Amended Complaint

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 1 of 48
UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
Richland/Wilkin Joint Powers Authority, a

Minnesota-North Dakota Joint Powers
Authority,
Plaintiff,
Civil Action No. 13-2262 JRT/LIB
vs.
United States Army Corps of Engineers; John
McHugh, Secretary of the US Army Corps of
Engineers (in his official capacity); Jo-Ellen
Darcy, Assistant Secretary of the Army for
Civil Works (in her official capacity); and
Col. Dan Koprowski, District Commander,
St. Paul District, US Army Corps of
Engineers (in his official capacity),
THIRD AMENDED COMPLAINT
Defendants.
and
Fargo-Moorhead Flood Diversion Board of
Authority, a Minnesota-North Dakota Joint
Powers Authority,
Defendant (Counts III V) and
Defendant-Intervenor.
Plaintiff Richland/Wilkin Joint Powers Authority, a Minnesota-North Dakota Joint

Powers Authority ("Plaintiff') states and alleges as follows:
INTRODUCTION
1.
By letter dated December 22, 2011, the Chief of Engineers conveyed to Secretary
of the Army the recommendation of reporting officers in the St. Paul District of the Army Corps
of Engineers (USACE) of a plan to reduce flood risk in the Fargo-Moorhead metropolitan area
by constructing a diversion channel and Class I dam across the Red River of the North. The twobillion dollar proposed project is five times as expensive as cost estimates prepared by the
USACE in 2009. The cost of the project exploded exponentially because project sponsors
sought to expand dramatically the scope of the project to extend protection unnecessarily to over
50 square miles of undeveloped natural floodplain. Project cost was further increased by
proposing protection at a level of 60,000-66,000 cubic feet per second, more than double the
peak flow actually experienced at Fargo at any time in the past century.
2.
After expanding the scope of the project in this way, the Corps of Engineers
discovered that this expansion of project mission would significantly increase the flow of water
downstream (in the absence of other mitigating measures), causing the flooding of communities
downstream.
3.
Instead of scaling back the project to its original mission, project sponsors and
USACE decided to divert the excess water by constructing a new Class I earthen dam in
Minnesota and North Dakota, running across the Red River upstream of Fargo and Moorhead,
intentionally to flood vast reaches of upland upstream of Richland and Wilkin Counties. This
new design would intentionally flood large areas of valuable high ground, including
communities and prime farm land in order to provide unnecessary flood protection to natural
undeveloped floodplain and promote future development in areas vulnerable to flooding.
4.
The plan advanced by local interests, called the "Locally Preferred Plan," consists
of a 36 mile 20,000 cubic feet per second (cfs) diversion channel that would start approximately
four miles south of the confluence of the Red and Wild Rice rivers and extend west and north
around the North Dakota cities of Horace, Fargo, West Fargo and Harwood and ultimately reenter the Red River of the North downstream of the confluence of the Red and Sheyenne rivers
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near Georgetown, Minnesota. The diversion channel would cross the Wild Rice, Sheyenne,
Maple, Lower Rush and Rush rivers and incorporate the existing Horace to West Fargo
Sheyenne River diversion channel.
Since submission to Congress, the plan has been
substantially modified, such that the Report submitted to Congress does not reflect critical
features of the project, nor does it address viable practical alternatives to those modifications.
5.
A critical step in the approval process for a locally sponsored flood control project
is obtaining the approval of the State or States in which the project is located. 33 USC 701b-13
(WRDA-2007); 33 USCA 2232 (WRRDA-2014); 33 USC 701-1 (Flood Control Act of
1944).
As described more fully in this Complaint, Minnesotas approval procedure requires
that the project first be subject to an environmental review and state permitting. For projects
impacting public waters, the Minnesota Responsible Governmental Unit (RGU) for both
environmental review and permitting is the Minnesota Department of Natural Resources.
6.
During the Federal Environmental Review, the State Department of Natural
Resources raised a series of major concerns which called into question the legal and
environmental viability of the proposed locally proposed plan. The narrative of the federal EIS
asserted generally that the local sponsor would resolve the States concerns in the State
environmental review and permitting process, but failed to address Minnesotas concerns in a
way that complies with NEPA. The EIS that was submitted to Congress directly represented that
the Minnesota environmental and permitting process would be respected and that the local
sponsor would cooperate with that process. The Chiefs Report specifically made the project
subject to state permitting. However, following authorization of the project by Congress,
Defendant-Intervenor Diversion Authority has now taken the position that the Local Sponsor
need not comply with State law and that the project, or portions of the project, can be constructed
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without completion of the State environmental review and without issuance of state and local
governmental permits. The Defendant-Intervenor (Diversion Authority) has already
commenced project construction, and on information and belief intends to commence further
construction, before completing the State environmental review and without obtaining Minnesota
permits.
7.
This action challenges the Report of the Chief Engineer US Army Corps of
Engineers (Chiefs Report), and accompanying Environmental Impact Statement (EIS), because
it proposes a costly and wasteful plan of flood control for the Fargo-Moorhead area, but fails
adequately to advise Congress of suitable alternative plans of flood control exist which are far
less costly, capable of more rapid implementation, and which cause far less negative
consequences. The Complaint alleges that the accompanying EIS violates the National
Environmental Policy Act of 1969 (NEPA), codified as 42 U.S.C. 4321 et seq. in its
implementation of 42 U.S.C. 4332(2)(C) and related laws and regulations. This Complaint
alleges that these actions, including approval of the Environmental Impact Statement, are
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law under
the Administrative Procedures Act, ("APA"), 5 U.S.C. 706. Through this lawsuit, Plaintiff
seeks to have the unlawful Record of Decision set aside and to compel the Defendants to comply
with NEPA and to cease efforts to obtain authorization to construct, or to construct any portion
of the project, until all environmental and permitting reviews are complete. In addition, this
Complaint challenges the decision to adopt and accept a supplemental EA without completing a
supplemental environmental impact statement.
8.
This Complaint further alleges that the Chief's Report and accompanying EIS and
the supplemental EA and FONSI, fail adequately to disclose that:
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a.
The Locally Preferred Plan proposed in the Chief's Report (and

amendments thereto) wastes scarce federal water development funds,
because other suitable plans, not analyzed in the Report, can achieve flood
protection to the cities of Fargo and Moorhead at vastly reduced cost;
b.
Suitable alternative plans exist which, at lesser cost, can provide adequate
long term flood protection without flooding upstream and downstream
communities;
c.
Suitable alternative plans would afford greater benefit to the entire Red
River Valley thereby maximizing the positive impact of federal dollars,
whereas the Locally Preferred Plan submitted to Congress inflicts
unnecessary harm on the rest of the Red River basin;
d.
That the locally preferred plan unnecessarily eliminates vast reaches of

currently undeveloped natural flood plain at great expense, thus causing
unnecessary harm to the basin, and consequently puts taxpayers at risk for
future catastrophic uninsured flood relief expenditures;
e.
The Chief's Report and accompanying EIS arbitrarily manipulated costbenefit figures, which originally showed that the locally preferred plan
would cost significantly more than the benefits;
f.
The Chief's Report and Environmental Impact Statement proposes a level

of flood protection that is twice as high as any flood that has occurred in
the last century in Fargo, and fails to provide Congress with sufficient
information to evaluate the policy, cost and environmental implications of
this choice. By failing to present an option with protection commensurate
with FEMA's base flood standards, the Report and EIS presents Congress
with the false choice between building a vastly overpriced, unnecessarily
expansive project, or providing no protection at all.
g.
The Environmental Impact Statement failed to address significant

Minnesota regulatory requirements, thereby forcing the State of Minnesota
to conduct a lengthy and costly environmental review process, a process
which could have been significantly truncated or eliminated, if a less
costly and less damaging alternative were selected. Moreover, the
Environmental Impact Statement failed to disclose, or explain the
consequences of, overriding Minnesota environmental and permitting law.
h.
The State of Minnesota has officially warned the USACE that EIS fails to
sustain the conclusion that the project is ecologically sustainable, the least
impact solution, one in which adverse effects can and will be mitigated,
and consistent with other standards, ordinances, and resource plans of
local and regional governments. These are requirements for authorization
and permitting under Minnesota state law. The EIS itself and the ultimate
selection of the Locally Preferred Plan ignored these requirements,
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resulting in an EIS that fails in its essential function, to consider potential

conflicts with state and local law.
i.
9.
Although the defendants have deferred a critical part of the environmental

review to the State of Minnesota, they have commenced a portion of the
project before that review is completed and before it is determined
whether the project itself may lawfully be permitted in the State of
Minnesota.
In addition, this Complaint alleges that the Locally Preferred Plan and its
components, including the Oxbow-Hickson-Bakke Ring Dike, violate the Minnesota

environmental law and water law. Commencing construction of the Ring Dike before the
Minnesota environmental review is completed and before issuance of permits is unlawful, would
inflict irreparable harm on residents of the subject areas, and would prejudice a fair review of
options. Plaintiff is seeking declaratory and injunctive relief based on the state law violations
and the Diversion Authoritys commencement of construction before review is completed and
permits issued.
Role of the Chiefs Report and Environmental Impact Statement
in the Authorization of Water Resource Projects
10.
Water Resource Development Acts, such as the Water Resources Development
Act of 2007, Pub.L. 110-114. (WRDA-2007) and the Water Resources Reform and Development
Act of 2014, Pub.L 113-121 (WRRDA-2014) , have been the vehicles for authorizing federally
supported water projects. Water Resource Development Acts historically have been omnibus
bills including many earmarked provisions for site specific activities.1 Federal funds are
insufficient even to fund maintenance of existing critical water projects, and there is insufficient
Army Corps of Engineers Water Resource Projects: Authorization and Appropriations,

