DIVERSION DISCUSSION: Corps officials: ‘Don’t wait’ to lobby for project on Capitol Hill

FARGO – Regional officials with the U.S. Army Corps of Engineers are advising Fargo-Moorhead leaders to resume their lobbying efforts in Washington as early as this fall.

The Diversion Authority suspended its lobbyist’s contract this spring, after Minnesota’s and North Dakota’s members of Congress indicated action on the Red River diversion project was wholly unlikely this year.

During a meeting Tuesday of the authority’s Executive Leadership Council, Fargo, Moorhead and Cass County leaders asked the corps’ regional top brass for advice on how and when they should proceed with requests for authorization and federal funding.

“Visibility, timing, keeping it on the radar – those are all extremely critical,” said Michael Bart, the corps’ chief of engineering for the St. Paul District. “Don’t wait until after the election. It may be too late next March. Things happen quickly.”

District Commander Col. Michael Price said he’s already submitted his budget requests for the next fiscal year, which includes a request for continued design funding for the Red River diversion.

Price’s request will now go through intense scrutiny by White House officials before some variation of it ends up as part of the president’s budget proposal for fiscal year 2014.

Congress ultimately has the final say on where the money goes.

Corps officials said federal laws don’t allow them to advocate for congressional funding or even volunteer such a suggestion to members on Capitol Hill.

“We try to fight for our projects but there’s only so much we can do,” corps project manager Aaron Snyder said. “We can’t lobby for projects, but we can respond to questions.”

Price and Snyder advised local leaders to take the matter into their own hands by working with Minnesota’s and North Dakota’s members of Congress to lobby other federal lawmakers.

“Any project we’ve seen where the sponsors are more aggressive to get assistance, they tend to be more successful,” Snyder said.

Fargo-Moorhead leaders have made several trips to lobby leaders on Capitol Hill during the last three years of the project. Their most recent excursion was earlier this year.

With the Red River diversion approved by the corps, local leaders now seek congressional authorization for the project, as well as the funding they need for design and, ultimately, construction.

Without authorization though, the corps can only request funding for continued design, Price said.

“We can tell them we can’t do anything else without authorization, and that opens up the dialogue,” Price said.

Since the fall election will likely result in turnover on the Hill, local leaders asked when they should ramp up their efforts again to push for authorization.

The answer from corps officials and the Diversion Authority’s hired consultant: Don’t wait.

“Staffers tell us, there is some ground work being laid for fiscal year ’13,” said Tom Waters, the diversion’s project manager and a former corps official. “We have to make sure the interest is there, so that merits a fall visit, regardless of the circumstances.”

A Water Resource Development Act is the traditional means to get congressional authorization on civil works projects, but it’s not the only option, Waters said.

Short-term spending bills, which often include language on other non-related topics, can be opportunities, Waters said.

Congress is likely to consider such bills this fall before the election.

Have a question about the proposed Red River diversion, or want to recommend a topic you’d like to see addressed in an upcoming column?
Send an e-mail to Forum reporter Kristen Daum at kdaum@forumcomm.com (Subject: Diversion Discussion) or write to Kristen Daum c/o The Forum, P.O. Box 2020, Fargo, ND 58107.
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Corps official has ‘full confidence’ F-M diversion can withstand legal challenge

FARGO – The St. Paul district commander of the U.S. Army Corps of Engineers said Tuesday he stands by the corps’ feasibility study for the Red River diversion project.

“We have full confidence we’re in good shape,” Col. Michael Price told Fargo-Moorhead leaders, shrugging off threats of a legal challenge.

“Our process meets all state and federal laws,” he said during a brief stop in Fargo.

A coalition of about three dozen townships, cities, counties, school districts and other stakeholders south of Fargo-Moorhead have threatened legal action over the proposed Red River diversion.

The group – led by Richland and Wilkin County leaders – specifically opposes plans to use rural land for temporary water storage in conjunction with the diversion.

