This article was published on: 12/19/13 12:00 AM
It’s been a busy and complicated year for Mirror Pond
BY JAMES WILLIAMS
The mood was solemn but anticipatory for the Dec. 2 Mirror Pond Ad Hoc work group meeting. It was a mixed bag of attendees—business owners in suit jackets, grey-haired retirees, bearded students and environmentalists wrapped in pilled fleece—but there wasn’t much neighborly chatting going on. It’s safe to say everyone there was hoping to hear something new from the Mirror Pond leadership team, possibly even a preferred solution for the silt-laden pond and its leaking, 103-year-old dam.
It’s not a new discussion. Seven years ago a study looking at sedimentation reported that Mirror Pond was quickly filling with silt and, like a drain that needed to be plumbed, the shallow waters required immediate attention. What’s more, that very dam that creates the pond is as faulty as a dripping faucet.
Since that study in 2006, the city of Bend and the Bend Park & Recreation District have swirled around a whirlpool of resolutions, between discussions about retaining the pond and then flip flopping to talks about freeing the river. They’ve formed committees quicker than water finds its way downhill and haven’t found a clear consensus among Bend’s citizenry—public opinion remains evenly split.
Yet, like a hearty trout muscling its way upstream, over the past few months, it has seemed as if the Mirror Pond decision makers were inching toward a resolution—an assessment marked, in particular, by two recent plot twists: One, Pacific Power, the utility company that owns the leaking, 103-year-old dam, announced it was ready to offload the ailing structure—the impoundment that creates Mirror Pond. And, two, almost simultaneously, a pair of local businessmen stepped forward to explain that they have been brokering a deal to buy the land underneath the pond, with the plans to preserve downtown Bend’s icon and famous pale ale namesake.
With those recent announcements in late November, the throngs that gathered only days later were on the edge of their collective seats. As wonky opinions and analysis ping ponged around the room for more than an hour, eyes drooped and heads nodded. Then, nearly two hours into the meeting—after testimony from attorneys, public officials, city councilors and deep-pocketed businessmen—as sudden as a thunderclap, the Mirror Pond Ad Hoc work group called a vote.
Would the community finally get its answer: pond or no pond?
The vote was initiated by the park district’s executive director, but it was unclear exactly what to do next. After some bumbling and a couple jokes, the eight-man group got to it and quickly and unanimously decided: Preserve the pond!
But while the vote was quick and decisive, it is hardly the end of the debate. Really, that vote was just the end of a chapter, and beginning of another. The next chapter of this yawning epic is much more nitty gritty, as ideas and desires compete against budgets and political realities. There are still plenty of difficult environmental, economic, political and legal issue to consider and resolve.
As we wrap up another year of Mirror Pond discussions, three specific options have emerged: maintain the pond and repair the leaking dam; remove the dam and allow the river to flow free; or a third option, a hybrid of the two—an idea recently submitted by a citizens group. Each option has its advantages and disadvantages.
ENVIRONMENTAL CONSIDERATIONS
In 1984, the last time Mirror Pond was full of silt, the City of Bend opted to dredge it clean. But rising costs and stricter environmental regulations have made dredging a more complex process. Plus, dams across the country are being systematically removed in favor of colder, free-flowing rivers—a boon for fish and the river basin’s riparian ecosystem. The owners of the failing Newport Avenue dam, the same one that creates Mirror Pond, have said the dam is at the end of its life cycle. According to area conservation groups and at least one state agency, the time has come to decommission the dam and return the Deschutes River to its natural channel.
“Dams on the Deschutes significantly influence stream flow, reduce stream velocity and disrupt natural sediment movement throughout the river system,” said Matt Shinderman, a natural resources professor at Oregon State University-Cascades and an avid fly fisherman. “The Bend reach of the Deschutes is currently listed as impaired for temperature, sediment and dissolved oxygen.”
What’s more, warmer water temperatures, as seen at Mirror Pond, contribute to the growth of harmful, invasive plant species and also negatively affect the native brown and redband trout, which need cooler, more oxygenated water to thrive. Plus, dams prohibit fish from swimming upstream to spawn.
