Why Measure 49 is needed to protect Oregon groundwater

Lots of Oregonians take the water that comes out of their faucets for granted. But if you rely on a well, you don't.

Measure 37 opened up farm and forest land for development that lacks enough water for subdivisions. Fortunately, Measure 49 is riding to the rescue of people like us and our neighbors whose rural water supply is threatened by Measure 37 claims in groundwater limited areas.

Maybe you think that Oregon already has protections against subdivisions causing surrounding wells and springs to go dry. If so, think again.

My wife and I know whereof we speak. As do more than thirty other property owners in our area who have formed a Keep Our Water Safe committee to, well, keep our water safe.

Last night our email inbox contained the final order from Marion County approving a 42 lot, 125 acre subdivision on groundwater limited farmland in the south Salem hills. Two of the three county commissioners signed it: Sam Brentano and Patti Milne.

Failing to heed loads of evidence that there isn't proof of enough water to supply 42 more wells without existing water users being harmed, Brentano and Milne voted to approve the subdivision (Commissioner Carlson correctly voted "No").

So it was appropriate that these two signed the final order. We've been curious to learn what sort of twisted logic could be used to support the crazy decision to allow the development to proceed after experts hired by Marion County, as required by its groundwater ordinance, gave a Hydro Review prepared by the applicant a big thumbs down.

I called that another Measure 37 outrage, because it completely ignored the property rights of the many people already living in an area in favor of the Measure 37 rights of a few would-be subdivision builders. (See the "Protect Oregon Property Rights" blog).

Like, the right to not have our wells go dry.

For those land use junkies who'd enjoy pouring over the 26-page Marion County final order, here it is in its 2 MB pdf file glory: Download boc_decision.pdf

For the broadband limited, I fashioned two pages relating to the Hydro Review prepared by the Measure 37 applicant (Leroy Laack) into picture files. They're readable, if you've got good eyes.

But be warned. You might feel like tearing your hair out if you value common sense (and careful editing – there are obvious wording and spelling errors, which reflects how little thought went into this turkey of a final order).

I'll summarize what's going on here for the benefit of those concerned about Oregon groundwater who want an explanation of why Measure 49 deserves a "Yes" vote.

Politicians can't be counted on to enforce their own groundwater protection ordinances, because many are so pro-Measure 37 they refuse to recognize clear evidence of insufficient water for a large subdivision.

So Measure 49 is needed. It will limit developments on groundwater limited farmland, like this one, to three home sites. That still may be three too many in our area, given how many wells already have had to be deepened or replaced, but it's a heck of a lot better than 42.

Groundwater is real, not political. It's either there, or it isn't. Hydrogeologists have ways of learning whether there is enough water for a subdivision. The Measure 37 applicant's consultant, Malia Kupillas, prepared a Hydro Review report that tried to show this.

She failed. The scientific process called for in Marion County's groundwater ordinance is to submit a Hydro Review to an independent expert for an unbiased assessment – the same thing that's done in reputable science journals before a paper is published.

The expert concluded that there isn't sufficient information available to prove that the subdivision won't harm surrounding wells and springs. Thus the Measure 37 applicant's report was failed.

Under the groundwater ordinance this should have triggered a much more extensive Hydro Study. But the two county commissioners ignored this law and cherry-picked conclusions provided by Leroy Laack's own hired gun.

And their final order conveniently fails to mention a central, key, all-important fact: the Hydro Review that was submitted to the independent expert failed.

Sam Brentano and Patti Milne either don't understand their own county ordinances, or they're choosing to ignore them. Either way, this is reason to vote them out of office when they're up for re-election.

And to vote for Measure 49 in November. Because politics can't be allowed to trump common sense.

Which is: your property rights stop when they make my well go dry.

Comments

[Darrin]

I find it interesting about the subject of ground water protection under M49. This measure allows up to 3 home in groundwater areas but stops all claims inside cities and UGB's. Why on earth did M49 stop development inside Cities and UGB's where it is most logical. The answer is vote for M49 if you want to stop most all claims for M37. All the websites for and against are the same groups in the M37 election. I also find it interesting that Enviromental groups(Nature Conservancy)has donated $560,000 so far and a wealthy wine grower(from California) has donated $625,000. In summary there are good points to M37 and M49 but the Democratic controlled legislature did not want a compromise agreemnet with any input from the Republician side. I am tired of partisan politics in ORegon and will not vote for M49.

