Appeals court backs Bend, USFS in years-long water pipeline fight

(Update: Adding Land/Watch comment)

In a unanimous decision issued Wednesday, a panel of three Ninth U.S. Circuit Court of appeals judges ruled in favor of the city of Bend and the U.S. Forest Service in a long-standing lawsuit over the city’s water project and its replacement of an aging pipeline to Bridge Creek.

“We are pleased to put this behind us,” Mayor Casey Roats said in the city’s announcement of the ruling. “We can now focus our energies on the other important infrastructure needs facing the city.”

“The city takes pride in being a responsible steward of our natural resources while providing high-quality drinking water and water flow for firefighting,” Roats added.

The city has for close to a century taken its municipal drinking water from Tumalo Creek and its tributary, Bridge Creek, part of a dual-source system of surface water and groundwater. It began the project to replace an aging, leaking pipeline.

The Forest Service granted the city a permit to operate a water intake facility for withdrawing surface water and a new pipeline for transporting water on Deschutes National Forest land, replacing a century-old pipeline that was leaking.

Central Oregon LandWatch and WaterWatch of Oregon challenged the Forest Service authorization of the city’s improvements to the drinking water intake and pipeline improvement project. The pipeline runs underneath Skyliners Road, which connects the forest to city limits.

The city said the panel of judges affirmed prior court decisions that sided in their favor. The decision reiterates that in improving the city’s drinking water infrastructure, the city and Forest Service did not hurt fish habitat or fail to consider the effects of climate change.

The court affirmed the Forest Service determination that the project would improve conditions in Tumalo Creek and had complied with federal laws. The court agreed that consideration of reduced amounts of surface water diversion or groundwater-only options would not be reasonable in light of the needs of the city’s municipal water system.

In 2016, the city built the new pipe that diverts the city’s drinking water from Bridge Creek. It replaced two existing pipelines that were built in the 1920s and 1950s. The city also built a new intake facility to protect fish and better control how much water is diverted. The original intake facility was built in 1926.

“These improvements are an example of responsible long-term investments for our community’s future,” said Mayor Pro-Tem Sally Russell. “Environmental impacts are always valid concerns, and I’m pleased to know that the agreement resulted in more stringent monitoring of Tumalo Creek. It’s in the city’s best interest to protect the stream and our amazing drinking water.”

LandWatch attorney Paul Dewey told NewsChannel 21, “We are still reviewing the decision to assess where we go from here,” but added these comments:

“Though we are obviously disappointed in the decision, we are glad we initiated a fight to preserve instream flows in Tumalo Creek and glad we prevented the city from increasing its diversion of water from the Creek to 21 cfs (cubic feed per second). We are also glad to have won monitoring requirements, though so far the Forest Service seems to be hesitant in letting the public see the monitoring results.

“Also, to be clear, our appeal to the 9th Circuit was not to stop installation of the city’s project (which was already built) but to make sure that minimum instream flows for fish and habitat are maintained at all times in the creek. “The effort to protect flows in Tumalo Creek is also not limited to that lawsuit. The city has another upcoming Forest Service permit for diverting water from the Tumalo Creek Headwaters. The water that is diverted there would otherwise flow over Tumalo Falls, and we want to make sure that flows over the Falls are protected. “Further, we recently became aware that flows in the creek below the Tumalo Irrigation District diversion have been reduced at times to as low as 4 cfs, well below the minimum instream rights. “By no means is the fight to protect instream flows in Tumalo Creek over.”