Peter Sachs / The Bulletin
The Swalley Irrigation District can move forward with a project to pipe 5.1 miles of a canal that runs through a northeast Bend neighborhood, a federal judge in Eugene ruled Tuesday.
The seven-page ruling caps more than three years of legal wrangling between Swalley and about 180 homeowners who objected to the piping project.
The residents could still appeal the case to the 9th U.S. Circuit Court of Appeals, though.
Liam Sherlock, a Eugene attorney representing about 12 homeowners, said his clients haven’t decided whether to appeal. But he argued that the judge erred by not sanctioning Swalley for starting construction before Tuesday’s ruling. And he took issue with the logic of U.S. District Court Judge Ann Aiken’s ruling.
Just because Swalley has a canal doesn’t mean they can convert it to a pipe, he said.
“The subdivision plats that the homeowners relied on … state that their properties border a canal, not an irrigation easement,” Sherlock said.
Jan Lee, Swalley’s general manager, said the ruling clears up the irrigation district’s right to pipe. The lawsuit was in federal court because Swalley’s predecessor, the Deschutes Reclamation and Irrigation Company, got the right to build the canal from the federal government in the 19th century.
Many of the homes along the canal were built about 30 years ago, though some went up as recently as 2006, according to county property records.
Swalley started the project about a month ago, a year behind schedule. It expects to have about 4 miles piped by April, when it must start delivering irrigation water to its customers, Lee said in an e-mail. Swalley serves about 720 farmers, most of them west of U.S. Highway 97 between Bend and Redmond. Swalley’s entire canal network is about 28 miles long.
The piping project could reduce the amount of water the canal pulls from the Deschutes River by about 24 cubic feet per second, because the pipe will keep water from leaking into the ground through the bottom of the open canal.
And Swalley stands to make hundreds of thousands of dollars by hooking up a hydroelectric generator to the pipe.
Residents have objected to the piping for a variety of reasons, including concerns about lost property value, the loss of a “water feature” running along the edges of their backyards, and concerns that Swalley didn’t have the right to dig the canal deeper before laying down the pipe.
The judge’s ruling said that Swalley could remove rocks and boulders in the canal bed, something it has already started doing, Lee said. She added Swalley has no plans to deepen the canal, and that for the most part, the pipe will be placed in the current canal.