Utility to fix Bend’s Mirror Pond dam

PacifiCorp announced on Tuesday that it will repair the leak in Mirror Pond dam in April, in time for people to enjoy higher water levels on the Deschutes River this summer.

One of the wooden panels in the dam began leaking in October, and since then, the water level has sunk, leaving visible the mud flats that have been building up in the Mirror Pond section of the river. The utility stopped generating power at the dam after it discovered the leak, and executives have been meeting with a Bend city councilor and the executive director of the Bend Park & Recreation District to discuss the possibility of transferring ownership of the dam to a government agency.

PacifiCorp plans to install a steel sheet piling upstream of the leaking panel, according to a news release from the utility.

Once the dam is repaired, PacifiCorp will again begin generating electricity at the dam, Mark Tallman, PacifiCorp’s vice president for renewable resources, said in the release.

Tallman also said it is possible Mirror Pond would have filled up anyway this summer, when more water will be released from Wickiup Reservoir.

In December, PacifiCorp spokesman Bob Gravely said it would not be cost effective to repair the dam because it produced a meager amount of electricity. On Tuesday, Gravely said utility executives decided to repair the dam for different reasons.

Gravely said PacifiCorp hopes that repairing the dam will make it easier for the utility and local officials to reach an agreement to transfer the dam to a local government agency. “We don’t intend to generate (electricity) long-term, so fixing one leak for that purpose wouldn’t make sense.”

Gravely said PacifiCorp estimates that fixing the leak will cost $250,000.

Park district Executive Director Don Horton recently called for PacifiCorp to repair the dam to prevent further damage to the structure and ensure the river will be safe for boaters and others recreating on the river this summer.

Regarding PacifiCorp’s announcement, Horton said, “It shows that PacifiCorp has been listening to the community’s needs and trying to do their part in this negotiation process that we’re going through, to figure out a long-term solution to Mirror Pond and the dam.”

PacifiCorp also met privately on Tuesday afternoon with City Councilor Mark Capell and Horton to continue negotiating a possible transfer of ownership of the dam. Capell and Horton are members of the Mirror Pond ad hoc committee tasked with deciding the future of the pond. They were joined in the negotiating session by Ned Dempsey, a citizen member of the committee. Dempsey is a civil engineer who owns a home across from Drake Park.

The committee is scheduled to meet at 1 p.m. today to discuss a proposal from committee member and park board Chairman Scott Wallace to appoint Dempsey to the small group that is meeting with PacifiCorp. However, Horton said Tuesday that Wallace went ahead and appointed Dempsey without waiting for a public meeting.

Capell said that during the meeting Tuesday, Bend officials and PacifiCorp discussed proposals from firms that want to conduct an independent inspection of the dam on behalf of the park district. Capell had to leave the meeting during discussion of a proposal from HDR, a large engineering firm where Capell’s brother Paul Capell works. Capell has said PacifiCorp should repair the Mirror Pond dam and give it to the community, and on Tuesday, he said the announcement that the utility will repair the dam does not mean it will be worth more. “It’s not going to make them any money, for sure,” Capell said. Nonetheless, Capell said the utility’s decision to fix the leak is a positive development. “I thought that was an outstanding step forward by (PacifiCorp),” Capell said.

Legislation to save Mirror Pond?

By Lauren Dake / The Bulletin

Being a former state senator, Bend-based attorney Neil Bryant understands lawmakers’ tendency to bristle at the thought of crafting a carve-out law aimed at narrowly helping an individual or entity. But when it comes to the century-old iconic Mirror Pond in Bend, he’s betting the Legislature would be receptive.

In November, Pacifi­Corp said the dam responsible for creating the pond is deteriorating. A large hole needs to be repaired and the company said it no longer makes financial sense to continue generating power using the dam.

City and park district officials recently said they would like to explore how to keep the pond intact. There are many issues to resolve, one of which is the ever-complicated matter of water rights.

And that’s where Bryant thinks lawmakers could come in.

Right now, the dam has water-storage rights associated with generating power.

The potential legislation would apply narrowly to Mirror Pond and allow a special water right for storage based on recreation and aesthetic purposes.

It’s one strategy.

“Hopefully, the Legislature would understand and say, ‘This is reasonable,’” Bryant said.

Sen. Tim Knopp, R-Bend, said he’s certainly concerned Bend wouldn’t be the same without the pond.

“I think it’s important to the future of Bend to save Mirror Pond in the form I think we all know and love in that downtown area,” Knopp said. “And if a bill is needed and city leaders are in pretty general agreement that’s the direction they want to go, I would be happy to introduce a bill to save Mirror Pond.”

Bryant noted the legislation would help maintain the status quo as far as the water rights are concerned. The current water rights to store water are based on generating power and are non-consumptive, meaning the water goes back into the river.

