FARGO, N.D. – The Diversion Authority is now free to restart the controversial Oxbow ring dike, according to Minnesota Department of Natural Resources officials.
The dike is part of the Fargo-Moorhead flood diversion and, on Wednesday, June 29, the DNR declared it had completed its environmental review of the project.
This paves the way for the Diversion Authority to apply for state permits to build the diversion dam. It may also hasten the end of a lawsuit brought by upstream opponents of the diversion who had demanded such a review.
Erik Johnson, a Diversion Authority attorney, said he expects defense attorneys will ask a federal judge based in Minneapolis to lift his injunction on dike construction and dismiss or resolve the lawsuit.
U.S. District Judge John R. Tunheim had earlier dismissed most allegations in the lawsuit brought by the Richland-Wilkin Joint Powers Authority, which represents diversion opponents. The only remaining allegations dealt with the Minnesota environmental review.
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The Forum asked JPA spokesman Nathan Berseth for comment, but had not heard back by press time.
The ring dike would protect the communities of Oxbow, Hickson and Bakke, which would be on the wet side of a dam designed to reduce the flow of floodwater into the diversion. The dike, along with the cost of moving homes and the Oxbow golf course out of the way, is estimated to cost $130 million. The entire diversion project is estimated to cost $2.1 billion.
Lawsuit
Diversion Authority officials were aggressive in building the dike because, they said, they needed to protect the tax base of the Kindred School District, which would lose significant funding if property values in Oxbow plunged.
The city of Oxbow, which joined the lawsuit on the authority’s side, has said state lawmakers made protecting the tax base a condition of getting state funds for the diversion.
Diversion opponents, supported by the DNR, argued that the dike is an integral part of the diversion project, which includes a dam in Minnesota. They said the project, including the dike, must have an environmental impact statement approved by the DNR.
Tunheim agreed and halted construction on the ring dike.
The DNR declared the EIS to be “adequate” on Wednesday.
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“With completion of the EIS,” DNR Commissioner Tom Landwehr told reporters, “the court’s prohibition on construction goes away.”
He said Minnesota still considers the ring dike a part of the project as a whole, but it only required an EIS from the state. The dam, however, requires a permit and the state still has unaddressed concerns about that, Landwehr said. So the authority can re-start the ring dike but at its own risk, he said.
The authority and Oxbow officials have said the dike is needed because the town would still be at risk even without the dam.
Next steps
Rocky Schneider, an engineering consultant for the Diversion Authority, said he expects that there will be some debate whether to restart the dike this year. There’s no telling how long it’ll be before the judge lifts his injunction and there’s not much time left in the construction season, he said.
He said the top priority is to have the U.S. Army Corps of Engineers begin work on the inlet structure that’s part of the dam.
Landwehr said the DNR is still concerned about several things as it considers the dam permit: how the authority will mitigate impact on landowners on the wet side of the dam, whether the project will encourage new growth in the flood plain and whether the impact on the environment is balanced out by benefits.
Permits are also needed from more than a dozen other jurisdictions in both states affected by the project, including watershed districts and townships.
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Diversion Authority Chairman Darrell Vanyo said he doesn’t expect any difficulties with those. He said he’s just happy to put the EIS milestone behind him.
