STATE OF MINNESOTA

                       OFFICE OF HEARING EXAMINERS

 

                 FOR THE DEPARTMENT OF NATURAL RESOURCES

 

 

In the Matter of Proposed Rules for

Regulating Agricultural Dike Construc-

tion along the Red River of the North           REPORT OF HEARING EXAMINER

and Bois de Sioux River.

 

 

     The above-entitled matter was heard by Allan W. Klein on April 25,  1978,

 

at Moorhead State University in Moorhead, Minnesota, and on April 26, 1978  at

 

the Grand Forks Armory, Grand Forks, North Dakota.

 

     This rulemaking proceeding was somewhat out of the ordinary in that

 

the rules proposed for adoption take the form of an amendment to a joint

 

agreement between the states of North Dakota and Minnesota.*

 

     In order to comply with Article IV.  B of the agreement (as well as the

 

rulemaking procedures of Minn.  Stat.  Ch. 15, and Minn.  Rule HE 101-108),  the

 

hearings were actually joint hearings, with one being conducted by Allan W.

 

Klein of the Minnesota Office of Hearing Examiners, and the other being  con-

 

ducted by Gary Helgeson of the North Dakota Attorney General's  office.  This

 

Report, however, is solely for the purpose of complying with Minnesota  stat-

 

utes and rules; the North Dakota State Water Commission will be conducting

 

further public hearings and will take whatever steps are necessary to  comply

 

with North Dakota statutes and rules.

 

     A. W. Clapp, III, Special Assistant Attorney General, and James F.  Coop-

 

er, Director of the Division of Waters, appeared on behalf of the Minnesota

 

Department of Natural Resources (hereinafter the  "Department").  Approximate-

 

ly 400 persons attended the hearings.  Both sessions continued until  all  per-

 

sons desiring to speak had an opportunity to be heard.

 

     Pursuant to Minn.  Stat.  Sec. 15.0412, subd. 4, this Report shall be  avail-

 

able for review to all affected individuals upon request for at least five

 

days.

 

     The Department shall, if it proposes to adopt the rules as originally

 

proposed or amended, submit the complete hearing record, including its

 

Findings and Order, to the Chief Hearing Examiner no earlier than  five  days

 

subsequent to the receipt of this Report.  This submission shall clearly

 

indicate any changes made to the rules as originally proposed,  preferably  in

 

the format that will be submitted to the State Register for  publication.  The

 

Chief Hearing Examiner shall complete his review and submit his report to  the

 

Department on the issues of substantial changes in the rule and compliance

 

with Minn.  Stat.  15.0412 within ten calendar days.  Thereafter,  the  Depart-

 

ment shall be responsible for filing the rules with the Attorney  General  and

 

for notifying persons who have indicated that they wish to be notified of

such filing,

- - - - - - - - - - - - - - - - - - -

 

 The original agreement is entitled "Joint and Cooperative Agreement  for  the

Establishment of Criteria for Authorizing Dikes and Other Flood Control Struc-

tures and Measures on the Red River of the North and the Bois de Sioux River."

It was executed for Minnesota by Robert E. Herbst, then Comnissioner  of  Nat-

ural Resources, on November 15, 1976, and executed for North Dakota by  Vernon

Fahy, State Engineer, on November 11, 1976.  The rules under consideration

in this proceeding are entitled "First Amendment" and amend Articles IV and  V

of the original agreement.

 

      Based upon all the records  and  proceedings  herein,  the  Examiner  makes

 

the following:

 

                               FINDINGS OF FACT

 

      1. On March 20, 1978, a Notice of  Hearing  and  a  copy  of  the  proposed

 

rules were published at 2 State Register 1732.

 

      2. On March 23, 1978, the  Department  mailed  the  Notice  of  Hearing  to

 

all persons and associations who  had  registered  their  names  with  the  Secre-

 

tary of State for the purpose of receiving such notice.

 

      3. On April 3, 1978,  the  Department  filed  the  following  documents  with

 

the Hearing Examiner:

 

      (a)  The  Order for Hearing;

      (b)  The  Notice of Hearing as mailed;

      (c)  The  Affidavit of Receipt of the Secretary of State's list;

      (d)  The  Affidavit of Mailing;

      (e)  The  Certificate of the Secretary of State;

      (f)  The  Notice and Rules as published in the State Register;

      (g)  The  names of persons testifying for the rule.

      (h)  The  estimate of the number of people attending each hearing.

      (i)  The  citation to a scientific manual to be used at the hearing;

      (j)  A Statement of Need and Evidence; and

      (k)  A copy of the rules as proposed.

 

      4.  The above documents were available  for  inspection  at  the  Office  of

 

Hearing Examiners from the date of filing  to  the  date  of  the  hearing.  Only

 

one person came to the Office to  inspect  the  documents,  which  inspection  oc-

 

curred on either April 3rd or 4th, 1978.

 

      5. On April 24, 1978, an Addendum  to  the  Statement  of  Need  and  Evi-

 

dence was filed with the Office.  The  Hearing  Examiner  was  informed  by  the

 

Department that they mailed a copy of  this  Addendum  to  Duane  Ekman,  Chairman

 

of the Minn-Dak Farmers Flood Control Association, on the same date.

 

      6. The record remained open through  May  17,  1978  for  the  receipt  of

 

written comments and statements.

 

      7. The transcript of the  proceedings  was  received  by  the  Hearing  Exam-

 

iner on June 13, 1978.

 

      8. These rules are  designed  to  regulate  and  control  the  construction

 

of dikes along the banks of the Red River  of  the  North.  Both  the  Joint  and

 

Cooperative Agreement and these rules are the result of substantial dikes

 

having been built by farmers since 1975 on  both  sides  of  the  river.  In  order

 

to understand these rules, and the motivation  of  the  farmers,  a  brief  history

 

of flooding in the Red River (and the  governmental  response  to  it)  will  be

 

presented below.

 

PAST FLOODING, CONTRIBUTING FACTORS, AND GOVERNMENTAL REACTION

 

      9.  There are at least two ways to measure the severity of a river

 

flood.  One is in water height above "normal", and  the  other  is  in  flow  vel-

 

ocity.  The first is measured in feet,  the  second  in  cubic  feet  per  second

 

(C.f.S.).

 

      10. The first recognized river  gauge  in  the  United  States'  portion  of

 

the Red River Valley was installed  in  1873  at  Grand  Forks.  However,  earlier

 

records from Winnipeg indicate that major  floods  occurred  in  1826,  1852  and

 

1861; all of these were more severe than any  flood  in  this  century  at  Winni-

 

peg.  Since 1873, major floods have occurred  in  the  U.  S.  portion  in  1882,

 

'83, '93, '97, 1916, '43.  '47.  '48, '50, '52,  '65,  '66,  '69,  '70,  '72,  '74,

 

'75 and '78.  The greatest recorded floods in the U. S. basin were those of

 

1897, 1950, 1966 and 1978 (Agency Ex. 12, p. 9).

 

        11.  To put these into some perspective, the following data is presented:

 

                                              Elevation       Peak

        Location     Year       Date             (msl)      Discharge

 

        Grand Forks

 

                     1897       4-10-87          826.8        80,0000

 

                     1950       5-12-50          823.8        54,000

 

                     1966       4-4-66           823.9        55,000

 

                     1978       4-11-78          824.1        54,200

 

        Oslo

 

                     1897          N/A           809.3           N/A

 

                     1950       5-10-50          809.5        63,000

 

                     1966       4-4-66           809.7        59,000

 

                     1978       4-12-78          810.6*       56,200

 

        Drayton

 

                     1897       4-?-97           797.4           N/A

 

                     1950       5-12-50          798.0        86,500

 

                     1966       4-8-66           797.2        67,500

 

                     1978       4-16-78          796.2        56,200

 

        Emerson

 

                     1897         N/A            790.0         N/A

 

                     1950       5-13-50          790.9        95,500

 

                     1966       4-11-66          789.2        66,800

 

                     1978          N/A            N/A          N/A

 

        These  figures  were  taken  from  page 12 of Agency Ex. 12 for years before

 

1978.  The  data  for  1978  comes   from  the testimony of Orrin Holmen, U. S. Geo-

 

logical Survey, at page 37 of Volume I of the transcript (hereinafter referred

 

to by volume and page, such as T. 1-37) and T. 2-42.

 

        12.  Although the data above indicates the worst floods, the record is

 

replete with references to the fact that, when measured in terms of interfer-

 

ence with normal human activities, many other years have represented "flood

 

years."

 

        13.  The problem with flood waters on the Red is exacerbated by the

 

existence of three facts peculiar to this particular area:

 

 

 

- - - - - - - - - - - - - - - - - - - -

 

 Since Agency Ex. 12, p. 12, fn. 3, indicates that gauge on the Oslo highway

bridge was discontinued after 1969, the location of the gauge used for the

1978 data is unknown.

 

       a .  The river flows from south to north.   Spring  snow  melt

       proceeds from south to north as  well.  When  spring  waters

       overtake the "melt line", their flow is blocked  by  ice  on

       the river.   In addition to this blockage, the flooding

       problem is exacerbated when the runoff  from  tributaries  is

       synchronized with peak flows arriving from the south.

 

       b.  The tributaries of the Red generally flow from high

       ground in the watershed to a large flat area  on  either  side

       of the river.   The size of this flat area  has  been  attri-

       buted to a uniform deposit of sediment in glacial Lake

       Agassiz.   Regardless of its origins,  the  flatness  of  the

       area abutting the river makes it easy  for  floodwaters  to

       spread over a very large area.

 

       C. In the reach of the river on either  side  of  Oslo,  the

       capacity of the river's channel is  constricted  in  compari-

       son with other parts of the river.  For  example,  at  Oslo,

       itself, the channel can contain only 20,000 c.f.s.     When

       the flow reaches 42,500 c.f.s (July, 1975  flash  flood),  or

       56,200 c.f.s. (1978 spring flood), vast  amounts  of  water

       are forced out of the channel banks  onto  the  adjoining  land.

                                                        

       14.  The natural factors listed above are not the  only  cause  of  the  se-

 

vere flooding problems on the  Red.  An  equally  significant  non-natural  factor

 

is the drainage of lands by farmers at the  suggestion,  and  with  the  financial

 

help, of governmental bodies; national, state, and local.      The installation

 

of drainage facilities has not only been used to render previously unproduc-

 

tive land agriculturally productive, but drainage has  also  been  used  to  speed

 

the runoff of waters from already productive land.  The combination of these

 

two practices has resulted in a drastic  reduction  of  acreage  available  for

 

holding water in the uplands, with the  concomitant  drastic  increase  in  the

 

amount of water that is put into the main stream of the Red, often at a time

 

when it cannot be accepted without flooding over its banks.

 

       15.  Unfortunately, the problem of flooding on the  Red,  due  to  both  in-

 

creased drainage and unusual natural factors, has long been recognized.        Per-

 

haps the most dramatic testimony in the hearings on these rules came from

 

Donald Ogaard, chairman of both the Lower  Red  River  Water  Management  Board

 

and the Wild Rice Watershed District, and a  past  president  of  the  Associa-

 

tion of Watershed Boards of  Managers,  who  presented  the  following:

 

       I note with interest a book that was picked up just a few min-

       utes ago here.  Statement:  "Temporary  storage  of  the  flood-

       waters in reservoirs far upstream until the flat valley lands

       are drained in the early spring  will  prevent  the  overloading

       of valley streams."

 

       Another statement:  "It would therefore be the height of folly

       to permit the hazards of recurring floods  running  an  annual

       loss equal to the cost of expenditures  necessary  to  prevent

       them from all time.  Sooner or later this  work  must  be  done

       and will be done."