“We would like to see fish passage at the site,” said the Oregon Department of Fish and Wildlife’s Brett Hodgson of the Newport Avenue dam (sometimes referred to as the Bend hydro dam or Mirror Pond dam). “That’s our primary objective.”
Fish passage modifications for other dams on the Bend stretch of the Deschutes River are already in the works. Soon, the North Canal dam, downstream of Mirror Pond near The Riverhouse hotel, will be fish-friendly. And the Colorado dam, upstream of Mirror Pond, is being redesigned to include fish passage. The crumbling wall at Mirror Pond will soon be the odd dam out.
“The Bend hydro dam would be the last barrier to fish passage in that reach of the river,” Hodgson confirmed.
Additionally, experts say, silt buildup will continue unless the river channel is narrowed and the sediment-filled water is allowed to flow downstream.
“Fundamentally, if the channel is wider than natural, it will try to fill in,” said Ryan Houston, executive director of the Upper Deschutes Watershed Council. “Basically, the river is always trying to reach its equilibrium.”
Environmental verdict: Remove the dam.
ECONOMIC CONSIDERATIONS
Certainly the most economical option is removing the dam and allowing the river to run free. Pacific Power has said it no longer has use for the ailing dam and has been trying to offload it on the city. But rather than take on such a liability, city and park district officials could stand firm and require the utility company to remove the dam and restore the banks around it. It’s like telling a child to pick up its toys.
“I think if Pacific Power is going to remove the dam, the absolute cheapest thing for the community is to let them do it,” Houston offered.
The problem is, removal is more complicated and expensive than simply a few sticks of dynamite—a park district consultant pegged dam removal costs at $11 million, which is why the utility company is doing everything possible to sell the structure to the highest bidder. If, however, Pacific Power plays its cards right, it likely could garner funding from conservation groups, Houston noted. Organizations like American Rivers, a national conservation nonprofit, are in the business of restoring rivers and tearing down dams.
Keeping the dam, though, would be a much more expensive option—a point made especially clear by Pacific Power’s recent inspection report. The 22-page briefing, released on Dec. 10, found further issues inside the bowels of the more-than-a-century-old structure.
Even still, if Pacific Power sold the crumbling mess of concrete, wood and rocks to the city and park district for $1, significant repairs would need to be made to the dam’s innards. Though Pacific Power officials won’t venture a guess at a potential repair bill, the fact that they’re ready to walk away from the wreck, rather than get back under the hood, is a clear sign that it’s damn near totaled. Additionally, even fixed, the dam would need upgrades to accommodate state-required fish passage—another $1 to $2 million expense, according to Upper Deschutes Watershed Council reports.
“They want money,” explained city councilor Mark Capell of ongoing negotiations with Pacific Power. “We want them to rebuild (the dam) and give it to us. We’re a long way apart.”
Add to the rapidly increasing hypothetical bill the $3.5 million the park district expects to spend for sediment removal and creation of new wetlands and, well, suddenly the price tag is well beyond what any public entity can afford.
“I certainly wouldn’t support—and I think a lot of others with the city wouldn’t support—blindly taking over the dam and incurring all that liability,” said Mayor Jim Clinton. “Whoever owns the dam has some serious problems in the future.”
Economic verdict: Whether keeping or removing the dam, make Pacific Power pay.
POLITICAL CONSIDERATIONS
In late November, Bill Smith, developer of the Old Mill District, and Todd Taylor, CEO of heavy construction company Taylor Northwest, announced they had signed an agreement to buy the 23.5 acres of land under Mirror Pond from the McKay family—all for the express purpose of maintaining Mirror Pond. That offer removed at least one of the price tags from the project.
In doing so, however, at least a few onlookers feared that the men were buying the project away from public discourse.
“It seems like it’s ‘my way, or the highway,'” said Michael McLandress, the former Mirror Pond project manager who was released when funding for his position evaporated. “It certainly flies in the face of public process.”
Barreling ahead in favor of a pond is a bold move, particularly when Bend remains split on the pond-versus-river debate.
