​F-M Diversion not diverting its course

Minnesota DNR pulls out of talks while construction continues, and Metro Flood Board of Authority interviews for full-time position

FARGO - Sandbagging is local “schooling” the FM Area Diversion Authority wants to eliminate, permanently.

Fargo native Rocky Schneider remembers sandbagging when he was in high school, and then when studying for a masters degree at NDSU. In those days, he had fun. Kids got out of school. There was free food and drinks, and the memories are strangely fond.

“It’s almost a part of our schooling,” Schneider, who is part of the Advanced Engineering & Environmental Services program management consulting team working with the F-M Area Diversion Authority, said. “We relied on school-age kids to save the city. Now that I’m an adult, I look at myself and say ‘What were you relying on 16-year-old me for to save the city?’ I don’t want my daughter to go through that, let alone lose.

“We have fond memories of the fun and camaraderie, and we call it that because we won.”

For years, the F-M Area Diversion Project has been an ebb and flow of ups and downs, with an undercurrent of opposition, to find the answers to the 36-mile-long project among different cities, states, agencies, and the U.S. Army Corps of Engineers.

The problem stems from policy differences, and not from technical issues, Schneider said.

“The problem that we have is that we have lost sight of what the problem is,” Schneider said. “The problem we’re trying to solve is flooding.”

Despite ongoing court proceedings filed by the the Richland/Wilkin Joint Powers Authority in U.S. District Court for the District of Minnesota to stop construction, to which the Minnesota Department of Natural Resources (DNR) later joined, work on the project began in December 2016, and the Metro Flood Board of Authority is looking for a full-time executive director for the Diversion Authority.

“With construction underway on the project, it is time for the Authority to hire permanent staff who will be solely dedicated to work with the Army Corps to implement permanent flood protection for the region,” Diversion Board Chair and Mayor of Fargo Tim Mahoney said. “The depth of experience from the three individuals we spoke with today shows that there is great interest nationwide in being involved in our project and flood protection for this region.”

The finalists for the position are Scott Higbee, Jay Neider, and Melodee Loyer.

“It is the right time to hire a director,” Moorhead Mayor and Vice Chair of the Board Del Rae Williams said. “I think we found several strong candidates for the job who can work with our city and county staff, who have put in thousands of hours during the development of the project. This position will greatly benefit the project because it will be someone who is accountable to all the entities involved.”

Congress authorized the project in 2014 to reduce flood risk, property damage, and economic loss. In February, all five charges brought against the U.S. Army Corps of Engineers were dismissed in U.S. District Court, and all but two of the same charges were dismissed against the F-M Area Diversion Authority.

“The Diversion Project has received approvals from USACE, Congress, the President, voters in Cass County and Fargo,” Mahoney said in February. “It is the right project.”

The first contract on the project worth $46,040,475 was awarded in December 2016 to Ames Construction, Inc., of Burnsville, Minnesota, to complete the diversion inlet control structure in Fargo, according to the U.S. Army Corps of Engineers.

“Our metropolitan area — and the economic health of the entire region, can be protected and ensured for future generations of residents,” Mahoney said. “We need to do this together, and I am committed to seeing this to the end in a collegial and open manner.”

The project is currently slated to finish in 2024, according to the F-M Area Diversion Authority.

Project history, costs, and permits

In the past 110 years, the Red River, which flows north, has exceeded flood levels 49 times, including every year from 1993 to 2011, and again in 2013, according to the FM Area Diversion Project website.

A 500-year event would flood most of Fargo, and large portions of Moorhead and West Fargo. The 2009 flood was considered a 50-year event when the river rose to 40.8 feet. An extreme flood could result in more than $10 billion in damages to the Fargo-Moorhead area.

Research into the project has been ongoing since 1974, after a resolution of the Senate Committee to Public Works was passed. In 2008, the Fargo-Moorhead Feasibility Study was started, and environmental impact studies, along with a feasibility study were completed in December 2010.

The Diversion Authority was created the following year, when Fargo, Moorhead, Cass County, Clay County, Cass County Joint Water Resources District, and the Buffalo-Red River Watershed District entered into a joint powers agreement to plan, design, and manage the project. The Diversion Authority partnered with the U.S. Army Corps of Engineers to help plan and secure funding for construction.

The U.S. Army Corps of Engineers is a federal agency under the Department of Defense and is considered to be one of the world’s largest construction management services, primarily responsible for dams, canals, and flood protection in the United States.

Without any delays, the F-M Area Diversion Project will cost approximately $2.2 billion, and will be paid in full by 2084 with three half-cent sales taxes to cover the local share, according to the F-M Area Diversion Project. The federal government has approved $450 million; North Dakota has approved $570 million, of which $304 million has been appropriated, and Minnesota plans to request $43 million.

