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Erik Burgess, Published January 20 2014

Minnesota questions legality of building levees around Oxbow, Hickson, Bakke

FARGO – State officials from Minnesota are warning proponents of a $1.8 billion proposed flood channel around the Fargo-Moorhead metro that they may be close to breaking Minnesota law.

The question is whether a proposed $65 million ring levee around Oxbow, Hickson and Bakke is independent of the flood diversion project. The three communities south of Fargo would be in the so-called “staging area” to hold water during major floods before it moves through the diversion channel.

Diversion proponents had hoped to start building the levee this summer, but doing so before the diversion has been approved by the Minnesota Department of Natural Resources could be seen as an illegal “prejudicial action” under Minnesota’s Environmental Policy Act, according to a Jan. 14 letter from the DNR to Diversion Authority Chairman Darrell Vanyo.

The Minnesota DNR has not completed its study of the diversion’s environmental effects. In the letter, the project manager for the DNR’s environmental study writes that state law, like federal law, doesn’t allow a part of the project to move forward before the study is done if that action will prejudice the ultimate decision on the project.

According to state law, a prejudicial action “makes one option, including the option of not building the project, more or less likely to be chosen.”

Jill Townley, the DNR’s project manager for the study, asked Vanyo and the Diversion Authority in the letter to clarify the ring levee’s relationship to the diversion because a memorandum of understanding between Oxbow and the Diversion Authority suggests the two projects are correlated. A federal lawsuit filed by diversion opponents last year makes the same claim.

The U.S. Senate and House authorized the diversion in separate bills last year, but now the two houses need to come together in conference committee to pass a single bill. Don Canton, a spokesman for Sen. John Hoeven's office, said it could be “a few weeks, months maybe” before it’s discussed.

Two separate projects?

The Diversion Authority has argued the ring levee is independent of the full project and would be built even if the diversion is not. Vanyo repeated that claim in an interview Monday and said he and other officials met last week to discuss a legal response to the letter.

“I’m not going to profess to be an attorney here,” Vanyo said. “All I know is, bottom line, when they have in their letter to me, and they’re asking the question: ‘Would this (ring levee) be built with or without a diversion?’ The answer is ‘Yes.’ We’ve committed to building it.”

Nathan Berseth, a spokesman for the MnDak Upstream Coalition, isn’t buying it. He said the letter “completely puts a halt” to the ring dike plans, at least until the DNR finishes its environmental review. In the letter, Townley writes she expects the review to take another year.

Berseth said the levee memorandum is an explicit agreement between Oxbow and the Diversion Authority, which he said “proves that it’s for the diversion.”

“It’s not with Cass County. It’s not with rural water users,” Berseth said.

Late last year, Fargo city officials received notice from the Federal Emergency Management Agency that it could not use a $25 million hazard mitigation grant for a $53 million floodwall downtown because that project is considered part of the diversion. Berseth said the situation with the levees in the Oxbow area is similar.

“The Diversion Authority is trying to claim, ‘Well, this gives them 500-year flood protection.’ Well, why would they be interested in giving Oxbow 500-year flood protection? And Comstock?” Berseth said. “It’s very disingenuous for them to say this is a separate component.”

A federal lawsuit filed by the Wilkin-Richland Joint Power Authority against the U.S. Army Corps of Engineers also argued the levee plan is dependent on the diversion and would be a “monumental waste of taxpayer money” if the larger project isn’t built.

Lawyers representing the corps asked a judge in late December to throw out the suit. They argue Oxbow floods under existing conditions, and Hickson and Bakke would flood during a historic event, regardless of the diversion.

In addition, the Wilkin-Richland JPA is expected to unveil a new flood protection plan for the valley Thursday, Berseth said.

Divided by state lines

Berseth said the legal question the DNR raises could put Minnesota officials on the diversion board in hot water.

The letter states that “a Minnesota local unit of government cannot participate in the construction of a component part of the larger Diversion Project which is undergoing environmental review unless it can be demonstrated that the component part would be built and the public expenditure undertaken even if the full Diversion Project was never built.”

Fargo City Attorney Erik Johnson said the ring levee is solely being undertaken on the North Dakota side.

“(It was) discussed with the North Dakota Legislature, and the North Dakota Legislature clearly earmarked that project as being something that funds would be spent on from the state of North Dakota,” Johnson said.

State lawmakers gave $100 million last year for flood control projects in Cass County, with a stipulation the money cannot be used for buyouts. The Oxbow-Hickson-Bakke levee requires 42 home buyouts.

If you go

What: Richland-Wilkin Joint Powers Authority public meeting on proposed F-M Diversion

When: 7 p.m. Thursday

Where: Comstock (Minn.) Community Center, 15855 17th St. S.

Readers can reach Forum reporter Erik Burgess at (701) 241-5518