This article was published on: 01/29/15 12:00 AM
Central Oregon LandWatch takes case to 9th Circuit
By Tyler Leeds
Citing preliminary evidence from a climate change model, opponents of the Bridge Creek pipeline replacement project intend to file an appeal today with the 9th U.S. Circuit Court of Appeals.
The city is spending $24 million to replace 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 a lawsuit in 2013 to stop the work, 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.
In December, U.S. District Judge Ann Aiken ruled in favor of the Forest Service and the city, but Paul Dewey, executive director of Central Oregon LandWatch, said his organization would submit an appeal today to the San Francisco-based 9th Circuit.
While the study isn’t complete, an early look at a climate change model points to a major reduction in flows, and Dewey said he is worried about the possibility of Tumalo Falls drying up in the summer.
“It’s safe to say with the loss of glaciers and a reduction in snow flows above the falls, there could be a significant reduction,” Dewey said Wednesday. “The harm isn’t just in it drying up. They’re dramatic falls because of the volume of water that goes over them. If it just starts dripping, that will have a clear impact.”
Although Bridge Creek is a tributary of Tumalo Creek, a significant amount of its water comes from the same spring complex that is the source of Tumalo Creek. The water gets to Bridge Creek from the springs via a diversion maintained by the city. In both the existing and planned water pipe systems, the city diverts its drinking water before Bridge Creek rejoins Tumalo Creek at a point below Tumalo Falls. Because the city diverts water from the springs to feed Bridge Creek, that action, Dewey argues, and the effects of climate change on the spring could diminish the flow in Tumalo Creek and its popular cascade.
Dewey expects the report, which is being prepared for LandWatch by Sisters-based Mark Yinger Associates and other organizations, to be finalized in March. However, Dewey noted, it’s possible the court may not allow the report to enter into the case’s record, as it constitutes new evidence.
“This is what we have objected to all along, that the Forest Service failed to do a real, quantitative analysis of climate change,” Dewey said.
The Forest Service did consider how climate change may affect the creek, but not with the thoroughness that Dewey argues is warranted. In her ruling, Judge Aiken disagreed with Dewey, writing the Forest Service met its obligations.
Besides the emphasis on climate change, the lawsuit also focused on whether the Forest Service is using the correct baseline for determining how low Tumalo Creek can fall before fish become endangered. Dewey has argued a more stringent standard should be applied than the one used in the Forest Service’s environmental analysis.
Part of Aiken’s ruling in favor of the project was based on the fact that the city already diverts water and earlier agreed to take no more than is currently being removed. Any attempt to increase the amount of water diverted, Aiken noted in her decision, would require further environmental review.
Regardless of which way today’s appeal goes, Dewey noted the permit governing the current system and the contested permit are not identical. This difference, he said, could have significant implications for the city.
The permit for the new system, which is now being contested in court, does not include the city’s diversion from the spring complex to Bridge Creek; the existing permit, which does cover that diversion, is set to expire at the end of 2019. Dewey said his organization will do everything it can to ensure the Forest Service considers the impact climate change will have on the springs before renewing that permit. Dewey worries that if the city continues to take water from what he believes would be the weakened springs to feed Bridge Creek, Tumalo Creek and its iconic waterfall may suffer.
“When the city asks for that permit, can it be allowed to take as much water as it wants even if the flows over Tumalo Falls won’t be maintained?” Dewey asked. “I think the Forest Service will have a hard time agreeing when the city has an alternative water source.”
The alternative source Dewey has in mind is groundwater, which the city currently uses for about half its water supply. The city has argued maintaining a dual-source supply that relies on the creeks and groundwater is important to protect access. If Dewey is right about the permit governing the springs and the Forest Service decides not to renew it, then the new pipe would have very little water to draw on.
“It seems like a good idea for the City Council to look into what water this system will even be able to get,” Dewey said. “There’s no pressing issue; they can wait. It’s not like the water system is broken or we’re running out. They should take the time to see what water there will be to run through the system.”
The city has completed a portion of the new pipeline that runs under Skyliners Road, but has yet to install pipes within riparian areas. In addition to the $24 million for the pipe replacement, the city has set aside $33 million to build a new water treatment plan and has spent $14.5 million on related engineering costs.
Assistant City Attorney Gary Firestone declined to comment for this story.
— Reporter: 541-633-2160, tleeds@bendbulletin.com
Editor’s note: This story has been corrected. In the original version, the season when Tumalo Falls could possibly dry up was misidentified. The Bulletin regrets the error.