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Kyle Potter, Published April 03 2014

F-M diversion opponents plan to seek injunction blocking ring dike construction

FARGO – A group of Fargo-Moorhead diversion opponents suing local leaders in federal court over the proposed flood protection project say they plan to ask a federal judge to block construction of a ring levee south of the metro, a controversial piece of the project.

The Richland-Wilkin Joint Powers Authority, made up largely of diversion opponents, announced Thursday it hopes to file an injunction or court order to halt construction of the ring dike around Oxbow, Hickson and Bakke. The Diversion Authority hopes to start construction on the $65 million ring dike later this year.

The Richland-Wilkin group’s announcement came shortly after a court hearing in Duluth Thursday afternoon, where a federal judge heard arguments from opponents and the Diversion Authority on whether a lawsuit challenging the entire project should be dismissed.

Nathan Berseth, a spokesman for the Richland-Wilkin group, said the possible injunction has been brewing for weeks. Berseth said the group remains confident a judge will agree with their case, part of which argues diversion leaders unnecessarily expanded the scope of the $1.8 billion flood protection project, damaging farmland in the so-called staging area in order to protect land south of Fargo for future development.

But in challenging the ring dike around Oxbow, Hickson and Bakke, the Richland-Wilkin Joint Powers Authority is trying to stop a part of the project they say would be unnecessary if the 36-mile flood channel is never built. The full project is awaiting final approval from Congress and an environmental study by Minnesota’s Department of Natural Resources.

Diversion leaders contend the ring dike would provide “independent utility,” protecting the three communities from floodwaters no matter whether the diversion is built. Opponents argue the ring dike would only serve a purpose if the diversion backs up floodwaters in the staging area south of the metro.

If the full diversion is never built, “Oxbow-Hickson-Bakke area will be encircled with a 15 foot ring dike designed to prevent flooding that will not occur,” the Richland-Wilkin group said in a news release.

“It’s disingenuous to say this is a standalone project,” Berseth said in an interview.

In a letter to the Diversion Authority in January, Minnesota’s DNR warned that building the proposed ring dike without the DNR’s approval could break Minnesota law.

Proponents of the project point to the North Dakota Legislature’s decision to fund construction costs for the ring dike as evidence that it would function independently of the diversion. Construction funds from North Dakota for the diversion, on the other hand, won’t be available until after federal money starts coming in.

“If you look at what the North Dakota Legislature did, it’s pretty obvious that it’s a completely independent project,” said Robert Cattanach, a Minneapolis-based attorney representing the Diversion Authority in federal court.

Readers can reach Forum reporter Kyle Potter at (701) 241-5502