EWEB opposes watershed-rights ballot measure, calling it ‘broad and vague’

Eugene Water & Electric Board commissioners voted Tuesday, March 3, to oppose a county ballot measure aimed at protecting local watersheds, citing concerns it could create red tape and legal disputes.

Measure 20-373, or the Lane County Watersheds Bill of Rights, asks voters in the May election if the county should establish rights concerning watersheds and water beyond existing water regulations. It would be enforced by the county and private lawsuits. 

If passed, the measure says those rights would take priority over less protective state or federal laws. The measure would allow county residents — or a watershed itself — to sue companies or governments for potential violations; the county circuit court could nullify “government authorizations” like permits or contracts and order protective measures even without “scientific certainty” of risks, the ordinance states. 

Tuesday, the EWEB Board of Commissioners — the five-member elected body that governs the public utility — voted unanimously in favor of a resolution opposing the ballot measure. 

Elected boards and governing bodies may take positions on ballot measures under state law, but unelected public employees acting in an official capacity cannot.

The resolution, introduced by Commissioner John Barofsky, states that parts of the measure’s language are “broad and vague” and could lead to “significant legal complications, increased regulations and confusion” over enforcement of existing water protection laws.

“Somebody’s going to say, ‘I believe that you are having an impact on the watershed,’ and we say, ‘Well, we don’t believe we are,’” Barofsky told Lookout Eugene-Springfield. “Well, who’s going to be the arbitrator of that? That’s going to be the courts, and anytime that the courts are involved, it’s an expensive process, and it’s something that is problematic.”

The measure qualified for the ballot in September after receiving more than 14,000 signatures. 

During public comment at a February EWEB meeting, proponents discussed the measure as one primarily intended to prevent and reduce industrial harms, such as aerial pesticide spraying by timber companies contaminating the McKenzie River, Eugene’s main source of drinking water. 

The practice has a contentious history in Lane County; a measure to ban it failed to appear on the ballot in 2018 after a legal challenge. 

“The risks here are not hypothetical,” Andrea Stapleton, of Northwest Center for Alternatives to Pesticides, said at the February meeting. “Aerial pesticide spraying and other industrial activities still occur in parts of the McKenzie watershed, and chemical drift and runoff can enter our waterways.”

At that meeting, the EWEB board voted 3-2 to table its vote on the resolution opposing the measure until March, following accusations of rushed decision-making. 

Commissioners emphasized they oppose polluters, but questioned how the measure — deemed by one commissioner as a “legal free-for-all” and a “blunt tool” — would provide the protections that advocates want. 

A month later, during Tuesday’s meeting, commissioners repeated those concerns.

“I believe that this measure is incomplete, that it has not been fully thought through, or that all of the different perspectives of it have not been considered,” said Commissioner Tim Morris.

‘Devil in the details’

Barofsky told Lookout on Monday he has been tracking the ballot measure for about 18 months — though on Tuesday, he said he had been monitoring it “well over two years” — and feels “real fear” voters could pass it in May because it doesn’t reflect the “devil in the details.” 

Barofsky pointed to several parts of the measure he finds problematic, including the absence of a need for scientific certainty to prove environmental risks and the lack of a definition of “affordable” water access. 

He is also concerned the measure makes it “more palatable” for people to take legal actions against EWEB, because under the measure, losing sides in lawsuits would have to pay the legal bills of successful plaintiffs.

Advocates of the measure say concern about lawsuits against EWEB is misguided, as legal action requires substantial evidence of actual harm, and that the language is broad by design so it can respond to new threats. 

Supporters of the measure asked commissioners last month to identify EWEB projects at legal risk if the measure was passed, but never received specifics, proponent Rob Dickinson said during public comment Tuesday. Commissioner Mindy Schlossberg said in response that there was “too much to say” to list out the potentially affected projects.

“Courts interpret broad rights every day,” Michelle Holman, a chief petitioner for the ballot measure, said Tuesday. “What this measure does is set a clear priority. Watershed health is not subordinate to convenience or incremental damage.”

Timber ties?

Barofsky, who is running for Eugene City Council’s Ward 3 seat in the May election, has received more than $3,000 in campaign donations from local timber industry executives, filings show.

His donors include Danell Giustina of Giustina Land & Timber Co. — who also contributed to Barofsky’s 2020 EWEB campaign — Joseph Gonyea of Timber Products Company, John Murphy of Murphy Company and Erik Parrish of States Industries.

Parrish is the treasurer of the Protect our County PAC, which is opposing the ballot measure. The treasurer of Barofsky’s city council campaign, Jef Green, is also affiliated with the PAC, according to campaign filings. 

The ties were mentioned by a few speakers during public comment at Tuesday’s meeting, some urging Barofsky to recuse himself from voting on the resolution he authored. 

“If Commissioner Barofsky did not disclose these financial ties to his colleagues, that is a failure of transparency,” said one speaker who identified himself as Nick Squires. “If this board knew and moved forward anyway, that’s a failure of accountability. Either way, the people deserve better.”

When asked Monday about the donations by Lookout Eugene-Springfield, Barofsky denied a conflict of interest, saying the donors are supporters and friends, not “industry advocates,” and that people on both sides of the issue “may have” contributed to his campaign. 

“My opposition to this is solely for the interest of my EWEB ratepayers and the organization as a whole,” he said. “I’m not beholden to any of the contributors that I have.”

Barofsky reiterated that statement during his remarks at Tuesday’s meeting. He did not recuse himself from the vote, though he said he would if other commissioners felt it would be appropriate. None of the commissioners asked him to do so.

Who else has weighed in?

Unlike EWEB, Springfield’s Utility Board hasn’t taken a stance on the ballot measure. A SUB spokesperson said its board of directors “recently reviewed the topic of ballot measures generally” but did not take any action as an elected body. 

The text of the measure 20-373 was included in the board’s Jan. 14 work session packet. An Oregon Secretary of State manual on Restrictions on Political Advocacy by Public Employees was also included. Board Chair David Willis said during the meeting that the board was not taking a position on the measure, and that the documents were informational. 

The Eugene and Springfield Chambers of Commerce are forming a coalition opposing the ballot measure, according to a community newsletter sent Tuesday. The coalition backs the Protect our County PAC.