Legislative Reference Service, 2011, Doc RefNo R41243.
1
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funding to build numerous authorized water resource development projects authorized by 2007,
and earlier water resource development acts.
11.
Water resource development act authorization may encompass two kinds of
project assistance. The first--navigation project assistance--is designed to promote the United
States' Commerce clause powers to manage navigation, by construction and improvement of
harbors, lock and dam construction and maintenance, and the dredging of navigable channels on
rivers which support movement of cargo. While the States have significant influence over the
design, authorization and approval of these navigation projects, ultimately, applicable legislation
authorizes the US Army Corps of Engineers to override local law and local permitting
requirements.
12.
The second kind of project assistance--State project assistance--is designed to
provide financial assistance to the States and their political subdivisions, to implement State
projects that promote State water management objectives. Flood control projects, and the project
at issue here, are typical examples of state project assistance. State assisted projects are
constructed by state or local entities, and federal assistance is provided subject to a binding
agreement by the state as "owner" of the project to construct and maintain the project consistent
with an operational manual and consistent with applicable State law. These state assisted
projects are authorized subject to all State and local law, including state water policy, state
environmental law, and state regulation of public waters. 33 USC 701b-13 (WRDA-2007); 33
USCA 2232 (WRRDA-2014); 33 USC 701-1 (Flood Control Act of 1944). State assisted
projects may be constructed, and the construction managed, by agreement with private entities or
with the USACE, or some combination of the two.
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13.
Authorization of water resource development projects for construction is typically
considered in an omnibus bill based on a submission by the Chief Engineer of the United States
Army Corps known as the "Chief's Report". The Corps of Engineers sends an informational
copy of the Chief's Report to the Office of Management and Budget (OMB), so that the OMB
can evaluate the project for consistency with executive guidelines and assure budgetary integrity.
14.
The Chief's report is subject to the requirement found at section 42 USC
4332(C)(i)-(v) that directs all agencies of the federal government to the fullest extent possible
"include in every recommendation or report on proposals for legislation and other major Federal
actions significantly affecting the quality of the human environment, a detailed statement by the
responsible official" the information specified by that section. The Chiefs report is a
recommendation or report on proposals for legislation and other major Federal action.
15.
The information specified in Section 42 USC 4332(C) includes (1) the
"environmental impact of the proposed action," (2) any "adverse environmental effects which
cannot be avoided should the proposal be implemented," (3) any "alternatives to the proposed
action," and (4) any "irreversible or irretrievable commitment of resources which would be
involved in the proposed action should it be implemented." 42 U.S.C. 4332(2)(C).
16.
The function of the NEPA environmental review extends far beyond providing an
inventory of the impacts on fish, wildlife, and other environmental resources. The NEPA
environmental review is designed to give policy makers, including the executive and legislative
branches, meaningful choices to assure that scarce federal resources are allocated efficiently and
in accord with national policy.
17.
It is thus critically important to the sound management of national water resources
policy that the Chiefs Report faithfully and adequately advises Congress in a transparent manner
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if alternatives to the proposed action can meet state and national objectives for a lesser cost and
with lesser negative environmental impacts. Otherwise, the Chiefs report poses to Congress a
false choice between overbuilding a wasteful and costly project with avoidable consequences, on
the one hand, and denying any flood protection at all, on the other.
18.
The Chiefs Report and accompanying Environmental Impact Statement
submitted to Congress for the Fargo-Moorhead flood control project fails in this essential
objective. A viable alternative to the project recommended by the Chiefs Report exists that can
be built for less than half the cost. Alternatives exist which achieve flood control objectives
which will fully protect Fargo and Moorhead's developed areas, offering protection sufficient to
control all known historic floods with room to spare. The option would eliminate the need to
flood Richland and Wilkin Counties. Moreover, the benefits of the project, if so configured,
would extend benefits to the rest of the Red River Valley, instead of exacerbating flooding. The
alternative would reduce environmental impacts significantly, and would provide needed flood
relief to Fargo much sooner. Although markedly less costly, this option has not been made
transparent in the Chiefs Report nor the accompanying Environmental Impact Statement.
PLAINTIFF
19.
Plaintiff Richland/Wilkin Joint Powers Authority is an organization representing
local government in Wilkin County, Minnesota and Richland County, North Dakota to prevent
damage to lands and communities targeted for flooding by the expanded Fargo Moorhead flood
diversion project. The Joint Powers Authority was formed, pursuant to Minnesota and North
Dakota joint powers legislation, to protect the citizens and property of Richland and Wilkin
Counties and to take any and all steps necessary to prevent the flooding of Richland and Wilkin
Counties by the Fargo Metropolitan Area Flood Risk Management Project and thereby to prevent
the loss of tax revenues, loss of population, damage to public structures, rights of ways and ditch
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systems, reduction in land values, elimination of government entities, reduction in school

funding and enrollment within the boundaries of impacted governmental units.
20.
Members of the Joint Powers Authority include over 20 cities, townships and a
school district in addition to the county members. The members, and their citizens, will suffer
direct and indirect irreparable harm, more fully explained in this Complaint, because the locally
preferred plan recommended by the Chiefs Report will dam the Red River causing repeated
flooding of lands within both counties. That harm includes the unnecessary repeated intentional
flooding of large expanses of each County, the impairment of tax base of counties, townships,
cities, and school districts, the interference with governmental infrastructure, loss of property
values and interference with local planning and zoning.
21.
Plaintiff Joint Powers Authority brings this action on its own behalf, on behalf of
its constituent member political subdivisions, and on behalf of their citizens. The Corps' violation
of the APA and the violations enumerated herein will cause Plaintiff and their citizens
procedural and substantive injuries from the Corps' arbitrary and capricious action.
22.
Plaintiff brings its state law claims (Counts III, IV, and V) on behalf of the State
of Minnesota pursuant to Minnesota Statutes Chapter 116B and in its own capacity, Minn. Stat.
116B.03.
DEFENDANTS
23.
Federal Defendants are enumerated in paragraphs 23-26. Col. Dan Koprowski,
District Commander, St. Paul District, Corps of Engineers, is directly responsible for the day to
day implementation of Corps of Engineers actions in the St. Paul District, which encompasses
the proposed project. The vast majority of work performed by the Corps of Engineers on this
project, including the design, environmental impact statement, and recommendations for the
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project configuration, occurred and is occurring under the District Commander's supervision in
the St. Paul headquarters of the St. Paul District.
24.
Defendant United States Army Corps of Engineers (USACE) is a federal agency
of the United States of America, within the Department of the Army of the United States
Department of Defense. The Corps has been delegated responsibility by the Department of the
Army, for, among other things, construction, management and operation of various rivers, lakes
and other water resources of the United States of America, and the issuance, modification and
revocation of permits relative to various activities taken or proposed to be taken on waters of the
United States and its tributaries. On information and belief, the USACE intends to manage
construction under agreement with Diversion Authority. The EIS prepared by the USACE
contains a representation that this project will be subject to the state permitting and
environmental review of the State of Minnesota. USACE and other Federal Defendants may
claim an interest relating to the subject of Counts III-V and may be so situated that disposing of
the action in the person's absence may be regarded as impacting agency interests, and for this
reason it is appropriate to make the Federal Defendants party to Counts III-V.
25.
Defendant the Honorable John McHugh is named in his official capacity as the
Secretary of the Army. Secretary McHugh is responsible for implementing the policies,
procedures and requirements of the Corps and applicable statutes and regulations relative to all
water resources and Corps-owned or operated properties within the United States of America.
26.
Defendant the Honorable Jo-Ellen Darcy is named in her official capacity as the
Assistant Secretary of the Army for Civil Works ("ASACW"). ASACW Darcy establishes policy
direction and provides supervision of the Department of the Army functions relating to all
aspects of the U.S Army Corps of Engineers' Civil Works program, including all reimbursable
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work performed on behalf of Federal and non-Federal entities. These responsibilities include
programs for conservation and development of the nation's water and wetland resources, flood
control, navigation, and shore protection.
DEFENDANT-INTERVENOR
27.
Defendant-Intervenor Fargo-Moorhead Diversion Board of Authority (Diversion
Authority) is a Minnesota-North Dakota Joint Powers Authority composed of Minnesota and

North Dakota political subdivisions. Diversion Authority intervened as a Party Defendant with
respect to the NEPA allegations and is named as Intervenor-Defendants as to Counts I and II.
Diversion Authority is named as a Defendant in Counts III-V. Diversion Authority also used the
names Diversion Board of Authority, Flood Diversion Board of Authority, and Fargo-Moorhead
Diversion Authority. Under the Joint Powers Agreement, the Authoritys charter provides that
the Diversion Board of Authority shall follow all laws and rules that govern a public entity in the
states of Minnesota and North Dakota. Among those laws which the Diversion Board of
Authority and its members must follow are Minnesota Statutes Chapters 116B, 116D, and 116F.
28.
The Diversion Authority is a Governmental Unit as defined by Minnesota Statutes
Section 116D.04, subdivision 1a(e) and a person as defined by Minnesota Statutes Section
116B.02, subdivision 2. The proposed flood control project and all of its constituent parts
constitute Government Action governed by the Minnesota Environmental Policy Act (MEPA)
and the Minnesota Environmental Rights Act (MERA).
JURISDICTION
29.
This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331 (federal
question jurisdiction); 5 U.S.C. 702 (APA); 28 U.S.C. 1361 (action to compel a federal
officer to do his duty), and the Court has the power to issue a declaratory judgment and further
relief pursuant to 28 U.S.C. 2201 and 2202 (declaratory and injunctive relief).
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12
30.
This Court has supplemental jurisdiction over the state law claims (Counts III, IV,
and V) pursuant to 28 U.S.C. 1367(a).

