Mitigation

The current plan has been put under intense scrutiny to limit as many of the negative impacts to the surrounding area as possible. Mitigation efforts continue, but great progress has been made already.

• The negative impacts have been contained within a 10-12 mile area. Previous plans had impacts extending past the Canadian border. The number of impacted properties have been reduced from approximately 3,400 to approximately 600 structures, of which roughly 250 are residential properties.

• The Diversion Authority has authorized funds for a potential ring levee around the Oxbow-Hickson-Bakke area which would provide protection well in excess of a 500-year flood. 

• The Diversion Authority is considering other ring dike options for farmsteads and other affected communities.

 

• In town levees and inlet gates allow for increased flows through town up to a 35-foot level in Fargo.

• Reduces the impact to upstream communities, such as Richland and Wilkin Counties;
• Reduces frequency of use of the diversion from once every three to four  years to once everyone ten years;
• Eliminate need for fish passages on Red and Wild Rice; and
• Significantly reduces probability of summer operation.

Many questions regarding real estate issues have been raised. The Flood Diversion Authority has prepared a Land Acquisition FAQ with answers to questions specific to land acquisition and associated topics.

The local sponsors are responsible for much of the mitigation, and the local sponsors will coordinate their mitigation plan in accordance with a Federally mandated process. The following are details about how the Federal process typically works:

The local government entity responsible for requiring right of way for a project must pay market value for acquired property. There has been some confusion on this issue since some property has been "tax" depreciated to a low value.  In those cases, the depreciated value is not the "tax" depreciated value, but the depreciated value based on appraisal principles. These principles are separate from income tax accounting.  When there is an acquisition, the law requires property acquisition at market value, based on an approved appraisal. That appraisal will account for the condition and function (depreciation) of the property.

Property acquisition as part of a Federal project is governed by Public Law 91-646, the "Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970" (Uniform Act). The Uniform Act provides important protections and assistance for people affected by Federally-funded projects.  Congress enacted the Uniform Act to ensure fair and equitable treatment of landowners whose property is acquired to accommodate a Federally-funded project, and to ensure fair assistance for those landowners who must relocate as a result of a Federally-funded project.  The Diversion Authority has every intention of treating local landowners fairly, but the process under the Uniform Act will ensure that fairness.

The Surface Transportation and Uniform Relocation Assistance Act of 1987 designated the U.S. Department of Transportation as the Federal Lead Agency for the Uniform Act.  USDOT’s duties include the development, issuance, and maintenance of the government-wide regulation, providing assistance to other Federal agencies, and reporting to Congress. The Federal Highway Administration’s Office of Real Estate Services administers the program.  The Office of Real Estate Services’ federal rules encourage acquiring agencies to negotiate with property owners in a prompt and amicable manner, and these rules often eliminate the need for any litigation in the right of way acquisition process.

Specific information on the acquisition process can be found at the following locations:

Federal Highway Administration Office of Real Estate Services
http://www.fhwa.dot.gov/realestate/realprop/index.html

Acquisition: Acquiring Real Property for Federal and Federal-aid Programs and Projects http://www.fhwa.dot.gov/realestate/realprop/index.html  

Relocation: Your Rights and Benefits as a Displaced Person under the Federal Relocation Assistance Program http://www.fhwa.dot.gov/realestate/rights/index.html

The following is a list of common questions regarding the acquisition process.

Question 1: Who are qualified appraisers?
Answer 1: Qualified appraisers are those determined by the agency to be capable of performing the appraisal work needed. The regulations require agencies to establish criteria for determining qualifications and competency. An acquiring agency will only engage those appraisers and review appraisers who meet the requisite criteria.  The regulations list several standards the agency must review when determining an appraiser or review appraiser's qualifications.

Question 2: Who determines the offer of just compensation for the property to be acquired?
Answer 2: The agency determines an estimate of just compensation to be offered a property owner through a two-step process. An appraiser researches the real estate market and presents an appraisal of the current market value. Recognize the Supreme Court has ruled that any alteration in the market value of property being acquired that is attributable to the project for which it is being acquired must be disregarded by the appraiser; in other words, if property value for a specific parcel will increase or decrease as a result of the project, the increase or decrease is not an element of the offer. A review appraiser evaluates the original appraisal and recommends an amount for an agency official to approve as the agency's estimate of just compensation. For some uncomplicated, low value acquisitions, the agency may waive the appraisal requirement, and may prepare a waiver valuation that will be the basis for an offer.

Question 3: What if the owner doesn’t agree with the amount offered? Is condemnation the only solution when an agency can’t reach agreement on the purchase of the property for the project?
Answer 3: An owner can obtain their own appraisal for consideration in the negotiation process. Agency officials may approve the use of an administrative settlement if it is reasonable, prudent, and in the public interest. Agencies may also use other alternative dispute resolution options, such as mediation or arbitration. If all efforts to negotiate/settle fail, the acquiring agency’s applicable law provides the legal steps the agency must take when they wish to purchase property that an owner does not wish to sell.

Question 4: When can a property owner be required to turn possession of the property over to an agency?
Answer 4: A property owner may voluntarily turn control of his or her property over to an agency at any mutually agreeable time. An agency may not require a property owner to give them possession until the sale of the property is complete, payment is made and title is transferred. In the case of property used for business, residence, or farm, the owner must be given the 90-day notice in writing. In situations where condemnation is necessary, the laws governing the agency set forth the steps the agency must take to gain legal and physical possession. As in negotiated settlements, the 90-day notice on occupied property further governs the physical possession date.

The Diversion Authority and the local entities involved in the project have every intention of approaching mitigation and right of way acquisition in a fair manner. We look forward to answering as many of your questions as possible as the project proceeds.

If you have any comments or questions for the Diversion Authority about mitigation or other Diversion Project topics that are not already covered in our FAQ section, visit the “Comments About the Diversion” section.