The feature stands to permanently displace Oxbow, Hickson and the Bakke Addition, and affect several thousand acres of land as far south as northern Richland and Wilkin counties.

Corps engineers have said the staging area is necessary to offset downstream impacts from the project that would otherwise be felt into Canada.

Leaders of the upstream group allege the Fargo-Moorhead project violates state and federal laws, specifically environmental regulations and laws that prohibit eminent domain for private economic gain.

Corps officials said they’ve visited with their legal counsel about the feasibility study, which was completed last summer.

“We believe it’s a very robust report, and it’s a very defensible report that adheres to state and federal law,” project manager Aaron Snyder said. “The corps believes everything was done properly, and we’re moving forward.”

Fargo Mayor Dennis Walaker

Fargo-Moorhead leaders said Tuesday they’re frustrated by the protest effort because they don’t feel rural residents have acknowledged metro officials’ positive strides to reduce the project’s impacts.

“After three years of this process, they’re dancing in Wahpeton – no matter what we try to do to rest those fears,” Fargo Mayor Dennis Walaker said, referring to recent optimism expressed by the Richland-Wilkin group.

Diversion consultants, in collaboration with the corps, are reviewing several possible changes to the $1.8 billion project. A recommendation will be released Sept. 13, which could include changes to the southern alignment of the diversion that might lessen the blow on upstream communities.

“We’re not being stoic and sticking to it,” Price said. “We’re being cognizant of their needs and working through the process to figure out what’s best.”

The Richland-Wilkin group recently made an open records request to the corps, seeking more information on how the project came to be.

Price and Snyder said the request was “huge” and will likely take “too much manpower” to fulfill. Snyder said the corps plans to work with the upstream residents to narrow their request into something manageable.

“We want to make sure what they ask for, they get, and it’s reasonable on both sides,” Snyder said.

Fargo-Moorhead officials emphasized their efforts to be as open as possible throughout this process, and they urged residents not to forget the mass support for the effort.

“All the publicity surrounding the potential litigation: That’s a few hundred people or a few thousand people who don’t like the project,” Cass County Administrator Keith Berndt said. “There’s a few hundred-thousand people who’ll be protected and that like the project.”

Walaker agreed.

“As far as I’m concerned, the people expect us to get this thing done,” he said. “They have faith in us. As long as we do everything that we possibly can … that’s all anybody can ask, and I feel we’re getting that.”

DIVERSION DISCUSSION: Legislative debate looming in 2013 over F-M diversion funding

FARGO – Fargo-Moorhead diversion officials plan to make another pitch in 2013 for more state funding for the Red River diversion project, but the effort might not be as easy as local officials would hope for.

The opposition movement against the $1.8 billion project has the support of rural lawmakers in southeastern North Dakota, who say they’re hopeful they can gain allies in other rural districts statewide.

If such a coalition came to fruition, the effort could be enough to stop – or at least diminish – the flow of state dollars toward the current diversion plan.

Parts of Fargo and West Fargo span 10 of the state’s 47 legislative districts. That representation accounts for 30 of the state’s 141 lawmakers, or about 20 percent of the Legislature.

So without significant rural support, Fargo officials will have difficulty securing the continued state funding they desire.

Speaking before a crowd of 250 rural residents and government leaders gathered in Christine, N.D., on Monday night, two rural legislators pledged to fight Fargo’s efforts for continued state funding.

“We need them to get that protection, but not at our expense,” said Sen. Larry Luick, R-Fairmont. “I will be fighting tooth and nail for this to get stopped.”

Luick’s district includes two southeastern Cass County townships, the city of Oxbow and eastern Richland County – areas that will be impacted by a proposed temporary water storage area south of the diversion project.

Luick and Jim Dotzenrod, D-Wyndmere, said they support alternative solutions – such as retention – that ought to negate the need for impacts on rural communities south of Fargo-Moorhead.

“We will make the argument in the Legislature, when the time comes, that the money in the state should be used in the right way,” Dotzenrod said. “We don’t support constructing a dam.”

