In what is just about the most perfect timing ever for opponents, a state board has told the city it must redo portions of its controversial plan to upgrade its surface water system.
Critics of the project are calling it a victory. Meanwhile, a city official said the problems found by the Oregon Land Use Board of Appeals "are fixable issues."
Either way, the board has remanded the plan back to the city and the process of fixing it will require at least one public hearing.
It's the opening the newly elected councilors and Jim Clinton have been seeking to get the entire surface water improvement project back on the drawing board.
"It does create a certain dead stop where we now have more time to discuss the various alternatives that might be available," said Victor Chudowsky, who was elected to the council in November and will take office in January.
City staff, an incoming city councilor and Paul Dewey, the director of Central Oregon Landwatch who filed the appeal of the city's plan with LUBA, expect that the city council will take up the remand of the decision and hold a public hearing itself rather than refer the issue to the city's planning commission for review.
The big question will be whether the council will consider only the specific issues raised by the land use appeals board or whether the council will consider a much broader range of priorities for the city's money than this current surface water improvement project.
"They aren't restricted to considering the issues that came back from LUBA," summarized Paul Dewey of Landwatch, "which is a real opportunity here."
The Nov. 30 decision from LUBA is definitely a mixed answer to Landwatch's appeal to the city's water plan, which is estimated to cost somewhere between $55 million and $70 million.
While the board found several issues with the city's plan for upgrading its water system, it also denied several complaints made by Landwatch, including complaints about the city not living up to its environmental goals.
The city must address are two main problems:
First, LUBA said the city did not provide a specific enough description of the surface water improvement project in the plan, though the board did not say how much more detail was necessary.
"We only determine here that the level of detail the city has provided for the SWIP in the 2012 PFP that is before us in this appeal is inadequate," the LUBA document stated.
The lack of specific detail has been a chief complaint from many vocal opponents to the project, as well as people in the environmental community who spoke privately about their concerns with the project, saying it has been difficult to pin down exactly what the project was and therefore challenging to provide clear comment on it to the city.
Second, LUBA noted that the city hadn't listed the surface water improvement project in all the correct locations of its larger water plan and there were some inconsistencies in references to the surface water improvement project.
It will be up to the city council to determine whether it will look at only these narrow issues.
An attorney for the city said it would be standard practice to do the narrow look.
"The city can, and in practice it almost always happens, that the remand is limited to the remand issue," said Gary Firestone, an attorney for the city of Bend.
It will be up to the new council, the majority of which opposes the surface water project in its current form, to make that determination.
As it is currently envisioned, the project entails creating a new water intake system at Bridge Creek just above where that creek empties into Tumalo Creek. A new roughly 10-mile, 30-inch pipe will be laid between that intake point and a water facility called Outback. At Outback, a new water treatment facility is planned where the city can treat the surface water for an organism called cryptosporidium, a nasty protozoan parasite that can cause diarrhea and other illnesses.
The Environmental Protection Agency issued a requirement that all surface water be treated for the bug. The city has been ordered to comply with that requirement by 2014, though it may be able to obtain a waiver.
A hydropower plant has, at times, been part of the plan, as well. The plant would allow the city to capture the energy created by bringing the water downhill for 10 miles and possibly even power the water treatment facility.
Current city councilors and city staff have championed the project saying it will protect a valuable two-source water system and provide the infrastructure the city needs to meet the water demands of the future.
Critics of the project have said it is extremely expensive, especially when roughly $170 million is needed in sewer upgrades. They have also pointed to impacts of the project on Tumalo Creek, which may see a decline in flows based on how much water the city ultimately attempts to withdraw.
At its last meeting, the city council made an effort to stave off complaints by limiting the amount of creek withdrawals to 18 cfs, instead of taking the 21 cfs the Forest Service has approved. But that could change again, and the city actually has water rights allowing it to take up to 36 cfs, though those extra 15 cfs are junior water rights and the city may never be permitted to exercise them.
And, finally, critics take issue with the city's process for approving the project, which included, at one point, raising monthly water bills to pay for the project before the currently envisioned project was actually approved by the city council.
"In this case, the city decided the detail work and tried to adopt its big picture plan to accommodate it," said Bill Buchanan, a local attorney and primary opponent of the project.
City staff say that's not the case and point to the inclusion of a surface water improvement plan update in its bigger water plans since the 1980s.
It's a point of contention that LUBA put to rest, to some degree, in its recent decision.
"While previously adopted public facilities plans and/or comprehensive plans identified as future public facilities projects some upgrades to the city's surface water supply such as replacement of existing transmission lines and construction of a treatment plan, those plans do not include the project that the city now includes in the 2012 PFP and that the parties refer to as the SWIP," wrote LUBA officials in their decision.
That's a lot of jargon there. But, it basically means the city needed to treat this as a new project but hasn't.
This decision from LUBA is the latest in a string of bad news for those who wish to see the surface water improvement project completed.
In October, a federal court issued a permanent injunction that will halt physical work on the project until larger legal issues can be addressed. And the November election saw a sweep of anti-SWIP candidates elected into office.
The fabrication of the new 30-inch pipe has also been put on hold, according to an email City Manager Eric King sent to Bill Buchanan earlier this week.
"We have indeed ceased fabrication of the pipe," wrote King in the email he cc'ed to council members, "and all other matters related to the project pending a more thorough discussion with the new Council as well as the additional environmental analysis that will be conducted."
For now, Chudowsky's assessment of the project's progress seems reliable: a dead stop.
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