Upstream opponents to challenge Fargo-Moorhead flood diversion permit
FARGO — The battles over the Fargo-Moorhead flood protection diversion will grind on.
Upstream opponents of the project will file an administrative appeal seeking to overturn a major permit granted by the Minnesota Department of Natural Resources.
“We will be contesting that,” Nathan Berseth, a board member of the Richland-Wilkin Joint Powers Authority, said Friday, Jan. 4. Berseth's group is waging a legal fight to stop the $2.75 billion flood protection project.
The upstream group, comprised of North Dakota’s Richland County and Minnesota’s Wilkin County, made its unanimous decision to contest the permit on Thursday — the same day the board of the Metro Diversion Authority decided unanimously to try to resolve a federal lawsuit that halted the project in 2017.
Berseth said the revised plan for the diversion that won Minnesota officials’ approval, contingent on meeting more than 50 conditions, does not address the concerns the Minnesota DNR laid out in denying a permit for the original diversion design.
“The tweaks that were made on the Plan B don’t allow for the DNR to do an about face and approve the project,” he said. “It was a political decision and nothing based on the law.”
The administrative challenge will likely be filed within the next two weeks, Berseth said. If that appeal fails, the upstream opponents plan to pursue court action, he said.
“The DNR has laid everything out for us” in denying a permit for the original design, Berseth added.
Mary Scherling, a Cass County commissioner and chairwoman of the diversion authority board, said the upstream opponents’ permit appeal was expected.
The judge in the federal lawsuit and the governors for Minnesota and North Dakota, she said, “have made it clear — we can’t solve our problems in the courts. At some point, you have to wonder what the motivation is to continue to do this.”
The Minnesota DNR evaluated 33 alternatives, and found the diversion was the only viable option, Scherling said.
Meanwhile, Berseth said the injunction in the federal lawsuit against the diversion should not be lifted, despite the Minnesota DNR’s decision to grant the permit to enable construction of a dam to temporarily hold back water during floods to allow a controlled release of water into the diversion channel, which will split flows along the Red River.
“We feel strongly that the injunction won’t be lifted,” Berseth said.
The Metro Diversion Authority will keep pressing ahead, Scherling said.
“Doing nothing is not an alternative,” she said.