For the past few years, the City of Bend has been trying to push forward a plan to replace the two pipelines that draw water from Bridge Creek and carry it 10 miles to a treatment center before entering into the pipes in town. One of the pipes was installed in the 1920s and the other in the 1950s, and the City hopes to replace those with one big pipe, essentially a 20-inch diameter straw. There have even been ribbon cutting ceremonies (well, "pipe signing" ceremonies) and machinery wheeled out to the site.
But for just as long, the City has been embroiled in legal battles over its Bridge Creek Pipeline Project. Environmentalists worry that the project threatens fish populations and water quality, and they have requested—and, for a time, won—an injunction to stop construction.
And now, with the possibility to divert the discussion from the court system and into a more neighborly mediation process (and in the process likely saving money), the City instead seems to be bulldozing ahead.
City staff and councilors have frequently lamented the additional costs incurred by the subsequent delays. And yet, the City has so far rejected a request by the appellant, Central Oregon LandWatch (COLW), to enter into mediation under the 9th Circuit Court of Appeals—and instead leaves itself open to future litigation.
In December, COLW, which had sought an injunction to postpone construction, lost a federal court appeal. Rather than appeal that decision to the 9th Circuit, though, COLW Executive Director Paul Dewey says the organization submitted a proposal to the City, requesting to enter into mediation.
But City Attorney Mary Winters tells the Source that what COLW is proposing is too similar to the relief sought in the lawsuit.
"The Council was not going to go down the path of the kind of offer LandWatch proposed because it was sort of what they asked for in the legislation," Winters explains. "The City Council is interested in settling if it is focused on the overall health of the river."
Specifically, she says, the City Council has talked about ways to secure funding for the piping of Tumalo Irrigation District (TID) canals, which Councilor Victor Chudowsky says will increase flows in Tumalo Creek's lower reaches.
"Basically, the approach that they've taken in this lawsuit to put water back into Tumalo Creek is not workable because they want to limit the City's water rights," Chudowsky says. "Any water the City forgoes can be used by Tumalo Irrigation District."
Chudowsky sees the TID piping project as a potential win-win-win for the District, the City and the creek, and more likely to protect the health of the creek than COLW's proposal.
"Their case was kind of laughed out of court," Chudowsky says. "That's not a very strong incentive for the City to be mediating under the 9th Circuit."
But COLW's Dewey says that not only does the proposal bring up issues not mentioned in the lawsuit—such as the anticipated impact of climate change on water levels—but that the mediation process would not need to be limited to the ideas raised in the proposal.
"Proposals aren't ultimatums," Dewey says, noting that he would be happy to discuss in mediation any alternatives that keep more water in the creek. "The beauty of mediation is you aren't limited to what each party suggests... We aren't asking for any injunction, any slow down of what they're doing." Dewey adds, "The lack of response has been deafening."
And it's not just Central Oregon LandWatch who feels out of the loop. City Councilor Nathan Boddie, who says he can't discuss the proposed mediation at length due to the confidential nature of the City's legal matters, admits he's not clear on the City's next steps.
"I confess I have not heard an update from [City Attorney Mary Winters] about what the next step is," Boddie says. "To me it seemed like, why wouldn't we [enter into mediation] if it's less expensive for the City," Boddie says.
We certainly agree.