Bend canal neighbors sue to block 12-mile piping project

A group that opposes the piping of Arnold Irrigation District’s main canal in south Bend has filed a lawsuit alleging that the project will irreversibly damage the local environment and will diminish property values.

Save Arnold Canal, a grassroots movement made up mainly of residents near the canal, filed the lawsuit with the U.S. District Court in Eugene last week, according to a release from the group.

The court filing is the latest in a string of lawsuits lodged by local residents against irrigation districts across the Deschutes Basin. The complaints have piled up as irrigation districts spend millions on modernization projects that entail ripping up open canals and replacing them with buried pipes.

In the case of Arnold Irrigation District, the residents are asking a federal judge to review the action that was recently taken to greenlight a 12-mile piping project.

The Natural Resources Conservation Service and Arnold Irrigation District are the defendants in the case, accused of violating environmental laws, including the National Environmental Policy Act.

Save Arnold Canal says it seeks a collaborative approach to water conservation in the area, one that will save water for farmers but also leave the canals open and allow for some seepage into the ground to maintain the habitat that has grown up around the canal.

Water conservation is meant to benefit farmers in Arnold Irrigation District, which has experienced mid-season water shutdowns for the past three years due to drought and the district’s leaky canal. Some water will also be made available for junior water rights holder North Unit Irrigation District, as well as for the Deschutes River to support wildlife habitat.

But those who live near the canal say if the pipe is installed it will kill a water source needed by flora and fauna in the area. Property values will also decline when the open water flowing behind their homes disappears, they say.

The group favors conserving water by using sprayed concrete to line the walls of the canal, a method they say will conserve 70% of the water but still leave 30% to trickle into the ground. They are asking the court to review the project’s environmental assessment and the finding of no significant impact.

Arnold Irrigation District “inflated the costs of other alternatives to piping or simply refused to do a full and proper examination of them,” according to the release. “Water-market-based solutions and non-membrane concrete lining are the two most effective and least-expensive ways to solve the most problems with the fewest costs.”

Save Arnold Canal members allege that they have been repeatedly denied a “legitimate stakeholder’s voice” in the matter. It says the litigation is simply a request that the Natural Resources Conservation Service “comply with the law” and explore alternative solutions.

Steve Johnson, Arnold Irrigation District general manager, says a similar lawsuit in Tumalo Irrigation District could indicate which way the court will decide in the Arnold lawsuit.

In that case, the U.S. District Court in Eugene last week declared that the irrigation district has the right to pipe within its 1894 Carey Act easements, including burying the pipe below the bottom of the canal.

“The way I read the … filing, the judge’s order on the Tumalo case negatively impacts their position,” said Johnson. “The order explicitly establishes the irrigation district’s Carey Act easement dimensions and the outright authority to utilize for system improvements, including piping.”

Brian Sheets, a lawyer representing Save Arnold Canal, said Arnold Irrigation District will be breaking the law if it digs into the canal bed to bury its pipe, and asserts that the district does not own the underlying land that the canal runs through.

“Our claim is that excavating and burying a four to five foot pipe below the bed of the canal intrudes into the underlying property and exceeds the allowances of the claimed easement and constitutes an expanded use of the canal,” said Sheets.

“As a governmental unit, they are subject to the U.S. and Oregon constitutions that require compensation for converting private property into public use,” he said.

Johnson said the district has not received a summons on the filing as of Monday.

-Michael Kohn