Republican Gov. Jack Dalrymple has long said he wants to see changes made to the project to lessen the impact on rural communities, but he’s stopped short of saying he’d support cutting off Fargo’s funding stream if such changes aren’t made.

“I don’t think that’s what we’re talking about at all,” Dalrymple told The Forum last week.

He emphasized that the diversion project is a local decision, which the state has pledged to support.

“Fargo still needs permanent flood control. A diversion is part of that solution, and the state is still committed to helping make that happen, but we do need to find answers to these issues that come up,” Dalrymple said. “I think people have made it clear that changes can be made and changes will be made to the project – that’s what we’re working toward.”

Over the 2009 and 2011 sessions, the North Dakota Legislature appropriated $75 million to “Fargo flood control project funding.”

The money has been used in part to help pay for Red River diversion feasibility studies and some initial design work. The balance has been spent by Fargo officials on localized flood protection projects within the city.

While the North Dakota Legislature has given some initial dollars toward planning the Red River diversion, there’s been no debate about the merits of the project itself, Dotzenrod said.

“But we are looking forward to that time,” he added. “You’re going to find a number of legislators opposed to what this project has developed in to.”

Preparing for the 2013 legislative session, Fargo and Cass County leaders on the Diversion Authority board said they intend to seek further appropriations to help fund continued work on the metro project.

“We’ve had discussions with key legislators and we’ll continue to crank those up,” Fargo City Administrator Pat Zavoral said earlier this month.

Zavoral said officials are planning an open house, possibly in December, to update state lawmakers on the diversion’s progress.

Have a question about the proposed Red River diversion, or want to recommend a topic you’d like to see addressed in an upcoming column?
Send an e-mail to Forum reporter Kristen Daum at kdaum@forumcomm.com (Subject: Diversion Discussion) or write to Kristen Daum c/o The Forum, P.O. Box 2020, Fargo, ND 58107.
(Please include your name, town and a phone number to reach you for verification.)

Farmers question impact of diversion on crop insurance

WEST FARGO – Area farmers have some major concerns about how the Red River diversion project will impact their livelihoods and the crop insurance they rely on.

South of the proposed project, more than 54,700 acres of rural land – most of it farmland – are set to be included in a temporary water storage area.

While the land could still be farmed during a typical year, farmers fear that they could lose income due to lost yields and reduced insurance coverage.

Area farmers and Diversion Authority officials met Tuesday to talk about the diversion’s impacts on agriculture with Doug Hagel, regional director for the Risk Management Agency, which oversees the federal crop insurance program.

Federal crop insurance covers only “unavoidable, naturally occurring events.” Losses resulting from a manmade containment project – such as a diversion or dam – are not covered, Hagel said.

But the land affected by the Red River diversion’s proposed upstream staging area is in a unique situation, since floodwaters there would only be contained temporarily before draining off, Hagel said.

“Staging is more tricky,” he said. “We’ve tried to be as flexible as possible with staging water.”

According to Hagel and Scott Stofferahn, state director for Sen. Kent Conrad:

If a flood occurred and water backed up in the staging area but eventually drained off in time for farmers to plant, the land would be covered under federal crop insurance.

But if a flood occurred, water backed up and farmers couldn’t plant by the required dates, the land would not be covered under the federal program. In addition, a farmer’s crop insurance rate would take a hit because they’d have no insurable yield that year – something of particular concern, area farmers said at Tuesday’s meeting.

The Diversion Authority could opt to insure the affected farmland in cases where the Red River diversion project was responsible for farmers’ crop losses, Hagel said.

However, there are a number of factors that would influence how such a program would operate, he said.

Stofferahn said farmers might see crop losses anyway under such conditions wet enough to require the diversion to be used – a scenario that would likely allow them to be covered under the federal program.

“Most likely, you’re going to have a normal cause of loss … because you already had excess precipitation leading up to that” use of the diversion, he said.

Metro Diversion Authority officials sought to emphasize how rare it would be that water would back up on farmland upstream of Fargo-Moorhead, especially during summer time when crops have already been planted.

