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FM Diversion and Dam Increases national debt

Defending Richland and Wilkin counties April 14th, 2016

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Richland-Wilkin Joint Powers Authority
Original Publication Date: April 14th, 2016
Wahpeton Daily News
Republished with permission from:
JPA Editorial Team

The St. Paul District of the U.S. Army Corps and the Fargo Diversion Authority say they don’t need a North Dakota state permit to build a dam and reservoir south of Fargo for their project. They sent a letter to the North Dakota State Water Commission saying, “A dam permit is not a legal prerequisite to federal construction,” but the U.S. Army Corps of Engineers will, “be applying for the permit out of comity.”

We had to look up the word “comity” in Webster’s dictionary. It turns out it can have more than one definition. One meaning is, a friendly social atmosphere. Another is, the informal and voluntary recognition by courts of one jurisdiction of the laws and judicial decisions of another.

Neither definition fits.

The Army Corps and Diversion Authority thumbed their nose at the state of North Dakota. Corps Col. Dan Koprowski told the water commission and Gov. Jack Dalrymple they don’t need a permit. The Corps’ brass should come as no surprise to residents or lawmakers. What’s appalling is the Diversion Authority demands North Dakota tax dollars but doesn’t want to follow the state’s laws.

Their attorneys have spent the last two years telling a federal court state laws don’t matter. That’s why the Minnesota Attorney General has filed Amicus Briefs on behalf of the Richland Wilkin Joint Powers Authority in the case, defending Minnesota’s right to regulate the project. The federal court agreed with the JPA and the Minnesota Attorney General and issued an injunction against further construction of the ring dike around Hickson-Oxbow-Bakke.

Gov. Dalrymple and the water commission told the Diversion Authority and Army Corps if they are going to stick a shovel in their dirt, they need a permit. In a letter, the commission cited North Dakota law that said before they even consider a permit, they must have “evidence establishing a property right for the property that will be affected by the construction of the dam, dike, or other device …” In North Dakota, that’s 29,260 acres. They go on to say, “10,380 acres of the area in North Dakota inundated by the Fargo-Moorhead dam … are within Richland County,” and, “it is uncertain whether the Diversion Authority has the power of eminent domain in Richland County. From a legal standpoint, an explanation of how the Diversion Authority will secure land rights from unwilling owners in Richland County is required …” Considering that Richland County is party to the lawsuit against the Diversion Authority, this seems like a brick wall in the permitting process.

Dalrymple and the water commission won’t back down. The letter to Darrell Vanyo and the Diversion Authority says, “It is the duty of the Office of State Engineer to ensure that any proposed project is held to the requirements outlined in the governing … Century Code and … Administrative Code.”

The Army Corps and Diversion Authority should have checked the dictionary before they sent the letter. Since they are not recognizing North Dakota’s jurisdiction and their letter certainly hasn’t resulted in a friendly social atmosphere, they must have picked the wrong word. What should have been “comity” has instead become comedy.

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