Bend’s water project to be appealed

Apr 21, 2012

Bend Bulletin

Bend’s water project to be appealed

Central Oregon Landwatch says Bridge Creek project came before plan

By Nick Grube / The Bulletin
Published: April 21. 2012 4:00AM PST

A Bend-based nonprofit is challenging the city’s Bridge Creek water project to the Oregon Land Use Board of Appeals. Central Oregon Landwatch has long criticized the $70 million project for its expense and potential effects on Tumalo Creek. Now Paul Dewey, the group’s executive director, says the city hasn’t followed state planning rules.

“It’s complicated because the normal course of things under the land use laws is that a plan is adopted, and then a project is later adopted that is consistent with that plan,” he said. “Here, the city has done it backwards. They’ve been making decisions incrementally on this project without there being a plan for it and now they’re finally coming up with a plan.”

Specifically, Dewey has appealed a March 7 City Council resolution that stated Bend would continue to rely on a dual-source water system that includes Bridge Creek and groundwater.

The city gets about 50 percent of its annual water supply from each source. Bridge Creek is a tributary of Tumalo Creek, which runs through Shevlin Park.

The March 7 resolution also stated the city would try to delay the construction of a $30 million water filtration system that’s needed to comply with federal guidelines and would re-evaluate the viability of a $4 million hydropower facility that is included in the project. The city would like to delay these two segments of the Bridge Creek project in order to moderate water rate hikes over the next several years.

Dewey also plans to appeal the city’s water public facilities plan, which is something the City Council initially approved Wednesday after a public hearing. A public facilities plan, required by state law, spells out how a city intends to meet its infrastructure needs. The City Council still must approve a second reading of the plan.

Dewey thinks this plan should be in place before construction decisions are made on the Bridge Creek project. He also thinks the water-need analysis included in the plan is flawed. He hopes that LUBA will force the city to re-evaluate its plan and conclude that the Bridge Creek project is not needed.

“What the city did here is they’re doing the planning after they decided to do a project,” Dewey said. “We want a rational plan, and that’s what we’re trying to win. ... I would think that after a rational planning process the surface water project would be seen in a different light.”

No delays expected

While a representative from LUBA said the average case takes about six months to resolve, city officials don’t believe there will be delays in the planned construction of a 10-mile pipeline. That work is scheduled to begin in August, assuming the city can get a special use permit from the U.S. Forest Service.

City Attorney Mary Winters said Bend plans to ask LUBA to dismiss Central Oregon Landwatch’s appeal over the resolution. She called it a “highly unusual” appeal to LUBA since it doesn’t involve a land use decision. For that reason, she said LUBA shouldn’t hold any jurisdiction.

“The resolution really had to do with just some policy statements from the City Council about certain portions of the surface water project,” Winters said. “There was no land use decision or even a decision of the council that was being made. ... There was controversy about the project and there was a request from the community to rethink the direction of the project. (With the resolution) the council was clarifying the current status of the project and its direction to staff.”

Winters said she couldn’t respond to Dewey’s other planned appeal over the public facility plan, calling it premature to do so considering the council hasn’t formally adopted the plan yet.

City planner: ‘We’ve been going by the book’

Bend senior planner Damian Syrnyk said the city followed the rules when developing its public facility plan for water. It was, after all, the second time the city has developed the plan in recent years. As part of an attempted expansion of the urban growth boundary, the city submitted a water public facility plan to the state, which sent it back because it didn’t meet certain standards. Syrnyk says the new plan should comply with those guidelines. As a result, the state should accept it when the city again tries to expand its growth boundary.

“I feel like we’ve been going by the book,” Syrnyk said. “While I think I understand what Landwatch’s concern are with the surface water project, I believe that we still satisfied the law that’s required.”

Dewey denies that he’s looking at the LUBA appeals as a means to delay the surface water project. Instead, he said he’s hoping the state’s strict land use and planning rules prevail.

He’s challenged the city before on similar grounds and won. Central Oregon Landwatch was instrumental in convincing the Oregon Department of Land Conservation and Development that the city’s proposed urban growth boundary proposal didn’t follow state planning rules. In 2010, the Land Conservation and Development Commission ordered the city to shrink its proposed expansion area and revisit parts of its plan in order to bring it into compliance with state law. The city has spent more than $4 million in its attempt to expand the urban growth boundary.

“They have a pretty bad track record on planning,” Dewey said. “The problem with the city of Bend is they’re always pushing the margins. ... It’s almost as if there’s a culture of, ‘We don’t have to follow the rules.’ ”

— Reporter: 541-633-2160,

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