“Whoever has the water right, it’s still non-consumptive, they aren’t taking the water to irrigate or for other purposes,” he said. “It’s to store water in the river. The physical water isn’t changing, you just need an expanded water right for recreation.”

Other ideas are being considered as well. For example, someone could transfer their water storage rights to Mirror Pond.

Jayson Bowerman, with the Bend Paddle Trail Alliance, said he’s hoping the city can move beyond the polarizing conversation of whether to keep the dam or return the river to its natural free-flowing state to create a more unique situation. There are ways to engineer a dam, he said, that would still allow for recreation and restore portions of the pond to its natural state.

“We’re looking for solutions … to bridge the interests of (those) who want to retain Mirror Pond and those who want to see the natural river. We want both,” he said.

Knute Buehler, a Republican who is running for House District 54, the seat being vacated by Rep. Jason Conger, R-Bend, said he believes Mirror Pond is an icon of Bend and should be preserved. He’s open to ideas.

“Whenever you have a big transition point, there is always an opportunity to create something new. I think people should think out of the box,” he said.

Since the discussion is in its early stages, it’s impossible to know how the legislation would be drafted.

“If there is needed legislation (to preserve the pond) at the state level, I would be very interested in looking at that,” Buehler said.

Craig Wilhelm, the Democratic candidate for House District 54, said he’s looking forward to the process continuing at the city level before he weighs in.

“It’s just one of those things, it’s at the city level and as a legislator, I (would) have to listen to the constituents,” Wilhelm said.

Knopp acknowledged there are often unanticipated challenges to passing legislation.

“There is always going to be opposition, but the key is, the community of Bend is supportive of moving in the direction of saving Mirror Pond. … If we’re doing a specific bill to allow a water right fix and it’s not costing the state a lot of money, it’s more likely to gain traction with legislators,” he said.

“I think this is unique and has obviously been a characteristic of Bend for a long time,” Knopp said.

Source: The Bulletin 2013

Bend City Council votes to pursue Mirror Pond preservation

By Hillary Borrud / The Bulletin

The Bend City Council voted unanimously Wednesday night to pursue the preservation of Mirror Pond.

That means the city and the Bend Park & Recreation District both support the goal of keeping the pond. On Tuesday night, the park district board voted to adopt a nearly identical resolution. And while city councilors voted to discuss the condition and future of Mirror Pond dam with its owner, PacifiCorp, the park district board voted to negotiate with the utility company.

The City Council and park district board decided to vote on the issue after the Mirror Pond ad hoc committee voted Monday to keep Mirror Pond and continue negotiations to obtain the dam from PacifiCorp, within “financial reason.”

City councilors emphasized that it is still unclear how exactly local governments will resolve the problem of silt building up in the pond, and voters will likely have an opportunity to vote on the issue because local governments would need to ask them for additional taxes to pay for the project.

A consultant for the park district and city estimated it would cost roughly $11 million to remove the dam and restore this section of the river.

Few people attended the City Council meeting to speak about Mirror Pond, but some who did criticized the city and park district for not doing enough to include the public in the decision. A consultant for the city and park district completed an unscientific survey, which showed respondents were nearly split on whether to keep the pond or return that section of the Deschutes River to a free-flowing river.

Residents Barb Campbell and Foster Fell arrived at the City Council meeting carrying boxes filled with bags of popcorn, and a message for city councilors.

“You paid 1-2 hundred thousand dollars for the illusion of public process,” Campbell and Fell had printed on the bags. “You should at least enjoy some popcorn with the show.”

Campbell and Fell handed out bags of popcorn to other people who attended the meeting.

“We have tea baggers. Now Bend, Oregon, has popcorn baggers,” said resident Wade Fagen during public comment.

City Councilor Mark Capell said he agreed with some of what Campbell said. “I think the flaw with the process that happened before (City Councilor Victor Chudowsky) and I got on the (Mirror Pond ad hoc committee), the flaw was asking people what they thought before we know the numbers,” Capell said, referring to the cost of options for Mirror Pond. “And that’s what we’re trying to do now, is get to the numbers and figure it out.”

Capell said he asked city and park district employees to research details of the potential cost to remove the dam, to give local officials more leverage to negotiate with PacifiCorp.

Chudowsky said he is more concerned about the importance of Mirror Pond as a recreation resource than as an icon of Bend.

“I am really concerned about canoeists, kayakers, people who float down the river in tubes and that sort of thing,” Chudowsky said. Based on statistics from Cascades East Transit, which provides bus service for people who float down the river in the summer, Chudowsky estimated approximately 1,000 people float down to Mirror Pond and then use the bus each week during the summer.

“We do have an opportunity to create something amazing here, and that should be our goal, where we create something for everyone,” City Councilor Doug Knight said.

