Injunction puts Bend water project on hold
Oct 17, 2012
Bend BulletinBy Hillary Borrud
A federal judge with an injunction Tuesday put a $20.1 million city of Bend project to capture and deliver drinking water to the city on indefinite hold.
The preliminary injunction that U.S. District Judge Ann Aiken of Eugene granted will stand until the judge rules on a lawsuit that opponents of the project filed against the U.S. Forest Service last month, or until the two sides reach agreement.
The Forest Service had issued a permit for the city water project, part of which passes through federal lands. The nonprofit Central Oregon LandWatch claims the Forest Service failed to adequately study what effects the project will have on fish and wetlands. In an order Tuesday, Aiken wrote that the Forest Service failed to “take a hard look" at potential impacts of the project, particularly on water temperatures and fish.
A contractor for the city was unable to start work while the city was under a temporary restraining order pending the judge's decision on the request by Central Oregon LandWatch for the preliminary injunction. The city is running out of time to build this section of the water project this year. The Oregon Department of Fish and Wildlife set July 1 through Nov. 1 as the period during which the contractor can work in Tumalo Creek. The city has estimated that a delay could cost $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 next spring.
The city may appeal the injunction to the U.S. Ninth Circuit Court of Appeals, said City Attorney Mary Winters on Tuesday. “We'll be reviewing the decision and looking at our options," she said.
Meanwhile, the city and Central Oregon LandWatch are in the midst of settlement talks in U.S. District Court. The next settlement conference is scheduled for Monday morning, according to federal court records.
Paul Dewey, executive director of Central Oregon LandWatch, said he was pleased with Aiken's decision and the settlement talks with the city will continue. Dewey also said a contractor for the city recently began clearing land to prepare for the project without Forest Service approval.
Jean Nelson-Dean, spokeswoman for the Deschutes National Forest, said the agency notified the city that a contractor had moved dirt before Oct. 10, the date the city was allowed to start construction. City Manager Eric King said Tuesday that contractor Mortenson Construction erred in clearing that area, and the city required the contractor to replant it.
To obtain the injunction, Central Oregon LandWatch had to convince Aiken that its case was likely to ultimately succeed, that the city would cause irreparable harm if allowed to proceed and that an injunction is in the public interest.
“The Forest Service failed to take a hard look and disclose the project's impacts consistent with (National Environmental Policy Act) requirements," Aiken wrote in the order. “Moreover, the immediate implementation of the project will irreparably harm plaintiff and its members and supporters that use and enjoy the area at issue for its aesthetics, recreation such as hiking, camping, fishing and photography, as well as watershed research, education and observing wildlife. Plaintiff and its members will further be harmed because the project will degrade water quality, diminish aesthetic values and harm fish and wildlife in and around the project area."
Aiken was particularly concerned that another city contractor, HDR, used an inaccurate statistical model to predict the impact of the project on stream temperatures.
When the two existing surface water pipes run at capacity, they draw a total of 18.2 cubic feet per second from Bridge Creek. The single, larger pipe proposed as part of the city project could carry up to 21 cubic feet per second. The city diverts water from springs that feed into Tumalo Creek and, in turn, feeds that water into Bridge Creek, which supplies the city with water. Opponents of the water project are concerned that any increase in the city withdrawals from Bridge Creek would also reduce water flowing in Tumalo Creek.
Aiken wrote that if the city were allowed to take more water out of Tumalo Creek, it would result in warmer water temperatures that could harm fish. “It is not enough for the Forest Service to simply conclude that there is no or little impact to the water temperature due to the project without supporting reasoning, analysis and data," Aiken wrote.
Tuesday, Deschutes County Road Department Director Chris Doty said the county may have little leeway to delay the Skyliners Road reconstruction project past 2013. Federal funds will pay for most of the project and Doty said “it's unclear at this point" whether federal rules will allow the county to delay the project for one year. Delays such as this were allowed in the past, but the funding source and possibly the rules for the project changed after a new federal transportation bill was passed last summer, Doty said.
As for the unauthorized work on the project, the Forest Service informed the city Oct. 5 that Mortenson Construction cleared the area without permission, and the city required the company to go out over the following weekend and “re-vegetate" the area with native plants, King said. “We told the contractor to restore the site, which they've done, so they've brought it into a better condition than it was in prior to being graded," King said.
The new water intake facility at Bridge Creek and 10-mile-long pipeline to Bend that are on hold are part of a larger city surface water project that could ultimately cost $68.2 million.
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