This article was published on: 12/21/13 12:00 AM
City councilors and conservation group see opportunities to resolve lawsuit over Bridge Creek
By Hillary Borrud
Bend Mayor Jim Clinton is discussing a potential settlement with the executive director of a conservation group suing to stop the city’s Bridge Creek water supply project.
In November, Central Oregon LandWatch for the second time filed a lawsuit to stop the city’s plan to install a new pipeline and intake facility to bring water from Bridge Creek and Tumalo Creek in the Cascades foothills. The city already takes water from the creeks, but city engineers and consultants have said the existing pipelines from the 1920s and 1950s need to be replaced.
LandWatch and WaterWatch of Oregon, a Portland-based group that joined the lawsuit, allege the U.S. Forest Service failed to adequately consider environmental impacts of the project before it issued a permit to the city.
“I think sort of the wider context has been a remarkable disconnect between … the opponents and the city, with the Forest Service caught in the middle, where the two sides don’t even agree on the basic features of the project,” Clinton said.
City Manager Eric King said Bend officials would be “very interested” in working toward a settlement. “At this point, from what I understand from (the mayor), I think it’s mostly listening to folks and seeing if there’s middle ground,” King said.
To address divisions in the community over the Bridge Creek project, the city this year signed a $15,000 contract with mediator Mary Orton. King said the city needed an independent, third party to help improve discussions and look for common ground among the various people and groups who care about the Bridge Creek project and Tumalo Creek. Orton interviewed more than a dozen people about their positions on the water project. Now, Orton is holding meetings with some city employees, city councilors and other members of the community who believe they would benefit from meeting with people who have different viewpoints. The city employees and councilors participating in the meetings are doing so voluntarily, King said.
The city and Central Oregon LandWatch briefly engaged in settlement talks in late 2012, after the nonprofit for the first time filed a federal lawsuit to stop the city’s previous water project plan. LandWatch called an end to settlement talks in October 2012, and LandWatch Executive Director Paul Dewey said at the time that the group was not prepared to accept a settlement that would allow the city water project to go forward as designed.
That version of the Bridge Creek project would have allowed the city to take up to 21 cubic feet of water per second from Bridge Creek, instead of the 18.2 cubic feet per second that the city currently takes from the creek. The latest Forest Service permit for the water project would allow the city to take the same amount of 18.2 cubic feet per second.
Compared with a year ago, “it’s a much different equation because the city believes it has delayed construction about as long as it possibly can, to still get the pipe under (Skyliners Road) by the deadline set by (Deschutes County),” Clinton said, and there is more pressure for the city to settle the lawsuit.
Deschutes County plans to reconstruct Skyliners Road in 2015. City engineers want to install much of the new pipeline under the road because it would have the least environmental impact on surrounding forests and be a structurally sound location for the pipeline. Most of the money for the $10 million county road project will come from a Federal Highway Administration grant and under the grant terms, the county must start work before spring 2015. The county will not allow the city to install the pipe under the new road once the new road has been built.
City Attorney Mary Winters said there have not been any official settlement talks since the new lawsuit was filed. “I can only have settlement talks through (WaterWatch and LandWatch’s attorney),” Winters said. “LandWatch has taken the position (Executive Director and lawyer) Paul Dewey is not acting as an attorney, he is acting as the executive director. Jim Clinton has asked if it’s OK he has some discussions with Paul Dewey directly, and I said ‘yes.’ … Council is supportive of him talking and exploring whatever ideas he has.”
Clinton does not have individual authority to reach a settlement. Any potential settlement would have to go before the entire City Council for approval.
On Friday, Dewey said LandWatch is interested in potential settlement talks and confirmed he has been talking with Clinton. Supporters and opponents of the water project often seem to be far apart and the debate over the project has been vitriolic at times. But Dewey said he believes it is possible for all sides to agree. “I’ve seen even more polarized situations than this coming to resolution, including through settlement talks,” Dewey said. “I was one of the attorneys for the (Confederated Tribes of The Warm Springs Reservation) and Bureau of Indian Affairs, in litigation that had gone on over 10 years and hard feelings that had gone on over 100 years, and people were willing to work past that. … At this point, everybody has been upset or angry or feels as if they’ve been misrepresented, but the key is just to keep communication open and keep talking, and you work through that stuff.”
WaterWatch Executive Director John DeVoe said the group “is always willing to discuss settlement and negotiate in good faith, and I think our track record on many matters demonstrates that.”
Similar to Clinton, other city councilors said there is potential for a settlement agreement in which the city would commit to projects that would increase the amount of water in Tumalo Creek. Mayor Pro Tem Jodie Barram said she does not know how much potential there is to resolve disagreements over the water project, so she appreciates what Clinton is doing.
City Councilor Sally Russell said one issue that is not up for negotiation is that the city will continue to take water from Bridge Creek and Tumalo Creek. “The council did vote unanimously to have a dual water system, and that means I and every other councilor who’s on the City Council believe in the value of having surface water be one of the sources for our water,” Russell said.
Russell agreed with Clinton that the Skyliners Road project has added pressure for the city to resolve the lawsuit.
“Those deadlines were pretty far out in the future, and now they’re pretty close,” Russell said. “I agree there’s probably a lot more incentive for people to find middle ground and listen better to reach that middle ground.”
“I’ve been working hard in the community, especially since June, to sit down with people on all sides of this issue to understand what the shared values are,” Russell said. She heard that Tumalo Creek was historically an important source of cold water in the Middle Deschutes River, “so I think people in the community were really interested in finding some ways short-term and long-term that Tumalo Creek can be stronger in making that cold water contribution.”
City Councilor Mark Capell agreed. “I think this is an opportunity for WaterWatch and LandWatch to say, ‘The important thing is fixing Tumalo Creek.’”
— Reporter: 541-617-7829, hborrud@bendbulletin.com