Source: The Bulletin 2013

Keep Mirror Pond says Bend panel

By Hillary Borrud / The Bulletin

Public opinion might be split on the future of Mirror Pond, but the vote of committee members tasked with selecting a plan for the pond was unanimous on Monday: They want to keep the pond.

The Mirror Pond ad hoc committee voted Monday afternoon to continue negotiating with PacifiCorp to obtain ownership of the dam that created Mirror Pond, as long as that plan is financially feasible for the community. Officials from the city of Bend and Bend Park & Recreation District will draft a resolution based on the ad hoc committee’s decision.

The plan is for the park district board to vote on the resolution at a meeting tonight, and the City Council to vote on it during a Wednesday night meeting. Mirror Pond is a section of the Deschutes River.

PacifiCorp announced in late November that due to the deteriorating condition of the dam, it no longer makes financial sense for the company to continue operating the dam and hydropower plant. Local officials had been waiting for that decision because it is a major factor in how the community will deal with sediment that built up behind the dam.

Earlier this year, the ad hoc committee selected two of its members, City Councilor Mark Capell and park district Executive Director Don Horton, to meet behind closed doors with PacifiCorp about the future of the dam. On Monday, Capell and Horton said they needed to know whether the committee wants to keep Mirror Pond or remove the dam and return this section of the Deschutes River to its free-flowing state.

Capell urged the committee to tell PacifiCorp to seek other individuals or entities that might want to purchase the dam. Capell said he wants to preserve the pond but believes the utility company wants too much money for a broken dam. PacifiCorp representatives said in recent years that they wanted to wait for the community to weigh in on the future of Mirror Pond.

“I don’t really think they gave a rip about what we think or what we want,” Capell said Monday. “Some corporations have a public conscience, and some don’t. I think PacifiCorp, if you look at their priorities, their priorities are to their owners, stockholders, and somewhere down the road from there, their ratepayers. And as long as you know that going in, you know what you’re dealing with.”

Capell said he did not believe any other entities would want to operate the dam, and only a conservation group with very deep pockets could afford to buy the dam and remove it. A consultant for the park district estimated it would cost $11 million to remove the dam and restore that section of river, and that cost does not include a purchase price. Capell predicted PacifiCorp would eventually return to the negotiating table with local governments, and perhaps be closer to the deal Capell wants: for the utility to repair the dam and donate it to a local government.

Capell’s proposal worried two citizens who were recently appointed to the ad hoc committee. Mike Olin and Ned Dempsey said they were concerned that if local officials told PacifiCorp to seek other buyers, they could lose their chance to obtain the dam. “I think that’s a risky strategy,” said Dempsey, a civil engineer who owns property across from Drake Park. Other committee members agreed.

The ad hoc committee also heard from one of the two businessmen who recently announced they signed a contract for an option to purchase land under Mirror Pond. Todd Taylor, president and CEO of the construction company Taylor Northwest, and Bill Smith, developer of the Old Mill District, formed a company to negotiate the purchase of the land because they wanted to ensure a local government preserves the pond. Officials have said they need permission from the McKay family, which claims ownership of land under Mirror Pond, in order to dredge the pond. Meanwhile, Horton has said a public agency should own this land; if the dam was removed and water levels lowered, the park district could expand its riverfront parks.

“We didn’t take this endeavor on to capitalize on it,” Taylor told the ad hoc committee on Monday. However, Taylor said that under the purchase option he and Smith negotiated with the McKay family, it would cost a local government roughly $225,000 to $327,000 to acquire the 23.5 acres of land under the pond. Taylor said this cost includes land title research, mapping and testing of the sediment in the pond.

Officials also discussed how to obtain water rights necessary to maintain Mirror Pond, if a local government purchases the dam from PacifiCorp. The utility company holds water rights to generate power and remove ice and debris from the pond, but it does not hold rights to store water in a pond. Park district lawyer Neil Bryant said the best option for a local government to obtain water rights necessary to keep the dam would be to ask the state Legislature to pass a bill. If the legislation applied narrowly to Mirror Pond, “I think the governor and Legislature would be pretty receptive to this,” Bryant said.

At the end of the meeting, the Mirror Pond ad hoc committee heard public comments from a few people in the audience. Stan Roach, who lives in northeast Bend and also just bought property near the pond, asked how many people at the meeting lived on the east side of the city. The meeting was packed with dozens of people, but only a couple raised their hands.

“I think this has become a west-side issue, not a community issue,” Roach said after the meeting. “Of course, I would like to see some preservation of the pond, but not at a ridiculous amount of money.”

When the park district conducted an unscientific survey earlier this year, nearly 47 percent of survey respondents wanted to remove the Mirror Pond dam and roughly 43 percent wanted to keep the dam.

