Craig Hertsgaard: Fargo Flood Diversion Authority May Have Hit A Brick Wall In Permitting Process

Used with permission of the artist
Used with permission of the artist

The St. Paul Army Corps and the Fargo Diversion Authority (DA) 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 ND State Water Commission saying, “a dam permit is not a legal prerequisite to federal construction,” but the USACE will, “be applying for the permit out of comity.”

I had to look up the word ‘comity’ in Webster’s dictionary. It turns out that 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 DA thumbed their nose at the State of North Dakota. Corps Colonel Dan Koprowski told the Water Commission and Governor Jack Dalrymple that they don’t need a permit. The Corps’ brass should come as no surprise to residents or lawmakers.

What’s appalling is that 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 that state laws don’t matter. That’s why the Minnesota Attorney General has filed amicus briefs on behalf of the Richland-Wilkin JPA in the case, defending their state’s right to regulate the project.

The federal court agreed with the JPA and the Minnesota AG, and issued an injunction against further construction of the ring dike around Hickson-Oxbow-Bakke.

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]Governor Dalrymple and the Water Commission told the DA and Army Corps that if they are going to stick a shovel in their dirt, they need a permit.[/mks_pullquote]

Governor Dalrymple and the Water Commission told the DA and Army Corps that if they are going to stick a shovel in their dirt, they need a permit. In a letter (see below), 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 ND, that’s 29,260 acres. They go on to say that “10,380 acres of the area in ND inundated by the FM Dam…are within Richland County,” and, “it is uncertain whether the DA has the power of eminent domain in Richland County. From a legal standpoint, an explanation of how the DA will secure land rights from unwilling owners in Richland County is required…”

Considering that Richland County is party to the lawsuit against the DA, 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 DA 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 DA 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.