Early this year, an unscientific park district survey revealed that roughly 47 percent of residents want a free-flowing river, while nearly 43 percent prefer to keep the pond and its dam. It is worth pointing out, however, that the survey occurred well before the dam leak was discovered in October. Now, with a damning report card (pun intended) from the dam’s owners and with potential repair costs piling up, it is likely that public sentiment has shifted even further away from maintaining a pond.
“Bend could be a world-class whitewater town and I don’t think anyone knows it because it’s all dammed up,” said Jayson Bowerman, an area kayaker and Bend Paddle Trail Alliance board member.
So it was to the surprise of many when, earlier this month, the Mirror Pond Ad Hoc work group, the committee charged with finding a fix for the pond, voted to work toward pond (and dam) preservation.
After the meeting on that cold December evening, community members left shaking their heads, muttering assessments like, “crazy” and “unbelievable.” The decision even elicited at least one “boo!” from the back of the meeting room. The work group, though, promised that public process would still rule and the deciding vote would be put to the people: river or pond?
That potential municipal vote would be a tricky political minefield to maneuver—as well as a difficult and expensive campaign. The city of Bend and the park district would need to convince voters that preserving Mirror Pond is worth more than dedicating funds to police and fire services, or expanding public transportation. Acquiring, fixing and maintaining the dam would be an ongoing drain (pun, again, intended) on the city’s budget.
But, money often dictates political outcomes, and Save Mirror Pond, a group of pro-pond neighbors, includes powerful businessmen, like Mike Hollern, CEO of Brooks Resources Corporation, and former mayors, like Oran Teater.
On the other side of the coin are organizations like the Bend Paddle Trail Alliance, a local recreation and conservation nonprofit. Realizing just how polarizing the issue has become, the BPTA has, with Obama-like spirits, tried to find consensus by marrying both disjointed sides. The BPTA recently put forward an artistic rendering that showed both a river and a pond near Drake Park—but no Newport Avenue dam.
“So far, everyone has been working against each other,” Bowerman told me between sips of coffee. “It will take all of us working together to get this done.”
The BPTA was also the driving force behind the popular Colorado Dam safe passage project, which includes plans for multiple levels of river recreation, less than a half mile upstream.
“The whole thing with the Colorado Dam safe passage project was providing something for everybody,” Bowerman said. “We certainly hope we can provide something similar here—something for everybody.”
Bowerman enthusiastically explained how easy it would be to add more river recreation—and money-making, tourist-attracting—opportunities below what’s now Mirror Pond. He pointed out that whitewater parks in Boise and Steamboat Springs, which a June article in The Denver Post called “wildly successful, town-transforming parks,” are worth the relatively modest investment.
“Some of these other places have been able to build whitewater parks for as little as $700,000,” Bowerman said.
But Bowerman, a Central Oregon native, and the BPTA are wise enough to know they can’t jam another whitewater park through without offering up conciliatory ideas for the pond people. The concept they proposed maintains a small pond in downtown Bend by calling for the installation of a small weir, possibly a bladder dam, which would let more or less water flow past, depending on the season. It would also allow fish to move up and downstream.
Still, with no funding mechanism in place, any option—no matter how attractive—remains a wet dream.
To pay for a fix, the city has said it would consider turning to the public. Creating a special taxing district may be the only way to pay for a future project. With that in mind, an imaginative and inclusive plan, one with broad support, becomes all the more important.
Political verdict: The hybrid concept—river and pond— would please the largest number of people.
SENTIMENTAL CONSIDERATIONS
But for some, the Mirror Pond Ad Hoc work group included, maintaining a pond at all costs has become a project steeped in pride.
“We’re going to find a way to preserve the pond,” park district Executive Director Don Horton flatly stated during the Dec. 2 Mirror Pond work group meeting.
Rather than allow science and economics—as well as the rising tide of pro-river proponents—guide the conversation, many old-school residents have adopted a preserve-the-pond, costs-and-public-be-damned type attitude. Such bullheadedness will surely backfire come time to take a community-wide vote, particularly if a new tax zone is included.
It would be unfair to gloss over the other side’s preferance for a free-flowing river.