 

       Another statement:  "Floods can be mitigated only by construc-

       ting reservoirs to detain the floodwaters, by constructing

       levees to prevent their overflow, or  by  increasing  the  capa-

       city of channels to expedite their discharge."

 

       This is a report to the Governor  of  North  Dakota.*  I'm  sure

       you all remember him, Honorable Lindvig Frazer, 1919 to 1920.

       (T. 2-74)

 

- - - - - - - - - - - - - - - - - - -

 This was later identified as being authored by  Herbert  A.  Hard,  Chief  Engin-

 eer, entitled Report to the Governor of North  Dakota  on  Flood  Control,  1919-

   1920.

 

 

                                       -4-

 

      16. The record of these hearings reflects that since that  Report  was

 

delivered, far more time and money has been spent on drainage than on  flood

 

control.  In a recent book authored by Thomas F. Waters  entitled  Streams  and

 

Rivers in Minnesota, it was stated that "No area on earth" has been  so  inten-

 

sively drained for agriculture as the Red River Valley.

 

      17. Governmental response to the flooding of the Red  has  been  primar-

 

ily the making of studies, although some local units of government have  ac-

 

quired land for upland reservoirs and have constructed such water  retention

 

facilities in the uplands.  For example, a series of dams on  the  Turtle  River

 

(N.D.) have proved effective in reducing the inflow from the  Turtle  watershed

 

during peak floods on the Red.

 

      18.  The Corps of Engineers has built "urban dikes" to protect Grand

 

Forks, Oslo, and Pembina.  The Corps has also embarked upon  a  thorough  long-

 

term study of the main stem flood plain from Wahpeton-Breckenridge to the

 

Canadian border.  The study will focus on flooding and damage  reduction  al-

 

ternatives.  This study is now estimated to be completed in  three  years,  as-

 

suming continued Congressiona funding (T. 1-97).

 

AGRICULTURAL DIKES AND GOVERNMENTAL RESPONSE

 

      19. Following the 1975 spring flood, a number of farmers  in  the  south-

 

ern portion of the Red River Valley cooperated in the construction of  dikes

 

along the river bank in order to protect their land.  When a  flash  flood  oc-

 

curred in the summer of 1975, these dikes successfully protected their  land

 

and gave to others the idea that dikes could be used for protection  of  agri-

 

cultural land.  In the fall of 1975, both Minn-Dak Farmers Flood Control Asso-

 

ciation and Grand-Walsh Water Control Cooperative were formed, the  former  in

 

Minnesota, and the latter in North Dakota.

 

      20.  The avowed purpose of those two organizations was to coordinate

 

the construction of dikes and other water-control structures.  A second

 

purpose appears in a letter dated January 26, 1977 from John W. Bushaw, Ca

 

farmer who did not participate in the diking), to Ross S. Reagan of  the  Upper

 

Mississippi Basin Commission, which letter was part of Public  Ex.  7:

 

      I attended a series of meetings held in Oslo, Minnesota, in

      the summer of 1975.  Although there obviously had been prior

      discussions about diking, it was obvious that little techni-

      cal or legal research into the problem had been  done.  Large-

      ly as a result of my persistent questioning, an attorney,  Mr.

      Depuy of Grafton, was retained.  At a subsequent  meeting,  Mr.

      Depuy outlined the proper procedure to be followed for legal

      dike construction.  The group, by majority vote, agreed to pro-

      ceed with the dike construction, and to ignore the law.

 

      An organization was formed for the diking project.  One  of  the

      principal reasons for this organization was to protect  the  in-

      dividuals participating in the diking from civil suit.  The

      theory was that, since the dike was built by an  organization,

      and not by individuals, no individual could be sued.  If a

      civil suit was filed against the organization, no  damage  would

      be done to the members, since the organization would  have  few,

      if any, assets from which damages could be recovered in the

      event of an adverse court decision.  (Pub.  Ex. 7)

 

      21. The construction of agricultural dikes proceeded  speedily  in  1975

 

and 1976 so that by September of 1976, there were 26 miles of diking  in  place

 

on 53 miles of river reach.

 

       22. At the present time, there are 46 linear miles of dikes  on  the

 

Minnesota side of the river, and 21 linear miles of dikes on the  North  Dakota

 

side.   None of these dikes have been built with a permit from  the  Minnesota

 

Department of Natural Resources or the North Dakota State  Water  Commission.

 

There has been one permit application made in Minnesota, which  was  denied

 

(Tr. 1-60).  There has been at least one application made  in  North  Dakota,

 

which has not been approved (Pub.  Ex. 3-5).

 

       23. These dikes have been built almost entirely by the  voluntary  con-

 

tributions of farmers.  They were generally designed to be  three  feet  higher

 

than the 1975 summer flood, having a 3:1 side slope, a vegetative  cover  to

 

prevent erosion, and culverts with trap doors to provide  interior  drainage

 

(Tr. 2-89a).  There is little question in that these dikes  were  successful  in

 

achieving their primary purpose, even in the unusually severe flood  of  1978.

 

Very rough data generated by the Corps of Engineers compared the  1978  flood

 

with the 1969 flood to assess the impact of the dikes.  That  data  is  divided

 

into three segments or "reaches", referred to as the Grand Forks  reach,  the

 

Oslo reach, and the Drayton reach.  On the Grand Forks reach,  there  was  "very

 

little" difference in area flooded.  However, on the Oslo  reach,  13,000  acres

 

on the Minnesota side which were flooded in 1969 were not flooded 'in  1978

 

(even though the river was at least one foot higher in  1978).  In  addition,

 

1400 acres which were not flooded in 1969 were flooded in 1978.  Thus,  on  the

 

Oslo reach, there was a net savings of 11,600 acres in  Minnesota  alone.  On

 

the North Dakota side of the Oslo reach, 3300 acres were flooded in 1978

 

which were not flooded in 1969, while 1,000 acres which flooded in  1969  were

 

not flooded in 1978.  Thus, on the North Dakota side of the  Oslo  reach,  there

 

was a net "loss" of 2300 acres.  For both sides, the Oslo reach  showed  a  net

 

savings of 9300 acres.

 

       The Drayton reach showed 17,500 acres as being flooded in 1969 but  not

 

in 1978, while 4500 acres were flooded in 1978 but not 1969.  This  gives  a

 

net "savings" of 13,000 acres for the Drayton reach (which was  not  broken

 

down by states).  The total net savings for all three  reaches  was  approxi-

 

mately 22,300 acres.

 

       24. One of the most difficult problems raised in this hearing  was  the

 

fact that the dikes have caused some persons damage (over and above  what  dam-

 

ages they suffered due to the flooding which cannot be blamed on  diking)  be-

 

cause the dikes forced additional water onto their land.  There was scant tes-

 

timony from those people, and what testimony there was indicated  a  divergence

 

of attitudes regarding the desirability of the dikes.  For  example,  Melvin

 

Juhl (a North Dakotan) testified, in part, as follows:

 

       I want to congratulate those people who have built dikes  and

       especially those who built the dike across from me.  I  don't

       exactly believe that it's hurting me, but they're brave  peo-

       ple to build a dike out there.  I was out there and  saw  that

       machinery working this spring under tremendous odds:  the wind

       and the waves, and they were putting up dikes.

 

       However, the putting up of that dike is what made the water

       worse on my side, and I go along with the Corps of  Engineers

       in their plan of controlled diking.  (T. 2-5a and 6a)

 

       On the other hand, Maurice Bushaw (a North Dakotan) testified, in  part,

 

as follows:

 

      The only thing you get any place in this flood  control  is  to

      give everybody hell.  We've been just through  one  of  the  worst

      floods in history, that's the flood of 1978, and I  think  it  was

      caused by weather modification, huge  drainage  ditches,  high

      roads and farm dikes.

 

      I, Maurice E. Bushaw, was born and raised a mile  and  half  north

      of Oslo, Minnesota, on the North Dakota  side,  one-eighth  mile

      north on the Red River on a high knoll.  In  the  past  30  years,

      I wanted to pull out more than once but my  friends  told  me,

      "you can't quit now.  Wherever you  go,  you'll  have  something

      else," I guess no matter where you live, you  have  to  pay  your

      dividend to society.

 

      I'm not a member of any dike organization.  I  believe  the  water

      should flow the width of the floodplain at flood time.  I talked

      against my entire community on farm diking but  I  failed.  All  I

      heard is "how good a job the Minnesota farmers did  in  1975  and

      how much money they made," but I did not hear  how  much  damage

      they caused, for they caused the water to raise ten inches higher

      in North Dakota and they've been diking since  1950  so  they're

      pretty good.

 

      We in Washville Township and Walsh County had  no  other  choice:

      we met with the North Dakota water people  requesting  help  and

      no help ever came.  So we had to do what we knew  how  to  do,  we

      built dikes and our dikes, in the year  1978,  they  leaked.  They

      were overtopped and they broke, but the water was two feet high-

      er on the other side of the dike.  If it  hadn't  been  for  the

      dikes, everything would have been gone, but if  there  had  been

      no dikes or no high roads, the water would have  been  four  feet

      or more lower.

 

      Now, some of the acts of aggression that have  been  caused  by

      the Minnesota farmers are: the  water  has  destroyed  farm-

      steads, overtopped ring dikes, has washed out  roads  and  de-

      stroyed property such as grain and livestock,  and  the  threat

      of human life, itself.  I'm sure the  ones  that  have  commit-

      ted the acts of aggression have a very  guilty  conscience  for

      a man without a conscience has no soul.

 

      I hold no grudge against our Minnesota neighbors,  and  I  hope

      no one else does for a community that does  not  pull  together

      does not survive. 1 would like to ask the  help  of  every  in-

      dividual, every organization to construct ring  dikes  on  every

      farmstead and I guarantee that they would  not  be  overtopped

      by any flood water.  (T. 2-61a and 62a)

 

      In a more theoretical vein, but no less to the point, was the written

 

statement of John McMerty, Executive Vice President of the North Dakota Water

 

Users  Association:

 

      Individuals in our society are bestowed  certain  rights  and

      responsibilities but these rights  and  responsibilities  must

      be tempered by reasonableness  and  prudence.  The  individual

      right to private ownership of property is one  of  the  basic

      tenets of our culture.  So, too, is the  right  to  take  pru-

      dent and reasonable action to protect that property from

      natural disasters.  But at that point, where the actions

      taken are detrimental to the safety of the  lives  and  pro-

      perty of others, that action is no longer  prudent  and  rea-

      sonable and the greater rights of  society  take  precedence.

 

      A state has the responsibility to protect all  of  its  citi-

      zens from the intemperate actions of  others.  In  order  to

      accomplish this, the state must occasionally adopt rules

      and regulations which modify or limit an individuals's

      rights where the unbridled exercise of  those  rights  would

      endanger others.  A state limits a  person's  right  to  drive

      an automobile in whichever manner he wishes by imposing

 

       maximum speeds and road  regulations  to  protect  other  driv-

       ers on the  highways.  Zoning  regulations  may  infringe  upon

       a builder's right to construct  a  building  wherever  or  how-

       ever he desires, but such  regulations  are  necessary  to  pro-

       vide for the protection and  safety  of  the  inhabitants  of

       the building and  their  neighbors.  So,  too,  these  proposed

       criteria may infringe upon  a  landowner's  right  to  protect

       his property, but the  limitations  are  necessitated  by  the

       greater rights of society to  be  protected  from  the  indivi-

       dual actions of others.