[eric]

Darrin,

I assume that I am the "wealthy winegrower from California" you mentioned.

I have lived in Oregon since 1979. I moved here from the East Coast. I attended college and law school in Oregon, and have lived here continuously since 1979. I have NEVER lived in California, though it is a nice place to visit now and then. Are you a native Oregonian? If not, I suggest you cease this line of argument, because not only is it a total fabrication, but it also says nothing about the real issues at stake in this case.

Given the fact that the contributors to No on 49 are timber companies, developers, and other wealthy people who stand to benefit financially if M. 49 loses, it seems very much like the pot calling the kettle black. I don't see you criticizing the opponents of M. 49 based on their income or net worth!

You, like other opponents of Measure 49, are telling falsehoods (read: lies!) in an attempt to fool Oregon voters. I think we are smarter than that.

eric lemelson

[Darrin]

Eric,

I apologize for assuming you were from California. I was not aware of who you are. I just looked on the state records for PAC's and now understand.
Most voters are against wealthy indiduals or families that pump huge amounts of money into any issue. The same goes for large Special interests groups such as Nature Conservancy. Most Oregon Voters resent HUGE donations to further their politial views but that is the law and I and most Oregonians would support limitations to political funding no matter the group or the issue that is on the ballot.
I am for fixing M37 but not replacing it with a bill that is 24 pages of complex legalese and requires an attorney to ferret out all the fine print. M49 is hypocritical in several ways. The Yes on 49 claims to protect just rual Oregon but this bill stops all development(residential and commercial) inside Cites...this does not make sense. Outside the Cities and UGB this bill allows up to3 homes in areas of restricted ground water areas...hard to understand. The sponsers of this legislation claim to fix 37 but in reality this stops most claims. M49 even stops Dorothy English again. Her property is classified as High Value Forest(All high value farm/forest is not eligible for anything more that 3. Since she has a home already she may only qualify for 1 or 2. Yes on 49 is making a false statement. See Section 7(1) of M49. These are just a few reasons that this bill should be defeated.

The Big Look Taskforce was cancelled to illustrate the true intent of the Sponsers of this bill. Governor Kulongoski appointed this group to study the land use laws and provide a solution to this important issue. But to stop funding in the middle of the project makes no sense and shows how the sponsers and supporters of M49 really are not interest in a solution that compromises this land use issue that has been stalled for over 30 years. I can not support a bill that is so complex and requires an expensive attorney to even understand all the fine print and this bill is loaded. The legal profession will love this bill and the litigation for M37 will be a drop in the bucket compared to M49 with all the fine print that is most likely to spawn a large quanity of law suits. If you are sued in M49 and win...you can not recover attorney fees. Well that sounds fair. Sometime I would like to discuss what would constitute and bill that is fair to most people. Thanks

[eric Lemelson]

Darrin,

Methinks your ire over the Nature Conservancy's contributions to Yes on 49 totally ignores the real "special interest" here.

A recent survey showed that contributors to No on 49 have filed Measure 37 claims totally about $700 million (their estimate of loss of value, of course). If that is not a special interest, the term has no meaning. Apparently large donations by timber companies and developers to No on 49 don't concern you.

As to your assertion that Measure 49 will prove to be a cash cow for attorneys, Measure 37 is doing just fine in that category, thank you. Most of the large Portland law firms are very happy with the revenues they are enjoying right now. By the way, in the American legal system each party to a lawsuit pays their own fees.

You have done a good job of repeating the arguments of the No on 49 folks, so at least we know where you stand on this issue!

[Darrin]

Eric:

You ignore my comments on M49 stopping all claims In urban areas where it is logical to grow and develop. This is hypocritical to say the least.
Regarding your comment on Special interests against M49 and their contributions....well compare the money raised and spent already by the two special interest groups(the wine grower and enviromental) who have donated a huge amount of money(like the 2004 election) and still lost. The yes on 49 campaign has nearly $2,000,000 while the No campaign has raised a small amout in comparison. Hopefully the voters will see through all the miss information about how M49 stops most claims dead in their tracks.

