LandWatch files legal challenge

Round 2 begins in federal court, Bend water system at issue again

By Dylan J. Darling / The Bulletin / @DylanJDarling

Published Nov 15, 2013 at 04:00AM

A conservation group filed suit Thursday against the U.S. Forest Service, challenging for a second time the agency’s approval of a special-use permit for planned improvements to the intake and pipeline that brings Bridge Creek water to Bend.

Attorneys working for Central Oregon LandWatch filed the lawsuit in U.S. District Court for Oregon in Eugene, according to court records. The group contends the Forest Service failed to properly evaluate the environmental impacts of the project and is asking a federal judge to revoke the permit.

LandWatch Executive Director Paul Dewey said the Forest Service didn’t do enough environmental review before issuing the permit.

“It is not just about giving the city what it wants,” he said. “... It is looking at what the environment needs, not just what the city needs.”

Central Oregon LandWatch may also ask a judge next week to halt any construction until the lawsuit is resolved, Dewey said.

On Nov. 4, the Deschutes National Forest granted a special-use permit to the city, allowing it to go ahead with the $24 million project to enhance the water intake on Bridge Creek and replace two old pipes with one new one. The permit requires the city to wait a month before starting work, during which time the city could inform the public about construction impacts on Skyliners Road.

WaterWatch, a Portland-based conservation group, joined Central Oregon LandWatch in filing the lawsuit. Along with the Forest Service, the suit names Kent Connaughton, Forest Service regional forester for Oregon and Washington, and John Allen, Deschutes National Forest supervisor, as defendants. While declining to comment on the specifics of the 47-page lawsuit, Rod Bonacker, special projects coordinator for the Bend-Fort Ranger District of the Deschutes National Forest, stood by the permit.

“We’ve done what we think is necessary and considerably beyond,” he said.

He said the project would allow the city to maintain and improve its surface water supply system while keeping more water in Tumalo Creek.

“There just isn’t anything that would warrant additional analysis,” Bonacker said.

Dewey disagrees. He said the project could leave less water in Tumalo Creek and, through the lawsuit, is asking for more study of creek flows.

In fall 2012, the Forest Service issued the city a permit for the same work, but the city pulled its proposal after Central Oregon LandWatch filed a similar lawsuit.

The 2012 proposal sought to take more water from Bridge and Tumalo creeks. U.S. District Judge Ann Aiken with an October 2012 injunction halted the project to allow time to resolve legal issues. The city submitted a new proposal that capped withdrawals of water from Bridge and Tumalo creeks at current levels. Jeff Eager, Bend’s mayor at the time, said the city decision to pursue a new strategy was based on concerns raised by Aiken.

The city also reversed the order of planned construction, intending to start along Skyliners Road close to town and work into the Cascades foothills. The bulk of the 10-mile pipeline will be under Skyliners Road.

Deschutes County plans to resurface the road in a project mainly funded by a $9 million grant from the Federal Highway Administration. The county plans to put up another $1 million. Under the grant terms, the county must start work before spring 2015, giving the city about 1½ years to install the new pipeline or start planning a new route.

City officials have said construction is set to start early next month. The latest lawsuit has yet to change those plans, said Bend spokesman Justin Finestone.

“’Til we are told otherwise, we plan on starting construction on Dec. 5,” Finestone said.

He said city officials are confident the Forest Service met all the requirements of its environmental review before issuing the city the permit for the project.

“We know that the Forest Service went through an extensive and thorough review process,” Finestone said.