Chief Judge Ann Aiken of the Federal District Court of Oregon issued an injunction on Tuesday preventing the City of Bend from starting construction on its controversial $68 million Surface Water Improvement Project (SWIP), holding that the project is likely to violate protections put in place to protect wild fish and healthy rivers.
Judge Aiken issued a temporary restraining order on October 4, 2012 and in an injunction decision, Judge Aiken ruled that LandWatch is likely to prevail on the merits of the case. Judge Aiken ruled that the City of Bend’s contractor HDR ”used stream temperature data that was more than 25 years old” and that as a result its work was unreliable. She determined that immediate implementation of the SWIP “will irreparably harm plaintiff and its members and supporters” because “the Project will degrade water quality, diminish aesthetic values and harm fish and wildlife in and around the Project area.”
Ralph Bloemers is a staff attorney with the Crag Law Center and represented LandWatch on its request for an injunction. Bloemers said, “the law is crystal clear. The City of Bend and the Forest Service have to maintain or enhance the condition of Tumalo Creek. The City’s use of outdated data and questionable scientific methods in the hopes of minimizing the negative impacts just doesn’t cut it.”
The Crag Law Center is a public interest law firm that supports community-based efforts to protect the natural legacy of the Pacific Northwest. A diverse coalition of business and community leaders, conservation organizations and local citizens have been advocating for a less costly and more environmentally friendly alternative to the SWIP since the City first announced its controversial plans. From the beginning, City officials rebuffed the public’s invitation to collaborate on a community-supported plan.
Paul Dewey, executive director for Central Oregon LandWatch said, “This is a great day for one of Central Oregon’s special waterways. The City’s expensive proposal to take more water out of Tumalo Creek threatened the work of so many people to restore this fishery. Water is the new oil, and we are grateful that the Court ruled swiftly to ensure that Tumalo Creek gets its day in court. Perhaps this pause will allow us to engage in constructive dialogue on solutions that can win broad public support.”
Expert hydrogeologist Mark Yinger testified in court that the City’s analysis was unreliable. He told the judge that there was no way for him to reproduce the City’s results because the City did not disclose the methods it used to the public.
“The City’s analysis of the project’s impacts to stream temperatures put fish and stream health at great risk. There was no way for me to verify their results, instead the public was presented with a black box.”
Mike Tripp, a local fisherman and volunteer leader with Trout Unlimited, also testified in court on Wednesday. “Millions of dollars have already been invested by public and private entities to restore Tumalo Creek and the Deschutes River,” said Tripp. “This investment speaks to the value placed by the general public on the cold water in-stream flows and fishery of this watershed. Our binding fish recovery goals for national forest service lands require that any project by the City must facilitate the recovery of the fisheries in Tumalo Creek and the Deschutes River.”
“From the beginning, the City has put the cart before the horse when it comes to public process on this project,” said Allan Bruckner, one of seven former Bend mayors who have spoken out against the project. “It was inappropriate for City staff to move forward on this project when it is a major election issue. Now it is up to the incoming City Councilors to work with the public and change the direction on this project for the better.”
“The court order halting the project is a victory for businesses and citizens who stand to save tens of millions if this project is replaced by a reliable and fiscally-sound alternative,” said Bill Buchanan “Hopefully the new City Council will listen to its constituents and not take risks with the people’s hard earned dollars. This project would have saddled Bend businesses and citizens with nearly $70 million of new debt bearing interest at a rate of $300 per hour.”
“City councilors and officials ramped up the risk before all of their ducks were in a row,” said Bill Smith, developer of the Old Mill District in Bend. “I hope the silver lining is that we can now have a constructive dialogue with the City about an appropriately sized water system that protects the ratepayers and keeps the town from turning brown for a lot less than $68 million.”
Background
Tumalo Creek and Tumalo Falls is a popular destination for locals and visitors.
Tumalo Creek is home to native redband trout, a listed state sensitive species.
Tumalo Creek is one of the few sources of cold water for a 25-mile reach of the Middle Deschutes River.
The total cost of the Surface Water Improvement Project would be $68 million.
To learn more about the SWIP, visit www.stopthedrain.org.
Prior to 1992, water diversions drained the creek in the low-flow summer months.
In 1996, partners moved to establish in-stream water rights on Tumalo Creek to provide for minimum flows of 6 cubic feet per second.
In 1998: Tumalo Irrigation District (TID) moved its diversion dam 8.7 miles downstream to aid in efforts to restore the reach above Shevlin Park.
In 2004-2007, public and private agencies and organizations engaged in an extensive restoration effort of the creek’s reach with the area of the Bridge Creek fire.
Efforts through 2012 have restored summer flows in the Middle Deschutes from 30 cubic feet second (cfs) to 140 cfs.
In 2009, fish passage was established at the TID diversion dam below Shevlin Park ODFW has a water flow goal of 250 cfs for the Middle Deschutes River and currently the Deschutes River is just a little over halfway towards this goal.
ODFW has a summer water flow goal of 25 cfs for Tumalo Creek, which the City of Bend has stated is a “laudable goal” best met by TID conservation. The City has not indicated what role it can play in conservation and restoring flows in Tumalo Creek.