 

       There is no question that the  agricultural  dikes  now  in  ex-

       istence were built at large  private  cost.  There  is  also  no

       doubt that in many cases  those  same  dikes  performed  their

       function well and provided  protection  for  the  local  inter-

       ests which constructed them.  But  there  is  also  no  question

       that that protection was achieved at the expense of in-

       creased hardship to  the  residents  upstream  and  downstream

       without dikes and to increased  threat  of  breaching  of  the

       municipal dikes.  And  the  maintenance  of  their  present  un-

       regulated status can only serve  to  compound  the  chances  of

       tragedy in the future.

 

       25.  The record is replete with references to two factors which were

 

significant motivations behind the decision to dike:  frustration and des-

 

peration.

 

       The desperation was vividly described by Duane Paschke, a North Dakotan

 

who is Vice President of the Grand-Walsh group:

 

       Well, as far as diking, like  everybody  says,  it  isn't  an

       answer to their problem.  But, like,  in  '75,  we  had  a  flood

       in the spring which everybody knows,  we  put  the  grain  in

       and all the fertilizer  and  whatever.  In  the  summertime,  a

       flood comes along and wipes out  the  whole  complete  crop  so

       you lost a whole year.  After  losing  a  whole  year's  income

       for most of the farmers and  everybody  in  that  area,  every-

       body was desperate and what else was  there  to  turn  to  but

       look for some protection, so we thought of diking.

 

       Lots of farmers, like everybody  else,  some  didn't  have  the

       money, some borrowed the money, some  took  it  out  of  their

       savings accounts or whatever  to  pay  for  this  dike.  After

       losing a year's income and still to  take  money  they  had  put

       away for future use to protect  them  and  live  for  another

       year, people have to be desperate and  need  help  bad  to  do

       that.  (T. 2-54a and 55a)

 

       The frustration was described by Duane Ekman, Chairman of the Minn-Dak

 

group:

       But I think it got to the point where it was just pure frus-

                                                       I

       tration in watching all the appropriation of money for stud-

       ies.  The studies would go  forth  but  there  was  one  thing

       wrong, there was nothing that  said  anything  would  be  imple-

       mented after the studies were complete,  and  I  think  if  I

       may, I just might qualify this a little bit.

 

       We have a group in our  area  that  was  particularly  concerned

       with implementation of the  Hewitt  Reservoir  as  was  proposed

       at one time on the Red Lake River.     The  local  interests  got

       involved all the way up and down the  Red  River  and  the  Red

       Lake River.  They formed a  group  called  the  Red  Lake  Basin

       Planning Commission -- Lower Red Lake, I  guess  it  was  --  to

       work on the Hewitt project.  It  was  found  that  local  oppo-

       sition was the first thing that they ran  into  as  far  as  the

       landowners it would have affected.

 

       So, I think our individual efforts,  we  came  to  an  agreement

       between the people that lived in the high lands and those of

       us that had the flood problem whereby  they  would  agree  to  a

 

      three-dam series instead of the one huge monstrous  dam,  but

      they were fearful that their compensation for  their  farm

      that would be flooded would not be great enough and we

      agreed 100 per cent.

 

      It is not fair to pay a person not even equal to market

      value when we have other laws in effect that hp has to

      relocate some place.  You're putting him  out  of  business.

      Hp can't open up a new store if he can't buy new  farm  land.

      And in the process of your tax laws, your  capital  gains,

      your reinvestment procedure, and I think we all  know  what

      they are, so they were unwilling for that reason  and  yet

      the law said they could not be compensated for  more  than

      that amount.

 

           Q.  What year was that about?

 

           A. I believe the concerted effort  for  Hewitt  started

      in, oh, somewhere around 19--, late '60s.

 

      Along that line, the frustration and the meetings that

      were involved, it finally came to a point where  a  trans-

      mittal of the Corps of Engineers' letter dated  12,  August,

      '76 state that, "A preliminary economic analysis  based  on

      updating costs and benefits to the 1975 price level  and  up-

      dating for project features to meet the current  design  cri-

      teria and concerns indicates that the proposed  Hewitt  pro-

      ject is no longer economically feasible.  A  similar  update

      of the other nonstructural or structural  alternatives,  in-

      cluding the series of large dams, indicate that  an  econom-

      ically feasible solution does not exist."  That's  just  one

      small example of the frustrations that the local people

      have been running into after diligently working  for  many

      years.

 

      I think the thing that I'd like to point out here, too,

      Minn-Dak Farmers Flood Control, the word "farmers"  is  in

      there for a purpose.  We have a group of  farmers  that  are

      concerned about protecting agricultural land, and  we  don't

      feel that that has been addressed at all.  Since our organi-

      zation in 1975, we've been driving this point home  as  many

      of you know, but I'll give you another example  about  that.

 

      I have in my possession a letter written 9,  February,  1978;

      it's signed by James E. Braatz, B-r-a-a-t-z, Chief  of  Pub-

      lic Affairs Office for the Corps of  Engineers.  In  there,

      he says, "Agricultural or rural flood protection is  an  area

      where the Corps Congressional authority limits  its  activi-

      ties.  Flood protection here is difficult  to  achieve  be-

      cause the size of the location to be protected and  the  as-

      sociated high cost, and because low  population  densities

      usually mean that benefits wouldn't equal costs.

 

      "The Red River Valley is a natural well-defined  flood  plain

      and complete protection for it would be a  gigantic  under-

      taking.  Currently, we have engaged in a  number  of  studies

      which are aimed at protecting several communities  along  the

      Red River of the North, but for the reasons  already  stated,

      we are not now attempting to study ways of  protecting  the

      entire valley, including agricultural lands,  from  flood."

      (T. 2-85a-88a)

 

      26.  The governmental response to the diking is these rules.  The rules

 

grew out of a series of meetings convened by the Upper Mississippi River Ba-

 

sin Commission beginning in October of 1975.  The meetings included represen-

 

tatives of the two states, the U. S. Soil Conservation Service, the Corps of

 

Engineers, and (after the first meeting) representatives of the diking far-

 

mers.  A review of the minutes of these meetings (Pub.  Ex. 7) indicates that

 

while there was an exchange of ideas and some compromise, essentially the

 

positions of the opposing groups has not changed over the past two and one-

 

half years.  The states and the Corps want the existing dikes removed,  while

 

the farmers want to retain them.  With regard to new dikes, the  states  and

 

the Corps want them built according to criteria which the farmers argue ren-

 

der them virtually useless.

 

THE PROPOSED RULES.

     27. The proposed rules amend Articles IV and V of the  original  Joint

 

Agreement.  Essentially, the amendments to Article IV contain specific  cri-

 

teria for dikes (such as height, placement, and procedures for permit approv-

 

al), while the amendment to Article V deals with removal of existing  dikes

 

which do not meet the criteria of Article IV.

 

     28. Proposed Article IV.A contains an explanation of the  general  pur-

 

pose of the rules and the statutory basis for their adoption.  While more

 

attention will be devoted to the issue of statutory authority at a later

 

point, it is found that this introductory rule is both needed and reasonable,

 

as it "sets the stage" for the remainder of the rules.

 

     29. Article IV.B, entitled "Jurisdiction", states  that  the  criteria

 

shall apply to dikes located within the flood plain of the Red (Red River of

 

the North) and the Bois (Bois de Sioux River) as well as dikes constructed on

 

tributaries within the flood plains of the two rivers.

 

     The flood plains of the two rivers are defined  differently.  For  the

 

Red, the flood plain is defined by a map contained in a previous study,*

 

while the flood plain of the Bois was defined by reference to USGS flood

 

quadrangles.**

 

     While it is clear from the rule that the flood plain for the  Bois  is

 

the one percent chance of flood recurrence (100-year flood), it is  unknown

 

what area is encompassed by the Red flood plain.

 

     Maps showing both flood plains were available at the hearings.  The

 

jurisdictional section is found to be both needed and reasonable.

 

     30.  Article IV C contains definitions of key words used in later

 

rules.  The only problem with the definitions arises from the  vagueness  of

 

the definitions of Class I Watercourses and Class II Watercourses.  This  was

 

apparently recognized by the Department because, in its "Addendum to  State-

 

ment of Need and Evidence" filed on April 24th, the Department  specifically

 

named the Class I and Class II watercourses in Minnesota.  The  North  Dakota

 

Watercourses were named in the Rule.  The import of designation as  a  water-

 

course will be discussed in connection with Article IV.G, below, but it  is

 

noted that that Article would prohibit diking across all watercourses.

 

     As noted above, the North Dakota watercourses are specifically named in

 

the Rule.  The Minnesota watercourses are not.  The first  notice  any  person

- - - - - - - - - - - - - - - - - - - - - - -

*  Neither the map nor the study were introduced into the record.  However, Du-

ane Ekman, Chairman of the Minn-Dak Association referred to the same  study

in his testimony, implying that either he, or another member of his  group,

had read it (Tr. 2-89a).

 

** The USGS quadrangles were not introduced into the record, and the  extent

of their availability is unknown.

 

had as to which Minnesota tributaries would be included came when they  were

listed in the Addendum which was filed April 24th.  They were set  forth  in

the oral testimony of James Cooper on April 25th, and Dave Sprynczynatyk  on

April 26th.

       While there is no question that it is both needed and reasonable  that

certain major tributaries be treated differently than very minor  tributaries,

was it unreasonable to withhold notice of which would be selected for  special

treatment until, essentially, the day of the hearing? It is found  that  it

was not.  There was only one person who indicated that his  original  testimony

would have been different had he understood the impact of the rules on a

given tributary, and he was able to supplement his original testimony  based

upon the newfound knowledge of the effect of the rules on the named  tributar-

ies (testimony of Don Ogaard, T. 2-96-97).  There were no  written  comments

filed subsequent to the hearings which indicated prejudice due to the  failure

to name.

      is the designation a de facto "substantial change"? It  is  not.  First

of all, there is no suggestion that the wording of the rule be  changed.  Sec-

ondly, the rules, as proposed, did contain definitions of the  characteristics

of those tributaries which would be affected, but did not specifically  name

them.  What is sought to be accomplished is to leave flexibility in  the  rules

to accommodate future changes in the hydraulic regime so that if a change  in

upland drainage, for example, occurs which changes a previously  insignificant

stream into a major tributary, those charged with administering these  rules

can react appropriately without having to seek a rule change in both  Minne-

sota and (potentially) North Dakota.  The definitional rule is found  to  be

both needed and reasonable.

      31. Section D of the rules is a standard  severability  clause.  While

the Department failed to present any testimony regarding need or  reasonable-

ness as to this Section, it is found that it is unnecessary to do  so.  There

was no comment raised by any person regarding this section.

      32. Section E of the rules, entitled "Design Criteria" is one  of  the

most vital parts of the rule.  It is divided into five subsections,  and  each

will be treated separately below.

      33. E.1. deals with setbacks.  It states, as a  basic  requirement,  that

no dike shall be located in such a way as to cause either: (a)  an  increase

in the elevation of flood waters of the ten-year frequency flood of more  than

one foot at any point along the river, or (b) an increase in the  elevation

of flood water of the ten-year frequency flood of more than one-half foot

within the corporate limits of any city.

      In calculating whether a dike is located so as to satisfy the above cri-

teria, it is assumed that there are dikes on both sides of the river  which

are equally set back from the center line of the river.  If  two  landowners

can agree on some different spacing which results in the above flood  eleva-

tion criteria being met, then the "equal distance from the center"  require-

ment may be waived.  For example, if, at a given point, there is  an  existing

dike on one side of the river and no dike on the other side, the "equal  dis-

tance from the center line" requirement could be waived if the landowner  on

the un-diked side agreed not to erect a dike, or to erect a dike set back

farther than the equidistant line would otherwise  require  (all  of  this  assum-

ing that the flood elevation limitations are complied with).