Capell said he has spoken with other city councilors, and they generally do not want the city to take on responsibility to pay for the dam and other work on Mirror Pond. Horton said the park district also might not have enough money to pay for such a project, unless it asks voters to approve additional taxes.

Source: The Bulletin 2013

Businessmen pick up option to buy land under Mirror Pond

By Hillary Borrud / The Bulletin

Over the last year, two powerful local businessmen discussed privately their frustration with the slow pace of planning for the future of Mirror Pond. Earlier this month, they took action.

Bill Smith, developer of the Old Mill District, and Todd Taylor, president and CEO of the construction company Taylor Northwest, said Monday they signed a contract Nov. 14 for an option to purchase the land under Mirror Pond from the McKay family. They plan to transfer the option to purchase the land to any local government entity that will purchase the land and preserve Mirror Pond. Smith and Taylor said their only goal is to ensure the preservation of Mirror Pond, and they do not expect to make money on the endeavor. They do, however, want to be certain the pond does not revert to a free-flowing river.

Smith and Taylor formed a company, Mirror Pond LLC, in which each holds a 50 percent stake. “The purpose of the company is to preserve the integrity of Mirror Pond on the Deschutes River in Bend, Oregon, for the greater good of the Central Oregon community and the future generations in Bend,” Taylor said, reading from the Mirror Pond LLC agreement. “This preservation will be at the high-level mark historically associated with the pond over the past 100 years.”

Taylor and Smith declined to provide a copy of this document or their real estate contract with the McKay family to The Bulletin, and they declined to discuss the terms of the purchase option agreement.

This revelation comes at a time when public officials are still considering whether to dredge silt that built up behind Newport dam, or whether to remove the dam. The Mirror Pond ad hoc committee, a combination of citizens, city councilors, park district board members and other officials, is discussing these options. Taylor and Smith plan to present their plan to the Mirror Pond ad hoc committee at its meeting Dec. 2.

“Review all the options you want,” Smith said. “If it’s not preserving the pond, it’s not an option that’s going to work.”

Public officials have said they must obtain permission from the McKay family, which claims ownership of land under Mirror Pond, in order to dredge the pond. Park district officials have also expressed interest in buying that land, which they could use to expand parks if the dam were removed and water levels lowered.

If no one does anything, mudflats will continue to build up in Mirror Pond. Mudflats were already revealed when the water level dropped in early October due to a leak in the dam. PacifiCorp, which owns the dam, announced Monday it does not plan to maintain the structure because repairs would be too expensive. Options including removing the dam or transferring ownership of it to a government agency or private owner.

Officials with the city of Bend and Bend Park & Recreation District did not learn of Smith and Taylor’s plan until late last week. Don Horton, executive director of the park district, said Taylor and Smith called him at that time and said they wanted to meet with him for an undisclosed reason. “So I showed up at Bill’s office late Friday afternoon,” Horton said. He said he was surprised at their announcement, but “after they explained what they’d done and why they did it, it made sense to me because they have the same desires, I think, to find a solution to the siltation issue and they were concerned someone else could come along and acquire the property.”

“I still don’t know what they (agreed to pay) for the property,” Horton said.

Park district officials also discussed the possibility of purchasing land under the pond, and researched ownership of it. Horton said he plans to ask the Mirror Pond ad hoc committee to decide at its next meeting whether to maintain the dam or another structure in order to preserve Mirror Pond, or remove the dam so the Deschutes River can flow freely in that stretch.

Many other officials said they were glad to hear of the contract that Smith and Taylor negotiated.

Ted Schoenborn, a member of the park district board and Mirror Pond ad hoc committee, said it is “a positive step.” City Councilor Victor Chudowsky, also a member of the ad hoc committee, supported the move. “I think it’s great that they did that, but that kind of was 50 percent of the problem,” Chudowsky said. “The other 50 percent is the future of the dam.”

Matt Shinderman, a member of the Mirror Pond ad hoc committee, said it is important to complete the public process to determine the future of Mirror Pond. Shinderman is an instructor at Oregon State University-Cascades Campus, where he teaches courses in environmental policy, sustainability and ecological restoration.

“There’s a lot of frustration out in the community about what seems like an indefinite process,” Shinderman said. “I’m sympathetic to it. It seems like it has gone on too long. But I also think to come up with a good decision, sometimes it takes time.”

Source: The Bulletin ©2013

PacifiCorp: Inspection tied to leak, not debate

By Hillary Borrud / The Bulletin

PacificCorp’s decision to inspect the Mirror Pond dam is independent of the discussion about the future of the pond, a spokesman said Monday.

At the same time, PacifiCorp spokesman Bob Gravely said a thorough inspection of the dam could produce some of the information necessary to make a decision about the future of the pond. Silt buildup could eventually create mud flats in Mirror Pond, and officials are discussing how to manage this section of the Deschutes River in the future.

