This article was published on: 12/28/13 12:00 AM
U.S. Attorney says LandWatch suit fails to see big picture
By Scott Hammers
Oregon’s U.S. Attorney has issued a response to a lawsuit filed in connection with Bend’s Bridge Creek water project, dismissing objections raised by an environmental group as “hypertechnical criticisms.”
Bend-based Central Oregon LandWatch filed the suit against the U.S. Forest Service in November, shortly after the Forest Service approved a special use permit needed for the city to proceed with the construction of its $24 million pipeline project.
A tributary of Tumalo Creek, Bridge Creek supplies around half of Bend’s water. The city has proposed replacing the two aging pipelines that currently divert Bridge Creek water for city use with a new, larger pipeline.
The LandWatch suit alleges the Forest Service failed to fully consider how diverting water for city use could affect the health of Tumalo Creek before issuing the special use permit.
Among other things, the suit suggests the Forest Service’s findings are wrongly based on the claim the city will not divert more than 18.2 cubic feet per second from Bridge Creek, while the city’s water rights allow it to take up to 36 cfs. Larger diversions are “reasonably foreseeable,” LandWatch claims, as both the proposed pipelines and water treatment facility have the capacity to exceed 18.2 cfs.
As Oregon’s U.S. Attorney, S. Amanda Marshall is serving as the defense counsel for the Forest Service.
In her response filed Monday in U.S. District Court, Marshall wrote that LandWatch’s claims are not really about the adequacy of the Forest Service’s environmental analysis.
Marshall suggested LandWatch’s objections “would be more appropriate for an academic setting, as if the Forest Service should be defending a Ph.D. thesis before a hostile assemblage of tenured faculty members whose mission it is to scrutinize it with a fine-tooth comb and pick it apart …”
LandWatch is overlooking the “big picture,” Marshall wrote, that the replacement of the aging intake and pipelines would leave more water in Tumalo Creek than occurs under the current system.
LandWatch filed a similar suit in late 2012, after the Forest Service issued an earlier permit for similar work at the Bridge Creek water intake. A federal judge issued an injunction blocking the city from moving ahead with construction last winter, but before the court ever issued a ruling in the suit, the city withdrew its application.
No injunction is currently in place, however, the city has chosen to suspend construction activity related to the project until Jan. 27.
LandWatch is scheduled to file its response to Marshall’s filing in early January.
— Reporter: 541-383-0387, shammers@bendbulletin.com