The
Minnesota Department of Natural Resources said today it is asking a
federal judge to allow the agency to join a lawsuit seeking to delay
action on a flood diversion project on the Red River.
The
project as proposed would redirect flows through the Fargo-Moorhead
metropolitan area via a dam and diversion channel system.
The
DNR is seeking intervenor status to join a lawsuit filed by the
Richland-Wilkin Joint Powers Authority (JPA) in 2013. The plaintiffs
initially sued the Fargo-Moorhead Diversion Board of Authority and the
U.S. Army Corps of Engineers to halt any construction prior to
completion of Minnesota’s environmental impact statement.
In
a continuation of the original case, the JPA is now seeking to bar
construction unless the DNR issues the necessary dam safety and work in
public waters permits for the project.
The
JPA’s suit alleges that the proposed project will damage farmland
upstream of Fargo-Moorhead, violate Minnesota environmental laws, and
doesn’t consider alternative plans to protect the region from flooding.
After
completing an environmental impact statement on the proposed project,
the Minnesota DNR denied the Diversion Authority’s permit application.
The proposed project would need both a dam safety and work in public
waters approval from Minnesota in order to proceed. The DNR is the
permitting authority for the project in Minnesota.
Despite
Minnesota DNR’s permit denial, the Corps of Engineers recently awarded a
construction contract for the inlet control structure portion of the
proposed project. Work could begin on the project as early as January
2017. In addition, the Diversion Authority recently issued a Request for
Proposals (RFP) for the diversion channel portion of the project.
“The
DNR has publicly stated that it is fully prepared to work with all the
affected communities in search of a ‘Plan B’ approach to flood
protection, since the proposed project doesn’t meet Minnesota
environmental standards,” said DNR Commissioner Tom Landwehr. “But the
Corps’ and the Diversion Authority’s recent actions force us to join the
lawsuit. If the DNR allowed construction to proceed without objection,
we would be risking our standing to object at a later date. Moreover, we
cannot credibly work on an alternate plan while the Corps and the
Diversion Authority are beginning construction of this contested
project.”
Landwehr said his agency has
empathy for people who experience flooding and agrees that enhanced
flood protection is warranted for some places in the project area.
“The
DNR’s decision to intervene isn’t about stopping flood protection,
which is important. We want to find a mutually agreeable solution that
speaks to the shared responsibility we have to protect Minnesotans and
North Dakotans living in this flood plain,” Landwehr said. “Indeed,
Minnesota has invested more the $230 million on flood control and
protection efforts in Moorhead and the greater Red River Valley over the
past eight years alone. But the proposed project is not the right way
to achieve that enhanced protection for the region.”
According
to Landwehr, “The project needs state permits. Unfortunately, as
proposed, the project does not meet the standards under Minnesota law
and thus cannot be permitted.”
In October,
the DNR denied the Diversion Authority’s permit applications for three
reasons: the project does not meet the requirement to be reasonable,
practical, protect public safety and promote public welfare; is not
consistent with some state and local land use and water management plans
in the project area; and the project’s mitigation plan and demonstrated
fiscal capacity to implement that plan do not meet the requirements in
Minnesota law.
The Richland-Wilkin Joint
Powers Authority lawsuit is currently pending before U.S. District Court
Judge Tunheim. By seeking intervenor status, the DNR is asking to
become a party to the lawsuit. Minnesota will ask the court to prohibit
construction of the dam and diversion channel because the Minnesota has
not issued the necessary permits.
