DNR seeks to join lawsuit over project to divert Red River

The Minnesota Department of Natural Resources said today it is asking a federal judge to allow the agency to join a lawsuit seeking to delay action on a flood diversion project on the Red River.

The project as proposed would redirect flows through the Fargo-Moorhead metropolitan area via a dam and diversion channel system.

The DNR is seeking intervenor status to join a lawsuit filed by the Richland-Wilkin Joint Powers Authority (JPA) in 2013. The plaintiffs initially sued the Fargo-Moorhead Diversion Board of Authority and the U.S. Army Corps of Engineers to halt any construction prior to completion of Minnesota’s environmental impact statement.

In a continuation of the original case, the JPA is now seeking to bar construction unless the DNR issues the necessary dam safety and work in public waters permits for the project.

The JPA’s suit alleges that the proposed project will damage farmland upstream of Fargo-Moorhead, violate Minnesota environmental laws, and doesn’t consider alternative plans to protect the region from flooding.

After completing an environmental impact statement on the proposed project, the Minnesota DNR denied the Diversion Authority’s permit application. The proposed project would need both a dam safety and work in public waters approval from Minnesota in order to proceed. The DNR is the permitting authority for the project in Minnesota.

Despite Minnesota DNR’s permit denial, the Corps of Engineers recently awarded a construction contract for the inlet control structure portion of the proposed project. Work could begin on the project as early as January 2017. In addition, the Diversion Authority recently issued a Request for Proposals (RFP) for the diversion channel portion of the project.

“The DNR has publicly stated that it is fully prepared to work with all the affected communities in search of a ‘Plan B’ approach to flood protection, since the proposed project doesn’t meet Minnesota environmental standards,” said DNR Commissioner Tom Landwehr. “But the Corps’ and the Diversion Authority’s recent actions force us to join the lawsuit. If the DNR allowed construction to proceed without objection, we would be risking our standing to object at a later date. Moreover, we cannot credibly work on an alternate plan while the Corps and the Diversion Authority are beginning construction of this contested project.”

Landwehr said his agency has empathy for people who experience flooding and agrees that enhanced flood protection is warranted for some places in the project area.

“The DNR’s decision to intervene isn’t about stopping flood protection, which is important. We want to find a mutually agreeable solution that speaks to the shared responsibility we have to protect Minnesotans and North Dakotans living in this flood plain,” Landwehr said. “Indeed, Minnesota has invested more the $230 million on flood control and protection efforts in Moorhead and the greater Red River Valley over the past eight years alone. But the proposed project is not the right way to achieve that enhanced protection for the region.”

According to Landwehr, “The project needs state permits. Unfortunately, as proposed, the project does not meet the standards under Minnesota law and thus cannot be permitted.”

In October, the DNR denied the Diversion Authority’s permit applications for three reasons: the project does not meet the requirement to be reasonable, practical, protect public safety and promote public welfare; is not consistent with some state and local land use and water management plans in the project area; and the project’s mitigation plan and demonstrated fiscal capacity to implement that plan do not meet the requirements in Minnesota law.

The Richland-Wilkin Joint Powers Authority lawsuit is currently pending before U.S. District Court Judge Tunheim. By seeking intervenor status, the DNR is asking to become a party to the lawsuit. Minnesota will ask the court to prohibit construction of the dam and diversion channel because the Minnesota has not issued the necessary permits.