      The Department illustrated its argument  in  support  of  the  setback  cri-

teria through a series of slides (Agency Ex. 11).      The slides showed  that  for

a "typical" reach of the river, with no  dikes  on  either  side,  the  ten-year

flood would have an elevation of 815.0 and a velocity of 1.5 feet/second.

      The illustrations then pointed out that:

            "uncontrolled diking" (diking very near the river's banks) on

both sides would result in an elevation of 818.5 and  a  velocity  of  2.1  feet

per second.

            .  uncontrolled diking" on one side  only  would  result  in  an  eleva-

tion of 815.8 and a velocity of 1.8 feet per second,  as  well  as  inundate  more

land on the non-diked side than would have been  inundated  by  the  no-dike  sit-

uation.

            "controlled diking" an both sides (diking according to these

rules) would result in an elevation of 816.0 and a  velocity  of  1.6  feet  per

second.

      The Department argued that basing  its  criteria  on  the  ten-year  flood

(rather than some other frequency flood) was  due  to  the  availability  of  data

on the ten-year flood and  Federal  Flood  Insurance  Administration  flood  plain

management criteria.  it pointed out that, by definition, the dikes would pro-

tect land nine out of ten years.

      The Department argued that the 1/2 foot  "effect  limit"  for  cities  was

based upon the fact that when cities are flooded, there  is  a  higher  risk  of

damage to both property and  lives.  The  Department  argued  that  existing  city

dikes could not be raised  to  accommodate  higher  waters  without  endangering

their stability.

      Arguments against the ten-year  standard  for  setbacks  were  based  upon

the amount of land which would be unprotected were  the  dikes  required  to  be

set back from the banks.    Duane Paschke estimated that  the  "better  part"  of

his farm would be unprotected (T. 2-48a),  and  Iner  Quern  testified  that  "a

lot" of the land which he and his brother farm would be unprotected (T.

2-33a).  While there was no  precise  data  concerning  the  number  of  existing

dikes which meet the proposed  criteria  for  setback,  David  Sprynczynatyk  of

the North Dakota Water Commission estimated that only  20  or  30%  of  the  exis-

ting dikes now meet this setback criterion (T. 1-58).

      While there was no direct  testimony  regarding  alternatives  to  the  ten-

year flood being used as the "measuring stick," it  should  be  noted  that  the

farmers' participation in the  Upper  Mississippi  Basin  Commission's  Red  River

Diking Task Force included the submission of their  ideas  as  to  what  the  set-

back criteria should contain.  On February 16,  1977,  a  workshop  on  the  cri-

teris was held in Grand Forks.  At  that  workshop,  Duane  Ekman  commented  on

the states' proposed criteria.  one of his comments was that the criteria

should be based on the effect of dikes on the 100-year flood, and that no

restrictions on increase in stage should be placed  on  floods  of  lesser  mag-

nitude (such as the ten-year flood).

      The North Dakota State  Water  Commission  responded  to  this  suggestion

in a letter of April 18, 1977, stating that  the  Ekman  100-year  flood  propo-

sal was unreasonable in that it failed to give consideration to floods of

lesser magnitude and the resulting additional    flooding  which  would  result  in

those more frequent floods if the dikes were designed for the 100-year  flood.

The letter estimated that 100-year flood dikes could cause stage  increases

of four to five feet, resulting in many additional acres being flooded,  both

upstream and downstream of the dikes.

      There is no question that if dikes were permitted to be built on  the

banks of the river on both sides (particularly if there were no  limitations

on height, a factor to be discussed below), the drastic reduction in  area

through which the flood waters must pass would result in:

           (a) water "backing up" upstream of the constriction, flooding  a

larger than otherwise area; and,

           (b) an increase in velocity as the water passed through the  con-

striction, increasing erosion not only at the point of constriction, but  also

downstream.  Thus, it is found that setback criteria are needed.

       The question presented vividly by the Ekman 100-year proposal is wheth-

er the ten-year setback criteria selected by the states is reasonable.  It  is

found that the selection of any particular setback criteria is, in part, arbi-

trary, as is the selection of any particular speed limit, limit on the  number

of ducks in possession, or most other numerical limitations contained in  our

laws.  Such choices require a balancing of competing interests, and  will  al-

most always work to some persons' detriment.  To permit the erection  of  dikes

in such a manner as to cause the flood elevation to rise one foot once  every

ten years is a reasonable balancing of the competing interests, even  though

such a setback does result in some land being unprotected.  Dikes  built  to

meet the ten-year criteria will protect land nine out of ten years, with  a

minimal impact on those who choose to not dike.  The setback criteria are rea-

sonable.

      Whether these criteria will result in the "taking" of unprotected  land

in such a manner as to require payment, as was suggested by at least one  wit-

ness, is a question which cannot be answered by this Examiner in an  adminis-

trative proceeding, but rather must be answered by a judge in a court  pro-

ceeding.

      34. Section E.2. is closely linked with E.1. in that while  one  dealt

with setbacks, the other deals with height.  E.2. provides that  the  dikes

shall be no higher than one foot above the ten-year flood elevation.

      The Department's argument in support of this elevation  restriction  was

essentially the same as its argument in support of setbacks:  that  uncon-

trolled diking would deny to the floodwaters the natural flood plain,  and

unless there is some restriction on height, there will be backup upstream  and

increased velocities downstream of the dikes.  The proposed limit  (one  foot

above the ten-year flood) would protect land at least nine out of every  ten

years.  In the event of greater floods (such as the 50 or  100-year  flood),

the dikes would be overtopped, and their effect would be minimal.  In  the

Addendum to the Statement of Need, the Department estimated that for the  ten-

year flood, the dikes would cause a .75 foot increase in stage; for the  50-

year flood, the increase would be 1/2 foot, and for the 100-year flood,  the

increase would be .3 feet.  Those figures would be greater, however,  were  the

dikes built high enough to withstand the 25, 50 or 100-year floods.  On  the

other hand, of course, were they so built, the landowners would be  protected

24 out of 25 years, 49 out of 50, or 99 out of 100, a far more desirable  ra-

 

tio from their point of view.

 

      David Sprynczynatyk estimated that few, if any, of the dikes  currently

 

in place satisfied this criterion (T. 1-58).

 

      opposition to this part of the rule came from farmers who felt they

 

were entitled to greater protection than nine out of ten; however, there  was

 

division on the question of whether low dikes were better than none.  For ex-

 

ample, Ken McIntyre, who is involved with the Cass County-Rush Water  Manage-

 

ment District stated:

 

      And then, getting back to your dikes.  We were commenting  as

      it was discussed this morning that they should be construc-

      ted so they can be overtopped.  In our experience with  water

      over the last years, every dike that has ever been construc-

      ted, and I think a lot of them shouldn't have been, although

      if I was one of the farmers along the Red River, I think I'd

      be diking, too, because either you're going to fish or you're

      going to farm, and I think a lot of you want to farm, but

      where you overtop a dike, you do tremendous destruction.  A

      dike, in our opinion, should be either high enough to solve

      the problem or not be there at all because once a dike is built

      and water overtops it, the destruction at that time is terrible:

      it doesn't only erode and gully and do things it shouldn't, but

      it just makes destruction much worse.  So we would make this,

      comment on dikes at this time:  either they've got to be good

      ones or not at all.  (T. 2-15a and 16a).

 

On the other hand, Peter Gerszewski testified in response that:

 

      As far as topping a dike and having the water go over the

      dike is no different than every road that goes Past and

      west that gets topped over every year, I mean, there is a

      flood.  So far as washouts and all that from the dike  be-

      ing topped as was mentioned here a while ago, I can't see

      that, because we have that every flood, of roads being top-

      ped and washed out.  (T. 2-23a-24a)

 

      Just as competing interests must be balanced in the case of setbacks,

 

so must they be in the case of dike elevations.  The logic needs no repeti-

 

tion.  it is found that a limitation on dike elevations is needed, and the

 

Department did justify the reasonableness of its proposal.

 

      35. Section E.3. of the criteria deals with dimensions of  dikes  other

 

than height.  It would require that the dikes be not less than six  feet  wide

 

at their top, that they have a slope no steeper than 3:1, and that the founda-

 

tion or fill not contain any organic material.

 

      The Department's justification for these design criteria was brief.  In

 

the Statement of Need, the Department stated that these dimensions "are  gen-

 

erally acceptable standards for agricultural dikes not protecting urban

 

areas." in the Addendum, the Department stated that the  prohibition  against

 

organic material was needed because such material "will weaken the  structure

 

and may cause failure before overtopping occurs."  No further justification

 

was given at the hearing.

 

      There was no opposition expressed to these criteria.  Perhaps  the  rea-

 

son for this is that the 3:1 slope was a design criterion already utilized by

 

the farmers who did dike (T. 2-89a).

 

      While the Department's justification was minimal, the proposals are

 

found to be both needed and reasonable.

 

      36. Section E.4. would  require that a grassy vegetative cover  be  es-

 

tablished on dikes and that riprap be utilized where required to control

 

erosion.

 

      Again, both the Department's  justification  and  the  public  comment  were

minimal.  Both requirements were explained  in  the  Addendum  as  necessary  to

prevent erosion.    Again, perhaps the lack of  public  comment  can  be  explained

by the fact that the farmers'  organizations  had  already  recommended  to  their

members that a vegetative cover be employed  to  prevent  erosion  (T.  2-89a).

      The Department's proposals are both  found  to  be  needed  and  reasonable

to protect dikes from erosion.

      3 7 .  Section E.5. requires that dikes have provisions for interior

drainage capable of handling  discharge  from  the  drainage  area.  The  purpose

of this is to insure that water trapped behind  the  dikes  can  be  discharged

satisfactorily.    This procedure was also  recommended  by  farmers'  organiza-

tions which suggested that trapdoor culverts  be  employed  for  this  purpose  (T.

2-89a).

      it is found to be both needed and reasonable.

      38. Section F places a responsibility  on  the  states  to  provide  data

for use in dike design.  What the  proposed  rule  mandates  is  the  provision  of

       discharges and corresponding  elevations  of  the  ten-year  flood  (and

other available flood data   . . .  for use in dike design."

      It is unclear from this rule just what  data  the  states  will  provide.

For example, will the states provide  setback  data?  There  is  no  indication

that they would.  Rather, it would appear  to  be  their  intent  that  the  land-

owner compute the required setback distance or  (more  likely)  go  out  and  hire

a water engineer to do it.

      While it is certainly needed  and  reasonable  for  the  "people's  experts"

(the state agencies) to supply the historical  data  on  elevations  of  the  ten-

year flood, is it unreasonable for them  to  require  that  the  landowners  hire

an engineer to determine the setback distances?     In connection  with  the  rule

on Administration, the agencies propose that  the  landowners  be  required  to

supply "cross-sections of the river channel  and  overland  areas"  at  the  land-

owners' expense.    This was justified in the Addendum  to  the  Statement  of  Need

as being "consistent with the  application  requirements  for  other  types  of

comprehensive projects requiring a permit  under  the  provisions  of  M.S.  [Minn.

Stat]  105-42."   A review of that section (as  well  as  105.44)  indicates  that

is, in fact, the case.  While it would  be  desirable  for  the  agencies  to  as-

sist landowners by providing the  required  setback  distance,  the  rule  cannot

be found unreasonable should they elect not  to  do  so.  The  rule,  as  proposed,

is found to be both needed and reasonable.

      It is hoped that the Department would  use  as  current  data  as  possible

in computing the ten-year flood.     The flood of 1978  may  have  altered  pre-

viously available data.

