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Published June 13 2010

Corps researching question of compensation to landowners

Legal experts for the Army Corps of Engineers are studying whether the government would need to compensate downstream landowners if a Fargo-Moorhead diversion aggravates flooding for them, a corps official said.

Craig Evans, co-manager of the diversion project, said the corps is researching whether additional water dumped on downstream interests would constitute a “taking” of private property under the Fifth Amendment of the U.S. Constitution.

If they decide that it does, the government may have to pay to relocate homes or purchase flow easements from landowners to flood their property, Evans said.

Those expenses would be built into the project cost, already estimated at $1.46 billion for the locally preferred North Dakota diversion channel.

Evans said legal staff is looking at three main factors – the change in flood stage, frequency of flooding and duration of flooding – as well as legal precedents.

In Roseau, Minn., where a $30 million flood protection project began last June, officials originally wanted the corps to address “almost imperceptible” increases downstream because they were politically unpopular, Evans said. But corps headquarters determined the perceived damage didn’t constitute a taking, he said.

“Now, in this case, we actually have quantified much larger increases than what we had in Roseau,” he said. “And so we have to go through that same analysis, but it’s not as easy with this one.”

Revised corps projections released last week show a 35,000-cubic-feet-per-second North Dakota diversion would cause Red River floodwaters to rise an additional 11.6 inches in a 100-year flood between Hendrum, Minn., and Halstad, Minn., and 7.1 inches in Georgetown, Minn.

Additional downstream flooding that would occur because of a diversion must be weighed against how often it would happen, Evans said.

“If the event that causes damage is so infrequent that it really isn’t that much of a change … it’s not a taking,” Evans said. “But if it’s going to happen a lot more frequently that something would get impacted, then maybe it is a taking. But it’s all a judgment call that they have to do.”

Corps officials are still studying the effects farther downstream, which aren’t expected to be greater than at Halstad, Evans said.

Diane Ista, a manager of Minnesota’s Wild Rice Watershed District and member of a downstream group advocating a zero-impact diversion, said landowners would be “very much opposed” to the idea of flowage easements. Downstream residents also don’t want to live behind higher dikes or lose access to transportation routes during floods, she said.

“I don’t think anybody wants to be paid to flood,” she said. “There’s no amount of money that they can pay anybody to continue on with that. We need retention (upstream).”

Meanwhile, the corps continues to seek access to survey land in the diversion’s path.

Last week, corps officials said 73 people who own land in the North Dakota diversion alignment had granted the corps right-of-entry, while nine had denied it. The corps was still waiting for responses from 38 others.

Cooperation has been greater on the Minnesota side, where 121 landowners granted access, two denied and 45 hadn’t responded.

Aaron Snyder, the corps’ other co-manager for the project, said geotechnical surveyors have the access they need in Clay County, and local water resource district officials plan to meet with the holdouts in Cass County.

Some landowners are concerned about surveying equipment damaging their property and want to be present when surveyors arrive, Snyder said, adding landowners will be compensated for any damage.

If landowners won’t voluntarily grant access, local public entities can apply to district court to compel them to do so. Snyder said it takes about 30 days to get a court hearing, and while the delay may temporarily leave corps officials with uncertainty about the diversion’s design, they can work around it.

“I don’t think it’s really going to have that much of an impact on the overall schedule,” he said.

If the diversion wins federal approval, the corps’ best-case scenario calls for it to be completed in 2020 and operational in 2021.

Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528