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FM Diversion and Dam Increases national debt

Case Civil No. 13-2262 (D322) | US District Court, District of Minnesota


View/Download: D322 Declaration of Eric Dodds27k

(see also: D321)


Richland/Wilkin Joint Powers Authority, a Minnesota-North Dakota Joint Powers Authority,


Civil File No. 0:13-cv-02262-JRTLIB
United States Army Corps of Engineers; John McHugh, Secretary of the US Army Corps of Engineers (in his official capacity); Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works (in her official capacity); and Col. Dan Koprowski, District Commander, St. Paul District, US Army Corps of Engineers (in his official capacity),


Fargo Moorhead Flood Diversion Board of Authority,Defendant and Defendant-Intervenor,


City of Oxbow,  Defendant-Intervenor



I, Eric Dodds, submit this Declaration based on my own personal knowledge.

1. I am employed by the consulting firm AE2S in its performance of a contract with the Fargo-Moorhead Flood Diversion Board of Authority (“Diversion Authority”). In this capacity, I assist in managing the Diversion Authority’s responsibilities and act as a Diversion Authority liaison to homeowners, governments, and businesses affected by relocation and construction of Fargo-Moorhead Flood Risk Management Project (“Project”) components.

2. This declaration explains actions that will need to be undertaken in the immediate future by the Diversion Authority and its representatives to acquire property necessary for the United States Corps of Engineers (“Corps”) to commence construction later this summer on the first phase of the Project.

3. On February 9, 2016, the Corps received approval from the Administration for “new start” construction on the F-M Project in Fiscal Year 2016. Five million dollars of FY 2016 appropriations was allocated to construction of the Project. This funding included the following conditions:

The Minnesota Department of Natural Resources began its environmental review of the Fargo-Moorhead Metro project in January 2012, and is currently scheduled to publish a final Environmental Impact Statement in May 2016. No earlier than July 2016, the ASA(CW) will assess the progress of all state environmental reviews and regulatory requirements needed to complete construction of the project as authorized. The Corps will not execute a PPA for construction of the project, or use Federal funds for its construction, until the Assistant Secretary of the Army, Civil Works determines that the Corps is likely to resolve any outstanding regulatory issues that could affect the prospects for completing construction of the project.

4. The Corps has identified a project component known as the “gated inlet structure” as the first element to be constructed by the Corps. The gated inlet structure is located at what will be the mouth of the actual diversion channel, located in North Dakota.

5. One of the obligations of the local sponsors under federal law is to acquire appropriate title to any properties on which the Corps will undertake construction. Construction of the gated inlet structure requires title to three specific properties in North Dakota.

6. The Diversion Authority team has been in regular communications with the owners of these North Dakota properties regarding the need to acquire their property. Through their counsel, it is clear that at least some of the property owners will not agree to sell voluntarily, and those properties will need to be acquired through eminent domain.

7. North Dakota law provides for the acquisition of properties for public works projects through a “quick take” proceeding. Even a quick take proceeding, however, may require several weeks to complete. In order to obtain title to the properties by July 1, 2016, which the Diversion Authority has calculated as the latest date by which the process should be completed in order for meaningful construction activities by the Corps yet this year, eminent domain proceedings should be commenced no later than mid-May, 2016. The Diversion Authority wished to avoid any suggestion that it was rushing the Minnesota Department of Natural Resources (MDNR)’s environmental review process in any way, however, so we have deferred commencement of any eminent domain proceedings until the MDNR released and published its final Environmental Impact Statement (FEIS), which has just occurred. As a result, the Diversion Authority will need to commence those proceedings immediately.

8. If the Project does not go forward for any reason, however, the Diversion Authority has committed to return title to the affected owners at no cost if the owner desires, or if not, to sell the property on the open market. This commitment may be modified or omitted in future purchase documents to reflect the progress on regulatory approvals.


Dated: May 16, 2016 /s Eric Dodds
Eric Dodds

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