Mitigation - The fair treatment of those who are impacted

Doc Date:  August 13, 2018

Editor’s Notes: Property Rights Acquisition and Mitigation Plan contains information about the acquisition of property rights needed for the Project and property mitigation programs.

Doc Date:  August 13, 2018

Editor’s Notes:  Summary of the FM Area Diversion Project Mitigation Plan

The Metro Flood Diversion Authority (Diversion Authority) has prepared the Property Rights Acquisition and Mitigation Plan to document the property rights acquisition and mitigation policies that will be followed for the Fargo-Moorhead (FM) Area Diversion Project (Project). This Property Rights Acquisition and Mitigation Plan has been drafted in coordination with the US Army Corps of Engineers (USACE), and in consultation with the North Dakota State Water Commission (NDSWC) and the Minnesota Department of Natural Resources (MDNR) along with input from the Diversion Authority’s Land Management Committee and the Agriculture Policy Subcommittee. Throughout the Property Rights Acquisition and Mitigation Plan, the Project is commonly referred to as the ‘FM Area Diversion Project’, but it should be noted that USACE, other agencies, and certain documents identify the Project as the ‘Fargo-Moorhead Metro Flood Risk Management Project’.

It should also be noted that the Project being referenced in the Property Rights Acquisition and Mitigation Plan is a refined and updated version of the Project that the Diversion Authority has submitted to MDNR as part of a permit application. The Project is now considered “Plan B”, and is intended to be consistent with the recommendations of the Governors’ Task Force.

The Property Rights Acquisition and Mitigation Plan is intended to be a living document that will be reviewed and amended periodically as additional information and operations prompt updates.

This Property Rights Acquisition and Mitigation Plan contains information about the acquisition of property rights needed for the Project and property mitigation programs. The document is a compilation of a series of plans for a variety of topics. Collectively, the individual topics contained within the document serve as the comprehensive Property Rights Acquisition and Mitigation Plan for the Project.

The Diversion Authority has adopted a thorough process for acquiring property. The mission of the Authority is to acquire necessary property in compliance with State and Federal guidelines and in accordance with the philosophy of being friendly, fair, and flexible to those whose property is required for the project.

The Diversion Authority aims to acquire properties following a timeline based on design and construction schedules.  That being said, and now that the Project Partnership Agreement (PPA) has been executed with the Federal Government, the Diversion Authority will entertain requests for early acquisition. The intention of this program is to allow property to be acquired early if the property owners desire.

There are 5 cemeteries upstream of the Diversion Project that may potentially be impacted by varying levels (ranging from 0.3 feet to 6.3 feet) of additional water during major floods due to operation of the Project in a 100-year (one-percent annual chance) flood.  Additionally, there are 21 cemeteries that currently would flood within the protected area that will now have improved flood protection due to construction of the Project.

Some of the recommended mitigation steps for cemeteries include protective berms, access changes, debris fencing, anchoring headstones, and/or raising the site. The previously completed cemetery studies can be found at here.

Operation of the Project will result in the staging and retention of flood waters upstream of the Fargo-Moorhead metro area.  The upstream retention area will impact a different amount of acres for each flood event depending on the magnitude of the flood.  The Diversion Authority will obtain flowage easements on the properties that are within a defined mitigation area.  The flowage easement will compensate property owners for the impacts associated with the Project.  However, in recognition that operation of the upstream retention area may cause debris (logs, straw, trash, etc.) to accumulate within and along the edges of the upstream retention area, the Diversion Authority has developed post-operation debris clean-up plans for both private and public properties.  The private-lands debris clean-up plan is patterned after the “clean-up week” approached used in the metro area where items to be disposed of are piled up at the curb.  The public-lands repair and debris clean-up plan is patterned after the approach FEMA uses for post-disaster damage assessment and reimbursement where local government units are reimbursed for cleanup costs.

The FM Area Diversion Project includes a mitigation area upstream of the Project.  The mitigation area is a necessary component of the Project, and it will occasionally and temporarily store flood waters.  Flowage Easements will be purchased and applied to the properties in the upstream mitigation area.  The value of each flowage easement will be determined through an appraisal that will consider the depth, duration, and frequency of additional flooding, and the highest and best use of the property to determine the market value of the property.

Summer operation of the Project would likely damage growing crops. Even though summer operation is extremely unlikely, the Diversion Authority will adopt a Summer Operation Supplemental Crop Loss program to provide additional assurance to producers in the upstream mitigation area.  The Program would provide producers with coverage for the risk associated with Project induced flooding on growing crops if the Project operates during summer.  The Diversion Authority understands and acknowledges that this program is important to the agricultural community because under these events, it is anticipated that producers will not be able to utilize the federal crop insurance program(s) for damages caused by operation of the Project.

The Diversion Authority has the following independent mitigation projects.

      • In-town Levees
      • Oxbow-Hickson-Bakkee Ring Levee
      • Comstock Ring Levee
    • Drayton Dam Improvements

The Diversion Authority will establish an on‐going O&M Funding Program and utilize either sales taxes or a maintenance district, or a combination of both to fund the program.  In addition, the Diversion Authority will make sure that all of the mitigation costs outlined in the Mitigation Plan will be eligible for funding through the O&M Funding Program.  The O&M Funding Program will also provide a mechanism for funding unforeseen mitigation needs that may arise due to Project operation.

If requested by the property owner, the Diversion Authority may purchase full parcels of land rather than simply the bare minimum property needed to implement the Project.  If, as a result, the Diversion Authority owns excess property, the remnants will be sold via public sale in a timely fashion

In addition to acquiring the necessary property rights from property owners, the Diversion Authority will provide an informal, administrative forum for property owners to file claims for damages. The Diversion Authority will establish the Alternative Dispute Resolution Board for such purposes. It should be noted that the Dispute Resolution Board is modeled after a similar process created by the North Dakota State Water Commission (NDSWC) for the Devils Lake outlet project. The Dispute Resolution Board  provides a fair and independent process and mechanism for property owners who believe they were impacted by the Project to submit a claim of damages. The Board will be relied upon for property owners outside of the mitigation boundaries described in the Property Rights Acquisition and Mitigation Plan.

Approximately 1,240 total impacted parcels

      • Flowage easements on approximately 875 parcels
      • Approximately 365 parcels to acquire in fee title
      • 1,060 North Dakota parcels
    • 180 Minnesota parcels