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Patrick Springer, Published January 30 2013

Bill in North Dakota Legislature would undermine diversion, opponents say

FARGO – Opposition to the water retention component of the diversion to protect Fargo-Moorhead from flooding now has surfaced in the North Dakota Legislature.

A bill would require supermajority support of property owners within a “geographic retention area” affected by a project to hold back water.

The bill, which has its first hearing today, has sparked widespread opposition from officials statewide who work on retention projects to minimize flooding.

“If this bill passes, it would pretty much put a halt to retention,” said Jim Lyons, co-chairman of the Red River Retention Authority, which is working to create retention projects.

In a flurry of special meetings Wednesday, water management boards took official positions against the bill that will be presented today during testimony before the Senate Natural Resources Committee.

The Red River Retention Authority, the Red River Joint Water Resource District and the North Dakota Water Resource District Association all passed resolutions opposing the bill.

Senate Bill 2300 doesn’t mention the proposed flood-control diversion to protect Fargo-Moorhead, but a supporter of the group said the bill was prompted by opposition to a temporary water impoundment area designed to reduce the diversion’s impact downstream.

The proposed $1.8 billion diversion project calls for a staging 32,500-acre upstream staging area south of Fargo as well as a 35-mile long, 1,500-foot-wide diversion channel.

The legislation is intended to allow landowners to decide whether to be included in areas that fall within a retention area, said Craig Hertsgaard, who farms near Kindred and is a member of the MnDak Upstream Coalition, which opposes the diversion’s retention proposal.

The bill would require approval by 60 percent of property owners within the water retention area.

Water retention officials said they work closely with affected landowners before proceeding with a project.

“It’s kind of a direct punch in the nose at retention generally,” said Pat Downs, executive director of the Red River Retention Authority, which is separate from the proposed Fargo-Moorhead diversion.

“You have to have landowner buy-in from beginning to end,” he said.

Lyons and other water retention officials say those who benefit from the projects must approve assessments for the projects. Requiring approval from 60 percent of “affected” landowners would make it impossible to carry out retention projects, he said.

Water officials noted that opponents of the Fargo-Moorhead diversion advocate more retention elsewhere, but said the bill they support would undermine those efforts.

“This would make it almost impossible to go forward in the future,” said Mike Dwyer, executive secretary of the North Dakota Water Resource District Association, which represents about 60 districts, including at least one in all 53 of North Dakota’s counties.

Water officials also said the bill is vague, clouded by ambiguous language such as “affected area,” which Downs said is not defined.

“The scope of this is very small,” Hertsgaard said. “It only affects the floodway,” and works within existing floodplain management law.

The Diversion Authority heading the Fargo-Moorhead flood diversion has not taken a formal position on the bill, said Darrell Vanyo, the authority’s chairman.

“Our feeling is it seems to be a targeted bill,” he said. “We’re certainly not in favor of it, but I didn’t want it to become just a diversion issue. It also has an impact on any type of retention.”

The bill’s supporters hope the proposal will spur discussion in the Legislature, Hertsgaard said. Opponents of the diversion’s retention feature complain that local officials have not responded to their concerns.

“We need to have a dialogue of what retention can and can’t do,” he said.

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Readers can reach Forum reporter Patrick Springer at (701) 241-5522