A Deschutes River with no dam at Newport Avenue could move faster than some experts have projected. Mirror Pond project manager Jim Figurski explained that while the drop in gradient from the Colorado dam to the downstream side of the Newport Avenue dam is roughly 12 feet, estimates on just how fast the water would flow sans dam are just that. In the past Figurski has characterized the pace of current flows as a slow walk. Without a dam, he said, the water might pick up to a brisk walking pace. But, according to Figurski, recent low flows exposed riffles in that stretch of the river, an indicator that the river was moving at a higer velocity and potentially too fast for casual tubers hoping for a lazy downriver float.
When it comes to the river-versus-pond debate, passions run high. Such feelings have wrongly misdirected the course of the conversation. Luckily, it’s not too late for the decision makers to do an about face and let solid numbers, rather than sentiment, lead the way.
Sentimental verdict: Use our heads, not our hearts.
LEGAL CONSIDERATIONS
One of the hurdles that must be overcome, if the Mirror Pond Ad Hoc group insists on plowing forward with a pond, is the murky issue of water rights.
According to water right certificate number No. 29581, Pacific Power can only impound water for the purpose of power generation and ice and debris removal. Said more directly: The limited use permit does not allow for storing water for recreational or aesthetic purposes (like making a pond because it is pretty to look at). That means without a utility company at the controls (remember: Pacific Power has said the dam has outlived its usefulness and its owners are ready to walk away from the hulking relic), the dam will violate state law.
During the early December Mirror Pond meeting, Park District attorney Neil Bryant offered a number of long-shot work-arounds, including seeking a legislative exception to the Oregon Water Resources Department rule, but he was frank about the options and expected outcomes.
“A lengthy and complex administrative process,” is how he referred to it.
Plus, Bryant said, it’s unlikely lawmakers would be able to vote on the issue until their next full legislative session—January 2015. Water Resources Department officials have confirmed that transferring water rights is next to impossible.
The water rights issue isn’t the only unknown legal problem. There’s also the issue of property taxes, as in, has the McKay family been paying for the mud beneath Mirror Pond all these years?
“I don’t know,” Bryant said over the phone. “I doubt they had because it had no value.”
That’s not what Smith and Taylor think. They’ve said they’re willing to pay somewhere between $225,000 and $327,000 for the Mirror Pond’s mud. Once they do, Bryant pointed out, they would likely pay property taxes based on the land’s assessed value.
Others worry about access if the banks of the river (or pond) are in the hands of two local businessmen, rather than the public. Technically, Bryant said, you’d need their permission to access the water.
Simply, the legal ownership and water rights issues stir up a lot of questions that haven’t yet been fully considered. As another example, if Smith and Taylor were able to do as they wish and keep the pond, there’s still the issue of paying for maintenance and regular dredging. Would they be legally responsible for such duties?
“A lot of that is unknown,” Bryant added.
Legal verdict: Time to call an attorney! Keeping Mirror Pond raises contentious legal issues concerning ownership, taxes and water rights.
It has been a turbulent year for the in-town stretch of the Deschutes River. But 2013 has revealed much about the years-old river-or-pond (or both) debate. The community has learned that, as of this summer, it is evenly split on the issue. It is also clear that any solution, short of requiring Pacific Power to do the heavy lifting, will cost roughly $10-plus million. But the fact that the dam is leaking and in serious disrepair—enough to make the utility company try to disown the relic—should give pause to Bend’s leaders, who are considering acquiring ownership. Ditto for the lack of budget or bank account that’s yet to be attached to this daunting project.
In spite of all the questions, there is one certainty: This debate is not over.
Dam Report Card
Excerpts from the 22-page engineering inspection report, released by PacifiCorp on Dec. 10:
“(without any action) leakage events similar to the type experienced in 2008, 2009 and most recently in October 2013 can be expected to continue.”
“As this cycle of aging and deterioration continues, larger pathways for
leakage are created leading to the loss of more rockfill (and its associated support), resulting in an increased number of upstream facing board failures.”
“In a longer time frame, the rate of leakage will continue to increase, and with it the deterioration of the timber crib’s structural components, eventually leading to their failure”
“It is likely that leakage through the existing timber crib would become so pervasive that the dam would be unable to maintain normal water levels prior to the development of a structural failure mode.”