Richland-Wilkin JPA, FM Diversion Authority reach agreement

An agreement resolves ongoing litigation over Plan B of the $2.75 billion Fargo-Moorhead Diversion project and provide numerous benefits to upstream communities in Richland and Wilkin counties.

After nearly a decade of litigation — and a pledge from local officials to settle the matter by year’s end — upstream and metroplex leaders reached an agreement over the Fargo-Moorhead Diversion.

A settlement to resolve federal and state litigation related to the diversion project was approved and signed Monday, Oct. 26 by leaders of the FM Diversion Authority, Richland-Wilkin Joint Powers Authority, cities of Comstock and Wolverton, Minnesota, and the Buffalo Red River Watershed District.

The agreement, officials stated, includes provisions for the Diversion Authority to provide compensation and mitigation to political subdivisions located within Richland County, North Dakota, and Wilkin County, Minnesota, for potential impacts from the diversion project. The agreement also includes a joint submittal to dismiss the federal lawsuit and all challenges related to the Minnesota Department of Natural Resources permit.

"The judge and legislative leaders in both North Dakota and Minnesota have urged us to find common ground in order to move forward with flood protection for the Fargo-Moorhead area, and that's what this agreement does," said Dr. Tim Mahoney, Diversion Authority chair and mayor of Fargo, North Dakota.

Saying the agreement is monumental, Mahoney commended all sides for coming together to find resolution. Future generations, he said, will be grateful for the efforts made.

"We believe this agreement gives us the local control to ensure that our concerns over the impacts in Richland County from the diversion project will be adequately addressed," Richland County Commissioner Nathan Berseth said. "This agreement also recognizes the concerns of our school districts, townships and ensures the city of Christine, North Dakota, is not negatively affected from flooding due to the project."

Wilkin County Commissioner Dennis Larson reiterated that upstream Red River of the North communities wanted Fargo and Moorhead, Minnesota, to have flood protection, but also that local concerns be addressed.

"The project has changed many times since we formed the JPA and we needed to make sure programs are in place to protect those who are impacted," Larson said.

The agreement includes a joint submittal to dismiss the federal lawsuit before Chief Judge John R. Tunheim and any pending appeals, the Minnesota Contested Case related to the Minnesota DNR Dam Safety and Public Waters Work Permit No. 2018-0819, and the case in Minnesota state court related to the BRRWD permit, according to a statement issued Monday.

Additional compensation for potential impacts from the diversion project will come from an economic impact relief fund that will be funded by the Diversion Authority and administered by the JPA.

"The relief fund will be funded with an initial deposit of $35 million and will include additional deposits over time after construction of the project is completed by the authority until the total reaches $75 million," officials stated.

The agreement also ensures funding to complete or construct infrastructure related to flood risk reduction projects in the North Dakota and Minnesota cities of Christine, Comstock, Georgetown and Wolverton.

"Other provisions relate to the mitigation of potential impacts to upstream cemeteries, development of a crop insurance program, a post operation debris removal program, relief to impacted businesses and further discussion related to the flexibility within the mitigation requirements on upstream structures," officials stated.

The Diversion Authority includes the cities of Fargo and Moorhead, Cass County, North Dakota, Clay County, Minnesota, and the Cass County Joint Water Resource District.

"The agreement does not specifically include the Minnesota DNR or the U.S. Army Corps of Engineers, both who are also parties to the previously expressed lawsuits," officials stated. "Nothing in the agreement is an attempt to diminish the regulatory or permitting authority of either party."

Litigation between upstream and metroplex North Dakota and Minnesota communities along the Red River of the North had been in effect since 2012.

Richland County Commissioner Sid Berg, a member of the JPA, said in December 2019 that he was hopeful 2020 would bring an end to the diversion issue.

“It’s been an eight-year issue that we’ve dealt with in the county and we want to get it taken care of,” Berg said.

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