Disputed Bend water project to wait for ruling

Federal court to hear arguments Wednesday

BEND, Ore. - A federal judge in Eugene will hear arguments Wednesday in a bid by critics of Bend's controversial surface water improvement project to block the work from starting pending a full hearing on their claims.

The start of the $20 million-plus pipeline replacement project was scheduled for Wednesday, but city spokesman Justin Finestone said Tuesday they will wait for the judge's ruling on the request by Central Oregon LandWatch for a temporary restraining order and preliminary injunction. That is expected by the end of the week, he said.

Attorney Paul Dewey's group lost another, similar effort to head off the project Tuesday when the state Land Use Board of Appeals rejected their motion for a stay of the related part of the city's water facilities plan.

Dewey said LUBA ruled they had failed to show irreparable harm if the city proceeded.

The project foes argued that cutting of groves of trees along two bridges over Tumalo Creek, by the Tumalo Falls parking lot and other impacts to the wetlands in the area constituted irreparable harm.

"LUBA said that the city said it was planning to do replanting" about 270 trees and restore the disturbed riparian areas, Dewey said – "never mind no one alive will see the large ones as they are."

The LUBA case will proceed, with oral arguments later this month and a decision expected around late November, Dewey said. That could also lead to a construction halt, "if the snows haven't done so already," the lawyer said.

Perhaps it was inevitable – and it's quite likely to be costly, whatever the outcome. But it now appears the project's fate will be decided as much in the courts as it will in the city council chambers, or at the ballot box – perhaps more so, if foes succeed in a last-ditch race against the clock to block the project, just before it begins.

The work is now slated to begin west of Bend to put a new 30-inch water pipe from Tumalo Creek (actually, its Bridge Creek tributary) down Skyliners Road and to Bend.

A 28-page memorandum filed last week in a lawsuit against the U.S. Forest Service lays out a host of reasons for the injunction,  including claims of failing to follow federal policies in granting the special use permit so Bend can get the project $20 million-plus for first phase, perhaps $69 million overall – done and the 60- to 90-year-old failing pipes replaced before they fail.

Staging work began in recent weeks, as the timing is supposed to dovetail with reconstruction of Skyliners Road west of town and also with low fall stream levels for such work as pouring concrete and laying pipe.

As you might expect, city leaders were not surprised by the court challenge, and say they expect to prevail.

"The surface water project has been studied and well vetted by multiple parties over the past several years," said Finestone. "We know our case is strong, and look forward to beginning construction on the pipeline next week as planned."

Several people running for city council seats have said they would try to put the brakes on the costly project, siding with the anti-project group Stop the Drain's view that Bend can easily get by with only water pumped from ground water wells. But a majority of the current council has said having two sources of water is not something the city should give up.

The LandWatch group claims the project will boost water diversions and reduce Tumalo Creek's water quality, especially during the summer when the flows are lower.

They claim the Forest Service accepted city engineering consultants' information without an independent review and verification. What's more, they claim the current system operates well and that forecasts of increased water demands have "not materialized."

In the LUBA appeal, the technical legal argument is over when the city gave "final" approval of the project, but also dives into the planned removal of "large, scenic trees" by the Tumalo Falls parking lot and two bridge crossings.

Deschutes County's road manager, Chris Doty, was quoted in The Source last week as saying they could wait for the city to do its work next fall and winter, without hurting the project -- though he said it's not preferred, due to the federal dollars involved. The city had sped things up when it faced a 2012 EPA deadline for the project, but that was pushed back two years.

Consultants have said delays caused by opponents will add up, perhaps to the tune of $1 million. How many dollars – taxpayer or otherwise – will now be spent in court over the legal battle is, at this point, anyone's guess.

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