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Most landowners deny corps access for Red River diversion survey -- Feds will pursue legal action

Fewer than one in four landowners contacted by the U.S. Army Corps of Engineers for a Red River flood diversion survey have granted access to their land, a corps official said Monday.

The corps will pursue legal action to gain access to "critical" land that must be surveyed for a diversion study, said Aaron Snyder, project manager.

Wednesday is the deadline for landowners to return their right-of-entry forms to the corps, and some are protesting the North Dakota diversion option by refusing to sign.

"We're basically protesting the downstream and outside effects of this," said landowner David Gust.

In mid-April, the corps mailed forms to 199 landowners in the path of the proposed North Dakota diversion channel.

As of Friday, 34 had granted access, Snyder said.

Of the 146 landowners in line with the proposed Minnesota channel, 45 had granted access as of Friday.

A number of other landowners indicated they would grant access, but the corps hadn't received their forms yet, Snyder said.

The corps considers 22 properties in North Dakota and 12 in Minnesota as "critical" to its feasibility study, he said. One landowner had denied access, and the corps was waiting for responses from others.

Once the deadline passes, the corps will work with local entities to pursue access through the proper legal channels, he said.

"Due to the time constraints on the study, it's critical for us to be really aggressive in going out there and getting access, getting these surveys completed to make sure we stay on schedule," Snyder said.

Gust, who has helped organize a group of landowners with concerns about a North Dakota diversion channel, said he and his neighbors along the Maple River aren't returning their right-of-entry forms.

Many of them believe the Sheyenne Diversion protecting West Fargo has worsened flooding downstream, and they fear a Red River diversion will do the same, Gust said.

"Nobody's willing to tie mitigation of those effects to the diversion," he said. "They want to build this and then deal with the effects later."

Both states have laws that allow public entities to enter private land for surveying without landowner permission, but they must seek voluntary access first.

Under North Dakota law, the public entity can apply to the district court to compel access for the purposes of conducting surveys, examinations and soil borings, according to Sean Fredricks, attorney for the Southeast Cass Water Resource District.

Minnesota law varies depending on who makes the request for access.

In both states, the public entity is responsible for any damage to the land.

The corps has a similar process under federal law.

Snyder said a soil boring crew has already started taking samples, and other surveying contracts should be advertised and awarded within 30 to 45 days. The work will last into the fall.

The corps will still accept right-of-entry forms after Wednesday, he said, noting the deadline is mainly for the critical properties.

The corps originally had a mailing list of 235 landowners, but it added 110 because of potential shifts in the diversion routes, mostly in the southern half of the project, Snyder said.

The locally preferred diversion plan got a big boost last week when, just a few days after visiting Fargo-Moorhead, Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy granted an exception that allows the corps to study a 35,000-cubic-feet-per-second North Dakota option instead of a smaller 20,000-cfs Minnesota option.

"There's a number of hurdles left to go, but this was one of those hurdles that could have completely eliminated that North Dakota plan," Snyder said.

The corps is trying to identify the most cost-effective plan, which will affect the level of federal funding for the project, and hopes to know by a May 13 meeting of the local project group, Snyder said.

A draft report for public comment is scheduled for release on May 21, he said.

Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528