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Lawyers Argue About Construction of Red River Diversion

Posted on October 24, 2016

By Dave Kolpack, StarTribune

Backers of a Red River diversion project around the Fargo-Moorhead area say a Minnesota agency’s refusal to issue a work permit won’t be a factor for many years and construction should go forward on the North Dakota side.

Diversion opponents say they might ask a judge to halt the start of construction.

The U.S. Army Corps of Engineers has set aside $5 million for construction of a gated inlet structure, which is the first phase of the $2.2 billion project. The Fargo-Moorhead Diversion Authority is hoping to start on the inlet in the next few months.

Attorneys on both sides filed court documents this week updating their positions on a lawsuit filed by upstream residents asking for a cheaper project that won’t flood farmland. Gerald Von Korff, lawyer for diversion opponents, said the authority should get all necessary permits — Including those from the state of Minnesota — before starting construction.

Diversion authority lawyer Robert Cattanach countered in a strongly worded document that the decision by the Minnesota Department of Natural Resources to deny a permit for an upstream dam contradicts the agency’s finding that emergency flood measures are not a reasonable alternative. The DNR “did a complete about-face” after Minnesota Gov. Mark Dayton complained about the project, Cattanach said.

Cattanach said no work on the diversion is scheduled to take place in Minnesota until at least 2019. The channel is scheduled to be completed about 2024.

“While many of the MDNR’s concerns can and will be addressed well in advance of the 2024 date that a Minnesota permit would even be operative, regardless of whether one would be required, the overarching legal issue remains,” Cattanach said, referring to whether the DNR can prevent implementation of a federal project authorized by Congress.

Cattanach told The Associated Press Thursday that it will take time to address the technical issues raised by the DNR. In the meantime, he said, “The Corps of Engineers is going to do what the Corps of Engineers is going to do. We don’t control what they do.”

Von Korff said in an interview that federal environmental law “prohibits the federal agency from stomping on the state” without asking for authority to supersede state law. The diversion authority told Congress it was going to comply with Minnesota regulations, he said.

“Would they be starting to build a dam that has safety requirements but only get the permit after they build it?” Von Korff asked. “That doesn’t make a whole lot of sense.”

Source: StarTribune

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