PacifiCorp, a Northwest utility that operates as Pacific Power in Oregon, discovered a leak in the dam, which is more than 100 years old, on Wednesday. It was the third leak in the last five years. The utility installed sheet piling to control the previous leaks.

PacifiCorp repaired at least one of the previous leaks without lowering the water level in Mirror Pond, Gravely said.

This time, the water level already dropped significantly due to the leak, and PacifiCorp plans to further lower the water in order to conduct the inspection. The utility has not set a date for the inspection, so it is unclear when the water level will increase in the pond.

“It leaked once, it leaked twice and now this is a third one, so we think this is more of a pattern,” Gravely said. “It’s hard to see it as isolated events when it happened three times in five years … With this third one, we just wanted to take a look at the broader situation, and we also think the community is interested at this point to get a better sense of the future as well,” Gravely said. At the same time, Gravely said, the utility is not conducting the inspection because of discussions about the future of Mirror Pond. “I think we would be doing this anyway,” he said.

Gravely said the decision to inspect the dam is also tied to economics. “Primarily, the cost of power is much lower, so that effects the overall calculations of repairs and continuing to go forward,” Gravely said.

Two local public officials were supposed to meet behind closed doors with PacifiCorp in early September and then report back to the full Mirror Pond ad hoc committee, which was formed to research options for the future of the pond and potentially select a plan. However, one of those officials, City Councilor Mark Capell, said Monday that he and park district Executive Director Don Horton have not met with PacifiCorp.

The six-member Mirror Pond ad hoc committee planned to hold its meetings behind closed doors, in part so that it could meet privately with PacifiCorp representatives. But the ad hoc committee stopped the practice after just one meeting when at least one lawyer said it violated Oregon public meetings law.

Instead, it formed a subcommittee that consists of Capell, Horton and park district lawyer Neil Bryant to meet privately with the utility.

Capell said he did not know about the leak in the dam and the drop in water levels until he read about them in Saturday’s edition of The Bulletin. Capell said he hopes to meet with PacifiCorp representatives by the end of this month.

“I have no way of knowing what they’re thinking because we haven’t met,” Capell said.

Gravely said the meeting was delayed because Horton is traveling.

The Oregon Water Resources Department manages rivers and other bodies of water. Kyle Gorman, south central region manager with the Oregon Water Resources Department, said the utility does not require permission from his agency to lower the water level.

“What they want to do as far as lowering the water to go in and inspect would be routine, and I don’t see why our department would object,” Gorman said.

PacifiCorp was not even required to notify the state of the leak and subsequent drop in the water level of Mirror Pond, but the utility did so as a courtesy, Gorman said.

Source: The Bulletin ©2013

Bend lists Mirror Pond applicants

By Hillary Borrud / The Bulletin

The Mirror Pond ad hoc committee will wait until at least mid-October to select a couple of citizen members from among 11 applicants for the openings. In the meantime, two members of the committee and an attorney for the Bend Park & Recreation District will meet privately with Pacific Power, the utility company which owns the dam that created Mirror Pond.

The Bend City Council and park district board created the ad hoc committee to gather information such as Pacific Power’s plans for the dam. The committee is supposed to report back to the City Council and park district board with a recommendation for the future of Mirror Pond. The Deschutes River is depositing silt that will eventually build into wetlands in the pond.

The ad hoc committee includes two Bend city councilors, two park board members, park district Executive Director Don Horton and Bend Community Development Director Mel Oberst. City councilors and park board members also said earlier this year that up to three citizens should be on the committee.

Citizens who met the Sept. 13 application deadline have a variety of backgrounds, according to their resumés and letters of interest.

Daniel Wadosky owned a Bend accounting and tax firm from 1984 to 2003. Recently, Wadosky worked as a volunteer on river habitat restoration projects; he wrote in a statement that this experience provided him with a valuable perspective on Mirror Pond.

Mike Olin wrote that he has lived in Bend for 39 years, and was involved in a previous Mirror Pond committee and in the Old Bend Neighborhood Association.

J. Ned Dempsey is a civil engineer and the owner and president of Century West Engineering Corp., which works on projects such as designing and operating water quality and flow monitoring stations. Dempsey previously worked for the U.S. Geological Survey, studying sediment buildup and working on other stream projects, according to his resumé.

Rick Storm wrote in a letter to the committee that he has experience in large construction projects for the U.S. Army Corps of Engineers, and is now retired and wants to contribute to the community.

Michael Minckler wrote that he has lived on Northwest Federal Street, near the Deschutes River, for nearly 30 years, and has “a good perspective of Bend and the importance of Mirror Pond.”

