Construction begins on Oxbow, Hickson, Bakke ring dike south of Fargo
OXBOW, N.D. – With little fanfare and no ceremonial golden shovels, crews began building a controversial part of the proposed Fargo-Moorhead Diversion here over the weekend.
A construction contractor was getting ready Monday to start moving earth for a ring dike around Oxbow, Hickson and Bakke, three upstream communities that would be inundated with water backed up by the diversion. Another contractor has already started digging for the construction of new holes for the Oxbow Country Club, as several holes will be displaced by the levee.
The ring dike is at the heart of a new lawsuit filed against the Diversion Authority by the Richland-Wilkin Joint Powers Authority, which alleges that the plan to dam the Red River – creating the so-called staging area, where floodwaters would collect before feeding into the proposed 36-mile channel around the metro – may violate Minnesota law if other, less-damaging alternatives exist.
Building the ring dike around Oxbow, Hickson and Bakke before Minnesota’s Department of Natural Resources finishes studying the diversion and any alternatives would be “putting the buggy before the horse,” said Nathan Berseth, a spokesman for the MnDak Upstream Coalition who is also involved with the JPA.
In filing the lawsuit in Minnesota District Court earlier this month – its second time suing the proponents of the project – the JPA found an avenue to block construction through an injunction. Gerald Von Korff, the group’s attorney, said his clients will decide later this week whether to seek an injunction.
If that happens, Diversion Authority Board Chairman Darrell Vanyo said project proponents’ lawyers will likely ask the JPA to fund a bond to cover the expenses of idling equipment as a judge decides whether construction of the ring dike can continue.
“It costs somebody money,” Vanyo said. “You simply can’t go around filing injunctions and not be held accountable for what you might have that injunction result in.”
In a filing in a federal lawsuit filed against the project last August, lawyers for the Diversion Authority asked the court to prohibit the JPA from trying to block the project in state court.
Opponents of the project argue that the Diversion Authority can’t begin building the ring dike until Minnesota’s DNR issues a permit for a dam on the Red River. The DNR itself said as much in a letter to the Diversion Authority in January, though the state also acknowledged it had no jurisdiction because the ring dike would be built only in North Dakota.
The two sides also dispute what purpose the ring dike would serve. Would it protect the three upstream communities from flooding regardless of whether the diversion is built, as the Diversion Authority has said? Or is its purpose only to combat man-made flooding in the staging area, as upstream opponents have said.
Berseth said the Diversion Authority’s tune has changed as the project has progressed – from being part of the larger diversion project to being an independent flood protection feature.
“They change with the winds,” he said.
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Kyle Potter at (701) 241-5502