Bend’s water plan in court today

Oct 10, 2012

Bend Bulletin

Bend’s water plan in court today By Hillary Borrud

A hearing in U.S. District Court in Eugene today may determine whether the city of Bend can break ground this fall on a $20.1 million project to upgrade the pipeline and other facilities that bring drinking water to the city.

Construction workers and equipment are poised to begin work, but opponents of the project filed a request last week for a preliminary injunction to halt the project. The nonprofit Central Oregon LandWatch sought the injunction after filing a lawsuit against the U.S. Forest Service in U.S. District Court last month. Central Oregon LandWatch claims the Forest Service failed to adequately study what effects the water project, which passes through federal lands, will have on fish and wetlands.

Should Chief District Judge Ann Aiken grant the injunction following the hearing this morning, the city would be forced to delay construction until Aiken issues a final decision on the case. It will likely take months for the judge to decide whether the Forest Service adequately reviewed environmental impacts of the project before it issued a permit, City Attorney Mary Winters said Tuesday.

If Aiken does not issue an injunction, city officials plan to proceed immediately with construction rather than wait for further court decisions and another appeal Central Oregon LandWatch filed with the Oregon Land Use Board of Appeals.

“We are ready to begin as soon as the court allows us," project manager Heidi Lansdowne wrote in an email Tuesday afternoon. Aiken could rule today.

City officials have said tree roots are growing through the existing pipelines, one built in the 1920s and the other in the 1950s, and causing material to break off and wind up in the city water supply. Paul Dewey, executive director of Central Oregon LandWatch, said Tuesday the pipes are not collapsing and “there’s no imminent danger."

According to the city, delay could be costly: $24,000 per day and an additional $2.9 million to resurface Skyliners Road if the pipeline does not go in before Deschutes County rebuilds the road in spring 2013, the city wrote in documents recently filed with the Oregon Land Use Board of Appeals. However, Dewey questioned these figures. When project opponents questioned why the city had locked itself into a construction contract earlier this year, officials assured them the contract allowed the city to avoid costs in case of a delay or change in plans, said Dewey.

“They can pull the plug any time they want to," Dewey said. “I think they’re just wanting to get it done before the courts can have a chance to address the merits of the case."

The city cleared another hurdle to construction Tuesday, when the board of appeals declined to issue a stay on the water project. In May, Central Oregon LandWatch appealed to the board a City Council decision to approve the project. That case is still pending, but on Tuesday the board issued an order in which it determined that removal of trees for the project would not irreparably harm the environment. The city has a plan to replant 270 trees and restore riparian areas, the board noted.

“We had argued that the cutting of scenic groves of trees along the bridges, the cutting of trees over 100 years old and the impacts to the wetlands constituted irreparable harm, but LUBA found that they could just be replanted," Dewey wrote in an email Tuesday. Dewey expects LUBA to make a decision by late November.

The city is under a temporary restraining order that prevents construction until Aiken rules on the injunction request. Today, Winters plans to ask the judge to lift the restraining order and not issue an injunction. “We’re certainly going to impress upon her that we need her to rule from the bench, or no later than Friday," Winters said. “I think she’ll understand that ... if she doesn’t rule quickly, it’s essentially granting an injunction because if we wait too much longer, we’ll miss the in-water window."

The in-water window, a time frame set by the Oregon Department of Fish and Wildlife during which the contractor can work in Tumalo Creek, is from July 1 through Nov. 1 according to the Land Use Board of Appeals.

Winters said opponents will have to prove several things to the judge today, such as whether their case is likely to ultimately succeed, whether the city would cause irreparable harm if allowed to proceed, and whether an injunction is in the public interest.

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

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