Matt Schiffman owns Venable Auction House LLC in downtown Bend, just a couple of blocks from Mirror Pond. Schiffman wrote the pond is a centerpiece of culture for the city, and “it is the touchpoint for so many Central Oregon residents to international visitors.”

Jan Wick owns Avion Water Co. and in a letter to the ad hoc committee wrote that he served “over many years on a number of planning and user groups with respect to the management of the flows in the Deschutes River …” Wick wrote that he has experience working with entities such as the Oregon Water Resources Department, Trout Unlimited and the Deschutes River Conservancy.

Foster Fell wrote that his bachelor’s degree in soil science and his experience assessing stream habitat provide him with valuable expertise for the committee.

Ed Boero owns Cascade Advisory Group Inc., an investment firm, and wrote in a letter to the park district that the community needs to decide soon how to manage Mirror Pond because the cost will only increase in the future. “Although I currently do not have a strong opinion on the best course of action, I fully realize that Mirror Pond and the Deschutes River are iconic symbols of our community,” Boero wrote.

Craig Coyner was mayor of Bend in 1984, the last time the community dredged sediment from Mirror Pond. Coyner wrote that he has historical knowledge of Mirror Pond and experience writing legal contracts.

Matt Shinderman is a member of the Mirror Pond Steering Committee, which has also reviewed options to manage the pond. Shinderman is also a board member of the civic group Bend 2030. Betsy Warriner, president of the Bend 2030 board of directors, wrote that “as a member of the OSU-Cascades faculty, Matt specializes in environmental policy, sustainability, ecological assessment of urban landscapes, and ecological restoration.”

Mirror Pond Project Manager Jim Figurski said city and parks officials have not yet scheduled the next meeting of the Mirror Pond ad hoc committee.

“We’re really waiting for the resolution of some of those discussions with Pacific Power,” Figurski said. “That’s going to happen the first part of October.”

The next committee meeting might be as soon as mid-October, and Figurski said the agenda will include a discussion of applicants for openings on the committee. The goal is that after the Pacific Power meetings, officials will have the information necessary to make decisions about the future of Mirror Pond, Figurski said.

“My personal hope as a project manager is that we can keep this moving so that we don’t lose the momentum that’s been created with the project so far,” Figurski said.

Source: The Bulletin ©2013

Posted by the MirrorPond.info editor.

Dam owner to talk privately about Mirror Pond

The Mirror Pond ad hoc committee met Tuesday to select which of its three members will meet privately with Pacific Power to discuss the future of Mirror Pond.

The utility owns the Newport Avenue dam that created Mirror Pond and operates a hydroelectric facility at the site.

A Pacific Power representative has said publicly that the company wants the community to decide the fate of the pond, which is a dammed section of the Deschutes River. However, Bend Park & Recreation District Executive Director Don Horton said Tuesday the company is ready to speak more frankly behind closed doors.

“I had a telephone call from Pacific Power,” Horton said. “They do want to be more engaged in the process now.”

The small group that will meet privately with Pacific Power includes Horton, park district lawyer Neil Bryant and city Councilor Mark Capell. The six-member Mirror Pond ad hoc committee planned to hold its meetings behind closed doors, but stopped the practice after just one meeting when at least one lawyer said it violated Oregon public meetings law.

The committee includes two Bend city councilors, two park board members, Horton, Bend Community Development Director Mel Oberst, and as many as three citizens who have not yet been selected.

Officials have acknowledged the Mirror Pond ad hoc committee is a public governing body and, under Oregon public meetings law, must hold its meetings in public. On Aug. 21, City Attorney Mary Winters said the ad hoc committee’s Aug. 13 closed-door meeting should have been public. However, the small group that will meet with Pacific Power is less than a quorum of the six-member committee, so it can meet behind closed doors and without notice.

Approximately 14 members of the public attended the ad hoc committee meeting on Tuesday afternoon. Horton said he wants to have Bryant attend meetings with Pacific Power because of the legal issues involved. The subgroup will likely meet with Pacific Power in early September and then report back to the full ad hoc committee later that month.

Mirror Pond Project Manager Jim Figurski said Tuesday that several people contacted him regarding their interest in serving on the committee. Horton said the district will advertise the citizen openings on the committee, and set a two-week deadline to submit applications.

At this point, the primary issues the ad hoc committee should explore are Pacific Power’s plans for the dam and how to handle ownership of land under Mirror Pond, Horton said. Park district officials have said they believe the McKay family, early landowners in Bend, owns the land under Mirror Pond. However, the family has never paid property taxes on the land, and a title company asked to verify the McKays’ claims of ownership said it cannot do so. Horton said in July it would be nice for a public entity to own the land under Mirror Pond. On Tuesday Horton said the McKay family would expect to receive payment for the submerged land, although park district officials have not discussed specific figures with the family.