The diversion channel will include a dam near Horace, water storage areas, dikes, and levees, and when finished, will be a 1,500 foot-wide diversion channel with 32,500 acres of upstream staging, running at 20,000 cubic feet per second, according to the F-M Area Diversion Authority.

Permits for the route are needed at the federal and state levels, Mahoney said, but obtaining the permits “go a stage at a time.”

“What you want to do is each step you do that, then you get permission,” Mahoney said. “On the Minnesota side is if we want a permit, if we attempt to obtain a permit, it’s an incomplete application. We got the Environmental Impact Study and the EIS said the current project is fine.”

States can disagree on issues such as the F-M Area Diversion Project, and federal authorization for a project is one of the issues being contested in court, where plaintiffs are attempting to bring the U.S. Army Corps of Engineers back in.

“Federal trumps state,” Mahoney said.

“When you have two states that disagree, the federal government has to step in,” Schneider said.

Troubles

One of the remaining lawsuits against the F-M Diversion Authority was filed partly because the Minnesota Department of Natural Resources claims the plan does not follow state laws. U.S. Army Corps of Engineers St. Paul District Colonel Samuel Calkins stated during a January conference in Fargo that the project his agency is involved in is federal, and does not need a state permit.

The Minnesota Department of Natural Resources denied the F-M Area Diversion Authority’s plan in October 2016 after an evaluation citing the project did not meet Minnesota legal standards for protecting citizens and environment.

In addition to denying the proposed plan, the F-M Area Diversion Authority and the State of Minnesota are involved in three pieces of litigation concerning the project: the Diversion Authority’s contested-case hearing concerning the Department of Natural Resources denial; federal litigation pertaining to the Diversion Authority and the U.S. Army Corps of Engineers construction on the project; and finally, an appeal to the adequacy of Department of Natural Resources’ Environmental Impact Statement, according to a letter written by Minnesota Department of Natural Resources Commissioner Tom Landwehr to Mahoney on June 2.

In the letter, Landwehr alerted Mahoney that the state was withdrawing from negotiations about a compromise, called ‘Plan B,’ due to ongoing litigation and construction activities.

“The Diversion Authority’s overall strategy appears designed to prolong the litigation, obfuscate the issues, and maximize costs to the state,” Landwehr wrote. “In combination with the increased commitment to constructing the project without a DNR permit, I cannot in good faith continue to invest limited state resources in these Plan B discussions.”

Mahoney described Landwehr’s leaving the talks a disappointment.

“We set up a meeting for a Monday, and on Friday he cancelled it,” Mahoney said. “We thought we were making great progress.”

“Let me be clear,” Landwehr said in a published editorial piece. “The DNR is not advocating for a sandbagging-only solution. We are fully prepared to help identify a ‘Plan B’ that would provide 100-year flood protection to a larger portion of the developed areas, while minimizing and mitigating upstream impacts, limiting disruption of undeveloped floodplain, and ensuring consistency with applicable federal, state, and local plans.

“However, we cannot have a genuine search for a ‘Plan B’ if the Diversion Authority and the Army Corps are simultaneously initiating construction on their current proposal.”

Despite the Minnesota Department of Natural Resources ruling, the F-M Diversion Authority said the agency did not present any reasonable alternatives to the project until last week, when on the Mike McFeely Show, Williams and Clay County Commissioner Kevin Campbell stated the Department of Natural Resources wanted to go back in time to the original U.S. Army Corps of Engineers’ plan for Minnesota, called the National Economic Development Plan.

“We are fortunate to be able to prove to the Army Corps and to the U.S. government that our locally preferred plan was a better plan and a better financial plan,” Campbell said on the show. “And Congress approved our plan, and it’s the one we want to go forward.

“This Minnesota plan is dead on arrival, it will never happen, because for one thing the impacts to Minnesota would even be worse,” Campbell said about the National Economic Development Plan. The impacts to the original plan would be felt “all the way to Canada.”

“If you put the channel in Minnesota, you have that whole area of channel that needs to be bought out, and now that’s not farmland,” Williams said on the radio show. “Visualize that, it’s bigger than the Corps’ project. I just don’t get how that would be the better choice.”

“The biggest light is that the city of Moorhead and Clay County have been adamant supporters of this plan and continue to be,” Schneider said.

Despite recent setbacks, Mahoney remains undaunted. He is disappointed Landwehr walked away from the talks, but no work is planned to begin in Minnesota until 2019, Mahoney said.

So far, the legal issues involved do not constitute a delay, which could cost $60 million with interest, and Mahoney believes that if talks could begin with Minnesota’s technical teams, the issues could be straightened out.

“We think we can work through it,” Mahoney said. “We want to keep on the time table, and the second reason we need to keep it all on the time table is that we’re flooded every eight to 10 years.”

If Mahoney’s prediction is correct, Fargo is due for another flood in less than two years.