Pipe opponents fire back in Bend surface water suit

Pipe opponents fire back in Bend surface water suit
Groups say city has failed to address environmental impacts
By Scott Hammers
The Bend Bulletin
January 15, 2014

Environmental groups opposed to Bend’s proposed surface water improvement project argue the city is attempting “to create a crisis where there is none” in a response filed in U.S. District Court in Eugene Monday.

Central Oregon LandWatch and WaterWatch Oregon have joined together in a suit against the U.S. Forest Service and two Forest Service employees in an effort to halt the water project, a $24 million proposal to construct a new pipeline to transport water from Bridge Creek west of Bend to the city’s water treatment facilities.

The suit, filed in November, seeks a preliminary injunction, which would block the city from going forward with construction of the project until the court can consider the groups’ objections on environmental grounds.

Monday’s filing comes in response to a late December filing by Oregon U.S. Attorney S. Amanda Marshall, representing the Forest Service in the case. Marshall had dismissed the environmental groups’ objections as “hypertechnical criticisms,” and suggested they had failed to demonstrate that they would be harmed if the project moves forward.

In Monday’s filing, LandWatch and WaterWatch argued the potential environmental harm associated with the construction and operation of the pipe is sufficient to justify an injunction. The groups suggested the city and the Forest Service are attempting to create an atmosphere of urgency surrounding the project.

There is no evidence the current pipe is on the brink of failure, they wrote. They also noted the city defended its decision to buy pipe in 2011 on the grounds it could be resold if needed, and the county is not scheduled to reconstruct Skyliners Road — at which time the pipe would need to be laid beneath the new road surface — until spring 2015.

The groups also take issue with the city’s description of the project as two distinct phases, with the construction of the seven-mile pipeline under Skyliners Road labeled as phase one, and the construction of the intake that would draw water into the pipeline as phase two.

The groups maintain that allowing the city to proceed with the installation of the pipeline will close the door on a meaningful consideration of alternatives to the city’s proposal, and the completion of the project will become a forgone conclusion.

“Once the City has spent $10 million to put the pipe in the ground, the agency (Forest Service) will undoubtedly view the remainder of the Project and any alternatives through a tainted lens, regardless of what the city says,” they wrote.

The response also reiterates many of the points raised in the initial filing.

Pointing to the size of the proposed pipeline and the city’s projections of future water use, the groups argue it’s “reasonably foreseeable” that the city will use more than the 18.2 cubic feet per second it draws through the current pipeline, potentially creating inhospitable conditions for aquatic life.

The city and the Forest Service failed to develop an adequate “baseline” of normal water flows in Tumalo Creek, they wrote, and are as a result unable to fully evaluate the impact of drawing water from the creek system. Further, the groups assert the city and the Forest Service did not analyze how climate change could affect streamflows in Bridge Creek, and consequently the amount of water available to be diverted to the city or left to flow down Tumalo Creek in the future.

U.S. District Court Judge Ann Aiken has not set a date for the two sides to argue their case in court. However, a discovery deadline has been set for March 17.