FARGO -- "We're losing focus on some things," Mayor Tim Mahoney said Thursday at a news conference he held to explain why the city needs the flood diversion six years after planning for the project began.
Flanked by business leaders and diversion officials, he invoked the 2009 flood, which was a near miss for Fargo, and the threat of higher insurance rates that would affect more than half the properties in town.
But the focus this week has been on City Commissioner Dave Piepkorn, who made the rounds on talk radio to express his outrage at costly buyouts of homes in Oxbow, N.D. Upstream diversion opponents have made the same complaint, but the mayor appears irked to have a city leader saying it.
Part of the reason the Oxbow buyouts cost more than those in Fargo is because the Diversion Authority follows the federal buyout rules. Piepkorn says the authority doesn't have to follow federal guidelines, but a U.S. Army Corps of Engineers official said Thursday that it actually does if it wants the agency involved in the project.
The corps must certify all components of the diversion project, which includes a ring dike around the Oxbow area, according to Terry Williams, the corps' diversion project manager. If it's not involved from the start, she said, that certification can take longer and require expensive fixes after the fact.
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Big picture
The Oxbow buyouts are just the latest of many flashpoints affiliated with the sprawling $1.8 billion diversion project, which includes a channel diverting some floodwater around the metro area, a dam reducing the volume of the water, ring dikes around communities on the wet side of the dam, and higher dikes through Fargo-Moorhead to handle the remaining floodwater.
Earlier this year, a vote on a diversion special-assessment was criticized because the city of Fargo and Cass County had more votes than all property owners and other local governments combined. Most property owners voted "no" but the assessment passed because the city and county voted "yes." Mahoney and other diversion officials admitted they needed to work harder to convince the public about the value of the diversion project.
On Thursday, Mahoney tried to bring attention to the big picture.
"Unfortunately, with the FEMA mapping coming and going to a higher level, we will need more protection in the city than just levees," he said. The Federal Emergency Management Agency has said it would redraw the flood plain map if the city doesn't increase its protection, he said, which could mean 20,000 more homes paying higher flood insurance rates.
Legal complexity
Still, Mahoney handed out a memo from City Attorney Erik Johnson addressing Piepkorn's concerns.
Piepkorn told the City Commission on Monday that the Diversion Authority doesn't have to use the federal buyout rules because it hasn't yet signed a "project partnership agreement," or PPA, with the Corps of Engineers.
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Joe Turman, the city of Oxbow's attorney, said Monday that the authority had to because the state required it as a condition of state participation in the diversion project, something Piepkorn later said is not true because he asked a state lawmaker about it.
Johnson's memo cited Century Code 54-01.1-16, which says state agencies engaged in a federally assisted project must follow federal buyout rules. It also cited a memorandum of understanding, or MOU, between the authority and the corps, which also requires the authority to follow federal buyout rules with the Oxbow ring dike and dikes along Fargo's side of the Red River even without a PPA (Dikes along Fargo's drains are not part of the federal project, and not subject to the MOU, so the buyout process is different.).
That doesn't quite address Piepkorn's criticism, which is the authority never should've signed that MOU.
Terry Williams, the corps official, said the Diversion Authority did that because it wanted the corps involved in the design of the Fargo and Oxbow dikes even though construction would be done by the authority. She said the corps, which is expected to build the diversion channel and dam, wouldn't do that work unless it could certify the dikes.
If the corps were not involved, she said, it would have to perform "forensics" on the dikes afterward. Should it find any problems, it could demand changes be made before it will certify the dikes, she said, and that could cost the Diversion Authority more.