31.
Venue is proper in this Court pursuant to 28 U.S.C. 1391(b) and (e). A
substantial part of the events or omissions giving rise to the claims occurred in Minnesota. The
arm of the Defendant Corps of Engineers implementing preparation of the proposed project is
located in St. Paul, Minnesota. The project area includes the Red River which is a Minnesota
public water lying in the State of Minnesota and the adverse effects and lack of claimed benefits
will substantially affect Minnesota and its political subdivisions within the Red River Valley.
History of Project Development and its Environmental Review
32.
The Red River Valley is subject to frequent flooding. The magnitude of a flood at
a given point is often characterized by reporting the peak flow, measured in cubic feet per
second, occurring at a recognized gauging station. Another way of reporting the magnitude of
floods is to report the unprotected peak floodwater elevation that would occur if this peak flow
occurs. Measured in this way, the record flood of the last 100 years delivered a peak flow of
29,234 cubic feet per second at Fargo at an unprotected estimated elevation of about 40 feet.
33.
Planning in the Red River Valley is predicated upon protection against the so-
called "base flood," the flood which is estimated to occur in any given year with probability
1/100.
34.
The Federal Emergency Management Agency (FEMA) currently has the base
flood elevation designated for Fargo under review and is proposing to readjust the base flood to
29,300 cfs with an estimated unprotected elevation of just under 40 feet. In 2008, the USACE
estimated the elevation and discharge for the 100 year flood elevation at 39.7 feet and discharge
27,574 cfs respectively.
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13
35.
After the floods of 1997 wreaked havoc throughout the Red River Basin, the State
of Minnesota, in cooperation with the US Army Corps of Engineers and others, engaged in a
searching and comprehensive review of Red River Valley flood control policy, seeking to
modernize the approach to flood control policies consistent with an emerging national consensus
focusing on mitigation and flood avoidance on a basin-wide basis. This effort, promoted by the
State legislature and the Department of Natural Resources, resulted in an agreement often called
the "mediated settlement agreement." State and Federal governmental authorities, including the
USACE, entered into the mediated settlement agreement which has become the Minnesota
framework for a new, collaborative approach to implementing both flood damage reduction and
natural resource protection and enhancement in the Red River Basin in ways that will benefit all
Minnesota's citizens. The mediation process developed flood damage reduction principles which
have guided planning for the Red River Basin in Minnesota. The first four are:
36.
a.
Reduction of overland flooding is needed. Any solution will probably

require on-site and upstream solutions.
b.
Water resource problems should not be passed along to others. A solution

for a watershed should not create a problem upstream or downstream.
c.
Water should be stored/managed as close to where it falls as is feasible

and practical.
d.
A systems approach should be used to manage the timing of flow

contributions from multiple minor watersheds.
The mediated process envisioned a collaborative conflict resolution process that
would assure that State and Federal regulators and impacted landowners were equal partners in
the planning process. The purpose of this mediated settlement was to move flood control
planning away from old-style single-purpose engineering solutions that seek to pass water
problems down the line at others expense. The principles embodied in the mediated settlement
agreement have become a guiding feature of Minnesota's flood control policy.
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37.
Throughout most of the twentieth century, management of floods nationally and
in the Red River Valley by both Federal and State authorities was dominated by construction of a
series of single-purpose projects that focused primarily on local problems of the project
proponents, rather than treating water resources as interdependent parts of ecological systems.2
If one area of a basin caught the ear of the USACE or a Congressman, often that location was
able to obtain protection at the expense of the rest of the basin.3 Under this prior approach, the
Corps of Engineers had promoted "projects that solve one problem, but may inadvertently create
others," because of a failure to "look at watersheds first; then design projects consistent with the
more comprehensive approach." The mediated settlement reflected Minnesota's agreement with
the Corps of Engineers and other State and Federal entities that flood control projects would be
evaluated from a basin wide perspective. Selection of the Locally Preferred Plan violates the
mediated settlement agreement.
38.
Following the execution of the mediated settlement agreement, in September
2005, the Corps of Engineers issued its "Upstream Feasibility Study" exploring the potential for
flood mitigation to reduce flood flows. The study determined that "A system of multi-purpose
impoundments has the potential to reduce the 100-year flood elevations in Fargo-Moorhead by
as much as 1.6 feet." Such a system, when constructed in tandem with other measures, would
support the watershed wide approach envisioned by national and state policy. Properly
See National Research Council, REVIEW PROCEDURES FOR WATER RESOURCES

PLANNING, 52-54 (Nat'l Academy Press), Schwert, A Geologist's Perspective on the Red River
of the North: History, Geography, and Planning/Management Issues, Department of Geosciences
North Dakota State University, 2003).
2
See Issues Pertaining to Water Resources Development Programs Within the U.S. Army Corps
of Engineers Hearing Before the Senate Comm. on Env't and Public Works, 107th Cong. 3 (June
18, 2002) (statement of Lt. Gen. Robert B. Flowers, Chief of Engineers, U.S. Army Corps of
Engineers).
3
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15
implemented in conjunction with other mitigating strategies such a system would avoid the
rationale for flooding Richland and Wilkin Counties. Project sponsors and the USACE
arbitrarily and capriciously eliminated consideration of these flood mitigation strategies
predicated on a rationale that such flood reduction strategies would reduce, but not completely
eliminate, Fargo's flooding problems.
39.
In 2006, the Energy and Environmental Research Center in Grand Forks, North
Dakota, (EERC) announced the results of studies funded by the United States Department of
Agriculture, showing that another distributed storage system known as the "Waffle Plan" could
reduce peak flood flow on the Red River by nearly 5 feet. The EERC is a branch of the
University of North Dakota recognized as one of the world's leading developers of cleaner, more
efficient energy and environmental technologies to protect and clean our air, water, and soil. The
report further explained that implementation of the plan could offer long-term security from
floods like the one in 1997 and provide necessary augmentation to conventional flood mitigation
measures such as dikes in order to combat even larger floods. Project sponsors and the USACE
later arbitrarily and capriciously eliminated consideration of this flood mitigation strategy
predicated on a rationale that such flood reduction strategies would reduce, but not completely
eliminate, Fargo's flooding problems.
40.
It is official Minnesota policy that small distributed floodwater storage must be a
major component of a long-term flood mitigation strategy for the Red River Basin. The
Minnesota Board of Water and Soil Resources indicates that associated hydrologic analyses
indicate that approximately 1 million acre-ft. of additional temporary storage throughout the
tributary watersheds would reduce the peak flow on the main stem of the Red River by 20% for a
flood equivalent to the 1997 flood. See Kean, Brief Analysis of Flooding in Minnesota, Recent
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16
Flood Events, Statewide Flood Risk Assessment, and Hazard Mitigation, Minnesota Board of
Water and Soil Resources (March 2011).
41.
In 2008, the US Army Corps of Engineers issued a Reconnaissance Report
recommending analysis of nine alternative flood diversion plans to transport waters from the Red
River around the Cities of Fargo and Moorhead. The Reconnaissance Report further
recommended that the analysis conducted under the National Environmental Policy Act and
Water Resources Development Act should include study of a variety of flood mitigation
strategies to be used on conjunction with diversions, including small distributed impoundments
and the Waffle strategy. However, project sponsors later eliminated these strategies from the
locally preferred plan based on the rationale that used alone, they would only reduce, but not
eliminate Fargo's flooding problems.
42.
The preference for small distributed storage impoundments and other storage
concepts in the mediated settlement agreement incorporates several policy objectives. Storing
excess water where it falls avoids passing water problems downstream. Distributed storage
solutions benefit both the subwatershed where the storage is located and the mainstream of the
Red River. Distributed storage is more ecologically sustainable and results in lesser negative
impacts.
43.
In its 2008 report, the Corps of Engineers estimated that the benefits deriving
from improved flood control protection would likely justify a project costing "upwards of $400
million."4
The Corp's Reconnaissance Study explained: "Because of the uncertainties regarding the final
outcomes of the feasibility study and the potential for a justified project upward of $400 million,
the study team decided to take a phased approach to the feasibility study. Depending on the
actual information gathered during the feasibility study, the costs of that study will be modified
based on the information provided. It is estimated that a $400-million project could have a
4
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44.
The Reconnaissance Study recommended that mitigation efforts, including
distributed small flood storage impoundments and the waffle plan, should not be considered as a
stand-alone alternative for the Fargo-Moorhead area, because flood storage alone could not solve
Fargos problems. However, it found that the flood storage concept should be retained for
possible implementation because it could mitigate for any adverse impacts of other plans. It
stated, "The local communities should continue to seek opportunities for storage in the basin."
45.
The Reconnaissance Report's investigation of cost effectiveness further
determined that of the nine diversion plans investigated in preliminary screening, none of the
North Dakota diversion plans provide a positive return on investment.
46.
On May 9, 2009, consistent with the mediated settlement agreement,
representatives of the Corps of Engineers represented to Congress that Congressional funding

