the vote was 3-2 or 4-2, Leitch responded, "A 4-2 vote. But a voice vote is not recorded either who voted how or what the number was. That only comes with a roll call vote."
Albright said the vote was 3-2, but Leitch believes his vote was recorded when he announced the motion had passed.
"I was there and Jay called for a roll call, not a voice vote," Campbell said. "He called for the 'ayes' and 'nays,' which people gave. Jay wasn't one of them."
Leitch said the board has been "threatened with a lawsuit." Campbell said he hasn't talked with Leitch since the meeting and isn't aware of a threat of legal action.
Mahoney said the Diversion Authority is hoping to convince the BRRWD to take a re-vote, but it wouldn't appear it would make a difference. Leitch said he favors contesting the permit.
"My vote was intended to address lingering problems sooner rather than later," he said.
Anderson, too, said he was "probably leaning to contest it" if he was allowed a vote.
"I just believe through this whole process the Fargo side of things has been well-represented and it doesn't seem those affected by it have that same representation," said Anderson, who sat on the diversion task force formed by North Dakota Gov. Doug Burgum and Minnesota Gov. Mark Dayton. "And if Wolverton and Comstock were already going to contest it anyway, once it's contested, does it matter if it is two or three entities that are going to contest it?"
Diversion supporters believe the watershed board was swayed by pressure from the Richland-Wilkin Joint Powers Authority, the upstream coalition that vociferously opposes the diversion because it believes a dam on the project will back up water onto their property during flood years. The Monday board meeting was packed with diversion opponents, Campbell said.
Supporters seemed to be caught off-guard by the board's vote because its published agenda said only "possible contest of DNR permit." Campbell said he was scheduled to speak about getting permission from the BRRWD for the diversion, as required by the DNR, but wasn't allowed to speak until after the board voted to contest the permit.
"Three of seven people decided the fate of something that could hold the diversion back a year," Campbell said, referring to his belief that Leitch didn't cast a vote. "If they are granted a contested case hearing, the DNR permit would be put on hold until the hearing is complete. With how that process works, it could be a year-long delay. This could harm the project deeply. It could cost us potential funds in North Dakota and the same with the feds because they could say, 'Is this thing going to happen?' This could be very damaging."