      39. Section G of  the  criteria  deals  with  tributaries,  water  courses,

drains and ditches.    It would prohibit the  construction  of  dikes  across  Class

I or Class II watercourses in Minnesota.      It would limit and  control  the  con-

struction of dikes across "other natural waterways, streams or rivers."       It

also provides that the setback criteria  contained  in  Section  E.1.  shall  apply

to any dikes constructed along "tributary  waterways"  (which  term  is  not  de-

fined) if those dikes are located  within  the  jurisdictional  area  defined  by

Section B.*   Finally, this section would require the approval of the appropri-

(See footnote on page 16)

are watershed district, drainage board, water management district or  other

 

local authority, for the construction of dikes across legal drains or  public

 

ditch systems.

 

     The Statement of Need argues that obstruction of Class I or II watercour-

 

ses would:

 

     . . .  interfere with drainage and otherwise be in conflict with

     the identified 'Beneficial Public Purpose' contained in M.S.

     10 5 . 3 7 .

     The Addendum to the Statement of Need identifies by name the  Class  I

 

and Class 11 watercourses.  The only other information which it contains  is  a

 

statement which appears to be more in the nature of a rule than a  justifica-

 

tion:

     Dikes constructed across legal drains or public ditch systems

     shall meet all other requirements of law as well as the pro-

     posed criteria.

 

This must be an allusion to the requirement that such dikes be approved  by

 

local authorities which would presumably assure that the dikes did meet

 

"other requirements of law."

 

     At the hearings, the Department focussed its justification on  the  lim-

 

itations proposed for dikes across "other natural waterways, streams or

 

rivers." Those limitations include a requirement that dikes have  an  opening

 

capable of passing the 25-year summer flood.  The Department argued  that  the

 

25-year summer storm was chosen because it would cause a minimum amount  of

 

backwater effects on the more frequent events such as a ten-year summer  flood

 

(T. 1-31).  The other limitation proposed for such dikes would be  that  they

 

have an emergency spillway to prevent overtopping in the 100-year summer

 

storm.  The Department stated that such a spillway was needed "to prevent

 

loss of the principal control structure" during these unusual events (T.1-31).

 

     During the hearings, the Department also defended its  proposed  prohib-

 

ition of diking across the Class I and 11 watercourses by arguing that  be-

 

cause of their high flow potential, it would be unfeasible, if not impos-

 

sible, to construct spillways or outlet works which would minimize  backwater

 

effects on upstream tributary landowners (T. 1-31).

 

     This last assertion was disputed by Iner Quern, who testified  that  he

 

 

 - - - - - - - - - - - - - - - - - - - -

This statement could be misleading unless read in conjunction  with  another

section of the criteria, Section B. Whereas this statement implies  that  only

the setback criteria apply to dikes along tributaries, Section B contains  a

statement that implies that all of the criteria (not only setback, but height,

width, etc.) apply to tributary dikes.

 

A question from Don Ogaard tangentially raised this problem, and in  replying,

Dave Sprynczynatyk quoted to Ogaard from Section B, not Section G (T.  2-96

and 97).

 

Common sense would dictate the same resolution.  It makes little sense to

regulate setback without regulating height, since the whole purpose of  set-

back regulation would be defeated by very high dikes.

 

It is recommended, to avoid confusion, that either the sentence in Section  C

be deleted, or it should be reworded to conform with the sentence in  Section

B.

 

had seen in other areas of the country the  use  of  pumps  to  transport  tribu-

 

tary water over dikes into the main river.  He believed that pumps would

 

prove feasible on tributaries such as the  Snake,  Turtle,  Forest  and  Middle

 

Rivers (T. 2-36a).

 

      There is no question that the tributaries are  not  only  sources  of  wat-

 

ers which contribute to flooding on the Red, but that they, themselves, are

 

flood problems.  Many witnesses testified  to  having  been  flooded  by  water

 

overtopping the banks of the tributaries before it even got to the Red.

 

      For example, Don Ogaard testified  to  two  different  tributary  dikes.

 

The first set of dikes was built in 1956  by  various  governmental  bodies  to

 

protect the city of Ada.  He predicted that  if  these  dikes  were  altered  to

 

meet the proposed criteria, ". . . the city would be  in  severe  danger  of  an-

 

nual flooding." (T. 2-99) It  should  be  pointed  out,  however,  that  these

 

criteria apply only to "agricultural dikes" which, by virtue of the defini-

 

tion contained in Section C, are dikes to protect agricultural lands.        In

 

addition, Section J contains open-ended authority  to  make  exceptions  on  an

 

individual basis.

 

      The second set of dikes discussed by Ogaard may  be  an  extension  of  the

 

Ada dikes, or they may be separate -- it is not clear from the record.        What

 

is clear is Ogaard's attitude toward removal and  his  reasons  (it  should  be

 

remembered that Ogaard is a past president  of  the  Association  of  Watershed

 

Boards of Managers):

 

           Q.  You think the dike around your farm is how high?

 

           A.  Up to eleven feet.

 

           Q.  Do you have any intention to remove those dikes in the

      event they adopt this criteria?

 

           A. I wouldn't remove those  ditches  for  the  adoption  of

      any criteria.

 

           Q.  Why?

 

           A.  Because the water would change course and go through

      the village of Halstad and inundate about  60  square  miles  of

      land and cause tremendous erosion.

 

           That dike broke in 1969, caused  damage  to  the  adjoining

      township for $30,000 in the form  of  just  gravel  replacement,

      left trees in two adjacent farms that took about a year and a

      half to remove, actually caused erosion spots in the field

      five to eight feet deep covering 50 to 40 acres; and the vol-

      ume of water at that point naturally heads northwest, the

      channel goes to the south and southeast -- south and south-

      west, pardon me.  (T. 2-101, 102)

 

      Assuming that Ogaard's prediction is  correct,  it  demonstrates  a  need

 

for a case-by-case balancing of interests with  regard  to  these  upland  tribu-

 

tary dikes, rather than the blanket approach envisioned by these rules.       Such

 

an individualistic approach takes a commitment  of  knowledge  and  time  which

 

the Department, at least at this time, seems unable to make.*

 

      40. It is found that the prohibition  against  diking  across  Class  I  or

 

II watercourses is both needed and reasonable.  While the Quern testimony re-

 

lated above raises doubts about the lack of alternatives to such a prohibi-

 

tion, it is not necessary, as a matter of law, that the Department demonstrate

- - - - - - - - - - - - - - - - - - - -

 

For a description of the staff and data shortages of the Division of Waters,

see T.1-68 co 70, 1-80 to 83, and 2-135 to 139.

 

its chosen method is the best (or the most reasonable alternative)  --  it  is

only necessary that it demonstrate that it is an alternative  which  is  within

the boundaries of reasonableness.

      it is further found that the limitations on diking  across  other  rivers

requiring openings for the 25-year storm and spillways for  the  100-year  storm

are both needed and reasonable.

      It is found that requiring the approval of local bodies  prior  to  diking

across drains  and  ditches is both needed and reasonable.

      It is  found  that regulation of tributary dikes  is  needed.  However,  the

blanket method  of  regulating tributary dikes proposed by  the  Department  has

not been shown  to  be reasonable.  The size and diversity  of  the  area  subject

to these  criteria  is huge.* To require that all of the  tributary  dikes  in  a

431,700-acre  area  either meet the criteria or else be  removed  without  attemp-

ting to assess the impact of their removal on a more individual  basis,  is  un-

reasonable particularly when many of the tributary dikes were erected by

governmental units at taxpayer expense.  While it  ultimately  may  be  deter-

mined that, on balance, many of the tributary dikes cause  more  problems  than

they solve, the Department has not demonstrated any basis for  such  a  conclu-

sion at this point.  What has been demonstrated is the need  for  time  to  allow

for individual evaluation of applications for exceptions under  Section  i  for

these tributary dikes.  This will be discussed below.

      41. Section H deals with farmstead diking.  A  farmstead  dike,  by  def-

inition in Section C, surrounds (either in whole or in  part)  farm  dwellings,

buildings, and adjacent non-tillable acreage.

      The proposed rule would differentiate between farmstead  dikes  within  an

existing dike system and those outside of an existing  dike  system.  For  farm-

steads within an existing system, the rule would allow them to  be  built  (and

remain, if already built) without a permit and without complying with any cri-

teria, so long as they are not linked to dikes or  roadways  with  "tie-back"

dikes.  If they do have tie-backs, then they would be  considered  a  part  of

the overall dike system, and would be required to secure permits and (al-

though it was unstated), the criteria would be applied to them  (or  at  least

to the  tie-back).

      Farmstead dikes outside an existing dike system would  not  be  subject

to any limitations and would not require permits.

      An illustration was used at the hearing to clarify these different

situations (plus one situation not shown in the illustration,  but  added  by

the Examiner).  It was essentially as below:

 

 

 

 

 

 

 

 

  - - - - - - - - - - - - - - - -

 According to the Corps Report, in the Oslo reach alone,  the  100-year  flood

(whose boundaries outline the area of jurisdiction for  these  criteria)  would

cover approximately 230,000 acres (Agency Ex. 12, Plates 22 and 30).     The

total acreage included in the three reaches of interest is 431,700 acres

(Corps Report, p. 20).

 

      Ring dikes numbered I and 2 would be deemed to be "within" the  diking

system.  Dike No. 1, having no tie-back, would hp allowed with no  permit  or

restrictions.  Dike No. 2, with a tie-back, would require a permit and be

subject to restrictions.  Dikes Nos. 3 and 4 are "outside" the  system,  and

No. 3, at least, would not require either a permit or compliance with  criter-

ia. Dike No. 4 was not illustrated by the Department, but the  rule  states

that there would be no permit or criteria required for it even though it  does

have a tie-back.

      Essentially, the rule only would require permits and compliance  with

criteria in the case of Dike No. 2. The rationale for this is that  the  tie-

back serves to obstruct the flow of water with the potential for  resultant

increased stages.  Obviously, the seriousness of this situation  varies  with

the length and height of the tie-back.

      Peter Fisher of the Corps testified that farmstead ring dikes  generally

have very little effect on flood stages because they only remove a small  por-

tion of the flood plain.  Even large urban ring dikes, such as those  at  Oslo

and Pembina, were estimated to have little effect on flood  stages.  However

if a tie-back is added, it could act as a dam across the flood plain, confining

flood waters to the river channel, resulting in increased flood stages  and

velocities.  Fisher stated the same effect could occur if a ring dike  were  so

large as to substantially obstruct the flood plain (T. 2-49 to  51).  Perhaps

the most telling of Fisher's remarks was the following:

      Therefore  we feel that although the ring dikes in general

      do not have a major impact on raising stages, it's a rela-

      tive sort of thing:  each ring dike situation, if it is,

      in fact, a very extensive thing, should be evaluated for

      its impact (T. 2-50 to 51).

      The Department has justified the need for and reasonableness of its pro-

posal on farmstead diking.  While it may have been preferable to  adopt  some

different method of treating ring dikes with tie-backs (e.g., that before

requiring a permit, the Department must determine that the dike and  tie-back

are of such a size as to constitute a significant hazard potential),  again

it cannot be said that the proposed rule is per se unreasonable.

      42. Section I deals with Administration, primarily the  permit  granting

procedure.

      The first thing that must be noted is a change in the last complete sen-

tence of the first paragraph.  The term "plans or specifications"  should  have

been "plans and specifications."  This is an insubstantial change.

      The first subsection of the proposal states what must be contained  in

the application for a permit.  It is generally straightforward  and  consistent

with the Department's newly adopted rules on public water permits, 6 MCAR  

1.5020 to 5026.  Aside from comments about the fact that all  information  must

be furnished at the landowner's expense, there were no comments directed  to

the subsection.