appropriated for environmental study would be used to integrate basin-wide flood control
strategies.5 The Committee was told that based upon preliminary estimates, a diversion project
would not be cost effective and that the most cost effective option, a levee option, did not
preliminarily have a positive return on investment.6
47.
However following the 2009 presentation to Congress, the USACE allowed
project decisions to be driven almost entirely by the City of Fargo, ignoring basin-wide benefits
and impacts. As a result, options which promised basin wide benefits were abandoned in favor
feasibility cost of approximately $21 million." 10. FEASIBILITY PHASE, FARGOMOORHEAD METROPOLITAN AREA RECONNAISSANCE STUDY, Water Resources
Development Act (WRDA) of 1986. Section 905(b) Analysis, page 27.
Fargo-Moorhead Metro Area Flood Control And Red River Basin Flood Control Issues,
Hearing Before A Subcommittee Of The Committee On Appropriations United States Senate
One Hundred Eleventh Congress First Session, May 27, 2009, Statement Of Colonel Jon
Christensen, District Commander, St. Paul District, Army Corps Of Engineers page 10-11.
Congressional Hearing, supra, pages 19-20.
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18
of options that focused entirely on the benefits to Fargo and its immediate vicinity. Small
distributed storage options were summarily removed from the environmental review, and in so
doing, the benefits of distributed storage to the rest of the basin were disregarded. The
geographic extent and level of protection was decided by Fargo, without regard to the impact on
the rest of the Basin. The decision making process was now driven by the "single-purpose"
project approach which the mediated settlement and Minnesota water policy rejected.
48.
The local sponsors of the project, particularly Fargo and Cass County favored an
engineering intensive costly diversion project that would encircle large portions of Fargo's
undeveloped flood plain, despite the USACE's determination that this configuration was more
costly and afforded a negative return on investment.
49.
In October, 2009, after further study, the Corps of Engineers presented 11 flood
control options, including two levee options and 9 diversion options, ranging in cost from $800
million to $1.5 billion.7
50.
In order to justify this more costly approach, the local sponsors, and then
ultimately the Corps of Engineers, developed a variety of strategies to skew the cost-benefit
analysis in ways which overstate the benefits of the Locally Preferred Plan and understate the
costs. They counted the potential increment in value of floodplain which would be "protected"
from flooding, even though the protection of that land is inconsistent with state and national
floodplain strategy. This practice tilts the benefit-cost analysis toward structural projects and
fails to account for the "residual" risk associated with its projects - that is the potentially
catastrophic risk of flooding if projects fail, if flood waters exceed design capabilities, or if
changes in the watershed reduce the level of protection provided. The Chiefs Report and
Fargo-Moorhead Metro Feasibility Study Initial Screening Results, October 2009, page 43.
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19
accompanying EIS fails to make transparent to Congress that the inflation in project costs and
the selection of the Locally Preferred Plan rest upon the future development of natural floodplain
and the EIS fails to describe the environmental and cost implications of pursuing that strategy.
51.
In May of 2010, the US Army Corps of Engineers issued its Draft Environmental
Impact Statement for the Fargo-Moorhead project. The Corps of Engineers recommended a
project, sometimes described as the "Minnesota short-diversion," as the National Economic
Development Plan (NED-Plan). That recommendation meant that the Corps of Engineers
determined that the Minnesota Short Diversion provided the greatest net benefits as measured by
a comparison of costs and benefits, and that the Minnesota Short Diversion entailed reduced
environmental impact as compared to the other projects.
52.
The NED Plan was estimated to cost $1.2 billion to construct. The Corps draft
environmental impacts statement identified no downstream impacts arising from any of the
proposed project alternatives, and concluded that consequently flood mitigation strategies, such
as distributed storage, were unnecessary because the diversion strategy alone would protect
Fargo and Moorhead without causing damage to communities downstream of Fargo and
Moorhead. All flood storage options were thus completely screened out of consideration in the
Draft Environmental Impact Statement.
53.
Local sponsors of the project rejected the NED plan, and chose a more costly and
more damaging alternative, in large part, because the "Locally Preferred Plan" would allow
Fargo to extend protection to and then develop the undeveloped natural flood plain outside
Fargo.
54.
During the environmental review, as described below, the State of Minnesota
repeatedly warned project proponents and the US Army Corps of Engineers that Minnesota law
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20
required selection of the least environmentally damaging alternative, and that the Corps'
environmental review contained insufficient information to address issues presented under
Minnesota law.
Richland/Wilkin Flood Storage Proposal
55.
The selection of the Locally Preferred Plan and its design concept rested upon a
major engineering error in hydrology that was discovered only after the original Environmental
Impact Statement was completed. The Corps of Engineers had originally assumed (erroneously)
that the Locally Preferred Plan could be constructed without creating downstream flooding,
despite the fact that it eliminates approximately 50 square miles of natural flood plain and
contained no provision for upstream distributed small flood storage impoundments.
56.
Months after issuing its draft environmental impact statement, the Corps of
Engineers discovered that the Locally Preferred Plan would also cause unacceptable downstream
flood damage. This damage would result from the failure of the project to incorporate design
features that would eliminate such damage, features that had arbitrarily been eliminated in the
environmental review - including the elimination of smaller distributed storage options,
elimination of waffle plan options, and the decision to eliminate and develop over fifty square
miles of natural floodplain, and the failure to configure flow through Fargo and Moorhead in the
most effective way.
57.
As a result, the Corps of Engineers was forced to recognize that flood storage of
some kind would be required, but the Corps of Engineers decided to consider only one flood
storage option, placed in primarily Richland and Wilkin Counties. Further, the Corps of
Engineers failed to consider scaling back the scope of the project to its original purpose, the
protection of existing Fargo and Moorhead infrastructure.
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21
58.
The Richland/Wilkin storage and staging modification was proposed by the local
sponsors in 2011 for the very first time. The modification is massive in scope and the National
Environmental Policy Act required a fully scoped environmental impact statement before federal
funding could be authorized. It impacts over 100 square miles of property which was not
designated as impacted during the scoping or preparation of the original Draft Environmental
Impact Statement. The newly proposed Richland/Wilkin Storage modification would construct a
dam and extensive levee across the Red River. The dam and levee would block the Northward
surface flow of water, a violation of the surface water rights of landowners in the region,
completely changing the hydrology of that region of Minnesota and North Dakota.
59.
In addition, a new "flood staging" area encompassing prime farmland in Richland
and Wilkin Counties and the cities of Oxbow, North Dakota, and Comstock, Minnesota, would
now be used to accept excess flood waters from the diversion project.
60.
Under the National Environmental Policy Act, a project of this magnitude is
subject to comprehensive environmental review, including a full analysis of all potential

alternatives. However, project sponsors and the St. Paul District wanted to advance the proposal
forward in the funding cycle, and consequently they chose to conduct a truncated and rushed
review of the options available to avoid downstream damage. They gave no consideration to
whether such a project could be permitted under Minnesota law, and ignored warnings from the
State of Minnesota that there were major problems with the justification contained in the
supporting documentation.
61.
A variety of alternatives to the Richland/Wilkin Flood storage proposal exist, but
were not considered, because the Corps of Engineers screened them out of consideration in the
original environmental review, at a time when the Corps of Engineers wrongly believed that
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22
storage was not going to be required in connection with the Locally Preferred Project. Once it
was discovered that the Locally Preferred Plan created downstream flooding, it was arbitrary and
capricious to continue to screen these modifications out of the supplemental environmental
review.
62.
The review of options and alternatives available to avoid downstream damage
was incomplete, arbitrary and capricious, and conducted without considering the authorization
and permitting conditions applicable in Minnesota respecting the damming of public waters.
Second Supplemental NEPA Review
63.
As stated above, the NEPA review conducted in connection with the proposal to
flood Richland and Wilkin Counties was conducted with the narrow focus of rushing a proposal
to Congress and consequently the proposal did not receive the full and comprehensive review
that NEPA requires.
64.
Following submission of the Chiefs Report to Congress, the US Army Corps of
Engineers began to conduct a new options review. However, once again, the options review
arbitrarily, capriciously and unlawfully excluded viable and suitable options that would more
economically and effectively solve Fargo and Moorhead's flood control problems without
flooding Richland and Wilkin Counties.
65.
Among other changes, the Corps of Engineers and project sponsors now propose
to encircle communities with 10-16 foot ring dikes at a cost of more than $60 million. The
original project has engendered the very domino effect of negative consequences that a basinwide perspective is designed to prevent. Overbuilding and failure to mitigate created a new
flooding problem, and that led to a proposal to construct new dam to create more flooding, which
in tum has led to the need to create new structural measures to protect against the flooding. The
purpose of these ring-dikes would be to provide protection against the artificially created
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23
flooding caused by the dam downstream. Construction of ring dikes around these communities
has major environmental impacts on these communities and the surrounding areas outside the
proposed ring dikes. The construction of ring dikes is connected to the rest of the flood control
project and has no independent justification unless the entire project is constructed and built as
currently designed.
66.
In addition, the Corps of Engineers proposes to eliminate even more natural flood
plain thus exacerbating the flooding caused by the existing proposal. The construction of the
ring-dike and other related changes will significantly alter the flow of water on the Red River in
ways that significantly and materially impact the State of Minnesota.
67.
Despite the fact that the proposed project changes contain substantial impacts that
are relevant to environmental concerns, the U.S. Army Corps of Engineers has issued a Finding
of No Substantial Impact (FONSI). A supplemental environmental impact statement is plainly
required because the agency has proposed substantial changes in the proposed action that are
relevant to environmental concerns and there are new circumstances relevant to environmental
concerns and bearing on the proposed action or its impacts. 40 CFR Title Sections 1502.9(c).
Pending Minnesota Environmental Review
68.
The proposed Red River dam and consequent flooding of Wilkin County cannot
lawfully be constructed without a number of permits by the State of Minnesota described by

subsequent paragraphs in this Complaint. It will require a zoning amendment by Wilkin County
and permits by a number of other political subdivisions. Under Minnesota law, these permits
and other governmental approvals cannot be issued, nor can construction of any aspect of the
project connected to the Red River Dam or proposed flooding begin, until an environmental
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24
review is conducted and completed by the Responsible Governmental Authority. That review,
properly conducted, will establish that the permits cannot lawfully be granted.
69.
The proposed project is not ecologically sustainable; is not the least impact
solution; is not one in which adverse effects can and will be mitigated; and is not consistent with
other standards, ordinances, and resource plans of local and regional governments.
70.
The Minnesota Department of Natural Resources (DNR) has been designated the
Responsible Governmental Authority for the environmental review. The Minnesota DNR is
currently considering a variety of alternatives that would eliminate the proposed flooding of
Wilkin County and would also eliminate or substantially reduce the proposed flooding of
Oxbow, Hickson, and Bakke.
71.
Options available to reduce or avoid the flooding of Wilkin County include (a)
implementation of a network of small distributed storage impoundments, or other distributed

