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Buffalo Red Watershed District NOT Obligated to Support Diversion

Wilkin County Attorney

February 23,2015

Buffalo-Red River Watershed District Board
123 Front Street
Box 341
Barnesville, MN 56514

Dear Board Members:

I’ve been asked to write our concern over the position that your attorney has taken regarding the right to vote on matters relating to the Fargo Moorhead diversion project. We strenuously reject the assertion that a manager who represents an area of the watershed cannot vote to protect the interests of the region he or she represents.

The Fargo-Moorhead project as originally envisioned would have provided much needed flood protection to the City of Fargo. Although the project has been expanded significantly beyond its original intent, that portion of the project which protects Fargo as originally intended, without flooding its neighbors is non-controversial and deserves support. As originally conceived, the project would have been less than half its proposed cost, would have provided protection to the City of Fargo itself, and would have complied with all state and federal laws and policies. If the project had complied with national floodplain policies and remained targeted to its original purpose, it likely would now be fully permitted, fully funded and well under way with widespread support.

However an additional component of the project would extend protection to approximately 50 square miles of undeveloped natural floodplain surrounding Fargo and West Fargo. By so doing, the expanded project would attract development away from high ground and expand development out into the natural floodplain of Fargo at great expense. For some reason, those counseling Minnesota members of the diversion authority have been unwilling to explain why that portion of the project is legally and environmentally controversial. But it is simply not proper for anyone to suggest that those of you who question the project, or some of its aspects, are somehow disloyal to Minnesota or the entities that you govern as public representatives. That is not the function of a lawyer for a public body. The legal issue which is now under review in the State of Minnesota’s environmental review process is whether it is permissible for the City of Fargo to use federal flood control funds to expand the city into the natural floodplain and move all of the water previously stored on the natural floodplain onto other communities which were previously unflooded.

It is simply not true that managers of the Buffalo Red Watershed District have an obligation to support or implement this plan. In fact, it is completely improper for a Minnesota governmental entity to be moving forward with this plan, because the Minnesota environmental review has not yet been concluded, and necessary permits have not been issued. Citizens who oppose the project are not enemies of the Buffalo Red River Watershed District: they are exercising rights guaranteed by Minnesota law to participate in the environmental review process conducted by the Department of Natural Resources. This is the reason that Governor Dayton has officially protested the efforts of the Diversion Authority to proceed with aspects of the project that are connected to the staging, storage and Red River dam construction.

Expansion of Fargo into 50 square miles of natural floodplain, at the expense of other communities, is completely unjustified and represents unwise city planning, as recognized by Fargo’s own city plan. In Wilkin County, we are surprised that you would even be considering these steps. Fargo’s comprehensive plan estimates that Fargo will need approximately 266 acres per year of additional land to accommodate the City’s expansion. The City’s comprehensive plan recognizes that the public interest requires that the development occur to the maximum extent possible by increasing the City’s density and filling in undeveloped portions of the existing city.

At an expansion rate of 266 acres per year, if all of the development occurred outside the existing developed borders, in twenty years, Fargo would need 8 square miles of additional land for development.

Yet the current proposal seeks immediately to spend a billion dollars to flood protect six times the land required to accommodate two decades of development. In 2010, at the completion of the first Federal Environmental Impact Statement, the USACE discovered that providing that much unnecessary protection to the proposed 50 square miles of floodplain would produce so much excess water during flood events that it would lead to additional and unacceptable flooding downstream of Fargo, perhaps all the way to the Canadian border. Rather than scaling back the amount of protection, the USACE and Fargo instead decided to transfer the excess floodwaters onto portions of Cass, Clay, Richland and Wilkin Counties to the South by constructing a dam and spillway. The construction of the dam is in controversy in the state environmental review, and if it is constructed, its location and operation is in controversy. Many citizens will be impacted by these decisions, some positively and some negatively. All citizens and all regions are entitled to representation in this process and those who disagree with your attorney’s preference are not enemies of the Watershed District.

Minnesota local governments, including watershed districts, are barred by Chapter 116D, the Minnesota Environmental Policy Act, from implementing a project while the environmental permitting is still underway. Far from being disloyal, managers who question why this project is going forward are actually performing their duty to uphold the laws and Constitution of Minnesota and their oath of office.