      The second subsection allows for joint applications by two or more land-

owners.  Again, there was no adverse comment.  It could be  anticipated  that  a

number of landowners might join together to share the costs of making an  ap-

plication; it is appropriate that this be permitted.

      The third subsection discusses issuance of permits, and indicates  that

permits will issue only upon the agreement of both state and local  governmen-

 

tal units in the state where the dike is located.       The comments  regarding

 

this subsection related to the time it might take  in  order  to  secure  the  ap-

 

proval of the appropriate governmental units.      In response  to  those  comments,

 

James Cooper estimated that if no  governmental  unit  raised  any  questions  with

 

an application, it could be processed in 60 to 90 days (T. 1-77).

 

       Section 1.3. also contains a sentence which reads:

 

       Approval of the permit will in no way relieve the owner from

       damages which may be caused or created by construction of

       the dikes.

 

While the Examiner believes this to be  merely  a  restatement  of  existing  law,

 

the Department offered absolutely no evidence to  support  the  need  for,  or  rea-

 

sonableness of, this sentence.     If this is merely a  restatement,  then  it  is

 

unnecessary. if it goes beyond  existing  law,  then  it  must  be  justified.  It

 

is recommended that the sentence be deleted.

 

       Section 1.4. states that the state  receiving  the  application  shall  for-

 

ward it to the other state for comment and recommendation.       Cooper   testified

 

that, at least in the case  of  Minnesota  applications,  the  ultimate  authority

 

to grant or deny would remain with the  Department,  but  that  an  effort  would

 

be made to reach an agreement with the  Water  Commission  prior  to  final  action

 

(T. 1-75).

 

       Section 1.5. deals with permit  revocation,  citing  specific  acts  which

 

would give rise to revocation of an existing permit.       There was no comment

 

on this subsection.  It should be noted  that  Minn.  Stat.  sec.  105.44,  subd.  9,

 

confers upon the Commissioner of Natural  Resources  the  right  to  cancel  per-

 

mits ". . . if deemed necessary by him for any cause for the protection of

 

the public interest."   By setting forth more  specific  grounds  in  this  rule,

 

the Department has given advance notice to  permit  holders  of  their  duties

 

and responsibilities, and the penalty for  failing  to  abide  by  them.

 

       Section 1.6. discusses maintenance of the dikes.      It drew no  public  com-

 

ment, and the provisions are straightforward.

 

       in summary, Section I of the proposed criteria is found to be both

 

needed and reasonable with one exception:  the last sentence of I.3. was

 

not shown to be either needed or reasonable, and it is recommended for de-

 

letion.

 

       43.  Section J. of the Rules is a  rather  open-ended  provision  for  excep-

 

tions to the criteria.     It has been mentioned above as  a  "safety  valve",  per-

 

mitting deviations from the criteria in order to meet individual circumstances.

 

The conditions for such exceptions are:

 

            a.  The existence of a "special circumstance"

 

            b.  Concurrent approval of state  agencies  in  both  states

                and local water management authorities in both states.

 

            C.  Submission of "a plan"  satisfactory  to  all  agencies.

 

       There was no public comment on this section.

 

       It is found that some provision for exceptions  to  the  criteria  is  ne-

 

cessary.   These provisions provide an  open  framework  for  processing  the  many

 

different types of requests for  exceptions  that  can  be  anticipated.   They

 

also balance power between the state agencies and local authorities.         While

 

the Examiner finds that they are barely  reasonable  in  their  present  form,

 

there is a lack of specificity in  the  rule.  What  is  a  "special  circumstance"?

 

What kind of a plan would be "satisfactory"? It would be proper for  these  to

 

be defined in greater detail.  The statute provides some guidance.  Section

 

105.45 contains the following tests to guide the Commissioner in granting

 

permits:

 

           a.  The plan is reasonable;

 

           b.  The plan is practical;

 

           C.  The plan adequately protects public safety; and,

 

           d.  The plan promotes the public welfare.

 

it is recommended that the Department add these four tests to the proposed

 

criteria to protect the public from abuses of discretion (and protect the

 

Department from allegations of abuse).

 

      44.  Section K was by far the most controversial section of the  criter-

 

ia and the one to which the greatest amount of public comment was directed.

 

It deals with the application of these criteria to existing dikes.

 

      Section K contains two separated provisions.  The first is (like  all  of

 

the previous criteria) is an amendment to Article IV of the Joint  Agreement.

 

The second is an amendment to Article V.

 

      The first paragraph of the section states:

 

      These criteria shall apply to all unauthorized dikes construc-

      ted in the past for the protection of those agricultural lands

      located  . . .  [within the area defined by Section Al.  Excep-

      tions are farmstead dikes if they meet the provisions of Sec-

      tion H of these criteria.

 

      The second section amends Article V so that it would read:

 

      Parties to this agreement hereby agree that they shall imme-

      diately take whatever steps are necessary and available to

      remove unauthorized dikes adjacent to the boundary rivers

      not meeting the criteria contained in part IV above.

 

      In contrast to the above, the Department explained in its Statement  of

 

Need and Addendum that existing dikes would be compared with the criteria  to

 

determine what would have to be done to bring the dikes into compliance  with

 

the criteria, and that in lieu of outright removal, the Department would  is-

 

sue permits for those dikes brought into compliance with the criteria.  The

 

Department also agreed that in lieu of removal or modification, the  acquisi-

 

rion of negative construction easements or flooding easements could be  justi-

 

fication for the granting of an exception pursuant to Section J.  In all

 

cases, permits would have to be obtained pursuant to Minn.  Stat.  105.42.

 

Finally, if none of the above solutions were achieved, no permit would  issue,

 

and removal of the offending dike would be sought.

 

      During the hearings, additional buttressing of the above came from  the

                                                

Department.  James Cooper stated that at least/at the present time,  the  Depart-

 

ment had no monies to offer to landowners to assist them in modifying,  relo-

 

cating, or removing their dikes (T. 1-71).  However, he stressed  that  removal

 

was only one alternative, and that modifications such as degrading  (downgrad-

 

ing the height) or relocation were also acceptable (T. 1-73).

 

      Duane Ekman of the Minn-Dak group noted the difference between the rela-

 

tively firm tone of Article V (". . . immediately take whatever steps are . . .

 

available to remove unauthorized dikes  . . . ..  ) compared with the more cooper-

 

ative tone of the Statement of Need, its Addendum, and Cooper's testimony sum-

 

marized above.

 

      The following are excerpts from the transcript, T. 2-95a to 101a.      Mr.

Sobolik is examining Mr. Ekman.    The minutes of the meetings of the Upper

 

Mississippi Basin Commission Task Force referred to in Finding No. 26 above

 

had just been marked and introduced into the record as Public Ex. 7:

 

            Q.   (By Mr. Sobolik)  Duane, is there any specific minutes

      in there that you would like to point out  to  the  Examiner  as

      being beneficial to him?

 

            A. I would like to first comment  on  something  that  I'm

      not sure, I don't believe is in the minutes  and  this  is  the

      very first meeting we had.  I  think  the  minutes  will  show

      that we came with an official request that we  be  part  of  what

      is designated the Red River  [diking]task  Force.  In  that  very

      first meeting, I was spokesman for the group  and  I  made  some

      specific requests to the task force and I  believe  that  the

      record today here should show that we asked  that  the  state

      agencies involved, Corps of Engineers and  the  two  state  agen-

      cies and whoever else was there, that  we  pool  our  expertise

      and that we asked them to come and  recognize  local  input  and

      come to our area and help us  finish  construction  of  those

      dikes instead of asking first:  "How can we stop the farmers?"

 

            Q. Well, describe, if you will,  the  attitude  or  the

      pulse or the feeling of the DNR and  the  Water  Commission  as

      it related to the farm dikes in place.

 

            A. Well, I think that to me it was  a  feeling  that  right

      from the beginning the real, the only real  thing  they  were

      addressing was removal of the farm dikes.

 

            Q. Did they offer you any  alternative  solution  at  all?

 

            A.  No.

 

            Q. Have you reviewed the criteria  as  is  proposed  at

      this hearing?

 

            A. Yes, I have, except I  haven't  looked  too  closely

      at the Addendum that was just received the day before the hearing.

 

                 MR. KLEIN: I might state for  the  record  so  there

      isn't any confusion, the Addendum is not  an  Addendum  on  the

      criteria themselves, but rather  an  Addendum  [lo  the]explana-

      tion of the  . . .  criteria in the Statement of  Need,  as  far

      as  I  know.

 

 

                 MR. KLEIN:  Perhaps I could ask Mr. Clapp.

 

                 Mr. Clapp, was it your intent  that  some  statement

      made in the Addendum to the Statement of  Evidence  which  is

      marked Agency Exhibit 8 was intended to amend  the  Rules  as

      published?

 

                 MR. CLAPP:  No; no such intention.

 

                 MR. KLEIN: I don't think  there  was  any  intention

      to change the condition of the  Rules.  To  the  extent  that

      the Addendum tries to, I don't think  it  can  successfully  do

      it.

 

                 MR.  CLAPP.   I agree; it can't.

 

 

                 MR.  KLEIN:  I would like to allow Mr- Clapp to

      clarify  this  matter.   I think there are some  people  out  there

      wondering what in the  devil is going on.

 

                 MR.  CLAPP:  You listen to me, Mr.  Cooper,  in  case

      I get this wrong.

 

                 What that Addendum to the Statement of  Need  was  in-

      tended to do was fill out some of the  thinness  in  the  orig-

      inal Statement of Need and Evidence, and what  that  part  of  it

 

       that you're referring to is doing is talking about how you

       could, some examples of ways that the existing, that could

       be worked out to get the existing dikes to satisfy the criteria.

 

                For instance, by getting - - - say the area  on  the

       other side of the river is undiked - - - by one way or the

       other getting a statement from the landowners on the opposite

       side of the river that they don't object to the location of

       your dikes.  In other words, they are saying they're  not  be-

       ing damaged and they say they yield any right to build up  as

       close as you have.

 

                As the rules say in the body of them, themselves,

       you don't have to have equal encroachment, you can  backslide

       it around with both parties agreeing.

 

                MR. SOBOLIK: Are we saying then  that  the  dikes

       can be situated by consent of those affected on both sides

       of the river?

 

                MR. CLAPP:  It's my understanding.

 

                Is that your understanding, Dave?

 

                MR. SPRYNCZYNATYK:  As long as parties on both

       sides agree to the placement of dikes so as not more  than

       one foot increase in the elevation, then the dikes can  be

       shifted, and that's a waiver of equal distance from the

       river or equal encroachment that's included in the  criteria.

 

                MR. SOBOLIK:  Is that section by section or town-

       ship by township or county by county as you progress north

       to the border?

 

                MR. SPRYNCZYNATYK:  It will be dike by dike.  In

       other words, it could shift as it moves along, it  doesn't

       have to follow a specific legal boundary or township or

       county line or whatever.

 

       Essentially what has occurred is that the Department has offered to ac-

 

cept applications for permits for bringing the dikes into conformance by mod-

 

ification or relocation.  However, this more cooperative approach  is  not  ex-

 

plicitly recognized in the "immediately take whatever steps" language  of  Ar-

 

ticle V.  While this Examiner has no doubts about the sincerity of the Depart-

 

ment personnel who made these statements, individuals in state  government  do

 

come and go.  The fact of the matter is that if Article V is adopted in its

 

present form, the Department could move immediately to issue Orders for re-

 

moval pursuant to Minn.  Stat.  105.462 (1977 Supp.). Therefore,  if  the  Ar-

 

ticle is to stand, there must be some protection against such action.  Before

 

discussing such protection, however, there is more public testimony which

 

must be examined.

