Flood diversion appeals could last 'many months'; officials hope to resolve upstream concerns through negotiation
FARGO — The overhauled Fargo-Moorhead diversion design has won a crucial permit from Minnesota regulators — subject to meeting more than 50 conditions — but still faces familiar complaints from upstream opponents.
The Buffalo Red River Watershed District and the towns of Wolverton and Comstock, all in Minnesota, are asking for hearings before the Minnesota Department of Natural Resources to examine their concerns regarding upstream impacts.
The objections could further delay the $2.75 billion flood control project that would divert Red River floodwaters into a channel skirting Fargo-Moorhead. Officials have said inflation accounts for $150 million in cost increases so far for the project, which faces legal opposition.
Fargo Mayor Tim Mahoney and Clay County Commissioner Kevin Campbell, both members of the Diversion Authority board, said they hope the concerns of the watershed district and two towns can be resolved through negotiation, instead of the time and expense of administrative hearings.
“It’s a little bit more complex,” Mahoney said, referring to the administrative hearing process, which involves hiring lawyers and paying for witnesses.
All parties have a shared interest in trying to resolve concerns about the diversion’s upstream impacts as quickly as possible, Campbell said.
“That’s the downside if it goes forward,” he said, referring to administrative hearings. “It’s going to be costly for all parties.”
Protecting land south of Fargo
The Buffalo Red River Watershed District and both rural communities argue in filings with the Minnesota Department of Natural Resources that the revised flood diversion design, often called Plan B by officials, would still protect undeveloped land south of Fargo.
“Plan B appears to protect currently undeveloped floodplain at the expense of established upstream residents,” the watershed district said in its request for a hearing. “There is a conversion of areas that had never flooded into new floodplain.”
That was an often-cited complaint of the original flood diversion channel, which was revised after a lawsuit filed by upstream opponents put the project on hold. The revised project shifted more of the impacts of impounding water when the diversion is operating into North Dakota, which receives more of the benefits.
The redesigned flood project, which significantly altered the configuration of levees to temporarily hold back water to allow for a controlled release through the diversion channel, was largely responsible for cost increases that raised the price tag of the diversion from $2.2 billion to $2.75 billion.
The Buffalo Red River Watershed District, which originally was part of the Diversion Authority but withdrew over objections, argues that an outside enforcement and monitoring authority, independent of the Diversion Authority, “is necessary for affected parties to have a fair, prompt, and inexpensive mechanism to contest the Diversion Authority’s action and/or inaction as required by the permit conditions.”
Diversion Authority officials have been encouraging the watershed district to go through its own permitting process, instead of filing an administrative appeal with the state, to resolve its concerns.
An early reading on whether that would be satisfactory for the watershed district could come Tuesday, Feb. 19, when the watershed managers will meet via Skype conference call with Minnesota Department of Natural Resources officials to discuss a permit for the diversion.
In their request for an administrative hearing, Comstock and Wolverton claim “unjustified interference with flood storage capacity” by the diversion, which the municipalities argue will significantly reduce the Red River’s flood storage ability as a result of "unwise development of the floodplain."
Comstock and Wolverton contend that the Minnesota Department of Natural Resource’s permit for the diversion “arbitrarily changes the major decision points of the first permit denial without any legal or factual basis.”
Barb Naramore, assistant commissioner of the Minnesota Department of Natural Resources, defended the order to grant the permit, which she said was bolstered by extensive findings.
“We feel like we actually have a very extensive set of findings that accompanied our permitting decision,” she said. “We feel like we actually did explain the basis for our decision in those findings.”
If the contested permit appeals result in hearings before an administrative law judge, Naramore said the process likely would take “many months,” but said there is no way to predict how long. Some disputed cases are resolved by settlement or agreement, and Minnesota Department of Natural Resources officials “certainly are very supportive of that,” and can help to accomplish that.
More funding still needed
Meanwhile, the push to build the diversion also hinges on securing an additional $600 million — $300 million from the state of North Dakota and $300 million from the federal government.
An appropriations subcommittee of the North Dakota Legislature is recommending that the state, which so far has committed $570 million, increase its contribution by about $133 million, or a total of $703 million, said Rocky Schneider, a spokesman for the Diversion Authority.
Legislators are cautious in light of discouraging revenue projections, Mahoney said. He’s hoping for a more favorable outlook when the March revenue forecast comes out.
“It’s still early in the process,” he said.
On the legal front, the Diversion Authority is hoping to present arguments soon seeking to lift an injunction ordered by a federal judge that halted construction on the diversion’s inlet structure in a lawsuit brought by upstream opponents in Minnesota’s Wilkin County and North Dakota’s Richland County.