Horton said Bryant is working with the title company, with the goal of getting the company to provide title insurance if the park district purchases land under Mirror Pond from the McKays. “He’s thinking that they will, but he has not heard a definitive answer on that,” Horton said.

Horton also said Bryant and an attorney for Pacific Power are researching whether the water rights associated with the Newport Avenue dam — which are currently tied to power generation — could be transferred to a different type of use and allow for the dam to remain in place.

“If the water right can be transferred, I think it opens up a whole new discussion about what the future of the pond might be,” Horton said.

Oberst said if the water rights transfer to a different owner, the state might require the new holder to install fish passage at the dam.

The Mirror Pond ad hoc committee decided not to schedule its next meeting until after the subgroup meets with Pacific Power, so it can report to the committee.

Source: The Bulletin ©2013

Mirror Pond committee sessions to be open

The Mirror Pond ad hoc committee is a governing body under state law and its Aug. 13 closed-door meeting should have been public, Bend City Attorney Mary Winters said Wednesday.

“We do want to clarify that that meeting that was held last week will be held again, noticed and held Tuesday,” Winters said. “This is a governing body under the public meetings law.”

Winters spoke at a City Council meeting after councilors voted to amend a motion they made in July to create the Mirror Pond ad hoc committee. The amendment Wednesday states the committee will work with city and park district employees and a consultant “as an exploratory, fact-finding body to advise and assist project staff and the consultant team regarding issues pertaining to the future of Mirror Pond.” The committee will also “engage Pacific Power to become part of the exploratory process.”

However, the council let stand the July 16 motions by the City Council and Bend Park and Recreation District board that created the ad hoc committee. The committee goal is to select and refine a final plan for the future of Mirror Pond, the landmark body of water along the Deschutes River in the heart of Bend. The July motions were based on a prototype written by parks Executive Director Don Horton, which called for the committee to “work with project staff and the consultant team to select and refine a final preferred vision (option) for the future of Mirror Pond.”

But a closed-door session of the ad hoc committee Aug. 13 raised the question: Did the committee violate Oregon public meeting laws by meeting in executive session and without prior public notice? After one private meeting, officials said future meetings will be public.

Wednesday, City Council approved the same motion adopted Tuesday by the Bend Park and Recreation District board of directors, said City Councilor Victor Chudowsky. Chudowsky is a member of the ad hoc committee, but was on vacation and did not participate in the meeting last week.

The Mirror Pond ad hoc committee includes two Bend city councilors, two park board members, Horton, Bend Community Development Director Mel Oberst and as many as three citizens who have not yet been selected.

In other business Wednesday night, city councilors heard an update on a collaboration between the city and Tumalo Irrigation District to look for opportunities to leave more water in Tumalo Creek. The city takes much of its water from the creek, and hopes to begin work this fall on a $24 million project to install new intake equipment and a pipeline from Bridge Creek to the city water storage facility. The Forest Service has indicated it will likely issue a permit for the project, although that process is not complete. Opponents of the project might also file a lawsuit to stop it, as they did last year.

The city can take up to 18 cubic feet of water per second from Tumalo Creek. Tumalo Irrigation District is the other major water user on Tumalo Creek, taking an average of 55 cubic feet per second at the height of irrigation season in August, according to the Oregon Water Resources Department.

As recently as the 1990s, a section of Tumalo Creek near the Deschutes River ran dry during the summer irrigation. This section begins after the irrigation district diversion. Currently, at least 10 cubic feet per second runs through this section, and the city and Tumalo Irrigation District established a goal of doubling that to 20 cubic feet per second. The Oregon Department of Fish and Wildlife set an optimal goal of 32 cubic feet per second of water in this lower section of Tumalo Creek.

It would likely cost $12 million to $14 million to complete a project to pipe an existing open irrigation canal, engineer Jon Burgi said Wednesday night. Burgi works as the irrigation district’s engineer through the firm David Evans and Associates, Inc. This project would allow the city and irrigation district to reach their goal of 20 cubic feet per second in the lower reach of Tumalo Creek, Burgi said. Matching grants are available for the project.

City councilors did not commit to provide any funding on Wednesday, although some said they are interested in supporting the effort.

Source: The Bulletin ©2013

Mirror Pond meetings to be public

The Mirror Pond committee authorized to recommend a final plan for the iconic body of water will hold its meetings in public, city councilor and committee member Mark Capell said Wednesday. The committee held its first meeting behind closed doors and without notice Tuesday, in a potential violation of Oregon public meetings law.

“I’m not sure who’s right,” Capell said Wednesday. “I think the best way to do this is just unwind, and start over.”

Capell said park district lawyer Neil Bryant advised the committee on Tuesday that its meetings must be public because the City Council and park district board voted in July to create the ad hoc committee. The committee was also authorized to select a final plan for the future of Mirror Pond, Bryant said.

