Gov. Doug Burgum today applauded a much-anticipated ruling by Chief U.S. District Court Judge John Tunheim that modifies an injunction to allow construction to proceed on the critically important Fargo-Moorhead Area Diversion Project.
“This decision is a huge step forward in securing comprehensive flood protection for the Fargo-Moorhead-West Fargo metro area. We’re deeply grateful to Judge Tunheim for his ruling and for acknowledging the tremendous efforts made by the task force we created to reach consensus on a project that will protect more than 178,000 residents and a crucial economic engine for North Dakota and western Minnesota,” Burgum said. “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.”
Diversion construction began in spring 2017. At the request of upstream interests and the Minnesota Department of Natural Resources (DNR), Tunheim granted a preliminary injunction in September 2017, ordering work to stop and encouraging all parties to find common ground on a project that could serve the interests of both states and the affected communities.
Burgum and then-Minnesota Gov. Mark Dayton agreed in October 2017 to create a two-state task force, comprised of members from both states who represented a wide range of interests. The task force’s recommendations resulted in the F-M Diversion Board of Authority submitting a “Plan B” permit to the DNR in March 2018. After the DNR approved the permit in December, political subdivisions requested a contested case hearing, essentially suspending the permit. However, the DNR, Diversion Authority and Army Corps asked Tunheim to allow construction to proceed in North Dakota.
In today’s ruling filed in U.S. District Court in Minnesota, Tunheim noted that instead of pressing forward with a project rejected by Minnesota, the defendants in the lawsuit – the F-M Diversion Authority, U.S. Army Corps of Engineers and City of Oxbow – “worked with Minnesota to establish a path forward that both Minnesota and North Dakota found acceptable.”
“The Court appreciates the leadership by the (Governors) and the substantial work accomplished by the Governor’s Task Force and the compromises made by both sides,” Tunheim’s order states.
The order allows construction to proceed on aspects of the project that are tailored to restrict any impact on Minnesota, including to:
- Manufacture components and begin construction of the diversion inlet structure and Wild Rice River structure;
- Begin construction of the western tieback;
- Undertake the requested non-construction design and mitigation work in North Dakota and Minnesota; and
- Commence the Public Private Partnership process for the diversion channel and associated infrastructure element of the Plan B project in North Dakota.
Last month, Burgum joined officials in Fargo for the signing of a new Project Partnership Agreement for the diversion, after Assistant Secretary of the Army for Civil Works, R.D. James, directed the Corps of Engineers to boost federal participation in the project by $300 million, from $450 million to $750 million.
Diversion proponents and the governor are asking the North Dakota Legislature to match the increased federal commitment with an additional $300 million in state funds over the next six years. Even with an additional $300 million, the state’s cost-share of 32 percent would still be less than half, percentage-wise, of other recently approved flood projects, Burgum notes, calling the project “extremely cost-effective.” The project will protect nearly 95 percent of Cass County’s estimated 178,000 residents, nearly 50,000 K-12 and college students, $20 billion in property and the metro area’s thriving economy.