 

       Not all farmers are opposed to removal.  For example, 36 residents of

 

Pulaski Township, North Dakota, submitted a petition urging the States to:

 

       work toward removal of dikes in Minnesota along various  riv-

       ers, tributaries and watercourses which also border on  North

       Dakota land.  Further, we ask that all natural watercourses

       be left open for reception of water.  In  the  alternative,

       our view is that said dikes should be moved back, so as to

       be 1,150 or 1,200 feet from the channels of the rivers and

       lowered so as to be no higher than to withstand a Grand

       Forks, North Dakota flood crest of 42 feet.

 

In addition, many of the people noted in Finding No. 24 above  favor  removal,

 

as do a number of cities along the river (See Pub.  Ex. 7).

 

       The vast numerical majority of the comments in record are opposed to re-

 

moval.  For example, Derrill Liffrig, Acting Superintendent of  the  Oslo  Pub-

 

lic Schools, stated:

 

       I am vehemently opposed to Article V    . . . .   These   dikes

       did protect approximately  seventy  (70)  square  miles  of  land

       in the Oslo I.S.D. # 442  from  being  flooded  in  April,  1978.

       Consequently, they did protect  the  bus  routes  in  the  dis-

       trict of approximately  180  miles  daily.  I  could  live  with

       the recommendations and criteria for future diking.

 

 

 

       Further, I do not see  the  agricultural  dike  as  a  permanent

       solution to  the  problem.  Water  retention  in  the  watersheds

       is the answer, we need more work  and  less  talk  on  this  par-

       ticular issue.  But  again,  for  all  practical  purposes,  re-

       moving the existing dikes at this  time,  or  in  the  near  fu-

       ture, won't help anything.

 

       The Board of Managers of the Middle River-Snake River Watershed District

 

stated:

 

       We do not believe that the  states  have  the  authority  to  adopt

       criteria that apply to  levees  already  in  place.  Nor  do  we

       feel it is a  reasonable  requirement  to  require  the  removal

       and replacement of levees  to  meet  requirements  that  were  not

       in effect at the time they were constructed.

 

       The record is replete with other testimony and submissions which essen-

 

tially make the following argument:

 

             1. The problem  of  flooding  and  its  solution  have  long

       been recognized by all, yet  the  states  have  done  little  or

       nothing about either.

 

            2.  In the absence of any state action, the farmers

       went to substantial personal expense to protect not only

       their businesses, but also their homes.

 

            3. The great  flood  of  1978  demonstrated  not  only  that

       the dikes were successful, but  also  that  they  did  not  have

       dire consequences for others.

 

            4. The dikes are  not  the  ultimate  solution  to  the  prob-

       lem, but until the  states  demonstrate  a  willingness  to  do

       something toward achieving  a  long-term  solution  to  the  prob-

       lem, it is grossly  unreasonable  to  remove  the  only  protection

       available to the farmers.

 

       It should be noted that the Department has not been closed to sugges-

 

tions  for compromise, particularly with regard to the existing dikes.  At the

 

close  of the hearings, the following statements were made:

 

                 MR.  SOBOLIK:  The  posture  of  Minn-Dak  Farmers  Flood

       Control Association is that cooperation is apparent from their

       standpoint.  They have  tried  to  cooperate  for  a  good  many

       years; they have  [garbled]  the  states  to  implement  action;

       no action was  implemented;  they  acted  themselves.  I  can  re-

       late to you with utter  firmness  that  the  position  of  Minn-

       Dak Farmers  Flood  Control  Association  regarding  the  removal

       of the existing dikes  is  firm.  Cooperate  they  will,  but  to

       ask the dikes to be removed  as  proposed  herein  by  the  States

       of North Dakota and  Minnesota,  with  no  other  affirmative  ac-

       tion whatsoever, cannot be  tolerated  and  will  nor  be  toler-

       ated.  Cooperate they  wanted,  but  there's  no  way  they're  go-

       ing to allow  themselves  to  be  destroyed.  They're  firm  and

       they think they're fair.

 

 

                 MR. CLAPP: I'd just  like  to  tie  on  to  the  word

        cooperatp" that you used,  Mr.  Sobolik.  I  want  to  make  a

       suggestion.

 

                 Although,  Mr.  Sobolik,  during  your  statement  you

       did say you didn't feel  any  criteria  were  needed  for  dike

       construction on the Red River, you did feel on the other

       hand criteria were needed  for  drainage  in  the  uplands,  and

 

       that doesn't sound, I can't tie that together.  How come

       you can do things willy-nilly down here but we better  get

       organized up there?

 

                 I would suggest that before the record closes

       that the Minn-Dak Association propose a set of criteria

       that would make sense to it.  I mean, it's clear  that  you

       want the existing dikes grandfathered in, and it's clear

       that if there has to be relocation you want the  government

       to pay for it, maybe you think it should be a 25-year flood

       and it gets to be raised two feet, whatever.  If  you  could

       propose some alternative to what we have here, I think  it

       would be useful, within the time the record is open.

 

                 MR. SOBOLIK:  May I comment the fact that we tried,

       and here's a letter of last April where we suggested in pro-

       posals and the answers were: "This would not be  acceptable

       to the State Water Commission," was one answer, and  would

       maybe like to submit this as an effort in the past to coop-

       erate.  And if the Examiner would --

 

                 MR. KLEIN:  Does this - - -

 

                 MR. SOBOLIK: We'd be happy to submit  a  criteria

       that we can live with.

 

                 (Whereupon, Public Exhibit No. 8 was marked  for

       identification.)

 

                 MR. KLEIN:  What I'm marking as Public Exhibit No.

       8, is a letter to Mr. Lloyd Fisher dated April 18, 1977, from

       Vern Fahy, State Engineer, relating to proposed diking cri-

       teria developed by the Minn-Dak Cooperative presented at the

       February 16, 1977 meeting.  (T. 2-160 to 162).

 

       No such criteria were received, although the February '77 criteria  are

 

contained in Pub.  Ex. 7.

 

       In a brief filed on behalf of Minn-Dak, Sobolik urged that the  criteria

 

not be adopted and, in the event that they be adopted, existing dikes  be  ex-

 

cepted from compliance "until such time as positive alternative  measures  are

 

employed to alleviate flooding.

 

       The Department's brief urged the adoption of the rules, but pointed  out

 

that Section i is "an open-ended . . .  invitation to the Minnesota-Dakota

 

group to come in with proposals for the existing dikes that all can live

 

with." The brief concluded by stating "When the rules are adopted, work can

 

begin on finding a fair and equitable solution to the problem of  the  existing

 

dikes."

 

       It is found that the dikes were constructed in violation of Minn.  Stat.

 

   105.42, subd. 1.  It is also found that while the dikes have protected

 

some, they have damaged others.  Proceeding on the basis that  the  only  proper

 

way to dike is to take into account all interests on both sides of  the  river,

 

criteria for future diking are needed.  For existing  dikes,  however,  immedi-

 

ate removal, without time for compromise, is found to be not reasonable.

 

       Based upon the foregoing Findings,-the Examiner hereby makes the follow-

 

ing:

 

                            CONCLUSIONS OF LAW

 

       1.  Any of the foregoing Findings which should more properly be denomin-

 

ated as Conclusions of Law are hereby adopted as such.

 

       2. Due, timely and adequate legal notice of the hearing was  served  and

 

published by the Department.

 

       3. The Department did not comply with the 25-day filing  requirement  of

 

Minn.  Rule HE 103.  However, there was no prejudice to any  person  because  the

 

materials were available for inspection (and were inspected and  copied)  when

the lone person who requested to see them did so.

      4. The Statement of Need and Evidence which was originally filed was in-

adequate.  However, an Addendum was prepared and  filed.  The  two  documents,

taken together, were adequate.  However, the person who did  ask  to  inspect

the prefiled documents did not see the Addendum.  Was he prejudiced?

      The purpose of the rule is to give all persons advance notice  of  the

facts and reasoning which a state agency intends to rely upon at  the  hear-

ing so as to enable persons to better prepare a "rebuttal" of  those  facts

and reasoning.

      in this particular case, the farmers' organizations were  represented  at

the Upper Mississippi Basin's Task Force meetings from December,  1975  onward,

and had in their possession for months the primary document which  formed  the

factual basis for these rules, the Corps of Engineers Report of October,

1977.  Numerous meetings, letters, and other communications  between  the  far-

mers and the state agencies over the last two and one-half years  have  pro-

vided far more "discovery" to the farmers than even the best  Statement  of

Need and Evidence would have given them.  It is concluded that  there  was  no

prejudice arising from the inadequate original statement of Need  and  Evi-

dence.

      5. Minn.  Rule HE 103(h) requires the filing of the  names  of  witnesses

appearing on behalf of an agency, and HE 103(i) requires a brief  summary  of

any expert opinion proposed to be presented by the Agency.  The  testimony  of

Orrin Holmen and Peter Fischer falls within this  latter  category.  Neither

were named nor was their testimony summarized.  However,  Agency  Ex.  6  (filed

by the Department on April 3rd) does state that the Corps Report would be sub-

mitted.  Having been put on notice of the fact that the Corp  Report  would  be

submitted, can it be said that any of Holmen's or Fischer's  testimony  con-

tained any expert opinion which was "new" opinion? if so,  was  it  prejudicial

to the preparation of the farmers' case?

      Holmen testified to two things.  First, the methodology  used  to  estim-

ate the peak flow discharge at Grand Forks for the 1897  flood.  He  stated

that while a 1922 publication gave the discharge as 40,000 c.f.s.,  that  fig-

ure was revised, in 1955, to 80,000 c.f.s.

      The second thing he testified to was the peak discharge and  stage  ele-

vations of the 1978 flood.  As shown in Finding No. 11 above,  those  peaks  oc-

curred between April 11 and April 16, 1978, a period of time well  after  the

25-day filing deadline.

      The usual remedy for failure to prefile such evidence is to  exclude  it

from the record.  However, in neither case is that  remedy either warranted  or

reasonable under these particular facts.  The 1955  recalculation of the  1897

flood was well known to Ron Adrian, the only person who appeared to  have  any

interest in it (T. 2-8a to 13a).  In addition, it was included  in  the  histor-

ical flood data in the Corps Report at page 12, and thus known to all  well  in

advance of the hearing.  There is no reason to exclude the  1978  data  presen-

ted by Holmen because the peaks did not occur until April 11-16,  and  because

it is an "almanac-type" fact which is subject to  judicial  notice.  Finally,

aside from enabling everyone to put the 1978 flood into  historic  perspective,

it is immaterial to the issue of the need for or reasonableness of these rules.

       Fischer's expert testimony related principally to material in the  Corps

 

Report.  However, he did ask a series of rhetorical questions  and  did  provide

 

answers based upon 1978 flood data.  In addition, he testified  to  the  acreage

 

protected by diking in the 1978 flood as opposed to the acreage flooded in

 

1969. both were unavailable 25 days before the hearing, and indeed,  the  acre-

 

age data was based upon aerial photos received by him on April 21 and ana-

 

lyzed over the weekend preceding the hearing on April 25 (T.  1-50).  In  such

 

a case, exclusion is unreasonable.

 

       No action needs to be taken with regard to either the Holmen or  Fischer

 

testimony.

 

       The brief for Minn-Dak also alleges that the Department failed to  dis-

 

close the name of the Agency representative who would appear  at  the  hearing,

 

a requirement of HE 103(h).  Such is not the case:  Agency Ex. 6 does indi-

 

cate that James Cooper would be testifying for the rule.

 

       6. The Department does have statutory authority to adopt the rules as

 

proposed.  See Minn.  Stat.  105.49, 471.59, subd. 1 (1976), and 105.415

 

(1977 Supp.).

