Two environmental groups that sued the U.S. Forest Service and the city of Bend several years ago over Bend’s Bridge Creek water pipeline project and lost a federal court appeal in August are now petitioning the court to rehear their case.
In court documents filed late last week, Central Oregon LandWatch and WaterWatch of Oregon asked the 9th Circuit Court of Appeals to rehear the case either en banc — with at least 11 of the court’s 29 judges — or with another three-judge panel. The groups argue federal judges broke with their own precedent by ruling that the Forest Service did enough to investigate alternatives to the project.
“We believe they didn’t look at existing 9th Circuit precedent or recognize that we asked for alternatives to maintain diverting water but at a reduced amount,” Central Oregon LandWatch Executive Director Paul Dewey said.
Bend gets its drinking water from Tumalo Creek, Bridge Creek, Spring Creek and the Deschutes regional aquifer. Several years ago, the city began work on a $24 million pipeline project to replace two aging Bridge Creek pipelines from the 1920s and 1950s.
Central Oregon LandWatch tried and failed to stop construction through a judicial injunction in 2012, and the pipeline under Skyliners Road was completed in November of 2015.
The groups accept that the pipeline and a new water intake facility were built and don’t want to remove them, Dewey said. However, they still oppose the Forest Service permit that allows the city to divert 18.2 cubic feet per second from the creek.
Bend’s previous pipe also diverted 18.2 cubic feet per second, but the city’s new system allows it to take less water from the creek when demand is lower. The Forest Service should consider an alternative method that diverts less water, and the court should require that, Dewey said.
“We just want the city and the Forest Service to take into consideration the needs of the creek,” he said.
The environmental groups’ arguments have changed in focus since the lawsuit began four years ago, and the current argument is “not really an accurate portrayal of the record,” Bend City Attorney Mary Winters said.
“We’re somewhat disappointed that they’re still trying, but it’s not unexpected,” Winters said.
The 9th Circuit now gets to decide whether to rehear the case, and it will ask the city of Bend and the Forest Service to respond to the environmental groups if it does.
If the 9th Circuit chooses not to rehear the case, the environmental groups’ only further option would be to appeal to the U.S. Supreme Court. Dewey said he can’t yet say whether LandWatch would appeal to the Supreme Court because that decision depends on what the 9th Circuit says.
“Regardless of the outcome for this motion of a rehearing, the issue of diversion from Tumalo Creek will continue,” he said.
Dewey said he expects the same issue to come up whenever the Forest Service issues new permits for Bend’s water diversion, with the next permit expected within the next year.
The city of Bend has spent $746,000 on legal fees thus far, and the city lost more from construction delays.
A call to WaterWatch of Oregon Executive Director John DeVoe was not immediately returned.
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