Judge rules Bend water project can proceed
Lawsuit is over $24 million Bridge Creek pipe replacement
By Tyler Leeds
The Bulletin
December 6, 2014
A federal judge on Friday allowed the city of Bend’s $24 million Bridge Creek pipeline project to proceed.
Central Oregon LandWatch and WaterWatch of Oregon sued last year over the pipe-replacement project, arguing the U.S. Forest Service did not adequately investigate how it will affect Tumalo Creek and the fish within its waters before issuing a special use permit. The city of Bend said the project is necessary to protect the city’s water supply from an aging pipe system.
Before U.S. District Judge Ann Aiken in Eugene, the plaintiffs said the standards used by the Forest Service to determine what constitutes a healthy creek were inadequate and it failed to take the “hard look” required by law.
Aiken disagreed on Friday, dismissing the case and allowing the project to proceed.
Aiken outright rejected some of the opposition’s arguments, such as that the Forest Service did not properly consider the impacts of climate change in its analysis and that alternative projects should have been considered.
A central theme of the lawsuit concerned how much water would be removed from the creek. Earlier in the process, the city made concessions to LandWatch and WaterWatch, agreeing to cap the amount of water to be diverted at 18.2 cubic feet per second, which is how much Bend’s existing pipe in Tumalo Creek diverts. Nonetheless, the possibility of more being taken and the possible impacts of such a diversion were part of the plaintiffs’ case.
“(T)he Forest Service was not required to analyze the cumulative impacts of withdrawing more than 18.2 (cubic feet per second) because that action is not reasonably foreseeable,” Aiken wrote in her decision.
“Even assuming the city may eventually decide it needs more than the allotted 18.2 (cubic feet per second) of water, the Forest Service must first approve another (permit), which would then trigger a new round of environmental review and public input,” Aiken added later.
The news was likely warmly received by the city Friday night, in particular because the city has said delays have resulted in increased costs. The Bend City Council on Wednesday approved $530,000 more to be spent, citing the legal challenge for part of the added expenditure.
“I am very pleased with the court’s affirmation of our analysis and the work of our specialists,” John Allen, supervisor for the Deschutes National Forest, said in a news release.
Despite the lawsuit, significant work has already been completed on the project. Heidi Lansdowne, the project manager, said in September a portion of the water pipe along Skyliners Road has been fully installed. Because of the ruling, the city will now be allowed to continue upward into the Cascades.