storage strategies; (b) scaling back the degree of flood protection to standard levels of protection;
(c) eliminating the option to offer flood protection to natural floodplain and instead prohibit or
discourage development in areas that naturally store floodwaters; and/or (d) relocate the
proposed dam to the north.
72.
Completion of an environmental review before the grant of permits and
construction is fundamental to the operation of the Minnesota Environmental Policy Act and its
implementing regulations. The Minnesota environmental review allows a comprehensive and
integrated examination of all of the potential constraints on a proposed project. It includes
examination of all governmental constraints (zoning, pollution prevention, hazards caused by the
proposal). Commencing the project or any part of it, before the environmental review is
completed and before issuance of permits is unlawful and would inflict irreparable harm on
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25
Wilkin County, its residents, and others adversely impacted by the proposed project.
Commencing construction before grant of permits and completion of the environmental review
will prejudice a fair review of options and will inflict damage on the entire river system in ways
that will irreparably harm Wilkin County and other areas.
73.
The Minnesota Environmental Policy Act (MEPA) and Minnesota Environmental
Rights Act (MERA) impose substantive prohibitions on the permitting or authorization of actions
that significantly affect the quality of the environment. Where such actions are likely to cause
pollution, impairment, or destruction of water, land or other natural resources within the state,
they are prohibited, so long as there is a feasible and prudent alternative consistent with the
reasonable requirements of the public health, safety, and welfare and the state's paramount
concern for the protection of its air, water, land and other natural resources from pollution,
impairment, or destruction. Economic considerations alone shall not justify such conduct. See
Minn. Stat. 116D.04, subd. 6.
74.
The project proposed by the Diversion Authority will cause pollution, impairment
or destruction of water, land, and other natural resources in the state, and there exist feasible and
prudent alternatives consistent with the reasonable requirements of public health, safety and the
states paramount concern for the protection of its air, water, and other natural resources from
pollution, impairment or destruction.
75.
There exist viable alternatives, consistent with Minnesota law that can meet the
legitimate flood protection objectives for Fargo and Moorhead. One such alternative would
eliminate the flooding of Richland and Wilkin County by some or all of the following strategies:
(a) increasing flows through Fargo and Moorhead; (b) implementing a comprehensive
coordinated system of smaller distributed storage across the basin; (c) retaining existing
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26
floodplain and prohibiting future development in that floodplain as contemplated by state and
federal law; (d) scaling back the level of protection to a reasonable level consistent with FEMA
projections and historic flood experience; and (e) configuring the project in a way that is
designed to minimize downstream flooding, instead of configuring it primarily to facilitate the
future development of natural floodplain.
76.
The Diversion Authority eliminated distributed storage options on the grounds
that they cannot alone solve Fargos flood control problems. That decision violates Minnesota
law. The Diversion Authority has an obligation to mitigate damage to Wilkin County, even if
that mitigation is insufficient to solve Fargos flooding issues. Implementing distributed storage
and other strategies to control water at its source will mitigate or avoid the damage caused to
Wilkin County, and such strategies will not only benefit Wilkin County, but will confer benefits
on subwatersheds where distributed storage is located and will conserve the capacity of the Red
River.
77.
Natural floodplain is an important natural resource critical to protection of the
ecology and modern sustainable flood control strategies. Undeveloped floodplain land provides
many natural resources and functions of considerable economic, social, and environmental value.
The nations coastal and riverine floodplains support large and diverse populations of plants and
animals. In addition, they provide habitat and critical sources of energy and nutrients for
organisms in adjacent and downstream terrestrial and aquatic ecosystems. The wide variety of
plants and animals supported directly or indirectly by floodplains constitutes an extremely
valuable resource important to economic welfare, enjoyment, and physical well-being. The
variety of floodplains and associated wetlands across the country create habitat for many forms
of fish and wildlife. Natural floodplain preservation plays a critical role in flood storage and
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27
destruction of the natural floodplain exacerbates flooding. Natural floodplain is a resource

entitled to protection under Minnesotas water law and Minnesotas environmental law.
78.
Natural floodplain is an important component of the ecology of river systems.
Natural floodplain performs an important storage and conveyance function during times of flood.
Elimination of floodplain, as contemplated by the Diversion Authority, makes flooding worse.
Construction on and development of floodplain is inconsistent with State law and policy. The
Diversion Authoritys plan encourages development in areas with high flood hazard and inflicts
flooding on land currently used for residences, farming, and other purposes.
79.
A public waters permit affecting floodwaters may be granted only if the proposal
meets all other state and local requirements and, in addition, if: (1) the area covered by the
public waters work permit is governed by a floodplain management ordinance approved by the
commissioner; and (2) the conduct authorized by the public waters work permit is consistent
with the floodplain management ordinance. In addition, a public waters work permit involving
the control of floodwaters by structural means, such as dams, dikes, levees, and channel
improvements, may be granted only after the commissioner has considered all other flood
damage reduction alternatives. Minn. Stat. 103G.255. The Fargo Moorhead Flood Control
Project, as currently proposed, is not a lawful option under these provisions.
80.
Minnesota Regulations 6115.410, subpart 8, bars the issuance of a permit to a
dam which inflicts economic hardship or has major adverse effects on population or
socioeconomic base of the area affected. The applicable regulation requires the dam safety
permit applicant to show: (i) a lack of other suitable, feasible, and practical alternative sites, and
(ii) a lack of economic hardship which would have a major adverse effect on population and
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28
socioeconomic base of the area affected. The project as proposed is not a lawful option under
these provisions.
81.
The project selected thus violates the Minnesota substantive prohibitions on the
permitting or authorization of actions which significantly affect the quality of the environment,
and the selection of the currently proposed project is unlawful under Minnesota law.
Construction of Ring Dike
82.
In 2013, the Diversion Authority proposed to protect the communities of Oxbow,
Bakke and Hickson by constructing a ring dike hydrologically designed to protect these Cass
County communities from the flooding that would be caused by the Red River Dam.
83.
The Ring Dike was conceived, studied, and justified by the Diversion Authority
as an amendment to the Fargo-Moorhead Flood Mitigation Project to protect a selected portion

of Cass County from the intentional flooding resulting from the proposed Red River Dam. The
design of the Ring Dike was determined entirely by the flooding contemplated as a part of the
Fargo Flood Mitigation Project.
84.
In January 2014, the Minnesota DNR wrote a letter to the Diversion Authority,
correctly stating that Minnesota law prohibited the Diversion Authority from beginning
construction of the Ring Dike before Minnesotas environmental review of the diversion plan
could be completed. Citing Minn. R. 4410.3100, the DNR identified construction of the dike as
a prejudicial action that may limit alternatives or mitigative measures or predetermine
subsequent development.
85.
Under Minnesota law, a project sponsor may not commence construction on any
aspect of a project until permits have been obtained and the environmental review for all aspects
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29
of the project has been completed. Minn. Rules 4410.31008. The Oxbow Hickson Bakke
Ring Dike is part of the Fargo-Moorhead Flood Mitigation Project currently being studied by the
Minnesota DNR in the pending environmental review.
86.
Commencement of the Oxbow Hickson Bakke Ring Dike project would
prejudice the ultimate decision on the environmental review and the permitting of the project.
Among other prejudices, construction or permitting would utilize over $70 million dollars of
project revenues that could be used to fund mitigation efforts that could otherwise avoid flooding
in Wilkin County. It would cause permanent damage that need not be caused in a way that might
alter the consideration of environmental harm and the ability to avoid environmental harm under
MEPA
87.
On information and belief Defendant Diversion Authority intends to take further
action prejudicial to the Minnesota environmental and permitting decisions.

COUNT I.
NEPA
88.
Defendants' actions in selecting the Locally Preferred Plan and associated
Oxbow-Bakke-Hickson ring dike is arbitrary and capricious and not in accordance with law.
Specifically, Defendants' actions are arbitrary and capricious based on the following: (1)
Defendants' EIS fails to address appropriate alternatives to the Locally Preferred Plan as required
by NEPA (2) the Chiefs Report and EIS fail to address the contention that the Locally Preferred
Plan may violate Minnesota law; (3) the EIS fails to address the contention that the project
violates Executive Order 11988 and state and national flood plain management policy as
Minnesota Rule 4410.3100, subpart 1, provides: Prohibitions. If an EAW or EIS is required for
a governmental action under parts 4410.0200 to 4410.6500, or if a petition for an EAW is filed
under part 4410.1100 that complies with the requirements of subparts 1 and 2 of that part, a
project may not be started and a final governmental decision may not be made to grant a permit,
approve a project, or begin a project, until.[the] EIS is determined adequate;
8
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30
required by the Order and its implementing regulations. The allegations supporting these
contentions are set out more specifically in three subsections of this Complaint, labelled A-C.
A. GENERAL NEPA VIOLATION
89.
NEPA makes environmental protection a part of the mandate of every federal
agency and department. NEPA requires "agencies to consider environmental issues just as they
consider other matters within their mandates." NEPA, requires all federal agencies to interpret
and administer the policies, regulations, and public laws of the United States in accordance with
the policies of NEPA -to the fullest extent possible. 42 U.S.C. 4332.
90.
NEPA's essential purpose is "to help public officials make decisions that are
based on understanding of environmental consequences, and take actions that protect, restore,
and enhance the environment." 40 C.F.R. 1500.1 (c). In Water Resource Development
Projects involving flooding, these environmental consequences include the destruction and
development of natural floodplain and the increase in flooding upstream or downstream of the
project.
91.
To accomplish its purpose, NEPA requires that all agencies of the federal
government must prepare a "detailed statement" regarding all "major Federal actions
significantly affecting the quality of the human environment..." 42 U.S.C. 4332(2)(C). This
detailed statement, known as an Environmental Impact Statement, (EIS) ensures that relevant
information about a proposed project is made available to members of the public so that they
may play a role in both the decision-making process and the implementation of the decision.
Regulations governing the preparation of Environmental Assessments are found at 40 C.F.R.
1508.9 and 33 C.P.R. 230.10.
92.
The EIS must describe (1) the "environmental impact of the proposed action," (2)
any "adverse environmental effects which cannot be avoided should the proposal be
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31
implemented," (3) any "alternatives to the proposed action," and (4) any "irreversible or
irretrievable commitment of resources which would be involved in the proposed action should it
be implemented." 42 U.S.C. 4332(2)(C).
93.
"Major Federal actions" requiring preparation of an EIS include projects and
programs entirely or partly financed, assisted, conducted, regulated, or approved by federal

