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Published August 20, 2013, 10:17 AM

Fargo diversion opponents file lawsuit

Claim corps unnecessarily expanded scope of flood mitigation project
FARGO, N.D. – After more than a year of considering a legal challenge, Fargo-Moorhead diversion opponents south of Fargo filed a lawsuit on Monday in U.S. District Court against the U.S. Army Corps of Engineers.

By: Kyle Potter, Forum News Service

FARGO, N.D. – After more than a year of considering a legal challenge, Fargo-Moorhead diversion opponents south of Fargo filed a lawsuit on Monday in U.S. District Court against the U.S. Army Corps of Engineers.

The lawsuit accuses diversion leaders of unnecessarily expanding the scope of the flood protection project, which the Richland-Wilkin Joint Powers Authority alleges has multiplied its estimated cost to $1.8 billion and will damage farm lands that fall in the so-called staging area, where Red River water would collect in the event of a severe flood. That expansion, according to the suit, will protect land closer to Fargo for future development – at the cost of communities upstream.

Nathan Berseth, a spokesman for the Joint Powers Authority, called the lawsuit “the last straw,” and an effort to protect the 20 cities and townships in Richland and Wilkin counties, plus other communities in rural Cass and Clay counties that fall in the staging area, from irreparable damages to their tax bases and property values.

“We were pushed against a wall and we had no alternatives,” Berseth said.

The lawsuit alleges the corps failed to provide Congress with several suitable alternative plans, presenting lawmakers in Washington, D.C., with “the false choice between building a vastly overpriced, unnecessarily expansive project, or providing no protection at all.”

Diversion Authority Chairman Darrel Vanyo said he isn’t surprised by the lawsuit. He disputed the reported impacts on rural farmlands, and said the corps’ current plan is the only approach that will protect the Red River Valley from a 100-year flood and give officials the ability to fight a 500-year flood.

He pointed out that just a fraction of the storage area extends into Richland and Wilkin counties.

Aaron Snyder, a corps project manager for the diversion, declined to discuss the lawsuit other than to say it is still under review. Monday’s lawsuit is the first legal action taken against the diversion, he said.

A federal judge’s decision in the case won’t come for at least several months. Vanyo said it’s unclear what impact, if any, the pending suit will have on the Diversion Authority’s business.

‘Not trying to stop’ the diversion

Marty Johnson welcomed the news of the lawsuit Monday.

His farm land in Horace doesn’t fall in the storage area, but right on the line of the proposed diversion channel as it runs north. The land has been in his family for more than 100 years, he said.

“At least it slows everything down,” Johnson said. “I think people should have the right to hear the honest parts instead of trying to shove something through half blindly.”

Gerald Von Korff, the Joint Powers Authority’s attorney, said the goal is to either force the corps to the negotiating table to find a cheaper plan that better protects farmlands south of Fargo, or get a declaration from the district court judge telling them to do so.

“This suit is not about trying to stop a flood control project,” Von Korff said. “It’s about trying to get to the point where there is a flood control project that doesn’t flood Richland and Wilkin counties.”

Diversion opponents south of the metro have long said the 36-mile flood channel was designed to protect the interests of Fargo and Moorhead – including future development in the floodplains.

The lawsuit also alleges that the supposed flooding impact on rural land south of Moorhead would violate Minnesota’s own environmental laws, which put strict prohibitions on permitting or authorizing projects that “significantly affect the quality of the environment,” according to the suit.

Von Korff said Minnesota’s Department of Natural resources has repeatedly informed the corps that it hadn’t provided justification for the project. He also said the corps hasn’t supplied Congress with sufficient studies of the project’s environmental impact.

The U.S. Senate authorized the project earlier this year, but has not appropriated any funds for its construction. It’s still awaiting authorization in the House, where diversion leaders expect a vote by the end of the year.

“We hope that this puts Congress on alert that this shouldn’t be authorized,” Berseth said. “The Army Corps will be forced to re-examine this plan and find one that protects Fargo area, but not at the cost of rural and farm areas south of the metro.”

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