Lane County Measure 20-373 asks voters to protect local watersheds. The goal is right. It’s the instrument that’s wrong.

Everybody wants clean water and healthy watersheds. That’s how the McKenzie River Trust’s executive director described it recently. Clean water is a public good, and Lane County’s watersheds warrant real protection.

But the ordinance in question here declares that watersheds possess inalienable rights to “naturally exist, flourish, regenerate, and evolve,” and then builds an enforcement apparatus with no compliance pathway, no proportionate penalties and no accountable institution behind it.

Good law tells people what they can and cannot do. The Watersheds Bill of Rights only tells them they can be sued.

The ordinance does not define what lawful behavior looks like. A business owner, a city engineer, a utility operator — none of them can read the measure and know what they must do to comply. No standards, no thresholds, no defined path to compliance. The measure borrows Oregon’s statutory definition of “pollution,” but leaves key terms like “evidence” and “impairment” undefined — even though the civil penalty turns on whether an entity “impairs any of the rights set forth in this ordinance.”

The Eugene Water and Electric Board’s commissioners voted unanimously to oppose the measure, citing “broad and vague language that could lead to significant legal complications” and a lack of “clear definitions and standards” for ordinary operations.

The undefined terms are only part of the problem. The enforcement structure the measure seeks to implement compounds it. Any Lane County resident could sue any business, government agency or other entity in circuit court. If the resident wins, the defendant would pay both sides’ legal fees. If the defendant wins, they would pay their own. And courts could order governments to take protective actions even without “scientific certainty or full evidence of the risk.”

The measure makes courts the policymaker. Each ruling becomes its own rule — case by case, with no rule-making process and no expert agency behind it.

The penalty for a violation is the full cost of restoring the watershed to its prior condition, plus 1% of that restoration cost per day from the date the damage is reported until it stops. A million-dollar restoration estimate reported in January and resolved in December could produce $3.65 million in penalties on top of the original cost. And that restoration cost estimate? The ordinance doesn’t say who gets to determine it or how.

Supporters argue that courts already dismiss frivolous claims. They do — but dismissed claims still cost defendants money to fight. Much litigation is settled due to costs, not merits.

The measure provides no exemptions — no safe harbor for fire-suppression crews working near waterways, no grandfathering of existing infrastructure. A county culvert, a municipal stormwater outfall, a rural septic drain field — all become present-tense violations the day a complaint is filed.

The ordinance claims its rights cannot be preempted by “less-protective” state or federal law. But Oregon courts have already rejected the legal theory this measure depends on. In 2017, Lincoln County voters narrowly approved an aerial-spray ban drafted by the same organization — the Community Environmental Legal Defense Fund — using the same argument: that an inherent right of local community self-government overrides state preemption. A Lincoln County judge in 2019 ruled that the argument was “without legal precedent,” and the Oregon Court of Appeals affirmed that opinion two years later.

Even Rob Dickinson, a leader of the campaign supporting 20-373, conceded that the anti-preemption clause probably won’t hold up universally in court. Voters are being asked to approve a measure whose central legal claim has already failed — twice — in this state.

But the measure didn’t appear from nowhere, and the grievance behind it is real. For years, rural residents near Triangle Lake in west Lane County have watched helicopters spray herbicide onto clear-cut timberland above their homes. Aerial spraying is a legitimate concern.

But if it causes demonstrable harm, the answer is targeted regulation with clear standards and due process — not a county ordinance that doesn’t tell a timber company what it must actually do. Advocacy groups like Beyond Toxics, Cascadia Wildlands and Oregon Wild have already chosen the former path. The Private Forest Accord they negotiated in 2022 won mandatory stream buffers, aerial-spray restrictions, and notification rules, while committing them to a moratorium on new local pesticide regulations through 2027. They chose a different mechanism, and it produced concrete rules.

Measure 20-373’s costs — unfunded enforcement mandates, litigation exposure for public utilities, higher utility rates — would fall hardest on the communities least equipped to absorb them: small towns, rural fire districts and county budgets with the most exposed infrastructure and the thinnest reserves.

The communities this measure claims to protect are the ones who pay to find out whether it holds up in court.

Joshua Purvis is a civic strategist in Eugene. He is co-chair of the city of Eugene’s MUPTE Review Panel and co-chair of the Southeast Neighbors Association.