The Fargo-Moorhead Diversion Board Authority wasted no time starting work after President Obama signed the Water Reform and Resources Development Act on June 10. The authority is using the federal approval to proceed with construction on a controversial segment of its proposed $2-billion flood-mitigation project.

Opponents say a levee downstream of the Fargo, N.D.-Moorhead, Minn., metro area would sacrifice the natural floodplain around the cities for commercial development. They sued in federal and state courts to stop the project.

In mid-June, construction crews mobilized equipment near Oxbow, N.D., for the Oxbow-Hickson-Bakke Ring Levee, designed to stage floodwaters diverted by a new Red River dam. "Even with an ongoing lawsuit in federal court, a few weeks ago we started hearing rumors from our client that equipment was showing up at the site," says Gerald Von Korff, attorney for the Richland Wilkins Joint Powers Authority, plaintiff in the suit. "We asked the state court for an injunction and to rule that this project cannot proceed without all of the necessary permits [from] Minnesota."

The president's signing of WRRDA, however, provides all the rights of way it needs, the FM Diversion Authority said in U.S. District Court in Minnesota on June 19, as it moved for dismissal.

Fargo officials say they cannot "wait another day" to start construction. Future floods are a constant worry and an "ongoing threat of extinction." Except for 2012, the Red River has flooded the Fargo-Moorhead area every year since 1993. In 2009, the river crested at 40 ft but was contained in Fargo by more than 1,000,000 sandbags. Shortly afterward, mitigation strategy design work began. Since then, the project has ballooned to almost double its original size and scope.

Von Korff says the current design is not the lowest cost, most sustainable or least imposing environmental option—stipulations required by Minnesota law. Instead, the design is meant to "promote commercial development in that natural floodplain at the expense of the residents of Wilkin County and other agricultural areas of Minnesota and North Dakota," said the complaint filed by the Richland-Wilkins Joint Powers Authority in Minnesota state court, eighth district. "This plan is contrary to principles that govern Minnesota's water law and modern, sustainable flood-management practice."

Fargo officials say the state court's motion is the plaintiff's admission that they cannot win at the federal level.

The proposed flood diversion project would include a 26-mile levee around Fargo. A dam across the Red River would divert water away from the cities and into a staging area, a floodplain of 100-year-old farmsteads. "You can't build a dike that is going to make someone else flood," Von Korff says.

WRRDA jobs are subject to state permitting. Plaintiffs want the court to rule that it is unlawful to commence any part of the Fargo-Moorhead Flood Control Project, including the Oxbow-Hickson-Bakke Ring Dike, before Minnesota's environmental review and the issuance of permits. They also seek temporary and permanent injunctions against construction.