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Friday, December 20, 2013

Water Trust Campaign Revises and Re-Files Its Measure

Posted by Dirk VanderHart on Fri, Dec 20, 2013 at 12:44 PM

Tabor.jpg

A group trying to expand the public's ability to police Portland's water system have re-filed the measure, with new wording it says will clear up questions.

The Cascadian Public Trust Initiative says the initial measure produced confusion on a number of key points. The new language [pdf], the group says, leaves the effort largely the same, but clarifies the nature of lawsuits filed under the measure, and more-explicitly lays out conflict-of-interest provisions.

More significantly, the new language ties stormwater management work by the Bureau of Environmental Services (BES) into the measure. The previous wording only included the Portland Water Bureau.

"We kind of assumed it was implied that the mission of BES would be left untouched," says Jonah Majure, the group's chief petitioner. "There were still some folks who said I’m not sure how it will effect the future."

As we've reported, the effort draws on the long-held notion governments have a responsibility to maintain natural resources. It's a tack that's been used increasingly by environmental groups, but experts say the Portland measure may be the first to apply the so-called "public trust doctrine" at the municipal level.

The measure would require a citywide vote before chemicals like fluoride can be added to the water supply. It would also force officials to keep fighting federal rules that have the city building costly new covered reservoirs on Kelly and Powell buttes, and preparing to close open-air reservoirs on Mount Tabor and in Washington Park.

And a conflict-of-interest provision would require commissioners to abstain from water-related votes if they've received more than $50 from interested parties—though not, the new language makes clear, "normal ratepayers."

One of the larger effects of the measure, though, is that it would give citizens leverage to sue the city on behalf of the public for perceived mismanagement of the water and stormwater systems.

If supporters gather enough signatures, the initiative would come up for a vote in November.

The decision to re-file the measure means the group is back at square one. City elections officials had previously approved the measure's wording, and the City Attorney's Office drafted ballot language, which the water group was set to fight in court.

"The great thing about the new draft of the initiative is it’s a little bit more clear for the city attorney," Majure says. "We definitely thought this was a much-better approach than getting stuck in court and going through all these legal arguments."

Read the group's full statement after the jump:

After broad community support and feedback, members of the Cascadian Public Trust Initiative have decided to revise and submit a new draft of the People’s Water Trust initiative. There seemed to be confusion on the part of the City Attorney’s office as to the chief purpose and main effect of the People’s Water Trust. The Cascadian Public Trust Initiative strives to promote a greater understanding of how government functions and helping the City Attorney communicate the People’s Water Trust to the public is an important part of that process.

First, the People’s Water Trust has been presumed by some to be a “lawyer’s full employment act”. We would like to think that if Portland residents passed a law, the City would obey that law. To clarify this we changed the language of Section 8(3) & (4) to read that in a public interest action, “the resident shall be entitled to recover all reasonable costs of litigation, including expert and attorney’s fees.” We think that it is important that citizens have the ability to enforce public rights without incurring significant financial burdens and that what costs are reasonable is better decided on a case to case basis. The People’s Water Trust is also brimming with incentives to include the public in the decision-making process and significantly cuts down on the bureaucratic confusion that often plagues government by making City government more accessible and understandable to the general public.

Second, we needed to clear up some confusion with the City that citizen actions to enforce the trust would be “private” lawsuits. This is not the case. The rights granted in the People’s Water Trust are public rights and any actions to enforce those rights would be in the public’s interest. We have clarified this in the language of the new draft. No one individual stands to gain more than anyone else when these rights and duties are enforced.

Third, we clarified the conflicts of interest provisions, including definitions for “campaign contribution” and “commonly recognized conflicts of interest” (available in the attached file). There was undue worry that people with general concerns about water, like a normal ratepayer, wouldn’t be able to donate more than $50 to a candidate without that candidate running afoul of conflict of interest rules. Though this wasn’t the case before, we added clarification that “Commonly recognized conflicts of interest do not include generalized interests such as the shared interests of ratepayers in a well-managed water and sewer system or shared beneficiary interests.” Section 6(k)(i)(A). Only donations from or other relationships with special interests have the potential to create conflicts of interests.

Fourth, after some feedback from local environmentalists concerned about continual attacks on the Bureau of Environmental Services and their Sustainable Stormwater Management program, we added a duty that aims to enshrine their mission into law: “The City of Portland is bound by the affirmative duty … to manage stormwater and fund infrastructure that prevents stormwater runoff carrying dirt, oil, and other pollutants from reaching waterways and prevents erosion and flooding that harm properties and wildlife habitat.” Section 6(2)(u). We also think that this is important action in protecting the integrity of Portland’s water supply and local ecology. Portland’s forward-thinking management of stormwater sets it apart from cities around the country and we need to ensure that this work is continued.

All in all, the People’s Water Trust remains almost entirely the same as it was before, but we were happy to hear concerns and update the initiative with the interests of our community, as a whole, in mind.

Also, we wanted to point out that the public trust doctrine – the legal framework at the heart of the People’s Water Trust — was recently invoked in Pennsylvania to invalidate fracking laws. “As the citizens illustrate, development of the natural gas industry in the Commonwealth unquestionably has and will have a lasting, and undeniably detrimental, impact on the quality of these core aspects [life, health, and liberty: surface and ground water, ambient air, etc.] of Pennsylvania’s environment, which are part of the public trust.” Opinion at 117. For more, please see this link: http://thinkprogress.org/climate/2013/12/19/3092621/fracking-pennsylvania-unconstitutional/#

Sincerely,

Jonah Majure, Chief Petitioner

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