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Published February 06 2012

Diversion officials expect legal challenges to project as early as April

FARGO – Diversion Authority officials are preparing for legal challenges to halt the Fargo-Moorhead diversion project, perhaps as early as this spring.

Members of the authority’s finance committee recommended today that each local stakeholder in the project start setting aside an undetermined amount of funds for the anticipated legal defense.

The move comes hours before a meeting tonight at which residents south of the planned diversion channel plan to discuss their legal remedies to fight the project.

Several communities south of Fargo-Moorhead are opposed to the diversion plans because of a proposed staging area that will likely displace them.

The staging area is planned to temporarily store as much as 200,000 acre-feet of water during severe floods.

Fargo Administrator Pat Zavoral said each local government will need to plan its own finances to fight the legal challenges.

Diversion Authority officials said insurance coverage for defense costs would require an annual premium of about $500,000, making it cost prohibitive.

Once the legal battle begins, local governments will be billed by the Diversion Authority to share in the costs, Zavoral said.

“We don’t want to take money out of the entities until we have a sense of what the magnitude of that defense will be,” he said.

That defense might need to start as early as April, when the assistant secretary for the Army’s civil works division is expected to sign off on a Record of Decision for the project.

“The federal laws say that anybody who's opposed to the project can’t sue on any of what they might see as deficiencies in the project until a Record of Decision,” Zavoral said, “so we suspect once the record of decision has come, there'll be a flurry of legal questions and protests.”

Rural residents affected by the diversion project will gather at 7 tonight at the Christine (N.D.) Community Center for a special meeting of the MnDak Upstream Coalition.

John Kolb, a St. Cloud-based attorney representing upstream opponents, plans to discuss landowners’ rights and address residents’ questions, such as when the project might be ripe for an injunction.