This article was published on: 02/4/15 12:00 AM
Bridge Creek case headed to 9th Circuit
By Tyler Leeds / The Bulletin
The members of the Bend City Council disagree on the merits of a recent appeal challenging a $24 million city of Bend drinking water project.
The majority of the council said they are disappointed the case is headed to the San Francisco-based 9th U.S. Circuit Court of Appeals. However, two newcomers, Councilors Nathan Boddie and Barb Campbell, characterized the project’s early days as rushed and see little harm in additional scrutiny from the courts.
The appeal is intended to stop the replacement of an aging pipe that diverts drinking water from Bridge Creek, a tributary of Tumalo Creek, in the foothills of the Cascades. Central Oregon LandWatch and WaterWatch of Oregon filed the lawsuit in 2013, arguing the U.S. Forest Service failed to properly investigate how it would affect the creeks’ water levels and the fish within before issuing a permit.
LandWatch has argued the city could rely exclusively on groundwater wells, but the city contends that would be costly and a dual-source system is a safer bet.
In December, U.S. District Judge Ann Aiken ruled in favor of the Forest Service and the city, writing in her decision that the Forest Service followed the law in its approach to evaluating the environmental impact of the project. Aiken emphasized that this new pipe will not take any more water than is currently being diverted by the city and any request to do so would trigger another environmental review.
Paul Dewey, executive director of LandWatch, said an early look at a climate change analysis his organization financed suggests there may not be enough water in future summers for both the pipe and Tumalo Falls. If water is diverted, he suggested, it’s possible the falls could go dry. As a result, Dewey contends, the water project, which also calls for a new $33 million filtration plant, may not be worth the investment.
Councilor Victor Chudowsky thinks the Forest Service’s own climate change analysis was sound and adhered to the standards set forth by the law. Chudowsky also noted the Forest Service is only able to compare this project against the status quo, which means the city’s existing pipe.
“If the argument is that building will somehow deplete water, that doesn’t hold because the current system would still be in place diverting water,” Chudowsky said.
Chudowsky also said there’s an irony to LandWatch’s approach, as “pumping water out of the ground requires immense amounts of electricity, which will just contribute to climate change.”
Dewey responded by saying the city will have to use electricity for pumping wells regardless as his organization’s study suggests there won’t be enough water in the creek for the city to take.
“If our primary findings turn out to be right, we’re going to have to be pumping, so why not save the $70 million the city wants to invest and use it elsewhere?” Dewey said. “The staff should go out and do their own study. They’re about to invest $70 million and if there’s any chance it’s not going to be effective, I sure would want to know if I were them.”
In addition to the $24 million for the pipe replacement and $33 million for the new water treatment plan, the city has spent $14.5 million on related engineering costs.
Both Campbell and Boddie said they’re concerned climate change could hurt the availability of water and are interested in seeing LandWatch’s report.
“We have to be setting all policies based on what we think the water supply may be in the future, not just on the fact that we have plenty of water right now,” Campbell said. “I’ve heard people say we have infinite water because we’re on top of an aquifer, which is patently absurd. We are far from immune from the effects of climate change.”
Boddie said “we shouldn’t rush down the road” until the city can ensure “the project will be completed and the citizens of Bend can get something meaningful out of it.”
Both councilors said a better and less controversial project could have been designed with more community input at the beginning.
“This appeal is really not unexpected because of the way this project began and how it was weirdly managed,” Boddie said. “All of that caused this vehement opposition in the community. There were problems with transparency and with public input. It was a very expensive engineering project whether you like it or you don’t, and the plan was done on the inside instead of involving the public at the outset. That’s the root of this animosity.”
Boddie based his recent campaign in large part on a critique of the water project’s cost, while his opponent, Mark Capell, defended the work as a long-delayed and necessary project.
Campbell called the issue “a big mess.”
“I knew that coming in, it’s what I signed up for,” she said. “We have got to have water and it has to come from somewhere, so we have to consider what we have already spent and what water will be there, too. There’s no easy answer, that’s what it boils down to.”
Echoing Campbell, Boddie called the project “a head-scratcher.”
Councilor Doug Knight was more in line with Chudowsky, saying he was “dismayed” by the lawsuit, and that LandWatch could “do more ecological good” by focusing on the Tumalo Irrigation District, which takes significantly more water out of the creek than the city.
“We can’t move onto that conversation until this appeal is over,” Knight said.
Dewey said working with the irrigation district is a priority for his organization, “but if the water isn’t going to be there later, it’s not worth investing a lot of money in.”
Councilor Casey Roats said he thinks “the creek will continue to serve Bend for well past the next 100 years.”
“The reality is, we already own all the pipe and are under contract to finish the job,” Roats said. “We’re far into this, and if we hadn’t yet spent a dime and (Dewey) had a crystal ball and could tell us with a high degree of certainty there wouldn’t be water in the future, that would be one thing. But I don’t believe we can put a lot of stock in any one person’s long-term analysis.”
Councilor Sally Russell says she “question(s) whether litigation is the most effective way” to protect the creek.
“It’s hard for something good for the community to come from the end of a rifle,” Russell said. “Sometimes we have to find common ground and move forward and begin.”
Russell said she believes the community “as a whole” could work to protect Tumalo Creek while also diverting water, and that she hopes LandWatch would be a participant in those conversations.
As for the effort the city has put into litigating this case, Chudowsky says “it is absolutely worth it.”
“Those water rights are the single most valuable asset the city has,” he said. “If you look at everything the city owns, right of ways, fire engines, buildings, that water in Bridge Creek is the most valuable. It’s one of the finest water supplies in the U.S.”
Mayor Jim Clinton did not return calls for comment.
— Reporter: 541-633-2160, tleeds@bendbulletin.com