agencies. 40 C.P.R. 1508.18(a).
94.
Agencies are required to prepare a Supplemental EIS (SEIS) if either: 1)
substantial changes to the project are proposed, or 2) "[t]here are significant new circumstances
or information relevant to environmental concerns and bearing on the proposed action or its
impacts." 40 C.P.R. 1502.9(c)(1).
95.
Army Corps regulations require that the project proponent initiate another 'hard
look' to ascertain the adequacy of the previous analyses and documentation in light of changes
to the project or "significant new circumstances or information regarding environmental impacts
of the project." 32 C.P.R. 651.5(g)(2).
96.
SEIS's must go through the same process as the original documents, including
scoping, i.e. notice to the public of the proposed action and request for relevant information and
concerns before even a draft document is produced. 32 C.F.R. 651.24. However, if the
supplement is undertaken within one year of the original record of decision, then the scoping
process does not need to be repeated.
97.
Federal agencies must cooperate with states to the fullest extent on environmental
studies, and address inconsistencies between the proposed major federal action and state or local
plans. 40 C.F.R. 1506.2. NEPA's implementing regulations, require that the EIS identify
conflicts with state and local law and regulations even if the project proponent believes that
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32
federal law will ultimately trump state environmental law. See 40 C.F.R. 1506.2(d). 40 C.F.R.
1508.27(b).
98.
NEPA requires an agency to include in every EIS or EA a detailed statement on
alternatives to the proposed action. 42 U.S.C. 4332(2)(C)(iii); 40 C.F.R. 1508.9; see also 23
C.F.R. 771.119, 771.125. NEPA provides that an agency must -study, develop, and describe
appropriate alternatives to recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available resources. 42 U.S.C. 4332(2)().
The agency is required to -[r]igorously explore and objectively evaluate all reasonable
alternatives.
99.
Defendants and their agency have not studied, developed, and described
appropriate alternatives to recommended courses of action as required by 42 U.S.C.

4332(2)(). The EIS fails to "[r]igorously explore and objectively evaluate all reasonable
alternatives, 40 C.F.R. 1502.14(a) in respects that include, but are not limited to the issues
specified in Parts B and C of this Count, and have failed to comply with the requirements of
NEPA.
B. FAILURE TO ADDRESS POTENTIAL VIOLATION OF MINNESOTA LAW
100.
The purpose of the allegations under Subsection B is to address the NEPA
implications of Plaintiffs allegations that the project selected as the Locally Preferred Plan
violates Minnesota Law. The National Environmental Policy Act requires that an environmental
impact statement disclose whether the action threatens a violation of Federal, State, or local law
or requirements imposed for the protection of the environment. 40 C.F.R. 1508.27(b). Federal
agencies must cooperate with states to the fullest extent on environmental studies, and address
inconsistencies between the proposed major federal action and state or local plans. 40 C.P.R.
1506.2.
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33
101.
Strict compliance with this requirement is essential for several reasons. First,
federal non-navigation projects are subject to state regulation under the Clean Water Act, and
locally sponsored flood control projects are expressly subject to state law. 33 USC 701b-13
(WRDA-2007); 33 USCA 2232 (WRRDA-2014); 33 USC 701-1 (Flood Control Act of
1944). Consequently, where there is concern that a project may violate state law that issue
should be fully explored in discussing whether a project is viable in the NEPA review of
alternatives. Second, because there are many deserving projects which are authorized, but not yet
funded, Congress and the Executive branch officials charged with allocating the President's
budgetary requests should have full transparent disclosure of the legal impediments to project
implementation. Third, authorization of a legally futile project delays the process of arriving at a
feasible solution to the problem involved. Fourth, the proposed authorization of a project that
may violate state and local law has federalism implications that should be made transparent
under NEPA.
102.
The project envisioned by the Chiefs Report (as subsequently modified) requires
the construction of a Class I dam across the Red River, which if constructed will periodically
flood large portions of Richland and Wilkin Counties. The United States Army Corps of
Engineers has appropriately recognized and admitted that the construction of this project is thus
subject to Minnesota's water law, Chapters 103A (Minnesota Water Policy), 103G (Minnesota
Public Waters Regulation), Chapter 116B (Minnesota Environmental Rights Act) and Chapter
116D (Minnesota Environmental Policy Act) and implementing regulations as well as local
governmental permits regulating such activity. See also 33 USC 1344(t).9
t) Nothing in this section shall preclude or deny the right of any State or interstate agency to
control the discharge of dredged or fill material in any portion of the navigable waters within the
jurisdiction of such State, including any activity of any Federal agency, and each such agency
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34
103.
Because the USACE refused to honor State of Minnesota objections to the
completeness of the NEPA-EIS, the State of Minnesota determined that it must complete its own
environmental review to address the issues necessary for state authorization and permitting.
104.
Because the Minnesota Environmental Policy Act (MEPA) and Minnesota
Environmental Rights Act (MERA) impose substantive prohibitions on the permitting or

authorization of actions which significantly affect the quality of the environment, it is critical
that the NEPA process must address these Minnesota requirements in selecting alternatives to
analyze and in determining what options are feasible. Under Minnesota law, where proposed
actions are likely to cause pollution, impairment, or destruction of ...."water, land or other natural
resources within the state", actions which are likely to cause pollution, impairment or destruction
of water, land or other natural resources within the state are prohibited, so long as there is a
feasible and prudent alternative consistent with the reasonable requirements of the public health,
safety, and welfare and the state's paramount concern for the protection of its air, water, land and
other natural resources from pollution, impairment, or destruction. Economic considerations
alone shall not justify such conduct. Failure to address these state law and policy concerns in the
EIS, under the circumstances presented, is arbitrary, capricious and unlawful.
105.
The project submitted in the Chiefs Report will cause pollution, impairment or
destruction of water, land, and other natural resources in the state, and there exist feasible and
prudent alternatives consistent with the reasonable requirements of public health, safety and the
state's paramount concern for the protection of its air, water, and other natural resources from
pollution, impairment or destruction. The Chiefs Report and accompanying EIS had a legal
shall comply with such State or interstate requirements both substantive and procedural to
control the discharge of dredged or fill material to the same extent that any person is subject to
such requirements.
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35
responsibility to inform Congress of this legal constraint as well as the potential violation of
State law, and the failure to do so is arbitrary, capricious and unlawful.
106.
There exist viable alternatives, consistent with Minnesota law that can meet the
legitimate flood protection objectives for Fargo and Moorhead. One such alternative would
eliminate the flooding of Richland and Wilkin County by some or all of the following strategies:
(a) increasing flows through Fargo and Moorhead, (b) implementing a comprehensive
coordinated system of smaller distributed storage across the basin, (c) retaining existing
floodplain and prohibiting future development in that floodplain as contemplated by state and
federal law, (d) scaling back the level of protection to a reasonable level consistent with FEMA
projections and historic flood experience, (e) configuring the project in a way that is designed to
minimize downstream flooding, instead of configuring it primarily to facilitate the future
development of natural floodplain.
107.
The NEPA process and the final report to Congress arbitrarily and capriciously
fail to address a number of specific Minnesota law constraints listed in subparagraphs a-g of this
section of the Complaint. Defendants are appropriately submitting their project proposal to the
State of Minnesota for Environmental Review. Following that review, state and local permits
will be required. Disputes over which permits are required and whether permits cannot lawfully
be granted are not ripe for review, except as described in Paragraphs III-V. The purpose of these
subparagraphs is to make specific Plaintiffs contention that the federal environmental review
failed to address these legal constraints and thus arbitrarily, capriciously and unlawfully failed to
identify and analyze major state law environmental constraints applicable to this project.
a.
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The construction of a Class I dam across the Red River is also subject to
Minnesota public waters regulations which prohibit construction of a dam
without a showing of "a lack of other suitable feasible and practical
alternative sites" and "A lack of economic hardship which would have a
36
major adverse effect on population and socioeconomic base of the area

affected." Minn. Regs. Section 6115.410, subpart 8.
b.
A Minnesota public waters permit affecting floodwaters may be granted

only if the proposal meets all other state, local and federal requirements,
and in addition, if: (1) the area covered by the public waters work permit
is governed by a floodplain management ordinance approved by the
commissioner; and (2) the conduct authorized by the public waters work
permit is consistent with the floodplain management ordinance, if the
commissioner has determined that enough information is available for
the adoption of a floodplain ordinance. In addition: (b) A public waters
work permit involving the control of floodwaters by structural means,
such as dams, dikes, levees, and channel improvements, may be granted
only after the commissioner has considered all other flood damage
reduction alternatives. Minn. Stat. 1030.255.
c.
Under Minnesota law, natural floodplain is an environmental resource

entitled to protection. Natural floodplain is an important component of the
ecology of river systems. Natural floodplain performs an important
storage and conveyance function during times of flood. Elimination of
floodplain, as contemplated by the Chief's Report, makes flooding worse.
Construction on, and development of, floodplain, as contemplated by the
Chief's Report, is inconsistent with State and Federal law and policy,
because it encourages development in areas with high flood hazard. The
Chief's Report fails to make this intention transparent to Congress, and
actually includes the uninsured development of floodplain as a positive
benefit of the project.
d.
Under Minnesota law, the lands proposed for flooding within Wilkin
County are a protectable natural resource.
e.
The elimination of distributed storage options on the grounds that they

cannot alone solve Fargo's flood control problems violates Minnesota law,
making it the failure to consider those options in the federal environmental
impact statement arbitrary, capricious and unlawful. Elimination of these
features, combined with other features, would eliminate the need to flood
Richland and Wilkin Counties and would afford benefits to the entire
basin that should have been considered.
f.
A public waters permit affecting floodwaters may be granted only if the

proposal meets all other state, local and federal requirements, and in
addition, if: (1) the area covered by the public waters work permit is
governed by a floodplain management ordinance approved by the
commissioner; and (2) the conduct authorized by the public waters work
permit is consistent with the floodplain management ordinance, if the
commissioner has determined that enough information is available for the
adoption of a floodplain ordinance. In addition, a public waters work
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37
permit involving the control of floodwaters by structural means, such as

