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Erik Burgess, Published December 26 2013

Lawyers for Corps reject claims in suit against F-M diversion

FARGO – Lawyers for the U.S. Army Corps of Engineers are denying several allegations made in a lawsuit against the proposed Fargo-Moorhead flood diversion project.

The 35-page response to the lawsuit was filed Monday, and in it, the government’s legal team rejects the claim from diversion opponents that the purpose of the $1.8 billion flood control project is to protect developable land immediately south of Fargo.

Lawyers for the corps also deny the suit’s claim that the diversion and proposed ring levee around Oxbow, Hickson and Bakke will cause “irreparable harm” to the cities and other entities represented by the Richland-Wilkin Joint Powers Authority, which filed the suit in August.

The lawsuit accuses diversion leaders of unnecessarily expanding the scope of the flood protection project, damaging farmland in the so-called “staging area,” where water would be stored in the event of a severe flood before moving through the diversion channel.

In the suit, diversion opponents argue that Fargo and Cass County favor the proposed diversion project because it would protect “large portions of Fargo’s undeveloped flood plain.” The suit alleges that the local project sponsors and the corps developed ways to “skew the cost-benefit analysis in ways which overstate the benefits … and understate the costs” of the proposed project.

In their response, the corps’ lawyers said they “specifically deny any allegations that the Corps violated any Federal law or policy in the planning process in calculating the benefit-cost ratio or otherwise.”

The suit also alleges that the diversion will cause “unnecessary repeated intentional flooding of large expanses” of both Richland and Wilkin counties, and that the corps only considered one flood storage option.

In their response, lawyers for the Corps said the staging area only includes 788 acres and two residential structures in Richland County and 450 acres and one residential structure in Wilkin County.

Corps’ lawyers argue that other options for upstream staging were studied.

“But (they) were rejected, among other reasons, because of their greater impacts to people, property, agriculture, and the environment,” the response says.

In the suit, diversion opponents further argue against the proposed ring dike for the Oxbow, Hickson and Bakke area south of Fargo, saying that the levee will have “major environmental impacts” and would be a “monumental waste of taxpayer money” if the full diversion isn’t built.

“The purpose of these ring-dikes would be to provide protection against artificially created flooding caused by the dam downstream,” the suit says.

Corps’ lawyers argue that Oxbow “routinely experiences flooding under existing conditions,” and that a historic event would flood Bakke and Hickson, and so the three would benefit from a ring dike.

The lawyers argue further that the $65 million ring dike is a cheaper protection plan compared to the $74 million price tag for buying out the three communities.

Work on the ring levee is slated to start next year with home acquisitions. The levee could be completed by 2016.

A federal water bill authorizing the diversion has been approved individually by the U.S. Senate and House, and the two chambers are now in conference committee to hash out the differences and pass one final bill. If authorized, the diversion would still need appropriation of federal funds.


Readers can reach Forum reporter Erik Burgess at (701) 241-5518