“Staging is based on a 100-year event,” Fargo Engineer Mark Bittner said. Under the corps’ new definition, Bittner said, “we’ve never seen a 100-year event, so up until a 100-year event, drainage should actually be better.”

“It’s not all bad; there will be some benefits there,” Bittner added.

Diversion opposition builds momentum, lays out plans for legal protest

MnDak Upstream Coalition

CHRISTINE, N.D. – With their ranks swarming, opponents of Fargo-Moorhead’s Red River diversion plans say they’re confident they can stop the $1.8 billion project either through political or legal protest.

Almost akin to a political rally, optimism exuded from the crowd of 250 rural residents and officials who gathered here Monday night to discuss their path forward in stopping the Red River diversion project.

“We know our efforts aren’t worthless,” Richland County Commissioner Sid Berg said. “I truly think we’re going to stop this. There’s no doubt in my mind: We’re going to smoke them.”

The impetus for the opposition began 20 months ago, when a drastic revision to the U.S. Army Corps of Engineers’ plans shifted the diversion project’s impacts from north of Fargo-Moorhead to communities in the south.

In winter 2011, the corps added an upstream water storage area to the project that was meant to offset downstream impacts along the Red River that reached at least into Canada.

Consequently, though, the upstream storage area stands to permanently displace three communities – Oxbow, Hickson and the Bakke Addition – while subjecting as much as 54,700 acres south of Fargo-Moorhead to excess water while the diversion would be in operation.

The effects stretch into northern Richland and Wilkin counties but would be most severe nearest to the southern end of the diversion project, the corps has said.

Rural residents who’ll be impacted south of Fargo-Moorhead have joined forces with their government representation with plans to legally protest the project. The Richland-Wilkin Joint Powers Authority – a formal governing body representing the opposition – has 33 member entities, with others expected to join.

“I don’t think anybody in this room would say we don’t want to see Fargo get some decent permanent flood protection,” said Perry Miller, president of the JPA and Richland County Commission chairman. “Our point is simple: We’re not going to sit idly by and allow our land to be sacrificed and used for a sump pit so the land in the diversion can be used for future development.”

Several other government leaders involved in the effort spoke Monday night in similar fashion, decrying F-M leaders for driving a message of propaganda that the Red River diversion is a certainty.

Openly opposing the formal position of his governing body, Clay County Commissioner Jon Evert told the crowd he supports the JPA’s effort to fight for an alternative solution to the current diversion plan.

“We need to continue to fight this,” Evert said. “I think we can find a way to make this project work without sacrificing our land and communities to do it. I would hope that we don’t have to make this (into a) lawsuit, but if that’s the only way to stop it, we’ll have to do that.”

Evert represents southern Clay County, which lies in the project’s upstream water storage area.

Clay County is one of the six member entities of the Diversion Authority, which oversees the Red River diversion project.

Officials with the Richland-Wilkin JPA announced late last week that they’d taken initial steps toward a formal legal challenge of the Fargo-Moorhead project.

The JPA plans to make two open records requests in an attempt to gain more evidence that supports the group’s position.

The JPA alleges that the Fargo-Moorhead project violates state and federal laws, specifically North Dakota’s constitutional provision protecting against eminent domain for private economic gain.

The group also believes Minnesota’s environmental laws are on their side, since state law states permits on such a project can’t be issued if a better alternative is available, Wilkin County State’s Attorney Tim Fox said.

Fox added, though, that the JPA is prepared to file a federal lawsuit to stop the project, if necessary.

“This is not some frivolous lawsuit,” Fox said. “It’s a way to ensure that something that is wrong does not happen. … If Fargo wants to work with Richland and Wilkin counties to come to a resolution that would satisfy everyone, we’d be willing to do that. But they haven’t done that – not one bit.”

A few months ago, the Richland-Wilkin JPA hired a St. Cloud legal firm, Rinke Noonan, to represent their cause.