OIA: Land use bills in the Legislature

By Dave Hunnicutt,
Oregonians In Action

Despite Oregon’s economic troubles and problems with high unemployment, the legislature is spending time debating and passing land use bills.  Although no land use bill has received approval from both the Oregon House and Oregon Senate as of late April, there are a few land use bills that are expected to pass, including bills that could have significant impacts on rural property owners.  Here is a list of some ofthe major land use bills currently making their way through the legislature, and Oregonians In Action’s position on each bill:

HB 2227:    This bill would impose a ban on destination resorts in most rural areas in Oregon. The bill passed the Oregon House in mid-April on a 31-28 vote, and is now in the Senate Environment committee.  OIA opposes this bill, and believes the bill is unnecessary and a solution for a problem that doesn’t exist.

HB 2229:    This bill is the product of the Big Look Task Force, the 10 member commission created in 2005 to review Oregon’s land use planning system.  In its first draft, the bill was not well conceived, and was universally opposed.

Since that time, the bill has received a number of amendments, and has now been officially amended by the House Land Use Committee, where it was unanimously approved on April 28.  The bill is now headed to the House floor, where it should pass easily.  From there, it will go to the Oregon Senate, where it is also expected to pass.

HB 2229 gives counties the opportunity to rezone their exclusive farm use (EFU) and forest zoned rural areas based on current mapping and soil technologies and existing growth patterns.  OIA supports this bill, as a small but potentially significant change in obtaining more realistic zoning in rural areas.

HB 3099:    This bill is the Oregon Farm Bureau’s attempt to limit uses in EFU zones. The Farm Bureau has consistently complained that Oregon land use law allows too many uses besides farming in EFU zones.  This bill attempts to “fix” that by removing a number of the uses currently allowed by Oregon statute.

The difficulty with the bill is that it smacks headfirst into reality – since nearly all (97%) of rural Oregon is zoned EFU or forest, any use that is rural in nature is likely to be found in an EFU or forest zone.  With more realistic rural zoning that recognizes that not all rural land is “farmland” or “forestland,” Farm Bureau’s position might make more sense.

Fortunately, in its original form, HB 3099 was stopped in the House Land Use Committee by a wide group of concerned organizations, including OIA, the Oregon Concrete and Aggregate Producers Association, the Oregon Parks Department, and the Oregon Association of Realtors.  As a result, HB 3099 has been substantially amended to create a much better bill, allowing the Farm Bureau to make some of the changes they desire without stripping rural Oregonians of their property rights and making it impossible to have parks, campgrounds and other rural uses in rural areas, where they belong.

In its original form, OIA opposed this bill – as amended, OIA now supports this bill.  The bill is an example of how groups can work together to achieve common objectives, as long as each group is realistic in their demands.  The result is a bill that enjoys unanimous support.

HB 3225:    HB 3225 is an effort to close some of the loopholes that have frustrated Measure 49 claimants, who were promised quick relief and the opportunity to realize some of the lost rights that had been stripped from them over the years by changes to Oregon’s land use laws.

During the campaign for M49, the supporters of the measure promised Oregon voters that longtime rural property owners who had filed Measure 37 claims would get some quick relief under M49.  Unfortunately, the measure hasn’t delivered on that promise.  Claims have been processed slowly, and people who were led to believe that they would get relief under M49 have discovered that their claims are being denied as a result of loopholes in the language of the measure.

HB 3225, as amended by the House Land Use Committee, fixes a number of these unintended consequences. If HB 3225 passes, it will restore the rights of approximately 500 Measure 49 claimants to make claims under the measure.  In addition, the bill calls for the Oregon Department of Land Conservation and Development (DLCD) to process all Measure 49 claims by June 30, 2010, and gives DLCD some limited authority to process claims immediately for property owners demonstrating significant hardships.

OIA is leading the charge to pass HB 3225.  The bill was amended by the House Land Committee and approved unanimously on April 28.  Because the bill requires DLCD to process a number of new M49 claims, it will have a fiscal impact on DLCD, and has now been sent to the Joint Ways and Means Committee, where funding for the bill is expected to be granted.  This bill is expected to pass and be approved by the Governor.

SB 788: SB 788 started out as a bill regulating water uses to protect peak ecological flows.  From there the Senate Environment Committee attempted to completely rewrite the bill through an amendment that would have required all property owners in a groundwater limited or groundwater critical area to obtain a water right permit in order to drill a new domestic well.

In most areas of this state, obtaining a water right permit for a new domestic well  would be an impossible task, since the Oregon Water Resources Department (OWRD) assumes that any new groundwater use near a surface water source (stream, creek, river, lake, pond etc.) will have an effect on that surface water.  Since the water in most surface water sources is already fully allocated, new groundwater uses are not likely to receive permits.

This means that the amendments to SB 788 would have the effect of eliminating any new domestic wells in groundwater limited or groundwater critical areas in Oregon.  Much of the hillsides in the Willamette Valley are designated as groundwater limited areas by the OWRD.  The amendments would stop nearly all Measure 49 claims in these areas, and would render existing residences worthless, as any existing home in a rural area would not be able to drill a new well should their current well dry up.

The Environment Committee’s amendments are particularly troubling when the facts are brought forth.  Over the past two decades, the OWRD has designated a number of rural areas in Oregon as groundwater limited or groundwater critical areas.  In all of these areas, the OWRD has never attempted to limit new domestic wells.  There are two reasons why.

First, OWRD realizes that domestic wells in rural areas consume a tiny fraction of the groundwater used.  The primary users of groundwater in rural areas are irrigators, who use the water for agricultural purposes, and municipalities, who drill wells in aquifers to proved water to city residents.

Second, domestic water use in rural areas is a virtually closed system.  Nearly all of the groundwater used for domestic purposes in a rural area is returned to the aquifer.  If lawns are irrigated, the water is absorbed by the topsoil, and slowly flows down through the layers of soil, where it is filtered and eventually returned to the aquifer.  The same is true if the water is used within the household, where it flows into a septic tank and into a drainfield, where it slowly works its way down through the soil layers and back into the aquifer.

For these reasons, the OWRD, who is the agency with expertise in water issues, realizes that domestic wells are not the source of the problem when water levels in an aquifer decline, and has never attempted to limit new domestic wells, even in areas designated as groundwater critical areas.

But facts have not stopped attempts to limit domestic wells in rural areas, which would wipe out many new Measure 49 claims and force more people into cities.  Fortunately, the amendments to SB 788 were altered significantly to eliminate the permit requirements for new domestic wells in groundwater limited or critical areas.

The most recent amendments to SB 788 require property owners who wish to drill a new domestic well in a groundwater limited or critical area to pay a $250 fee to the OWRD at the time they drill the well, and also to provide the OWRD with the exact coordinates of the well on their property.  OWRD will develop a more precise database of well locations than is possible under current law, which only requires the property owner to list the lot or parcel upon which the domestic well is drilled.

Although the amendments to SB 788 are much less significant than the original version, it makes little sense to charge new domestic well users a $250 fee to provide OWRD with money to study an issue (declining groundwater levels) that have never been the fault of domestic users in the first place.  For that reason, OIA does not support SB 788.

The legislature has been meeting for nearly four months, but there is still a long way to go for each of these bills, and many changes could occur to each bill between now and the end of the legislative session.   Property owners should keep track of these bills as they make their way through the legislature, and be prepared to contact their legislators to support or oppose each bill.

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