When the legislature stopped the funding for the Big Look Task Force that revealed the true intent not to compromise and impede any type of agreement that is fair to most people in our state.

Liz Kaufman even made a statement in the Portland Tribune that Dorothy English could develop her 8 homes under M49. Her property is classified as High Value Forest Land and therefore inelibible for the 4-10 lots. Read Section 7(1). Please prove me wrong.

In Clackamas County 100% of all M37 claims are classified as High Value Farm or Forest Lands under M49. We have a map generated by Clackamas County officals who can only print the truth. It is crazy to assume all land is High Value and voters are not this gullable. I am for saving productive Farm and Forest Lands but it is not realistic to classify nearly 100% of all lands as high value. I have presented this map to Democrats who voted for M49 and their statements was " we did not get a chance to study the measure before it was voted on in the legislature. The 24 pages of complex legalese is even difficult for our legislative leaders to comprehend in such a short time.

I have read on several pro 49 websites regarding a Democrat who refused to vote for 49 if it were not put on the ballot. The opinion was that to have this issue voted on by the people was a travisty and this Democrat is not on our side and should be voted out of office. Amazing...The bottom line is that the only reason that Nature Conservancy, 1000 Friends, and the winegrowers support M49 is because it very well written to stop most M37 claims period.

I hope this bill fails and the legislature will be forced to put forth a measure that is a compromise and fair to all concerned...not just the special interest groups on both sides. We need to stop partisan politics and force the legislature to generate solutions and stop catering to special interest groups no matter which side they are on. I want to fix M37 but M49 goes too far.

[Chris McMullen]

Eric, it's good to know all you farmers are letting silt, fertilizer and pollutants run into this state's tributaries. Farming and agriculture is one of the top reasons for the degradation of our watersheds.

What you think wine grapes grow here naturally? Every varietal you plant displaces native flora. Every grape vine uses water and resources meant for other plants and wildlife. A portion of every ton of fertilizer (chemical or 'organic,' it doesn't matter) you spread runs off into our rivers. Yeah Eric, you really care about the environment.

It's obvious you farmers are just selfish and want your little version of burgundy all to yourselves.

And as an avid wine enthusiast, I will never buy a bottle of your juice.

[Ray Teter]

Chris, it is a little hypocritical to rip on grape farmers and then say you are an avid wine drinker. Do you think the wine you drink comes from grapes picked in the wild? It reminds me of protesters who write "Logging ruins the environment." on cardboard or paper signs. A little advise, think before you point a finger...

[babs]

WE have a 50 acre farm; our neighbor has an adjacent 80 acre farm. She said she has permission for 2 additional lots under 49, which will be mini-mansions. She wants to put one very close to our water well. Considering she has 80 acres, I would like to have her move that mansion site. I'm afraid our well will be sucked dry. Is there any recourse? I called the county and they said all I could do was go out and drill a deeper well. Can that be true?

[Brian]

babs, here's some suggestions:

The two lots allowed by Measure 49 (it's usually three, but your neighbor must already have one house on her property) have to be on the least valuable farmland.

After the neighbor gets approval for the two home sites, be sure to get involved with the county process for siting the homes. Challenge the desired placement, if you can show that there is another part of the property that has lower value farmland.

You should know when this happens, because DLCD should mail you a notice of the Measure 49 approval, if you live adjacent to the property. You also can check on the DLCD website, I've been told. A listing of approved Express authorizations isn't up yet, but supposedly it will be. Not many, if any, have been approved so far.

If a new well affects your well, you can contact the state Watermaster. Unfortunately, you'll probably be told that you have to make maximum use of your own well first, which would mean a deepening. However, you could use this as bargaining ammunition with your neighbor.

Nicely, but firmly, tell her that if she puts homes next to you, and their wells cause yours to go dry, you'll pursue your right to have the new wells shut down.

And that when she tries to sell those lots, you'll put up a highly visible sign on your property saying something like: "Warning: limited water in this area. Your well could be shut down if it affects mine," with your phone number.

It'll be tough to sell the lots in this market under that circumstance. Hopefully she'll recognize that it'd be easier for everyone all around if the two home sites are located away from your property.