The Flood Diversion Board of Authority is taking action to continue forging a constructive working relationship with Minnesota regarding the construction of the Oxbow-Hickson-Bakke (OHB) Levee project and the Minnesota Department of Natural Resources’ (MDNR’s) ongoing preparation of an Environmental Impact Statement (EIS) on the Diversion Project.

OHB Levee Compromise

Board Chairman Darrell Vanyo and Minnesota Governor Mark Dayton exchanged letters recently in which both expressed a desire for the State of Minnesota and the Diversion Authority to cooperate with each other to resolve differences. To this end, members of the Diversion Authority voted unanimously on October 9 to limit future work on the OHB Levee project to 100 year protection from natural floods until the EIS is complete. The action to reduce the OHB levee level by approximately six feet was taken in consultation with the City of Oxbow, ND.

“We did hear from the DNR, and (Oxbow) Mayor (Jim) Nyhoff heard from them in a letter that indicated that 100 year certified, without the diversion, was acceptable to them and would not violate any law,” said Vanyo.

“Although there does not appear to be any engineering dispute that full construction of the OHB levee would not have any impact on Minnesota, this would allow continued progress on an existing need, while addressing the concerns about levee work getting ahead of Minnesota’s processes,” Vanyo added.

“That appears to be where a lot of the friction came from,” said Kevin Campbell, Diversion Authority member and Clay County, MN Commissioner. The Diversion Authority’s decision to limit future work to the natural 100 year level “still would allow, once this process works itself out, that additional construction could be done at that time,” said Campbell.

Upstream Representation

The October 9 Diversion Authority board action follows commitments Vanyo made to Governor Dayton in his letter dated September 8, 2014. In the letter, several other commitments were made, which members of the Diversion Authority have approved or will have to approve following future action:

Adding Broader Geographic Representation to the Diversion Authority Board. “The Diversion Authority would agree to add representation from a broader geographic area, including upstream Minnesota interests,” Vanyo said in the letter. “Minnesota actually has greater representation on the current Diversion Authority Board than would be expected based on funding contributions, but I am prepared to propose adjustments that would provide a seat at the table for areas not currently represented. This would be with the understanding that any additional member(s) would recuse themselves from closed session discussions of any litigation in which they have an interest, such as the pending litigation commenced by the Richland/Wilkin JPA. Should any relevant litigation end, this condition would also end.”

However, at the October 9 Diversion Authority board meeting, Chairman Vanyo read passages from a letter sent by Gerald W. Von Korff, Attorney for the JPA (Richland Wilkin County Joint Powers Authority), to Michael Drysdale, Attorney for the Diversion Authority. In the letter, Mr. Korff states the offer to add upstream representation to the Diversion Authority board does not meet the JPA’s objectives.

“We didn’t contemplate giving someone a seat on the board for anything other than what was asked, and the response doesn’t seem to address that,” said Vanyo. “The letter doesn’t say yes, and doesn’t say no.”

“We wanted to hold the door open so that we could have that discourse and have a seat for them at this table, and I’m disappointed that there is not someone named,” said Nancy Otto, Diversion Authority member and Moorhead, MN City Council member. “I would certainly urge them to bring a name forward so we can have a discourse.”

Other Compromises

Delaying Construction of the Diversion Channel until the EIS is complete. Vanyo continued in his September 8 letter: “The Diversion Authority would agree to not commence actual construction of any portion of the channel assigned to it for work­ in-kind contribution until the MDNR finishes its review, with the understanding that the MDNR will agree to use its best efforts to have a final EIS completed by the agreed upon goal date of July 1, 2015. We think it is fair to note that even that date is over 7 months after the MDNR is legally obligated to have completed its review.”

Expediting the Resolution of the Pending Litigation. Also in the September 8 letter, Vanyo wrote, “The Diversion Authority agrees to use its best efforts to seek a prompt resolution of the litigation commenced against it by the JPA, starting with a letter to the court requesting an immediate status conference to discuss how best to do that.”

Governor Dayton’s Response

On September 15, Governor Dayton responded to Chairman Vanyo’s letter by writing, “I share your desire to forge a more constructive working relationship between the State of Minnesota and your Authority.” Governor Dayton continued by saying while he cannot comment or take a position on the Authority’s offer to limit further construction on the Oxbow-Hickson-Bakke ring levee, as the matter is presently under litigation, he appreciates the other three commitments made by Vanyo and the Diversion Authority. Regarding the Minnesota DNR’s Environmental Impact Statement, Governor Dayton wrote, “I understand you are working with the DNR to complete the draft EIS by May 15, 2015, and we will do everything we can to make sure the final EIS is completed as quickly as possible.”

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