dams, dikes, levees, and channel improvements, may be granted only after
the commissioner has considered all other flood damage reduction
alternatives. Minn. Stat. 1030.255.
g.
108.
Minnesota Regulations 6115.410 subpart 8 bars the issue of a permit to a

dam "which inflicts economic hardship or has major adverse effects on
population or socioeconomic base of the area affected". The applicable
regulation requires the Dam Safety permit applicant to show: (i) a lack of
other suitable, feasible, and practical alternative sites, and (ii) a lack of
economic hardship which would have a major adverse effect on
population and socioeconomic base of the area affected.
During the environmental review process, the State of Minnesota repeatedly
warned USACE that the review conducted by the USACE was inadequate to satisfy Minnesota
law. In its June 16,2011, letter to Aaron Snyder with respect to the Fargo Moorhead Draft
Feasibility Report and Supplemental Draft Environmental Impact Statement, the Department
warned that the project proponents had failed "....to demonstrate that the proposed project is:
109.
Ecologically sustainable;
The least impact solution;
One in which adverse effects can and will be mitigated; and
Consistent with other standards, ordinances, and resource plans of local

and regional governments."
The Chiefs Report and accompanying EIS intentionally deferred consideration of
these concerns and legal constraints to the Minnesota environmental review process to avoid
making it transparent to Congress that the project had not been approved, nor could it be, under
Minnesota law. By so doing, the Chiefs Report and EIS convey the false impression that the
project is ready for authorization, and as stated above, may leave Congress without a flood
control option which can be constructed consistent with Minnesota law.
110.
Adoption of the Environmental Impact Statement, issuance of the Chiefs Report
and the later adoption of the FONSI and EA in connection with the Oxbow-Bakke-Hickson ring
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38
dike proposal, notwithstanding the State of Minnesota's official comments is arbitrary and
capricious and unlawful. Leaving those comments unresolved and deferring them for resolution
in the Minnesota environmental process improperly certified to Congress that the project selected
is ready for funding, when in fact it is not, is arbitrary, capricious and unlawful. It was arbitrary
and capricious to fail fully to explore and report on the options which can be constructed while
avoiding destruction of floodplain and the flooding of Richland and Wilkin County.
C. FAILURE TO ADDRESS FLOODPLAIN ISSUES
111.
Floodplain preservation is a national policy of the highest importance. The
protection of natural floodplain is articulated in statute, executive order, regulations, policies and
agency practice. See United States Army Corps of Engineers, Engineering Regulation, (11652-26), ("Implementation of Executive Order 11988 on Floodplain Management."); 33 C.F.R.
320.4 (1)(2); 42 U.S.C.A. 1962-3.
112.
The Chiefs Report and accompanying EIS are inconsistent with Executive Order
11988 and state and national flood plain management policy by selecting a project which has
been designed and justified primarily to foster new development of over 50 square miles of
undeveloped floodplain. Recommendation of the Locally Preferred Plan by the United States
Army Corps of Engineers without examining and making transparent the inconsistencies with
national floodplain policy, the sustainability provisions of the Water Resources Development Act
of 2007, and implementing regulations, is arbitrary and capricious and unlawful.
113.
Section 2 of Executive Order 119888 requires that " In carrying out the activities
described in Section 1 of this Order, each agency has a responsibility to evaluate the potential
effects of any actions it may take in a floodplain; to ensure that its planning programs and budget
requests reflect consideration of flood hazards and floodplain management; and to prescribe
procedures to implement the policies and requirements of this Order..." The Chiefs Report and
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39
EIS are inconsistent with Section 2 and fail to make that inconsistency transparent to Congress or
others relying on the EIS.
114.
Accommodating the desire to foster development in natural floodplain-- is largely
responsible for the billion plus dollar increase in project cost originally estimated. The Chiefs
report and accompanying EIS fail to make this objective transparent to Congress and arbitrarily
and capriciously and unlawfully fail to examine the major costs and negative consequences of
this design.
115.
As Appendix P of the Environmental Impact Statement appropriately recognizes
that:
"In terms of flood risk, it is unfortunate that floodplain areas are so attractive to
commercial, residential, and industrial developers. The consequences associated with
locating damageable property and people within such areas can be extreme to not only
property owners and floodplain occupants, but to taxpayers at all levels who have, over
the decades, largely evolved to "foot the bill" for flood response, recovery, and rebuild
when a flood source decides to reoccupy its traditional floodplain," Supplemental EIS,
Appendix P.
116.
Appendix P continues:
"Because structural alternatives reduce the frequency of flooding within a particular

floodplain, they can affect the behavior of people living in or near the floodplain by
allowing them to think that the floodplain is no longer subject to flooding. Because of
this, structural alternatives, while they decrease the frequency of flooding, can actually
increase flood risk if the consequences of flooding are allowed to increase. This occurs
when new development is placed in the floodplain that is inconsistent with reducing
flood risk."
117.
However, the EIS fails to make transparent to Congress that the Locally Preferred
Plan violates these principles, and fails to report the extent to which the original determination
that the project could not be cost justified was altered by counting the projected benefits from
fostering new development within natural floodplain. As a practical matter, the result is to
propose a billion dollar public subsidy to move development in the metropolitan area off of high
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40
ground, where it is free of flood risk, and onto low ground, where it is subject to uninsured future
flood risks.
COUNT II.
FINDING OF NO SIGNIFICANT IMPACT
118.
The Finding of No Significant Impact proposed by the Corps of Engineers and the
accompanying Environmental Assessment violates NEPA because the agency has proposed
substantial changes in the proposed action that are relevant to environmental concerns and there
are new circumstances relevant to environmental concerns and bearing on the proposed action or
its impacts. 40 CFR Title Section 1502.9(c).
119.
The Chiefs Report and accompanying EIS arbitrarily, unlawfully, and
capriciously fails to report to Congress that there exists a viable and fully suitable less costly
flood control option that avoids the flooding of Richland and Wilkin Counties and lands
downstream of Fargo and Moorhead while providing full protection to Fargo and Moorhead for
floods reasonably likely to occur.
120.
The Finding of No Significant Impact and the accompanying Environmental
Assessment is arbitrary, capricious and unlawful because it fails adequately to explore the
environmental impact and implications of constructing ring-dike project in the event that the
State of Minnesota or its political subdivisions should refuse to grant permits necessary to
construct a dam on the Red River, or on the Red River as proposed and because it fails to
explore other viable options to avoid flooding Richland and Wilkin Counties.
121.
In the event that a Red River dam is not permitted, or other necessary permits are
not granted, the Oxbow-Hickson-Bakke area will be encircled with a ring dike designed to
prevent flooding that will not occur. The EA fails to address this issue, yet the COE and project
sponsors intend to construct the ring dike before a permit is granted. Fargo officials have
[24082-0001/1878680/1]
41
indicated that the rationale for constructing the ring dike is somehow independent of the
construction of a Red River dam, however the EA utterly fails to explore the implications of
constructing the dikes before the State of Minnesota completes environmental review and
permitting.
IRREPARABLE DAMAGE
122.
Plaintiff will suffer irreparable harm in the event that the locally preferred project
is constructed. Construction portions of the project that are related to, connected to, mitigation
for, or otherwise prejudice the Minnesota permit and environmental proceedings before
Minnesota permit proceedings are completed will cause irreparable harm.
COUNT III.
MINNESOTA ENVIRONMENTAL RIGHTS ACT
FOR DECLARATORY AND EQUITABLE RELIEF
123.
Each Count of this complaint incorporates by reference the previous allegations of
the Complaint. Defendant-Intervenor is named a defendant respecting Counts III-V, because it

