Attorney: Red River levee needed regardless of diversion

A proposed ring levee in North Dakota should be allowed to be built because it's independent of a massive proposed flood prevention project on the Red River and wouldn't cause irreparable harm, an attorney for the project told federal appeals judges Thursday.

The three 8th Circuit Court of Appeals judges heard arguments on whether to allow construction of the levee south of Fargo, N.D., to move forward.

U.S. District Judge John Tunheim had put construction of that ring dike on hold last year until the Minnesota Department of Natural Resources completes its study on the nearly $2 billion diversion channel, which is expected this spring. The diversion is designed to move water around the flood-prone Fargo metropolitan area, but would back up water into the southern plains in times of serious flooding.

The Richland/Wilkin Joint Powers Authority, a group of North Dakota and Minnesota residents, filed a lawsuit in August 2013, saying there were better, cheaper options than the diversion. They later added a motion to stop construction of the levee, arguing that the diversion proponents were violating Minnesota state law by moving forward before the environmental review was completed.

The levee would protect structures in the Oxbow, Hickson and Bakke area of North Dakota, which is part of an area that would be flooded when the diversion channel is needed.

Robert Cattanach, an attorney for diversion proponents, told the judges on Thursday that residents of the three North Dakota communities will need the levee for flood protection even if the proposed diversiondoesn't affect them. He said the hope is to construct the levees so that they can later be built up further if the diversion plan moves forward, but that regardless, the levee is independent of the larger project.

"They need the protection today. They don't need it in seven years," Cattanach said after the proceedings. "There is no reputable government agency that would say they're adequately protected."

Gerald Von Korff, the attorney representing the affected residents, rejected the notion that the levee isn't part of the diversion plan and stressed that diversion opponents pledged to work with the Minnesota DNR before moving forward.

"This claim that this is independent is a sham," Von Korf said. "The (levee) project was designed for this (diversion) project. The mayor of Oxbow himself excoriated the building of this levee because it was unnecessary unless they were flooded at the 10-year height."

Cattanach also said that opponents of the diversion and levee have failed to prove that the levee would harm anyone.

"I think that issue is clearly teed up for the court. I don't know how they could possibly affirm the injunction without a finding of irreparable harm," he said.

The Fargo-Moorhead area has dealt with major Red River floods several times in recent years, including a record-setting crest in 2009 when leaders considered whether to evacuate the town during a frantic sandbagging effort.

The diversion authority has said it hopes to break ground on the channel in 2016 once the Minnesota DNR completes its environmental review. Cattanach told the judges the review is expected to be finalized by May.

The appeals judges will rule at a later date on whether to lift the injunction on the levee.