Bend water project foes won’t appeal ruling

Bend water project foes won’t appeal ruling
Pipeline replacement can proceed until summer hearing

February 14, 2014

Opponents of Bend’s planned $23 million water pipeline replacement project said Saturday they won’t appeal a federal judge’s ruling allowing the work to start, and instead will prepare for a later court hearing, focusing on their objections to the rest of the project at the city’s water-intake facility by Bridge Creek.

“We anticipate that the merits of the case will now be determined some time this summer,” said Paul Dewey, a land-use attorney and executive director of Central Oregon LandWatch.

That group and WaterWatch of Oregon had asked U.S. District Court Judge Ann Aiken to issue a preliminary injunction to block the work, a move that was successful in late 2012 at halting the disputed project and prompting the city to revise its U.S. Forest Service permit.

But Aiken denied the motion for a preliminary injunction sought to block the 10 miles of replacement pipelines planned to Bridge Creek, a tributary of Tumalo Creek.

The city says the current decades-old pipes are aging and need replacement. Critics have pointed to harm to the creek and have voiced support for the option of more groundwater wells, which they also say would be much cheaper. But Bend has firmly defended its dual water sources for city needs.

In her ruling, Aiken said the foes “fail to establish the likelihood of irreparable harm, the likelihood of success on the merits, that the balance of hardships tips in their favor, and that an injunction is in the public interest.”

“The parties are ordered to continue settlement negotiations with Magistrate (Thomas) Coffin,” she added, although attorneys for both sides had reported little or no progress in talks so far.

An earlier federal court order in 2012 was in the opponents’ favor, and that injunction forced the city to negotiate a revised Forest Service permit to address some of the water quality issues raised by opponents.

The city council also has set by ordinance a minimum streamflow in Tumalo Creek and also began new efforts to help irrigation districts find funding for new piping projects that would put more water back in the creek.

City spokesman Justin Finestone said a hearing on the foes’ lawsuit “should be scheduled for sometime this summer.” In the meantime, barring an appeal to the Ninth U.S. Circuit Court of Appeals, “we expect to begin mobilizing for construction next week.”

“The mobilization efforts will take a few weeks before we actually break ground, so it’s not so weather-dependent,” Finestone added. City officials have said the pipe replacement should take about a year to complete.

Dewey said his group “had sought the injunction in the hope of preventing any more waste of public money on the project before the court decides whether the project is legal.”

According to Dewey, the city has said the last two to three miles of pipe to the new intake facility won’t be built until the judge’s final ruling.

“Work will proceed only on laying the pipeline under Skyliners Road this winter and spring, into summer,” Dewey said. “No work in the upper section, along Tumalo Creek, would be allowed until the court makes a final ruling in the case.”

“LandWatch and WaterWatch are very concerned about the impact of the project on streamflows and fish habitat in Tumalo Creek,” he added.

The groups argued against the city’s claim that not allowing the work to proceed when the Skyliners Road reconstruction takes place would make the already-bought steel pipe a “stranded asset.”

Former Mayor Allan Bruckner, one of several ex-mayors to join the Stop the Drain group’s effort to block the project in recent years, argued that “the decision to put at risk a substantial portion of the cost of a $23 million pipeline should be made by the city council, not the city manager,” and that the impact to the public and ratepayers should be fully explained.

“Bend has other, less expensive options for its municipal water supply,” Bruckner claimed. “The pipe is not necessary at this time.”