“Neil and (City Attorney Mary Winters) say that probably the way the motion (to create the committee) was written, it says that we were going to recommend, which would make it public,” Capell said. “The rest of us thought our goal was just to get questions answered.”

Meanwhile, Bend resident Foster Fell said Wednesday that he sent a complaint to the Oregon Government Ethics Commission. Fell said he alleged the Mirror Pond committee violated state public meetings law, based on a report in The Bulletin. “I thought they should know,” Fell said. Fell ran unsuccessfully for a position on the Bend Park & Recreation District board in fall 2012.

Capell said the Mirror Pond ad hoc committee will meet in public and go into executive session when necessary. Executive sessions are closed-door meetings in which public officials can discuss specific matters such as legal defense, but Oregon law generally allows the press to attend. The press is prohibited from reporting on the discussions in these meetings.

The Mirror Pond ad hoc committee includes two Bend city councilors, two park board members, parks Executive Director Don Horton, Bend Community Development Director Mel Oberst, and as many as three citizens yet to be selected. Committee members said Tuesday they needed to meet out of the public eye to discuss real estate transactions and talk with Pacific Power about the Newport Avenue dam, which the utility owns. The dam created Mirror Pond. Wednesday, committee members said they started to discuss these issues on Tuesday and also talked about the legality of their closed-door meeting.

Jeff Manning, a spokesman for the Oregon Department of Justice, declined to say whether the committee’s secret meeting violated state public meetings law.

“We’re not going to weigh in on whether this is a public meetings law violation,” Manning said. “We just don’t do that. We’d need more facts. … As imperfect as it is, the primary vehicle of enforcement to a public records law, public meetings law violation is a lawsuit.”

Despite Capell’s statements Wednesday, not all committee members appeared ready to commit to public meetings.

“If it’s required to be an open meeting, we’re going to make it an open meeting,” Horton said Wednesday. “If it’s not, we feel there are a lot of issues that will be quicker and easier to resolve as a working group but not a decision-making body.”

Winters was out of the office Wednesday. Assistant city attorney Gary Firestone said he understoodBryant “was going to release something or take a position on it.”

On whether the committee can meet legally in private, Firestone said: “I can tell you that from my point of view, I do not have enough facts to venture an opinion and it would only be an opinion, essentially, until a court decides one way or another, or another body with jurisdiction.”

Bryant declined to say whether the Tuesday meeting complied with state law. “I’ve done some research and submitted some information to my client and that’s all I can tell you right now,” he said Wednesday. “You’ll probably hear something from them in the next 24 hours. There’s no scheduled meeting for some time.”

Capell and Horton said the committee Tuesday discussed when to select citizen members. They said the committee also decided to wait until it learned more about the future of the dam so it will know what type of expertise to seek. The committee also discussed sending a subcommittee to meet with Pacific Power. Horton said he will set up meetings.

He said the committee also discussed ownership of the land under Mirror Pond, but decided it should focus first on talking to Pacific Power. “We talked a little bit about water rights because if … even if Pacific Power decides that they’re not going to generate power anymore, the water right that exists is for the purpose of generating power and whether or not we can have that water right transferred for a different use,” Horton said. Attorneys are investigating whether there is a way to retain the water rights associated with the dam for a use other than power generation, he said.

That was all the committee discussed on Tuesday, he said.

Capell said the committee also discussed the legality of meeting privately. Prior to that meeting, committee members “thought we were OK (meeting privately)” because they believed they were only going to gather information and did not have a quorum of either the City Council or park district board, Capell said. “During the meeting yesterday, Neil (Bryant) went and got the minutes. And when he read them, we kind of went, ‘Oh.’”

Horton said he never intended for the committee to make decisions. He wrote the motion provided to city councilors and park district board members ahead of the July vote, but said the elected officials amended the motion before voting on it.

Horton said the City Council and park board will probably clarify the committee’s role at their respective meetings next week.

“I don’t think any of us intended for us to be a decision-making body, but reading the motion it seems like it is,” Horton said.

Park board Chairman Scott Wallace said the committee discussed questions it should answer about ownership of the dam and the land under Mirror Pond, and water rights associated with the dam. Wallace declined to explain what he meant by water rights associated with the dam.

He said officials have done a good job so far on the process to determine the future of Mirror Pond. “The process on Mirror Pond to date has probably been one of the most open public outreach things that we’ve done, that the community’s done,” Wallace said. “The meeting this week is perhaps not. … Well, it wasn’t open to the public so it’s one meeting out of however many we’ve had.”

“I have all the confidence that the process that we’ve laid out will get us to something the community can get behind and be proud of,” Wallace said.

Source: The Bulletin ©2013