Diversion Authority Files Challenge to Permit Decision by the Buffalo-Red River Watershed District

(July 15, 2019) – The Diversion Authority filed a Complaint today with the  Minnesota District Court in Becker County regarding the recent permit decision made by the Buffalo-Red River Watershed District (BRRWD). Over the last six months, the BRRWD and the Diversion Authority have attempted to work cooperatively to develop additional permit conditions that could supplement the 54 conditions included in the Minnesota DNR permit. Notwithstanding the Diversion Authority’s willingness to agree to further BRRWD permit conditions, the BRRWD in June voted 4-2 to deny the permit application submitted by the Diversion Authority. The Diversion Authority believes the BRRWD’s action was in violation of Minnesota state law.

“It is our understanding that the Minnesota DNR stated that a local watershed board cannot prohibit a regional project like the Diversion. The DNR Commissioner stated that clearly in the DNR Permit Order last year,” said Cass County Commissioner Mary Scherling, Chair of the Diversion Authority, said. “Solving problems through litigation is not ideal, but the Court system exists for a reason and can be a resource when State law is not being adhered to.”

“We would like this case resolved soon, but it’s important to understand that the Watershed’s actions do not impact the order from the federal judge allowing construction to continue. The Watershed is only able to regulate the manner in which the Diversion Project is constructed within Minnesota,” said Scherling.

“As an elected official in Clay County, I have the responsibility to provide flood protection to our residents and cannot continue to let us be held hostage by non-elected representatives of our own Watershed,” Clay County Commissioner and Vice Chair of the Board Kevin Campbell said. “The County has done everything we could to work with the Watershed District within the well-established State laws and rules for these things, and frankly it’s a bit outrageous we now have to ask taxpayers in Minnesota to fund both sides of a lawsuit.”

The Minnesota Department of Natural Resources (DNR) issued a permit for the Diversion Project in December of 2018. As part of the permit, the DNR Commissioner issued Findings of Fact and stated,

“To the extent that individual communities in the Red River Basin adopt local ordinances that preclude a regional approach to flood damage reduction by prohibiting elements of flood risk reduction projects within their jurisdiction, those ordinances conflict with the legislative intent that flood risk reduction in the Red River Basin should be addressed from a regional perspective. Such ordinances are in conflict with state law, state plans, and the 1998 Mediation Agreement and cannot be imposed on regional projects such as the Revised Project.”

The BRRWD previously filed a contested case hearing with the Minnesota DNR on January 29, 2019, in response to the issuance of the DNR permit. The BRRWD’s challenge to the DNR’s permit issuance is a separate and distinct action, although much of the stated basis for the BRRWD’s denial of a permit appears to relate to its displeasure over the DNR’s issuance of its permit last year.