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State sends Bend's water plan back for more work

By Barney Lerten
Published On: Dec 02 2012 11:56:18 PM CST
Updated On: Dec 03 2012 05:18:48 PM CST
Bend water project pipes

Steel pipe for Bend Surface Water Improvement Project was brought to project site before foes won court order halting work in late 2012

BEND, Ore. -

The state Land Use Board of Appeals has sent the city of Bend's water plan back to the city for more work -- but while foes of the pipeline project said they won on most issues, city leaders said Monday that's not how they read it.

Land-use lawyer Paul Dewey, executive director of Central Oregon LandWatch, said Sunday he received word over the weekend that LUBA had "upheld a number of issues LandWatch had appealed" on the disputed water plan.

Earlier this fall, a federal judge in Eugene granted a restraining order halting the project to replace two 11-mile, aging pipelines from Bridge Creek that supplies about half of the city's water, just as work was about to begin. She agreed that Forest Service information on the impact of the project on stream flows and temperature and fish and other habitat was insufficient.

Efforts to mediate a settlement failed to take hold, and the city later proposed a lower cap on total water that could be removed from the creek, a tributary of Tumalo Creek -- again, not enough to placate project critics.

Now, Dewey says, LUBA has "remanded" (sent back) the city's Water Public Facilities Plan, including SWIP, for more work.

The lawyer noted that the city had argued, in trying to head off a project halt, that the surface water project already was approved in an earlier city Public Facilities Plan and thus could not be legally challenged.

LandWatch argued that "final approval" didn't happen until the city's new overall water plan was approved by city councilors earlier this year.

"And LUBA agreed with us," Dewey said.

That means the city will have to hold proceedings to correct the errors found by the state board, Dewey said.

He said they "include failing to give an adequate breakdown of components and costs of (the project), inconsistencies in the planning documents on when the SWIP was to be done and impermissibly expanding water service for urban uses outside the current urban growth boundary."

New city councilors elected this fall had campaigned on a basis of opposing the project, estimated at a potential final cost of $69 million. Critics have long claimed the city could save money and not impact the creek by not using its surface water rights and instead relying solely on ground water wells.

But a statement Monday from city spokesman Justin Finestone said the LUBA ruling is far from a clear-cut win for the critics.

"After reading the LUBA decision, the city won on most issues, and the ones we lost on related to the surface water project are relatively easy to fix on remand," the city's statement began.

Here's the rest of it, in full:

"LUBA remanded on the level of detail in the description and cost of the surface water project and the fact that it was not adequately included in the lists of projects.  LUBA wanted the surface water project to be listed in the short or long term list of projects. The city hadn't done so because it was already in the design and planning stage at the time of adoption, but it can list it nonetheless."

"LUBA noted that other items had greater cost detail than the surface water project, and although the city has a fair amount of detail in determining the level of detail in describing public facility projects, it needed to describe the SWIP in greater level of detail than in the table in the Water PFP. This can be easily remedied on remand.  

"LUBA agreed with the city that it met the legal and goal requirements to coordinate with private (water) utilities (Roats and Avion) and (Deschutes) County.  LUBA specifically agreed with the city that there is no evidence that the county raised or that the city failed to consider impacts related to a county-identified Goal 5 resource (Tumalo Creek).

"LUBA agreed with the city that the water PFP has an adequate factual basis for determining future water demand for significant public facility projects to support land uses in the comprehensive plan, and disagreed with (LandWatch) about use of outdated information.

"LUBA understood that planning studies and timelines change during a multi-year planning process. LUBA also found that the Bend General Plan accurately stated the Bridge Creek potential water supply capacity. 

"LUBA also rejected the argument that the city had to do an environmental, social analysis of a Goal 5 resource, located in the county, under state law. LUBA agreed that no "new use" within city boundaries was at issue to provide a basis for reversal or remand, nor was the City proposing changes to its development code that would affect Tumalo Creek.

"The city is reviewing the issues raised by the portions of the LUBA decision holding that the PFP improperly included public facilities that provide for expanded services to Tetherow,  a destination resort outside the UGB, even though the city is contractually obligated to serve it. This issue will be addressed on remand."

But Dewey, told of the city's reaction Monday, said the city was trying to put the best face it could on a loss: "This wasn't a football game where you tally points. it is a win or lose situation. If your decision gets remanded by LUBA, you've lost."

"So I don’t know how to calculate the points.  We won, as I see it and as most practitioners would view it," Dewey said. "LUBA affirmed the city on majority of the issues/subissues (such as adequate coordination with the county), but sustained our appeal on the most important ones. "

"Also, some issues are more important than others," he added. "One of the most important here was that the legal decision for the SWIP was the 2012 Water PFP, not those earlier PFPs.  The significance of that is that a remand of the 2012 Water PFP means a remand of the SWIP, and a remand means that whatever was appealed is considered to be no longer legally adopted.  To be considered legally adopted now, the Water PFP and its SWIP need to be readopted (after a public hearing and necessary evidence to answer the remand on the remanded issues).

"So I don’t know how to calculate the points," Dewey said. "We won, as I see it and as most practitioners would view it.  LUBA affirmed the city on a majority of the issues/sub-issues (such as adequate coordination with the county), but sustained our appeal on the most important ones."

Told of Dewey's reaction to the city's reaction... the city stood by its earlier response.

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