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The Fargo-Moorhead Diversion Authority and U.S. Army Corps of Engineers officials break ground Monday, April 17, 2017, on the flood diversion at the site of the dam inlet structure south of Horace, N.D. Michael Vosburg / Forum News Service

Judge sets 30-day deadline to decide whether to pause FM diversion

ST. PAUL — A federal judge says he will decide whether to temporarily stop the Fargo-Moorhead flood diversion project within 30 days.

After a three-hour hearing Tuesday, July 18, Chief Minnesota federal Judge John R. Tunheim announced his month deadline in a request to hit pause on the $2.2 billion project.

Attorneys seeking the delay, representing the Minnesota Department of Natural Resources and areas south of Fargo-Moorhead, said the delay is needed because Minnesota has rejected a permit to build a dam that is part of the project.

The Fargo-Moorhead Diversion Authority and U.S. Army Corps of Engineers argued that the federal government is not required to get a state permit and that delaying the project would cost taxpayers.

Tunheim heard from both sides of the issue in front of 50 spectators. Ten lawyers sat in the front of the downtown St. Paul courtroom.

"The corps lacks the authority to move forward with this project" without a Minnesota dam construction permit,which was denied last year, DNR attorney Max Kieley told Tunheim. "The corps actions are illegal."

The DNR claimed work now occurring on a water inlet and dam in North Dakota is connected with work that would be done in Minnesota. But the DNR rejected a permit request because, the attorneys told Tunheim, the diversion authority did not provide enough information.

There is plenty of time to work out issues with Minnesota while North Dakota work continues, corps attorney Devon Lehman McCune said. "No work is going to be done in Minnesota until 2019 at the earliest."

The two sides disagreed about whether federal law requires a corps project like the diversion to follow state law.

"When the state says 'no' and Congress says 'go,' you have to yield to the federal government," said Robert E. Cattanac, attorney for the diversion authority.

"Congress did not give the state veto power," McCune said to a Tunheim comment that federal rules suggest a project must follow state and federal laws.

McCune said work has begun on a dam, which would be an inlet for a channel to divert water around most of Fargo and Moorhead. It is "entirely in North Dakota" and takes up about 15 acres, she said.

Cattanac showed the judge maps of 100-year floods with and without the diversion. The one with a diversion showed most of Fargo and Moorhead protected, but large areas of water backed up in mostly rural areas north, west and south of the cities.

The map without the diversion project showed Fargo and Moorhead downtowns dry, but water in other parts of the cities. Rural land had less water than the other map.

"We are at the cusp of something truly momentous," Cattanac said.

Stalling the work would increase the cost and delay protection, he said.

"Your decision on this project will decide whether Fargo and Moorhead will get protection," Cattanac told Tunheim.

DNR and Richland-Wilkin Joint Powers Authority attorneys argued that the diversion would divert water from the cities to farmland.

DNT attorney Colin Patrick O'Donovan said the diversion is extending dry land south of Fargo and Moorhead, so the cities can expand, at the expense of those whose land will act as reservoirs during wet times.

"They entered into construction after the DNR denied the permit," Kieley said.

Cattanac summed up the argument to advance the diversion: "This is about protecting the Fargo-Moorhead area. ... A couple of weeks every 10 years you are going to have to flood some vacant farmland."

Using farmland to hold back flood waters is why the Richland-Wilkin group brought its suit against the Corps and diversion authority four years ago. Minnesota Gov. Mark Dayton sided with the group, and the state joined the suit.

The project calls for a 30-mile channel around Fargo and Moorhead, in North Dakota, to protect thousands of homes.

Among those at the Tuesday hearing were Moorhead Mayor Del Rae Williams and Fargo Mayor Tim Mahoney.

"Congress and the president have made it clear that continued construction of the FM area diversion project is a national priority," Mahoney said.

Williams added: "The threat of flooding cannot be fixed with legal action."

Don Davis
Don Davis has been the Forum Communications Minnesota Capitol Bureau chief since 2001, covering state government and politics for two dozen newspapers in the state. Don also blogs at Capital Chatter on Areavoices.