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Erik Burgess, Published March 25 2014

Procedural Moorhead council vote on Oxbow levee sparks debate

MOORHEAD – Despite a councilwoman’s concerns that the action might be illegal, the City Council here passed a procedural flood diversion agreement Monday with a split vote.

Councilwoman Heidi Durand said she had major reservations with the council passing an agreement which gives Fargo and Cass County the ability to receive in-kind credit for constructing in-town levees in Fargo and a ring levee around Oxbow, Hickson and Bakke prior to Congress authorizing a proposed $1.8 billion metro flood diversion project.

Durand pointed to a January letter from the Minnesota Department of Natural Resources to the Diversion Authority, the governing board for the diversion project. The DNR stated the agency had concerns with the authority pushing forward with a ring dike before the DNR was done with its environmental review of the total project.

“I’m extremely concerned that we are stepping on the toes of the DNR, and they have explicitly told us voting yes would be problematic,” Durand said Monday. “Minnesota elected officials need to be very cautious when voting on actions pertaining to the ring dike.”

City Attorney John Shockley said by approving the memorandum of understanding, Moorhead was not authorizing the construction of the ring dike.

The MOU, Shockley said, allows local entities – in this case Fargo and Cass County – to be eligible for credit once the diversion is federally authorized. As a local sponsor to the diversion project, Moorhead was asked to sign off on the memorandum.

In its letter, the DNR raised the question of whether the 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 proposed “staging area” that would hold water during major floods before it moved through the diversion channel.

The Diversion Authority has argued that the levee is independent of the diversion. Durand said she was uncomfortable rubber-stamping the ring levee before the DNR officially responded, but City Engineer Bob Zimmerman said he believes the DNR has accepted the Diversion Authority’s stance.

“They’re (the DNR) considering that levee to be there regardless of the diversion project being built,” Zimmerman said.

Timothy Fox, the Wilkin County Attorney, asked the council to consider the more than $65 million that the DNR has given Moorhead for flood control since the historic flood of 2009.

Fox said the Diversion Authority, by pushing forward with the ring levee in Oxbow, Hickson and Bakke, was subverting Minnesota law.

“The DNR sends out a letter directing everybody involved: ‘Look out! You’re on the verge of stepping over the line,’ ” he said. “Please don’t step over the line. Tell them no.”

Shockley said a “no” vote by the council Monday wouldn’t have stopped construction of the levee, which is set to begin later this year. Diversion officials have already agreed to build it, he said.

“This is not really discussing how that dike should or shouldn’t be built in North Dakota,” Shockley said. “That’s between Cass County, the water resource district and the city of Fargo. They’re the ones that are funding that, along with the state of North Dakota.”

Before voting, Durand said the council may not be able to stop the project, but they would send a bad message to the DNR with a “yes” vote.

“They may not need our permission to go forward, but the DNR’s going to look at it and see that we gave our consent,” she said. “It’s not going to look good. It’s going to upset the DNR.”

The council voted 4-3 to pass the memorandum of understanding. Council members Durand, Mari Dailey and Chuck Hendrickson voted against it.

Neither Dailey nor Hendrickson spoke about their opposition before voting.

Steve Gehrtz was absent.

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