The legal labyrinth that has mired the F-M Diversion project is growing deeper and more complex. Despite claims by the Diversion Authority that they have a permit from the Minnesota Department of Natural Resources allowing them to go ahead with construction, U.S. District Judge John Tunheim has declared that the injunction will stay in place until convinced otherwise. Upstream entities who object to the DNR’s permit order have been granted a court hearing to review the decision. The appeal process will require the release of all information documenting the decision-making process.
Minnesota law is straightforward. When the DNR makes a decision to permit a project, the commissioner issues an order. If there is no objection, a permit is issued 30 days later. If a watershed district or municipality objects to the order, they can contest the decision and no permit will be issued until a hearing has been held.
According to Minnesota statute, the commissioner will then have to decide whether to permit a project “as if the first order had not been made.” The distinction in the contested case process is that the hearing will be held before an administrative law judge, and the arguments will be whether the project meets the requirements of state and federal law. The Buffalo Red Watershed District and the cities of Comstock and Wolverton say it does not.
The DA wants the project to move forward. They argued to Tunheim that Plan B is a completely different project than Plan A, and therefore his injunction shouldn’t apply. At the same time, they and the Army Corps of Engineers argue that the project really hasn’t changed, and the congressional authorization should remain in effect. They have indicated that they will be filing a motion with Tunheim asking the injunction to be lifted. Tunheim’s original ruling was that federal authorization required project sponsors to comply with federal and state law before beginning construction. DA attorneys seem to be asking the judge to drop the first injunction, so that they can be taken to court once again to stop them from digging without a permit.
There is no prescribed timeline for a contested case. When the DA filed for a contested case after the original permit was denied, the administrative law judge set a trial date 16 months into the future. That trial was put on hold, and is still legally unresolved. In the meantime, the estimated cost of the diversion has increased from the original $1.8 billion estimate to $2.75 billion, and according to some accounts is actually $3.13 billion in final costs. With or without legal delays, the financial anchor is dragging the diversion below water. It will take real leadership to pull the plug on the current project and find one that protects the region from flooding without financial ruin.