‘The Eyes of the Nation Are on this Project’

In many ways, the proposed Fargo-Moorhead Diversion is unique. Opponents point to the lawsuit to prevent it, which has lasted more than four years. Supporters point to the first-of-its-kind arrangement, expected to pay for the approximately $725 million project.

A “P3,” or public-private partnership, is expected to fund the F-M Diversion. Public-private partnerships are a new tool for the U.S. Army Corps of Engineers, which is currently overseeing construction of an outlet for the flood diversion channel south of Horace, North Dakota.

“The eyes of the nation are on this project,” said Terry Williams, project manager for the Corps’ St. Paul District.

Shannon Bauer, public affairs chief of the St. Paul District, added that the Corps is looking at the F-M Diversion as a test project.

“It’s the one and only of its kind right now,” she continued.

Two things remain to be seen. First, whether or not the Corps will use public-private partnerships for future projects throughout America. Second, whether or not construction of the F-M Diversion will be allowed to continue.

On Tuesday, July 18, Federal District Judge John Tunheim will hear oral arguments regarding the F-M Diversion. He is expected to consider not only whether the F-M Diversion Authority should be prohibited from taking further construction action, but whether or not the Corps should be prohibited from doing the same.

Earlier this week, Fargo Mayor Tim Mahoney, chairman of the Diversion Authority, said he didn’t believe the oral arguments would yield any immediate results. He also expected Tunheim’s decision may possibly be made as late as 5-6 months later.

“Tunheim knows time is of the essence,” said attorney Cash Aaland, Fargo. “In fact, he let his staff know that he wanted to go right away (for oral arguments). It was Fargo’s lawyers who really pushed to delay this.”

Aaland is optimistic that by Tuesday, July 18, Tunheim will have had enough time to sift through both sides’ extensive pleadings regarding the F-M Diversion. Since January 2017, the Richland-Wilkin Joint Powers Authority has partnered with the Minnesota Department of Natural Resources in its lawsuit against the diversion project. The defendants are both the Diversion Authority and the Corps. It is possible, Aaland continued, the oral arguments session will consist mostly of attorneys for both parties answering Tunheim’s questions.

“I wouldn’t be surprised if Tunheim ruled from the bench,” he said. “That does happen from time to time. He has indicated that he wants to resolve this sooner rather than later.”

Richland County Commissioner Nathan Berseth, a member of the Joint Powers Authority, said Mayor Mahoney’s comments were pure speculation.

“The judge knows that the project is imminent, even ongoing,” Berseth continued. “We are hopeful a decision will be made in less than six months. With every passing day, the Corps is being more aggressive with their construction.”

It is against the Corps’ policy to comment on pending litigation, Bauer said. She explained the Corps’ legal matters are handled by the U.S. Department of Justice.

‘Less benefits for Minnesota’

“The nation’s infrastructure needs to be replaced and improved,” Williams said. “The government had been looking for different ways to get that infrastructure replaced. As government resources become more limited, the question became, ‘How can you bring the private sector in to resolve these infrastructure needs?’”

Commenting that flood diversion efforts in Wahpeton-Breckenridge have been effective, Williams said the goal was to have a similar project in place for Fargo-Moorhead.

“We want to reduce the risk of (a) catastrophic flood,” she continued. “This current project being built offers 100 years certifiable protection to the Metro Area and we have plans to mitigate the remaining resulting issues.”

Those remaining resulting issues — including the potential for flooding in northern Richland and Wilkin counties — have been a cornerstone of diversion opponents’ arguments. A significant event for the opponents was the May 2016 publication of an environmental impact statement. The statement, published by the Minnesota Department of Natural Resources, concluded that Minnesota ends up with more acres impeached than benefitted.

“On the other hand, North Dakota would see about 86 percent of the project benefits,” the Department of Natural Resources continued.

A few months later, in October 2016, the Minnesota Department of Natural Resources denied a permit to the F-M Diversion Authority. As of Friday, July 7, that permit has yet to be obtained. Currently, diversion construction is not expected to begin in Minnesota until at least 2019, Williams said.

“We want to make sure the entire project functions as it should,” she continued. “We believe we have minimized the impacts, now we need to mitigate them properly.”

Since 2008, Williams and Bauer said, the Corps has worked with not only citizens but organizations to get their feedback on the diversion project.

“We are documenting every step along the way, the good and the lessons learned,” Williams added. “Public input has always been important. We have addressed thousands of comments from the public. The Diversion Authority folks will meet with anybody at anytime. There’s been opportunities for input and comment. We’ve listened and we believe we have found the best project for the region.”

‘An interesting ride’

Berseth remains hopeful that Tunheim will look favorably upon the Joint Powers Authority.

“It will be an interesting ride, every day following Tuesday, July 18, but any outcome is purely hypothetical right now,” he said.

Turning his attention to public-private partnerships, Berseth also said it was interesting that the Diversion Authority and Corps would attempt one for a flood control project.

“With a road or a bridge, you can usually assess a toll onto that. With this sort of project, there’s got to be a funding agreement. Everyone’s looking for a guarantee,” he continued. “The Corps likes this type of project because they can continue to spend the money without any commitment.”

Diversion supporters have indicated that sales taxes for the Fargo-Moorhead Metro Area would help pay for the project’s cost. However, Berseth pointed out that sales tax revenue can fluctuate greatly.

“If you run the numbers, sales tax revenue cannot sustain this project,” he said. “The burden of these costs are still going to fall on homeowners paying special assessments.”

Throughout the past four years, the proposed Fargo-Moorhead Diversion has been the subject of debate, protest, criticism, support and a lawsuit. What remains to be seen is if it will go down in the record books as a finished project or a defeated project.

Source: Daily News