has commenced construction on mitigation for the as yet unpermitted Red River Dam, because it
has asserted that it may disregard Minnesota environmental and permitting law in connection
with future construction, and because it is the local sponsor directly responsible the project. The
Federal Defendants are named as Defendants in Counts III-V because they may claim an interest
relating to the subject of Counts III-V and may be so situated that disposing of the action in the
person's absence may be regarded as impacting agency interests
124.
Plaintiff seeks declaratory relief that the proposed project and its components,
including the Oxbow-Hickson-Bakke Ring Dike, violate Minnesota water law and Minnesota
environmental law by inflicting unnecessary damage on Minnesotas environmental resources,
and seek injunctive relief to prevent commencement of construction activities towards any part
of that project.
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42
125.
The conduct described in this Complaint constitutes pollution, impairment or
destruction" in that it is conduct by any person which violates, or is likely to violate, any
environmental quality standard, limitation, rule, order, license, stipulation agreement, or permit
of the state or any instrumentality, agency, or political subdivision thereof which was issued
prior to the date the alleged violation occurred. See Minn. Stat. 116B.02, subd. 5.
126.
The conduct described in this Complaint will materially adversely affect or is
likely to materially adversely affect the environment. See Minn. Stat. 116B.02, subd. 5. The
adverse impacts on the environment include permanent destruction of prime farm land,
permanent loss of the natural flood capacity of floodplain, damage to the natural flood handling
capacity of the Red River, the filling of wetlands, the damming of the Red River itself,
significant permanent changes in the hydrology of multiple river systems, as well as other
damages described in this Complaint.
127.
No state action significantly affecting the quality of the environment shall be
allowed, nor shall any permit for natural resources management and development be granted,
where such action or permit has caused or is likely to cause pollution, impairment, or destruction
of the air, water, land or other natural resources located within the state, so long as there is a
feasible and prudent alternative consistent with the reasonable requirements of the public health,
safety, and welfare and the state's paramount concern for the protection of its air, water, land and
other natural resources from pollution, impairment, or destruction. Economic considerations
alone shall not justify such conduct. Minn. Stat. 116D.04, subd. 6.
128.
There are feasible and prudent alternatives to the proposed action which will
significantly reduce the environmental damage while providing flood protection to Fargo and
Moorhead.
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43
129.
The Diversion Authority, by its actions described in this Complaint, will cause
pollution, impairment and destruction of natural resources, including waters of the State, and will
cause material adverse effects to the environment. The Diversion Authoritys actions described
in this Complaint are likely to materially adversely affect the environment including the mineral,
animal, botanical, water, land, timber, soil, quietude, recreational and historical resources
protected under MERA.
130.
Proceeding with the project as planned will cause irreparable harm to the Plaintiff.
COUNT IV.
CONSTRUCTION OF PROJECT REQUIRING GOVERNMENT PERMITS
BEFORE COMPLETION OF ENVIRONMENTAL REVIEW, AND STATE OR
LOCAL PERMITS
131.
Plaintiff is entitled to a declaratory judgment that commencement of any part of
the Fargo-Moorhead Flood Control Project (including the Oxbow-Hickson-Bakke Ring Dike) is
unlawful. Plaintiff requests temporary and permanent injunctions against that commencement
until completion of the Minnesota environmental review and grant of all necessary permits.
Completion of an environmental review before the grant of permits and start of construction is
fundamental to the operation of the Minnesota Environmental Policy Act and its implementing
regulations. The Minnesota environmental review allows a comprehensive and integrated
examination of all of the potential constraints on a proposed project. It includes examination of
all governmental constraints (zoning, pollution prevention, hazards caused by the proposal).
Commencing the project before the environmental review is completed and before issuance of
permits is unlawful and would inflict irreparable harm on Wilkin County, its residents, and upon
others adversely impacted by the proposed project. Commencing construction before grant of
permits and completion of the environmental review will prejudice a fair review of options and
[24082-0001/1878680/1]
44
inflict damage on the entire river system in ways that will irreparably harm Wilkin County and
other areas.
132.
Under Minnesota law, a project sponsor may not commence construction on any
aspect of a project until permits have been obtained, and until the environmental review for all
aspects of the project have been completed. Minnesota Rule 4410.310010. The Oxbow
Hickson Bakke Ring Dike is part of the Fargo-Moorhead Flood Mitigation Project currently
being studied by the Minnesota DNR in the pending environmental review. Commencement of
the Oxbow Hickson Bakke Ring Dike project would prejudice the ultimate decision on the
environmental review and permitting of the project. Among other prejudices, construction or
permitting would utilize over $70 million dollars of project revenues that could be used to fund
mitigation efforts that could otherwise avoid flooding in Wilkin County. It would cause
permanent damage that need not be caused in a way that might alter the consideration of
environmental harm and the ability to avoid environmental harm under MEPA.
133.
Commencing a portion of the overall project that is justified, in whole or in part,
as mitigation for the staging, storage and Red River Dam, will result in irreparable harm to
Wilkin County and violate Minnesota law.
COUNT V.
VIOLATION OF STATE AND LOCAL LAW
134.
Commencement of any part of the project will violate state and local law both
because state and local permits have not been issued, and because even if applied for, these
Minnesota Rule 4410.3100, Subpart 1, provides: Prohibitions. If an EAW or EIS is required for
a governmental action under parts 4410.0200 to 4410.6500, or if a petition for an EAW is filed
under part 4410.1100 that complies with the requirements of subparts 1 and 2 of that part, a
project may not be started and a final governmental decision may not be made to grant a permit,
approve a project, or begin a project, until . . . [the] EIS is determined adequate[.]
10
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45
permits cannot be lawfully granted. Plaintiff is entitled to a declaratory judgment and temporary
and permanent injunctions barring commencement of construction in violation of Minnesota law.
135.
The construction of a Class I dam across the Red River is subject to Minnesota
public waters regulations which prohibit construction of a dam without a showing of a lack of
other suitable feasible and practical alternative sites and [a] lack of economic hardship which
would have a major adverse effect on population and socioeconomic base of the area affected.
Minn. Regs. Section 6115.410, subpart 8. No such permit has been applied for nor can one be
lawfully issued.
136.
A Minnesota public waters permit is required because the project proposes to
change the course, current, and cross section of public waters and otherwise impacts public
waters. A public waters work permit for a project affecting floodwaters may be granted only if
the proposal meets all other state, local and federal requirements and, in addition, if: (1) the area
covered by the public waters work permit is governed by a floodplain management ordinance
approved by the commissioner; and (2) the conduct authorized by the public waters work permit
is consistent with the floodplain management ordinance, if the commissioner has determined that
enough information is available for the adoption of a floodplain ordinance. Minn. Stat.
103G.245, subd. 9. In addition, A public waters work permit involving the control of
floodwaters by structural means, such as dams, dikes, levees, and channel improvements, may be
granted only after the commissioner has considered all other flood damage reduction
alternatives. Id. No such permit has been granted, nor can one be lawfully granted.
137.
The project as proposed cannot be permitted under the above cited state
regulations and violates local ordinances, including the Wilkin County zoning ordinance.
138.
The project violates state and local floodplain protection laws.
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46
139.
The actions of the Diversion Authority will materially adversely affect or is likely
to materially adversely affect the environment.

WHEREFORE, Plaintiff prays for the following relief:
1.
For a declaratory judgment that, pursuant to the Administrative Procedure Act,
the Army Corps' Action is arbitrary and capricious, and not in accordance with law.
2.
For a declaratory judgment that under NEPA, the environmental analyses
prepared by the Federal Defendants and submitted to Congress do not adequately describe,
analyze and consider the current project and new information and circumstances regarding the
environmental impacts of the proposed project, and thus require supplementation in the form of
a complete and legally adequate Supplemental Environmental Impact Statement; and the matter
is remanded to the agency to comply with NEPA prior to Project construction.
3.
Remanding to the agency for a Supplemental Environmental Impact Statement.
4.
Declaring that until the Minnesota environmental review and permitting is
complete, that the NEPA review is incomplete because of failure to demonstrate compliance with
Minnesota legal standards for authorization and permitting of the project.
5.
Issuance of declaratory relief that the proposed project and its components,
including the Oxbow-Hickson-Bakke Ring Dike, violate Minnesota water law and Minnesota
environmental law by inflicting unnecessary damage on Minnesotas environmental resources,
and injunctive relief to prevent commencement of construction activities towards any part of that
project.
6.
Issuance of a declaratory judgment that commencement of any part of the Fargo-
Moorhead Flood Control Project (including the Oxbow-Hickson-Bakke Ring Dike) prior to
completion of the Minnesota environmental review and grant of all necessary permits is
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47
unlawful. As necessary, grant of temporary and permanent injunctions against that

commencement.
7.
Grant of declaratory judgment that commencement of any part of project will
violate state and local law both because state and local permits have not been issued, and because
even if applied for, these permits cannot be lawfully granted.
8.
Such other relief as may justified by the facts shown at trial.
Dated: November 4, 2014

RINKE NOONAN
/s/ Gerald W. Von Korff

Gerald W. Von Korff (#113232)
Suite 300 US Bank Plaza Building
1015 W. St. Germain St.
P.O. Box 1497
St. Cloud, MN 56302-1497
(320) 251-6700
(320) 656-3500 fax
ATTORNEYS FOR PLAINTIFF
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CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 1 of 48

UNITED STATES DISTRICT COURT

Richland/Wilkin Joint Powers Authority, a

Civil Action No. 13-2262 JRT/LIB

THIRD AMENDED COMPLAINT

Plaintiff Richland/Wilkin Joint Powers Authority, a Minnesota-North Dakota Joint

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 2 of 48

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 3 of 48

Since submission to Congress, the plan has been

As described more fully in this Complaint, Minnesotas approval procedure requires

During the Federal Environmental Review, the State Department of Natural

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 4 of 48

the supplemental EA and FONSI, fail adequately to disclose that:

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 5 of 48

The Locally Preferred Plan proposed in the Chief's Report (and

That the locally preferred plan unnecessarily eliminates vast reaches of

The Chief's Report and Environmental Impact Statement proposes a level

The Environmental Impact Statement failed to address significant

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 6 of 48

resulting in an EIS that fails in its essential function, to consider potential

Although the defendants have deferred a critical part of the environmental

components, including the Oxbow-Hickson-Bakke Ring Dike, violate the Minnesota

Water Resource Development Acts, such as the Water Resources Development

Army Corps of Engineers Water Resource Projects: Authorization and Appropriations,

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 7 of 48

Water resource development act authorization may encompass two kinds of

The second kind of project assistance--State project assistance--is designed to

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 8 of 48

Authorization of water resource development projects for construction is typically

The Chief's report is subject to the requirement found at section 42 USC

The information specified in Section 42 USC 4332(C) includes (1) the

It is thus critically important to the sound management of national water resources

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 9 of 48

The Chiefs Report and accompanying Environmental Impact Statement

Plaintiff Richland/Wilkin Joint Powers Authority is an organization representing

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 10 of 48

systems, reduction in land values, elimination of government entities, reduction in school

Federal Defendants are enumerated in paragraphs 23-26. Col. Dan Koprowski,

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 11 of 48

Defendant United States Army Corps of Engineers (USACE) is a federal agency

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 12 of 48

Defendant-Intervenor Fargo-Moorhead Diversion Board of Authority (Diversion

Authority) is a Minnesota-North Dakota Joint Powers Authority composed of Minnesota and

The Diversion Authority is a Governmental Unit as defined by Minnesota Statutes

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 13 of 48

and V) pursuant to 28 U.S.C. 1367(a).

Venue is proper in this Court pursuant to 28 U.S.C. 1391(b) and (e). A

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 14 of 48

Reduction of overland flooding is needed. Any solution will probably

Water resource problems should not be passed along to others. A solution

Water should be stored/managed as close to where it falls as is feasible

A systems approach should be used to manage the timing of flow

The mediated process envisioned a collaborative conflict resolution process that

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 15 of 48

Throughout most of the twentieth century, management of floods nationally and

Following the execution of the mediated settlement agreement, in September

See National Research Council, REVIEW PROCEDURES FOR WATER RESOURCES

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 16 of 48

It is official Minnesota policy that small distributed floodwater storage must be a

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 17 of 48

In 2008, the US Army Corps of Engineers issued a Reconnaissance Report

CASE 0:13-cv-02262-JRT-LIB Document 112 Filed 11/04/14 Page 18 of 48

The Reconnaissance Study recommended that mitigation efforts, including