BY Adrian Glass-Moore/ The Forum
FARGO – The Minnesota Department of Natural Resources filed a brief in U.S. District Court on Tuesday asking the court to allow it to participate in a lawsuit filed against the U.S. Army Corps of Engineers by the Richland/Wilkin Joint Powers Authority seeking to stop the diversion project.
The DNR asked the court to let it join the suit as a friend of the court, and submitted a friend of the court brief, asserting that is has a “significant interest” in the lawsuit because the Diversion Authority “asserts that the proposed Fargo-Moorhead flood diversion project is not subject to State regulation.” The Diversion Authority has been moving forward with the project without waiting for the completion of a DNR environmental report, which is expected to be issued next May.
In its court filing, the DNR states that its participation will help the court understand that the state has an interest in regulating the Red River.
“The Diversion Authority seems to suggest that the MDNR may exercise its authority to grant a permit for the Red River dam, but that any decision to deny a permit would conflict with federal law,” the DNR stated.
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DNR documents filed Tuesday also state that the Diversion Authority shouldn’t argue that it is immune to state law because the project is being built primarily by the corps.
The DNR wants the court to conclude that state regulation of the project “is not barred by sovereign immunity or preempted by the Water Resources Reform and Development Act of 2014.”
“This bolsters the lawsuit,” said Nathan Berseth, a director of the MnDak Upstream Coalition, an interest group that opposes the diversion project. “It proves that Minnesota has a lot of consternation with this project … moving forward while it’s being shoved down Minnesota’s throat and the DNR’s throat.”
“They’re saying to the Diversion Authority and the corps, ‘Wait a minute, let us finish our study,’ ” Berseth said of the DNR.
Corps officials told the Moorhead City Council Monday night that the diversion will likely be built as proposed, regardless of the DNR’s environmental review.
Aaron Snyder, chief of the corps’ Project Management Branch in St. Paul, told the council: “We believe that we will implement this plan as it is shown with minor modifications to continue to minimize impacts to people and the environment.”
The diversion was authorized by Congress as part of the Water Resources Reform and Development Act of 2014, which was signed into law by President Barack Obama in June.
Snyder told Moorhead council members there is no reason for a backup plan because there's no "really good, viable alternative" that gives the same amount of protection for the Fargo-Moorhead area.
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