Minnesota DNR says ring dike for flood diversion would violate law

FARGO - The Minnesota Department of Natural Resources said Minnesota law will be violated if construction of a ring dike around the North Dakota communities of Oxbow, Hickson and Bakke starts before the agency completes an environmental study of the proposed $1.8 billion Fargo-Moorhead flood diversion project.
But because the ring dike would be in North Dakota, the Minnesota DNR acknowledges it has no jurisdiction over the matter.
The Minnesota DNR conveyed this in a letter sent Tuesday to the Fargo-Moorhead Diversion Authority. The two entities differ over whether the $65 million ring dike is an independent project or part of the larger plan to divert the Red River around the metro area.
In the letter, the Minnesota DNR said it views the ring dike as part of the diversion project and will treat it as such during the environmental impact review. The agency said it will not give clearance for the diversion project, including the ring dike, until the review is finished.
The Diversion Authority asserts that the ring dike would have “independent utility” because the three towns, which sit south of Fargo, need flood protection with or without the diversion.
“A project can be part of something bigger but can still stand alone,” said Diversion Authority Chairman Darrell Vanyo.
The Minnesota DNR’s letter points to the proposed height of the ring dike, which would be 9 feet above the 100-year flood level set by the Federal Emergency Management Agency and 7 feet above the 100-year flood level set by the U.S. Army Corps of Engineers.
“This additional height appears intended to accommodate increased inundation from the F-M (diversion) project,” the letter states.
In response, the Diversion Authority sent a letter to the Minnesota DNR on Thursday, saying the ring dike was planned and funded as a stand-alone project that would be built whether or not the diversion is constructed. At the same time, the authority acknowledges that the ring dike was planned in the context of the diversion project for practical reasons. When the diversion is used, floodwaters may back up and threaten Oxbow, Hickson and Bakke.
Members of the MnDak Upstream Coalition, which opposes the diversion, viewed the Minnesota DNR’s letter as a win for their side.
“The ring dike is not independent. It’s part of the diversion,” said coalition spokesman Nathan Berseth. “I’m not an attorney, but I would speculate that this letter from the DNR is a fair warning that there could be a lawsuit.”
However, Vanyo said Mike Carroll, assistant commissioner of the Minnesota DNR, told him the agency will not take legal action to keep the ring dike from being built.
“We’re being told by them that they will not be the one to stop any construction,” Vanyo said.
Bidding for the ring dike is set to open May 6 and close May 8, with construction beginning as soon as July 1. The Cass County Joint Water Resources District will manage the ring dike project.
The diversion project, which must clear the hurdle of the Minnesota DNR’s environmental study, also has to receive final approval from Congress.