City and LandWatch to meet in mediation
Apr 30, 2015
Bend BulletinBy Tyler Leeds / The Bulletin
The city of Bend and opponents of a $24 million drinking water project have agreed to seek middle ground as an alternative to a scheduled federal hearing.
A lawsuit is attempting to block the replacement of an aging pipe that diverts drinking water from Bridge Creek, a tributary of Tumalo Creek, up in the foothills of the Cascades. Central Oregon LandWatch and WaterWatch of Oregon filed the suit in 2013, arguing the U.S. Forest Service failed to properly investigate how the city’s project would affect water flowing through Tumalo Creek.
In December, U.S. District Judge Ann Aiken ruled against LandWatch, writing in her decision that the Forest Service followed the law in its approach to evaluating the environmental impact of the project. The city and litigants earlier attempted to reach an agreement outside of court, but all previous efforts failed.
Following an appeal by the opponents , the U.S. 9th Circuit Court of Appeals is scheduled to hear the case in about 18 months.
However, in March, LandWatch Executive Director Paul Dewey reached out to the city, asking whether officials would consider mediation as an alternative.
The city agreed to mediation, City Attorney Mary Winters confirmed Wednesday.
“The city and Forest Service have an extremely strong case legally, but settlement is good for the community and is something enough of the City Council wants that we have agreed to it,” Winters said. “We’ve tried to settle this more than once, but that doesn’t mean we shouldn’t try again.”
Winters noted that while the city has agreed to enter into mediation, it will not lose its spot in line to be heard by the 9th Circuit. As a result, if no agreement is reached, the federal hearing will not be delayed.
The actual mediation process will be confidential, Winters noted, but the terms of any agreement would be shared with the public.
On Wednesday, Dewey said he hoped the city would agree to maintain a certain flow level in the creek, meaning that if the water level dipped, the city would respond by diverting less or cutting off its diversion until levels rose to an agreed upon level. He also said he’d like to see the Tumalo Irrigation District, which draws water from Tumalo Creek, deactivate its intake. Dewey noted that the irrigation district is not involved in the litigation, but that by entering into mediation, the city and LandWatch are able to consider provisions beyond the scope of the case in order to reach a deal.
The city and the litigants have agreed to hire Debra Nudelman to serve as a mediator. Nudelman is a member of Kearns & West, a firm with offices in Portland and elsewhere, and has previously worked on coordinating a conservation plan for the Deschutes River.
Winters said mediation sessions probably will begin this summer.
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