 

       A substantial question of the Department's authority to adopt the  rules

 

arises from the apparent conflict between the requirement that permits  be  ob-

 

tained prior to constructing structures such as these dikes contained in

 

Minn.  Stat sec. 105.42, subd. 1, and the expressions of legislative  policy  con-

 

tained in ss 104.01, subds. 3 and 4, and 105.42, subd. la, expressing  a  pre-

 

ference for non-structural means of flood control.  The reasoning in the

 

Minn-Dak brief is essentially two-fold: First, that the  rules  are  inherently

 

unreasonable because they hold out the hope that permits would issue  for  con-

 

forming dikes, yet the legislative preference contains provisions  which  would

 

prevent the Commissioner from issuing any permits whatsoever; and second,

 

that the Department may not adopt these rules because they conflict  with  the

 

nonstructural policy.

 

       With respect to the power of the Commissioner to issue permits, the

 

statute at issue is  105.42, subds.  I and la, which states:

 

       Subdivision 1. It shall be unlawful for the state,  any  per-

       son, partnership, association, private or public corporation,

       . . .  to construct, reconstruct, remove,  abandon,  transfer

       ownership, or make any change in any reservoir, dam or water-

       way obstruction on any public water; or in any manner,  to

       change or diminish the course, current or cross-section  of

       any public waters, wholly or partly within the state, by  any

       means, including but not limited to, filling, excavating,  or

       placing of any materials in or on the beds of public  waters,

       without a written permit from the commissioner  previously

       obtained.  Application for such permit shall be  in  writing

       to the commissioner on forms prescribed by him.

 

 

       The commissioner, subject to the approval of the county

       board, shall have power to grant permits under such  terms

       and conditions as he shall prescribe, to establish, con-

       struct, maintain and control wharfs, docks, piers,  levees,

       breakwaters, basins, canals and hangars in or adjacent  to

       public waters of the state except within the corporate lim-

       its of cities.

 

       Subd. la.  . . . After November 15, 1975, a permit shall be

       granted under this section only when the project  conforms

       to state, regional, and local water and related land  resour-

       ces management plans, and only when it will involve a mini-

       mum of encroachment, change, or damage to the  environment,

 

       particularly the ecology of  the  waterway.  In  those  instan-

       cps where a major change in the  resource  is  justified,  per-

                      i

       mits shall include provisions to compensate    for the  detri-

       mental aspects of the change.

 

       In unincorporated areas and, after January  1,  1976,  in  incor-

       porated areas, permits that will  involve  excavation  in  the

       beds of public waters shall be granted  only  where  the  area

       in which the excavation will take place is covered by a shore-

       land conservation ordinance approved  by  the  commissioner  and

       only where the work to be orized is consistent with the

       shoreland conservation ordinance.  Each  permit  that  will  in-

       volve excavation in the public  waters  shall  include  provi-

       sions governing the deposition of spoil materials.

 

       No permit affecting flood waters  shall  be  granted  except

       where the area covered by the permit is  governed  by  a  flood

       plain management ordinance approved  by  the  commissioner  and

       the conduct authorized by the permit  is  consistent  with  the

       flood plain management ordinance,  provided  that  the  commis-

       sioner has determined that  sufficient  information  is  avail-

       able for the adoption of a  flood  plain  ordinance.  No  permit

       involving the control of flood  waters  by  structural  means,

       such as dams, dikes, levees,  and  channel  improvements,  shall

       be granted until after the commissioner  has  given  due  consid-

       eration to all other  flood  damage  reduction  alternatives.  In

       developing his policy with regard  to  placing  emergency  levees

       along the banks of public waters  under  flood  emergency  condi-

       tions, the commissioner shall  consult  and  cooperate  with  the

       office of emergency services.

                                     * * *k

 

       If these provisions were to be  interpreted  as  the  Minn-Dak  suggests,

 

barring the issuance of any permits because in at least some affected coun-

 

tips, no flood plain management ordinances exist, the Commissioner would have

 

little choice but to do nothing, or order  the  removal  of  existing  dikes  in

 

toto.    Clearly, the compromise position of permitting flooding easements,

 

modifications, or relocation is better for the landowners than outright re-

 

moval.

       In addition, the Minn-Dak interpretation would bar the Commissioner

 

from permitting any new dikes, even those  meeting  all  of  the  proposed  cri-

 

teria.  This would work an inequity upon  those  who  have  not  yet  diked,  but

 

may be waiting until these long-pending criteria are adopted and the "ground

 

rules" are known.

 

       The second conflict raised by Minn-Dak relates to the Flood Plain Man-

 

agement Act, Minn.  Stat.  Ch. 104.  The relevant section of the Chapter

 

104.01) provides:

       Subd. 2. The  legislature  finds  and  declares  that:  (a)  A

       large portion of the state's land  resources  is  subject  to

       recurrent flooding by overflow of  streams  and  other  water-

       courses causing loss of life  and  property,  disruption  of

       commerce and  governmental  services,  unsanitary  conditions,

       and interuption of  transportation  and  communications,  all

       of which are detrimental to  the  health,  safety,  welfare,

       and property of the occupants of flooded lands and the

       people of this state; and (b)  The  public  interest  necessi-

       tates sound land use development as land  is  a  limited  and

       irreplaceable resource, and the flood  plains  of  this  state

       are a land resource to be developed in  a  manner  which  will

       result in minimum loss of life and  threat  to  health,  and

       reduction of private and public economic loss caused by

       flooding.

 

       Subd. 3. It is the policy of this  state  and  the  purpose  of

       sections 104.01 to 104.07 to  reduce  flood  damages  through

       flood plain  management,  stressing  nonstructural  measures

 

      such as flood plain zoning and flood proofing, and flood

      warning practices.  It is the policy of this state and the

      purpose of sections 104.01 to 104.07 not to prohibit but  to

      guide development of the flood plains of this state  consis-

      tent with the enumerated legislative findings to provide

      state coordination and assistance to local governmental

      units in flood plain management, to encourage local  govern-

      mental units to adopt, enforce and administer sound  flood

      plain management ordinances, and to provide the  commission-

      er of natural resources with authority necessary to  carry

      out a flood plain management program for the state and  to

      coordinate federal,1 state, and local flood plain  manage-

      ment activities in this state.

 

      Subd. 4. In furtherance of the policy stated  in  subdivision

      3, the legislature further declares that flood plain  manage-

      ment ordinances are to be given primary consideration in  the

      reduction of flood damage in Minnesota and that  alternative

      methods for reducing flood damage may not be carried out  be-

      fore adoption of flood plain management ordinances by  local

      governmental units.  Structural projects which have  the  pur-

      pose of controlling floods are to be considered only as

      elements of a flood plain management program.

 

      Again, the Minn-Dak position would result in removing the  opportunity

 

for compromise on existing dikes and prohibit the construction of new  dikes.

 

      The Department's response to this is that the Flood Plain  Management

                                            are

Act and the "no permit" paragraph of sec. 105.42/designed to cause local  gov-

 

ernment to consider non-structural flood control methods before the same

 

local government undertakes structural construction.  It is  not  intended,

 

DNR argues, to forbid DNR from allowing private dikes before the local  gov-

 

ernment has its non-structural ordinance in place.

 

      Cooper testified that in his opinion, the last paragraph of subd.  la

 

of sec. 105.42 would notprohibit the issuance of permits because, by adopting these

 

criteria, the DNR was stating that it had given "due consideration" to  non-

 

structural alternatives and found them wanting (T. 1-62).

 

      In weighing both of the conflict situations, the involvement of another

 

state, with different laws, cannot be forgotten.  At the very  first  Upper

 

Mississippi Basin Task Force meeting, the North Dakota State Engineer is  re-

 

ported to have stated that the North Dakota dikes were "an  action-reaction

 

occurrence".  Later at the meeting, the minutes state that North  Dakota  far-

 

mers were diking to protect themselves from Minnesota diking.  Rather  than

 

taking their differences into a courtroom, the two states sat down and  ham-

 

mered out an agreement that is satisfactory to both.

 

      While there is nothing in the record to indicate how well the agreement

 

"meshes" with the overall statutory scheme in North Dakota, it is clear  that

 

it does not fit perfectly into Minnesota's.  Minnesota's  water  management

 

scheme does not contemplate an eventuality such as was presented by such

 

large-scale diking.

 

      While there is some doubt in the mind of the Examiner regarding both of

 

these statutory conflicts, both are resolved in favor of the Department,  in

 

part because the Examiner believes that, on balance, the Commissioner is  le-

 

gally correct, and in part because of a "safety valve: contained in  Minn.

 

Stat.  3.965. That section provides a procedure for  legislative  review  of

 

agency rules.  Essentially, a commission of ten legislators is  empowered  to

 

temporarily suspend the operation of any rule or set of rules and place  the

 

issue before the whole Legislature at its next session.  If, in  fact,  these

 

rules are contrary to the intent of the Legislature, this provides a  proce-

 

dure for the Legislature to act.  Due to the recommendation to be  made  below

 

regarding existing dikes, there will be ample opportunity for such  action

before any irreversible destruction occurs.

      7. Except where specifically noted above, the proposed  criteria  are

found to be both needed and reasonable.

      Based upon the foregoing Conclusions, the Examiner hereby makes  rho

following:

                       R E C 0 M M E N D A T I 0 N.

      That the criteria, as proposed, with the correction and deletions and

addition noted above, be adopted except that the effective date of Section  K

be stayed for a period of 18 months from the effective date of the  remainder

of the criteria to permit the parties to deal with existing dikes, both  on

the main stems and on tributaries.

Dated this 26th       day of July, 1978.

 

                                    ALLAN W. KLEIN

                                    Hearing Examiner

 

 

                           M E M 0 R A N D U M

 

      In a letter to the Examiner, the Acting Superintendent of the Oslo Pub-

 

lic Schools stated:

 

      I feel it is remarkable that such a friendly and peaceful  at-

      mosphere has remained (overall) in this community despite  the

      fact that there are those agencies, that I feel, place  unjus-

      tifiable blame on the Minnesota agricultural dikes.  The  com-

      munity is grateful for people like Duane Eckman and Raymond

      Hutton who have faced this situation in such a diplomatic  and

      pragmatic way.

 

"Diplomacy" and "pragmatism" are the standards by which both sides are expec-

 

ted to act during the 18-month stay recommended above.  The  Department,  dur-

 

ing the hearings, held out the olive branch and asked the farmers to come for-

 

ward with proposals for existing dikes that all could live with.  it is clear

 

that the case by case approach recommended for the tributaries (which  will

 

probably also end up being used on the main stem as well) will put a strain

 

on the resources of the Department's Division of Waters, which must fairly al-

 

locate its resources throughout the state.  There are other resources,

 

however, which the Department can and should draw upon -- the local  people

 

who know from experience what the effects of various alternatives will  be.

 

If both sides realize that they must make concessions and work together  if

 

they are ever to achieve a satisfactory solution, it can be  accomplished.

 

      Beyond what can be accomplished in those 18 months, cooperation  can

 

also foster a relationship which can work toward resolution of the  long-term

 

problem which far overshadows the dikes.  The Governors of the  two  States

 

have put in motion a drive to organize the victims of the floods with  the

 

various units of government which have responsibility for preventing future

 

floods, and, as one farmer put it:

 

      . . .  and if it goes beyond their smiles, I think they mean

      business and are ready to take action.  They want us farmers

      to get together, Minnesota and North Dakota, with the State

      Water Commission, DNR, and the Corps of Engineers to see  jus-

      tice done to all farmers all the way to the Canadian border.

      May God help us succeed.

 

 

                                    A.W.K.