Will politics or science determine clean water?
By Camilla Mortensen
Imagine standing at your sink, filling a glass with ice-cold McKenzie River water … and wondering what that water has been treated with in order to remove the septic waste, herbicides and unknown toxics of upstream river dwellers, and wondering if the treatment actually got all those toxics out.
Lane County had begun a process to protect its current excellent drinking water for future generations. But recent media attention has focused not on the critical need to protect the water supply but on whether property owners were notified in time, and the discussion has become more about politics and property rights than clean water.
EWEB announced Nov. 2 that it was pulling out of the process and withdrawing its offer of $50,000 for a collaborative process. This led to a Lane County Board of Commissioners vote on Nov. 3 over whether to continue with the process. Commissioner Pete Sorenson said that the board voted to “shelve the public hearing on Nov. 9 and pull the plug on the whole process.”
County planner Keir Miller said the vote was 3-2 with Commissioners Sorenson and Rob Handy voting to continue the process and hold the public hearing. Miller said there is still a possibility that the Lane County Planning Commission, which was holding the meeting jointly with the commissioners, could still decide to hold a meeting on the 9th.
The county has had information on its website on the drinking water issue since early summer. Lane County also sent out a press release in May notifying the media of its work on flood plain regulation. The R-G did a story Aug. 16. In June, the county sent out a press release about its drinking water plan, announcing it was looking into “restrictions on dwellings and septic systems” as well as limiting hazardous chemicals and high risk land uses in close to source areas. The R-G did not do a story notifying the public about the drinking water protection plan; it was briefly mentioned at the end of the August story, setting the scene for the recent pre-election brouhaha.
Karl Morgenstern, EWEB’s drinking water source protection coordinator, was on the technical advisory committee (TAC) that recommended some of the proposed ordinances. “Lane County’s current land use code is not really designed for drinking water protection,” he said. “Development pretty much occurs in areas that maybe it shouldn’t.”
Morgenstern said, “When we look at protecting our water source, it’s for the next 100 years not 5 years.” It can be tough for people to comprehend why we need to protect now against a problem that won’t be known for 50 years, Morgenstern said. But he added that there’s a lot we don’t know about the chemicals in our homes and their possible effects. “We don’t know about synergistic effects of multiple chemicals in the water,” he said.
Chemicals like Bisphenol A and phthalates that have become concerns were used for years before their possible toxic effects became known.
Morgenstern said the intent of the TAC is to “look at minimizing the effects of future development, not what’s already on the river, like people’s gardens.”
It’s not just one house built right on the river that’s the problem, Morgenstern said, “It’s the cumulative impact of hundreds of homes.”
Those homes, he said, have septic systems that could fail, and use moss killer, pesticides, wood treatments and other chemicals, all with potential to get into the water people drink.
Morgenstern said a recent effort coordinated by EWEB up the McKenzie to collect and dispose of unused chemicals resulted in approximately 44 tons of chemicals, including DDT. Many of the chemicals and pharmaceuticals that make their way from people’s homes into the river can’t be removed using known technology at water treatment facilities.
Of the 4,000 homes on septic systems in the watershed that produces Eugene’s drinking water, Environmental Protection Agency statistics show that between 10 and 25 percent of them fail. That’s up to 1,000 tanks of human waste with potential to leak into Eugene’s drinking water.
One of the proposed ordinances would require new septic systems to be set back 25 feet from the regulated floodplain when there is a location on the property to do so. Older septic systems could be repaired or replaced, according to an Oct. 25 county memo.
Doug Quirke, an attorney with the Oregon Clean Water Action Project, said a leaking septic system could be the subject of a Clean Water Act citizen suit, as could a streamside lawn with fertilizer overapplied to the point that there are obvious algal blooms. He said rafters have told him repeatedly about such situations on the McKenzie, but no one has given him documentation to allow him to go forward with a test case.
The county mailed 9,000 notices Oct. 1 about the effort to protect Eugene’s drinking water. Fifty-five of the 230 written comments the county received were about “concerns and misunderstandings regarding the proposed vegetation removal standards.”
The proposed ordinance would not stop property owners from removing an invasive species like blackberries or stop them from continue trimming vegetation they had already been trimming. The county said it would clarify some of the ambiguous language that led to concerns as well as consider a change that would allow a house that is burned or destroyed to be rebuilt in the same place, because that would be in keeping with the “intent to maintain existing water quality” by limiting future impacts.
Research shows that native trees and plants along waterways help keep the river cooler and filter the water. Joe Moll of McKenzie River Trust and also a member of the technical advisory committee said that this benefits river species too. “Certainly the values of a riparian area that provide habitat contribute to clean drinking water,” he said. Endangered bull trout and Chinook salmon live in the McKenzie.
Also controversial is a proposed 200-foot setback to protect the water. The county said one possibility is to reduce that to 100 feet “with the understanding that it increases the risk of both chronic and flood-associated inputs to the drinking water source affecting water quality.”
UO law professor Mary Wood, who teaches property law, natural resources law and public trust law, said that, broadly speaking, “Regulation to protect public sources of drinking water is as old as the nation.” She said that the courts have always ruled on the right and duty to protect crucial public resources like water systems.
“It’s a misconception that private property rights are absolute,” she said. “There have always been regulations not to harm other property and public property.”
She added, “It’s always a balance.”
Ironically, according to Lane County Commissioner Pete Sorenson, using the TAC was part of an effort to make sure the proposed ordinance changes were based in science, not politics.
Sorenson said 200 people signed up to make comments at the Oct. 26 meeting that was canceled due to fire code issues, and he worried that many more people who wanted to talk didn’t get to sign up.
Sorenson had hoped for more public meetings and possibly a collaborative process in addition to the public comments the county has been taking all along. It is unclear now how county residents concerned about their water can weigh in on the issue. EW will post updates at blogs.eugeneweekly.com.