During the federal environmental review, the State of Minnesota registered official objections to the plan to dam the Red River and asserted that the environmental review of this new plan was not complete. Federal law recognizes the State’s right to do this, and demands, in fact, that no locally sponsored federal flood control project be constructed unless state permits are first obtained. If you will actually read the federal Environmental Impact Statement, you will see there in black and white a commitment from the Corps of Engineers to complete the state environmental review and permitting process. When Minnesota’s environmental process commenced, the official environmental assessment worksheet listed a number of state permitting requirements that were required. As County Attorney, I strongly suggest that you review the federal statute that specifically prohibits conduct of locally sponsored flood control projects without state permits, and review the written commitment of the USACE to complete the Minnesota environmental review process. In Minnesota, no governmental authority can proceed with a project until that review is complete.

The decision to proceed with elements of the project before completing the review has been controversial, to say the least, and, in our opinion, a Minnesota governmental entity is barred by Chapter 116D from proceeding with implementing the project until the environmental review and permitting is complete. However, the Diversion Authority has been spending considerable resources on engineering, on attorneys, and on some acquisitions, many of which are directly connected to aspects of the project which are still under environmental review in Minnesota.

The issue upon which managers have been called to vote is thus highly controversial and impacts different parts of the Watershed District differently. The entire project has been projected by its advocates to confer over $2 billion in benefits to some portions of the region. While that projection is subject to challenge, if true, certainly the benefits that will accrue to some of the citizens of the watershed district will be significant. Naturally, citizens who believe that they will experience a significant benefit from this project have interests that might cause them to favor it, and citizens who feel that they will be burdened by the project have interests that might cause them to oppose it. The essence of this project is that one segment of the region is spending money to improve that region at the expense of another region, a plan prohibited by federal floodplain policy, and by Minnesota environmental law. Asserting that the burdened region has a conflict, while the benefitted region does not, is basically a technique to deny representation to the burdened region so that the benefitted region can inflict that burden without opposition.

We have no doubt that each of the managers of the Buffalo Red River Watershed District can fulfill their oath of office with integrity. Your District has a reputation for service to our communities. It is said that a manager whose property may be flooded has a financial interest in the outcome of the project, because his property will be flooded. But that is simply not an adequate basis from barring his right to vote.

The law requires that should the Diversion Authority flood the manager’s property, he would be compensated, and the result of this compensation would be that he would be in the same financial position as before.

If the matter before the Board were the amount of compensation to be provided for that injury, and if the manager were seeking to vote on whether the compensation was adequate, then, of course, one would expect that the manager would recuse himself. But at the present time, the State of Minnesota is conducting an environmental review. The Governor has warned Minnesota local government that it is your duty to comply with Chapter 116D, and that Chapter prohibits government from proceeding with a project before the environmental review is complete and permits issued.

We find it ironic that it is being suggested that officials can vote to support the project in ways that benefit them, but that they cannot vote when they represent a region that is going to be harmed. We note, for example, that the City of Oxbow’s council unanimously opposed the staging and storage proposal and the planned construction of the OHB ring-dike. The fact that they were going to be flooded by the project didn’t prevent them from taking that action, nor did it prevent them from voting to hire an attorney to represent the City’s interest. Then, later, when the City council changed its position after Fargo proposed to confer significant benefits upon residents of the city, including some of the council persons, nobody from the Diversion Authority suggested that it was unlawful for the Council to take positions on these proposals, because Oxbow citizens, including council persons, would benefit from being protected. What is under way here seems to be an approach to conflicts of interest that asserts that elected officials can vote only if they vote the way that the Diversion Authority wants them to vote.

We at Wilkin County are grateful for the public service of each of the managers, whether your conscience calls upon you to vote to uphold the State of Minnesota’s environmental laws, or whether it does not. As County Attorney, we recognize that the democratic process cannot be driven by a lawyer’s opinion designed to determine the outcome that the attorney favors. We believe that managers who vote their conscience should not be subjected to individual legal threats or pressures. Finally, we are disappointed with the suggestion that managers should not communicate with citizens and officials simply because those officials and citizens disagree with the position taken by legal counsel. Managers are public officials and the suggestion that they should refrain from listening to constituents or other interested parties is remarkable indeed.

Thank you for listing to our views. We intend to act decisively in the event that there is an effort to interfere with officials’ right to perform their duties as a device to interfere with the will of the managers.

Very truly yours,

Timothy E.J. Fox
Wilkin County Attorney

Cc: Tami Norgard
Attorney for Watershed District

“GATEWAY TO THE RED RIVER VALLEY”
AN EQUAL OPPORTUNITY EMPLOYER

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One Response to “ Buffalo Red Watershed District NOT Obligated to Support Diversion ”

  1. right on the spot

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