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Federal judge pulls the plug on Bridge Creek pipeline lawsuit

For the past year and a half, the now $30-$34 million Bridge Creek pipeline project has lain in wait, its completion stalled by persistent legal challenges. But last Friday, a federal judge turned the tap back on, permitting the project to move forward.

"I was pleased but not surprised," says Councilor Victor Chudowsky. "The most crucial thing the City does is bring fresh clean water to your house so that you have it, without fail, when you turn on the tap. It is a huge responsibility. It is not an area where we should be taking risks, whether in the portfolio of water rights or in the design of the project. Water is too important."

But opponents of the project—a group that includes conservationists, developers and current and former city councilors and mayors—say it's a step backward for the Bridge Creek watershed and Bend rate-payers.

"We are going to pay for this profligate and irresponsible project for decades to come," says Central Oregon LandWatch Project Manager Gail Snyder. "We can expect our water rates to go up to pay for the millions of dollars wasted on this unnecessary project—and, in the process, we are sacrificing one of our most valued treasures, Tumalo Creek."

The Bridge Creek pipeline project aims to replace the two smaller, older pipes currently carrying Bend's drinking water from Bridge Creek to the treatment facility with one larger pipe. The City contends that the current pipes, built in the 1920s and 1950s, are vulnerable to failure and need to be replaced. Staff underscore this assessment, saying that the new 30-inch pipe, which was once slated to carry water for a now-sidelined hydropower project, is still necessary in order to better control flow levels and deliver water safely.

But Central Oregon LandWatch and WaterWatch of Oregon, the plaintiffs in the suit against the City and the U.S. Forest Service (which issued the special use permit to allow the pipeline to go through Deschutes National Forest), argue that the Bridge Creek pipeline project will threaten fish habitats by reducing in-stream flows and increasing water temperatures in Tumalo Creek. They also contend that the U.S. Forest Service did not adequately account for these impacts in its 2013 environmental assessment.

"The City of Bend's plans to double what it uses from Tumalo Creek is a huge step in the wrong direction," says Central Oregon LandWatch Executive Director Paul Dewey, adding the plaintiffs will likely decide whether to appeal after the holidays. "A second, even broader issue involves climate change and whether federal agencies, when they grant approvals of water diversion projects, must take into consideration how climate change will be affecting the rivers."

The question of just how much water the City can draw from Tumalo Creek was at the heart of the first lawsuit, in which Judge Ann Aiken ruled in favor of Central Oregon LandWatch and WaterWatch. In that decision, Aiken wrote that the original Forest Service permit, which would have allowed the City to take 21 cubic feet per second (cfs) of water, "will degrade water quality, diminish aesthetic values and harm fish and wildlife in and around the Project area."

In response to the ruling, the City and the Forest Service drafted a new environmental assessment that capped water diversion at 18.2 cfs, less than the pipe's capacity. In her Friday decision, Judge Aiken decided that the new assessment and diversion cap satisfy the Forest Service's legal obligations.

The City says the cap matches current diversion rates, if not actual usage. Because the capacity of the new pipe is greater than the City's current usage, conservationists are concerned that the City may divert significantly larger quantities of water in the future.

"All [the City] will have to do is go back to the Forest Service and ask for permission to take more," Dewey explains. "Also, the City's plan all along has been to build a hydropower plant to make money. If it accomplishes that, then it will have every incentive to constantly increase its use. Conservation measures would also be discouraged since any reduction in consumption would mean less revenues."

While the incoming City Council includes four councilors who campaigned on a platform that was critical of the pipeline project, councilor-elect and water utility co-owner Casey Roats says hydropower is not out of the picture.

"Should market conditions permit in the future, the project actually has the potential to produce clean, renewable and carbon-free electricity which would help recover the costs associated with the initial investments," Roats says.

The extended public and political debate about the Bridge Creek pipeline project—and the related Bridge Creek filtration plant—has highlighted tensions between those who favor a dual source water system (with the potential for hydropower) and those who would prefer to see the City rely more heavily on ground water to preserve natural habitats.

Roats says he wishes the values conversation had happened sooner, and claims the project's opponents have failed to acknowledge the downside to their stance, pointing to the potential for reliance on expensive and polluting power sources, the loss of a dual source water system, and threats to the safety and levels of groundwater.

"We would have had an honest and transparent debate if they would have simply acknowledged those realities and then stated their belief: That in the 21st century, even with the potential downside of moving away from that source, a community like Bend's value set dictates that all surface water in streams and rivers be left in place for environmental considerations," Roats says.

But beyond the debate over how Bend manages its water systems, the pipeline project has raised questions about how the City approaches major infrastructure projects.

"No matter what one may think about dual sources for drinking water or whether or not the project is needed, the entire process has been a travesty of how local government should behave," says councilor-elect Nathan Boddie. "For years, the City of Bend has ignored public input on the topic, wasted vast sums of our tax money jamming the project through, and continues to mislead the public about why the project was ever necessary in the first place."

Boddie adds that what matters most is how the City approaches these kinds of projects in the future. And sitting City Councilor Sally Russell says she believes the future holds promise for productive collaborations on this and other issues.

"I personally am really excited about the opportunity I see in front of Bend City Council to honor the values that were raised during this lawsuit by a significant and broad part of our community," says Councilor Sally Russell. "I don't believe the outgoing council has been as passionate about this as the incoming council is."


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