I appreciate all the work that has been done over many years to evaluate changes of ownership in the Bull Run watershed, and ways to increase protection of its precious natural resources in our Code. I know we all want the best for our unique, wonderful Bull Run watershed.
I have considered the information provided by the Water Bureau, and I still have concerns that preclude being able to support either ordinance if the vote takes place as scheduled on Wednesday February 10, 2010.
In evaluating the proposed changes, I asked several questions:
1) Does the County design/permit review process provide at least the same quality of environmental review as processes under the federal National Environmental Policy Act (NEPA)?
At the hearing last week, I was directed to Clackamas County Code, specifically the section of that Code applicable to reservoirs and water supply facilities in the Farm and Forest zone.
Development in the area is treated as a Conditional Use. Clackamas County does not have to notify Portland Neighborhood Associations if a Conditional Use land use review application is submitted.
Applications for a Conditional Use for new development in the Bull Run watershed only have to meet the approval criterion, "The proposed use shall not significantly increase fire hazard, fire suppression costs, or risks to fire suppression personnel." (Clackamas County code)
Accessory uses are allowed in the Watershed as part of the Forest Zoning as long as they are related to the primary use, which is "to conserve soil, air, and water quality and to provide for wildlife and fisheries resources". There are no requirements for how and where these are located, and because of the resource use they may not even require a building permit. There is no public review requirement for accessory uses.
In contrast, the NEPA process requires disclosure about the actions, alternatives, environmental effects and mitigation, in a process that requires involvement of the public and other agencies. It is clear that the Clackamas County process does not provide the same quality of environmental review as the NEPA process.
2) Does the City review process provide at least the same quality of environmental review as NEPA?
David's reply to constituents states citizens' review options in City processes are:
* quarterly updates that include planned activities of Water Bureau sponsored projects
* the budget review process, which includes citizen involvement, begins nine months before the start of the fiscal year.
* public notification of planned Bull Run projects in semi-annual reports that are prepared in September and March of each year and discussed at coordination meetings with the Mt. Hood National Forest that are open to the public.
The City's environmental review process does not apply in the Bull Run watershed.
3) Does the proposed ordinance offer permanent, long-term protection for the proposed City owned lands?
I am glad to see the inclusion of section 21.36.050 D Ownership of Bull Run Lands and Infrastructure, codifying Commissioner Leonard's leadership in promising the Bull Run will never be transferred to private entities, and will only be transferred to another public entity if the transfer is approved by ordinance of City Council.
I commend the Water Bureau and Commissioner Leonard for adding this new section on Bull Run Watershed Protection regulations. I would like more dialogue about the language, for example:
The new Code section 21.36 offers tree cutting protection and prohibits recreational uses. That's good. It prohibits industrial or commercial uses, except that there is no limit on development "as necessary for protection, enhancement, operation, or maintenance of the water supply system and facilities for electrical power generation and transmission" (Proposed Portland Code 21.36.050 B)
There are no environmental protection or conservation zones in the Bull Run watershed to delineate especially sensitive natural resources, no size limitation on development for the stated purposes, no setback requirements, no standards for stormwater or erosion control, no limits on disturbance area or requirement to replant with native plants after construction, no construction season limitations. None of the protections for sensitive lands in City code Chapter 33.430 apply, only the standards proposed in Chapter 21.36. In these ways and others, the proposed new Code chapter offers the Bull Run watershed less protection than is given to the Balch Creek watershed inside the city limits.
There are other sections that could be improved and refined in an ongoing process, for example, 21.36.050 E Public Notice of Bull Run Activities. The Code needs to be strengthened to provide greater transparency and public review of development proposals.
4) How does that level of long-term protection compare with the lands being held in US Forest Service ownership?
The case of a long, expensive process to approve a shelter for student education classes, was cited as justification for not having to go through the NEPA process in the future. The shelter was eventually approved. It is not clear if such a shelter would be approved under the City code and Clackamas County ordinances. It doesn't seem "necessary for protection, enhancement, operation, or maintenance of the water supply system and facilities for electrical power generation and transmission.", although like much other development it would "not significantly increase fire hazard, fire suppression costs, or risks to fire suppression personnel."
In my opinion, neither federal nor current/proposed local regulations offer the level of protection Portlanders want for our precious Bull Run watershed.
5) Does new Code Chapter 21.36 create a new law enforcement unit for the City of Portland?
21.36.030 Enforcement creates "Closure Area enforcement officers as provided for under ORS 448.315" This state statute is on "Special Police to enforce ORS 448.295", and provides that "The mayor or authorities having control of the community water system supplying the city may appoint special police officers who... After taking oath, shall have the powers of constables"; including "May arrest with or without warrant ..."
Is this Code section creating a new police force for the Bull Run watershed? I cannot support adoption of this new Code section even as an interim measure, until this section is clarified. (Commissioner Leonard stated at Second Reading that he believes he already has authority under the state statute to create these police officer positions without approval of the Council)
In summary, I believe it would be prudent to step back from these new code amendments and the land swap process, and take another look at what the City can require of itself in the watershed on City-owned lands. We need to provide more assurances to the public that we will do everything we can to safeguard our actions in the watershed while doing what the Water Bureau needs to get done. If the City's regulations in 21.36 become at least as good as the environmental zone rules, with the same level of public scrutiny as NEPA, I could be comfortable with the proposed land exchange. This week, I would prefer to postpone the votes on both ordinances.
The vote was 4-1 to pursue the land swap and adopt the new Code section as proposed. Further discussion and questions should be directed to the Water Bureau and Commissioner Leonard.