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SWIP suit raises questions about spending

On a City Council agenda packed with development and infrastructure issues, only one item inspired debate at the Aug. 6 meeting. Tucked at the end of the consent agenda—typically a cluster of items approved collectively by a motion with little fanfare at the start of the meeting—was a contract amendment authorizing the city to spend an additional $150,000 on legal services from the Seattle-based firm Perkins Coie in an ongoing legal battle over the Surface Water Irrigation Project (SWIP), a $21 million project to build a new pipeline drawing from Tumalo Creek.

Though not a sizeable dollar figure in the context of approvals regularly made by council, that approval raises the maximum amount paid to Perkins Coie attorneys—experts in dealing with federal land use issues—to nearly half a million dollars. Councilor Sally Russell moved to vote separately on this item, expressing concern over the cost of the ongoing suit, brought against the City and the U.S. Forest Service by Central Oregon LandWatch and WaterWatch of Oregon.

"I want to point out the cost to our community in continuing this lawsuit," Russell said. "As someone who is really concerned about this process, I plan not to vote."

City of Bend Staff Attorney Mary Winters explained that the lawsuit has reached the point where both sides are submitting motions for summary judgment. She added that the expert legal services were necessary both to free the city up to deal with other legal issues, and because the case involves the Environmental Protection Act and other federal statutes that the city does not deal with regularly.

"We've done as much in-house as we can," Winters said. "It's pretty specialized and important."

She said the most significant cost incurred by the lawsuit were delays to build the new pipeline. Winters said that cost was "in the millions," due to increases in associated prices over time. She added that she couldn't be sure when a decision would be reached, but that it might come by year's end.

Councilor Scott Ramsay said that the city should not bear the brunt of the blame for costs associated with the SWIP lawsuit.

"We are often criticized as a city because we spend money to defend ourselves," Ramsay said. "It's rarely pointed out that the opposition is the cause of us having to spend that money."

Councilor Doug Knight, who had objected to the expansion project, said that at this point in the process, it was best to see the lawsuit through. "Not to vote would be like pulling the wheels off the wagon before it reaches the destination," Knight explained.

Ultimately, the council approved the amendment.

Reached for comment after the meeting, Central Oregon LandWatch Executive Director Paul Dewey said that while the Perkins Coie attorney fees are double usual rates—the firm is charging the city $500 an hour—he is not surprised that the city chose the high-profile firm. (Perkins Coie is the counsel of record for the DNC and has had among its clients politicians including John Kerry and Barack Obama).

"It's typical of their approach," said Dewey, who is also an attorney. "Even on the water system, they voted on the Cadillac version of a water treatment system. That's what the City Council should be questioning. Everybody needs to hire a lawyer, but does it need to be that expensive?"

In other news, the council voted to approve:

- The City of Bend Stormwater Master Plan. The city's first formal stormwater master plan provides $25.2 million in infrastructure improvements over 20 years and results in residential rates of $4.36 to $5.80 per ERU per month in the near term and $6.53 to $6.80 per ERU per month in the long term.

- The second reading of an ordinance that would give a non-exclusive franchise agreement to Cascade Natural Gas Corporation.

- The second reading of an ordinance that allows for the creation of the 88-acre, 600-home Stone Creek development.

- An ordinance amending off-site improvement obligations and traffic mitigation requirements for the former Mt. Bachelor Park and Ride/future Bend Park and Recreation Simpson Pavilion.

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