Judge allows construction to resume on Fargo-Moorhead flood protection project

The Red River in Moorhead, Minn., on April 4
The Red River in Moorhead, Minn., on April 4, 2019, as it flows north under the Veterans Memorial Bridge
Matt Mikus | MPR News file

A federal judge will allow work on the Fargo-Moorhead flood diversion project to resume.

Judge John Tunheim on Monday modified an injunction he issued in 2017 which essentially stopped all construction on the $2.75 billion project.

The injunction was issued after Minnesota regulators denied a permit for the Red River flood diversion. The state's chief concern was that the project protected land in North Dakota while increasing flooding in Minnesota.

Judge Tunheim ruled the project could not proceed without a state permit. When local officials later submitted revisions to the project, the Minnesota Department of Natural Resources issued a conditional permit late last year.

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The Fargo-Moorhead Diversion Authority last week asked the judge to dismiss the injunction.

Judge Tunheim modified the injunction to allow construction of the diversion inlet struction, a control structure on the Wild Rice River in North Dakota, and move forward with the Public Private Partnership, an innovative funding concept the U.S. Army Corps of Engineers says is a pilot for flood control projects nationwide.

The Diversion Authority can also proceed on work to mitigate the effects of the completed project.

"This is huge because it allows us to continue construction and not waste assets. One of our concerns is there is a $46 million contract out there with the [U.S. Army Corps of Engineers] and they were going to shut down the contract on April 15," said Fargo Mayor Tim Mahoney, who now expects work on the diversion channel inlet to start next week.

While the judge kept the injunction in place, Mahoney said the ruling gives local officials most of what they asked from the court.

"He gives us a modified injunction which allows the project to move forward," the mayor said. "I presume one of the reasons he just wants to keep part of the injunction present is he wants to make sure that the Corps and the DNR to work well together."

In his order, Judge Tunheim wrote that if the work he allows on the project does not comply with Minnesota permit requirements, the DNR may "apply to this Court for such relief as may be reasonable and necessary."

An attorney for upstream opponents of the project, who argued the injunction should continue, did not immediately respond to a request for comment.

The project still faces regulatory hurdles. Two small towns and a watershed board have said they will contest the DNR permit for the project.