FARGO — The embattled diversion flood project scored a significant legal victory with a federal judge's decision to lift most provisions of a court order that halted construction on the inlet for the project.
The decision on Monday, April 8, by U.S. District Judge John Tunheim of Minnesota means construction on the $2.75 billion project, which the judge put on hold in 2017, can proceed this spring.
"We're real excited," Fargo Mayor Tim Mahoney said after announcing the decision at Monday's City Commission meeting. "It's really all the things we wanted."
Once built, the project would divert Red River floodwater into a channel skirting Fargo-Moorhead. Coincidentally, the judge's decision came as the river was cresting slightly over 35 feet.
Diversion Authority officials have complained that delays have added significantly to the project's cost. Each year the project is delayed adds at least $70 million in costs. Delays so far have added $150 million to the cost, according to the Diversion Authority.
The Diversion Authority's motions seeking to lift the injunction were based on a permit issued Dec. 27 by the Minnesota Department of Natural Resources, which did not oppose allowing construction to start on North Dakota project features that do not touch Minnesota waters.
The U.S. Army Corps of Engineers, which is working with the Diversion Authority to design and build the diversion, supported the motion to lift the order halting construction.
The ruling allows the Diversion Authority and Army Corps to:
- start the public-private partnership — often abbreviated as "P3" — process for the diversion channel and associated infrastructure.
- manufacture components and start construction on the diversion inlet structure.
- manufacture components and start construction on the Wild Rice River structure.
- start construction on what is known as the western tieback, an embankment in North Dakota.
- start non-construction design and mitigation work in North Dakota and Minnesota.
In his order, Tunheim said he largely agrees with Diversion Authority arguments that Minnesota actually faces procedural harm that is "drastically reduced or eliminated completely" under the constraints of resuming construction. The judge noted that the Minnesota Department of Natural Resources has "explicitly approved" of the altered project after significant environmental review.
The federal lawsuit stalled the project, and forced the project sponsors to significantly revise the project to win the approval of Minnesota regulators. The design changes followed compromises worked out by a task force led by Gov. Doug Burgum of North Dakota and then-Gov. Mark Dayton of Minnesota.
The judge noted that cooperation in his decision and showed his appreciation for the compromises and cooperation that led to the revisions, Burgum said in a statement.
"This decision is a huge step forward in securing comprehensive flood protection for the Fargo-Moorhead-West Fargo metro area," the governor said. He added: "Allowing construction to begin now keeps current contracts in place, saves taxpayers tens of millions of dollars and moves the metro area another step closer to permanent flood protection."
Fellow members of the Diversion Authority board joined Mahoney in applauding Monday's decision in the lawsuit, which was filed by upstream opponents of the project in 2013.
“With the Red River, Sheyenne and Maple Rivers all at flood stage, this is a very welcome ruling for our residents,” Diversion Authority Chairwoman and Cass County Commissioner Mary Scherling said in a statement.
Tunheim rejected arguments to keep in place the order suspending construction made by the Richland-Wilkin Joint Powers Authority, a partnership of North Dakota's Richland County and Minnesota's Wilkin County, upstream opponents who filed suit to try to block the project.
He said the upstream opponents failed to make any arguments about how resuming construction would harm them, and rested heavily on arguing that an administrative law judge could ultimately overturn the permit for the revised project.
Tunheim said his order allowing construction in North Dakota to resume takes no position on whether the revised project ultimately will survive challenges, a question he said he is in "no position" to answer now.