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Bend water project foes may appeal judge’s OK

KTVZ

The leader of a group that has for years fought the city of Bend’s water pipeline replacement project said Sunday they are considering whether to appeal a federal judge’s rejection of their claims to the Ninth U.S. Circuit Court of Appeals.

“While we are disappointed with the court’s latest decision, (Central Oregon) LandWatch is committed to continuing to protect Tumalo Creek and to increase flows over Tumalo Falls and through Shevlin Park,” said Paul Dewey, a Bend land-use attorney and the group’s executive director.

“We are still reviewing the court’s decision and haven’t decided yet on whether to appeal it to the Ninth Circuit,” Dewey told NewsChyannel 21 by e-mail.

The city won a major victory late Friday when a federal judge in Eugene rejected opponents’ arguments and upheld a revised Forest Service permit, allowing work to continue on the delayed project.

In a decision about a year ago, U.S. District Judge Ann Aiken allowed the city to install the pipeline under Skyliners Road during a major rebuild of the road, but held up the project on either side of that location until full arguments could be made on the lawsuit brought by LandWatch against the Forest Service. The city intervened in that legal dispute.

Aiken’s 24-page opinion and order affirmed the agency’s environmental analysis and decision to issue a special use permit to the city to replace the water pipeline from Bridge Creek, a tributary of Tumalo Creek. That work, plus a new water treatment plant, has a combined price tag of 60 million.

“I am very pleased with the court’s affirmation of our analysis and the work of our specialists,” said Deschutes National Forest Supervisor John Allen.

The critics, including a group called Stop the Drain, have argued for years not only that the project is too costly and harmful to Tumalo Creek fish and wildlife habitat but that the city no longer needs to draw water from Bridge Creek and could depend solely on groundwater pumping stations.

Supporters of the project say it would be wrong for the city to give up its surface-water rights and that the dual-source system is one to protect for future generations.

After the judge two years ago found the submitted streamflow data inadequate and halted work on the project, the city revised its proposal and filed a revised special use permit request, agreeing to limit the amount of water taken from the creek to the current peak of 18.2 cubic feet per second.

Aiken noted in her new ruling Friday that even if the city wanted later to use more than the agreed-upon amount, “the Forest Service must first approve another (permit), which would trigger a new round of environmental review and public input.”

She also said despite issues with gauges precluding more recent Forest Service streamflow data, the submitted data “included drought cycles similar to recent droughts.”

Aiken said the Oregon Water Resources Department has found the city in compliance with state law, not requiring new permits for its diversion facility: “Despite plaintiffs’ numerous allegations, it was not arbitrary or capricious for the Forest Service to conclude that the project would not have a significant impact on the environment.”

She also found that the LandWatch “argument that the Forest Service had a duty to establish minimum in-stream flow requirements is without merit.”

The judge said LandWatch wanted the court to focus on inadequate streamflow in “Reach B” of Tumalo Creek, but last year’s environmental analysis “is clear that flows in this portion of the creek are more influenced by the Tumalo Irrigation District’s management and practices,” meaning its “irrigation diversions – not the municipal use of water.”

At one point, Aiken wrote that at the mouth of Tumalo Creek, where it feeds into the Deschutes River, “the temperature difference between the proposed and existing water supply system is less than 0.1 degree Centigrade. Considering this negligible difference, the record supports the Forest Service’s conclusion that Tumalo Creek waters are not necessary to ensure colder temperatures downstream in the Deschutes River.”

The judge concludes by granting the Forest Service motion for summary judgment, rejecting the motion by LandWatch and dismissing the case.

City Councilor Mark Capell cheered news of the decision, telling NewsChannel the city will be working on the rest of the project as quickly as possible: “We need to keep moving on it. We need the new pipe in before the thing fails.”

In a Facebook post, Councilor Victor Chudowsky called it “a great day for Bend,” because the “judge has ruled that we can keep one of the finest water supplies in the United States.”

Chudowsky told NewsChannel 21: “This failed lawsuit has already cost Bend ratepayers more than $3 million. The worst part of it is, if the plaintiffs had won, there still would have been no benefit to Tumalo Creek. Because of the structure of water rights on Tumalo Creek, water that the city would have given up would have gone to Tumalo Irrigation District. So it was all for nothing.”

But in Sunday’s response, Dewey argued, “Despite the fact that Tumalo Creek is already unhealthy and doesn’t meet state water quality and flow standards, the city is planning to double what it uses from the creek, to around 4 billion gallons of water per year.The creek and its fishery desperately need the minimum in-stream flows set by ODFW.”

Dewey disputed Chudowsky’s claim “that there would be no benefit to the creek if the city took less, allegedly because the Tumalo Irrigation District would take the water.”

“Ffirst, TID takes its water over 10 miles downstream from where the city diverts creek water, so for over 10 miles there could be higher flows, including over Tumalo Falls and through Shevlin Park; second, the city takes water year-round, while TID primarily takes water only during the irrigation season; third, TID has committed to taking less water from the creek, not more; and fourth, the city or TID could lease the water in-stream to protect it.

“ODFW likewise called for meeting minimum in-stream flows with this project,” Dewey wrote. “Leaving more water in-stream makes a huge difference.”

The attorney continued, “When LandWatch challenged the city’s plan in 2012 to take even more water from Tumalo Creek, the court ruled against the city. That the city then had to incur the cost to redo its plans was its fault, not anyone else’s. The real issue of costs is the unnecessary and extravagant $60 million-plus project in the first place,” referring to the total Surface Water Improvement Project of the new pipeline and water filtration plant, designed to meet a federal requirement to treat city surface water for cryptosporidium.”

Much of the recent debate at the city council focused on the benefits and pros-cons of the chosen membrane filtration system or the cheaper ultraviolet system, and whether the costlier option was best to keep the water safe for use in the event of a major fire in the city watershed..

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