Water lawsuit will soon heat up

Bend trial could begin as soon as October

By Hillary Borrud / The Bulletin / @hborrud

A lawsuit to stop Bend’s $24 million water supply project will soon pick up momentum, with a trial on the case possible as soon as mid-October.

The city, the U.S. Forest Service and conservation nonprofits Central Oregon LandWatch and WaterWatch of Oregon spent the summer filing legal briefs in the case, after the parties’ settlement talks failed to produce an agreement earlier this year. The nonprofits filed the lawsuit in November.

Meanwhile, the city continues to build the first phase of the project to replace pipelines built in the 1920s and 1950s under Skyliners Road. The pipes bring drinking water from the Bridge Creek watershed in the Cascades foothills. Future phases of the project, which are on hold until the lawsuit is resolved, include replacing pipes across Tumalo Creek and water intake equipment.

Parties in the case are scheduled to finish submitting briefs by Oct. 10, and U.S. District Judge Ann Aiken could schedule a hearing on the case any time after that deadline, City Attorney Mary Winters said Thursday. The city, Forest Service, WaterWatch and LandWatch asked the federal court to schedule a hearing as soon as Oct. 15. Meanwhile, a contractor has built more than half the pipeline in the first phase of the project. M.A. Mortenson Construction has installed 4.6 miles of pipeline and 2 miles remain in this phase of the project, Justin Finestone, a city spokesman, wrote in an email.

Construction is on schedule and perhaps even ahead of where city employees expected it to be at this point, and Winters said that could actually create a problem.

“The actual construction on Skyliners Road is going faster than we’d anticipated, because we just haven’t hit rock,” she said. The city is waiting for a ruling on the lawsuit before starting construction of the next section of pipeline, a connection to the water treatment plant that is also under construction off Skyliners Road. But Winters said city officials are concerned subcontractors might move on to a different job if the break between phases is too long. That could increase the cost of the project.

The city will receive some assistance on the lawsuit from organizations that represent municipal water providers across the state. Earlier this month, Aiken granted a motion by the Oregon Water Utilities Council, League of Oregon Cities, Special Districts Association of Oregon and Oregon Water Resources Congress to appear as friends of the court.

In legal documents filed over the summer, LandWatch and WaterWatch argued the U.S. Forest Service did not adequately review the potential environmental impacts of the city’s water supply project on Tumalo Creek before the federal agency issued a special use permit last year for the project. In addition to providing drinking water to Bend residents, Tumalo Creek is a source of cold water that flows into the Middle Deschutes River.

LandWatch and WaterWatch argued in a court filing that their members’ “use and enjoyment of the area will be harmed during both construction and operation of the project,” and the Forest Service should have more rigorously reviewed the potential environmental impacts of the project. The groups wrote that the Forest Service placed a higher priority on the city’s need for water than the needs of the creek. The groups also said the Forest Service should have identified minimum stream flows necessary for fish habitat in Tumalo Creek.

For its part, the city countered in court documents that the Forest Service took care “to balance the needs of the community with the needs of the creek.”

Forest Service employees discussed the potential impacts of global warming on Tumalo Creek in their environmental review of the water project. However, WaterWatch and LandWatch wrote that the agency still did not adequately address the issue, which is important due to “the likelihood of lower summertime water yields in headwater streams such as Tumalo Creek …”

According to the plaintiffs, the new city water supply infrastructure will have a 75- to 100-year lifespan and would allow the city to take up to twice as much water from the creek. City officials have said LandWatch and WaterWatch incorrectly calculated the capacity of the new pipeline and thus overestimated the volume of water it could transport. “Current engineering practices do not use pipe diameter to control or restrict flow,” but rather engineers rely upon flow control valves, the city wrote in a court document.

However, the city acknowledged it did not change the project design from an earlier proposal to increase the water diversion cap to 21 cubic feet per second, which would have been a 17 percent increase from the current limit of 18.2 cfs. The latest city plan and Forest Service permit include an 18.2 cfs cap on the city’s water withdrawals, which allowed the city to argue the new permit would not result in major changes to the creek. Lawyers for the city wrote in court documents that new equipment would actually allow the city to leave more water in the creek when it does not need the entire 18.2 cfs, whereas the existing equipment only allows the city to take the full amount and then return unneeded water to Tumalo Creek via a downstream ditch.

The native fish species in Tumalo Creek are redband trout, sculpin and dace, and nonnative brook trout and brown trout also swim in the stream. None of the species that live in the creek is federally listed as threatened or endangered. In a court filing, lawyers for the city wrote that because Tumalo Irrigation District has senior water rights, any reduction in the city’s withdrawals from Tumalo Creek would not necessarily improve the most troubled, lower reach of the stream because the irrigation district could then take what the city left in-stream.

Paul Dewey, a lawyer and executive director of LandWatch, said Thursday the city has not yet started construction on the section of most concern to him.

“The really damaging part of the pipeline, that would go under the creek and then along the creek and through the wetlands, the city agreed not to do until the court made a final ruling on the case,” Dewey said. Dewey said the city plans “pretty extensive excavation in the creek itself” at the lower bridge across Tumalo Creek, and farther up the creek the pipeline would cross a wetland area.

— Reporter: 541-617-7829, hborrud@bendbulletin.com