When Governor Kulongoski submitted a letter to Diane Rosenbaum, Chair of the House Rules Committee, on June 22nd of last year, in what amounted to a veto of Senate Bill 30, he did so because he remained unconvinced that the state's land use system wasn't up to the task of protecting the Metolius Basin from the impacts of destination resorts. His appeal was to let the process play itself out.

When the Oregonian published an editorial on June 10th titled, "Yes, This River Must Be saved," that paper's editorial board asked whether Oregon could protect the precious Metolius River without subverting its land-use system and water laws.

Earlier this week, after receiving a State Land Use Board of Appeals decision (attached below), and a letter from the Governor's office, LandWatch's longstanding assertion that the state lacks clear authority to protect the Metolius and its basin and that new solutions are needed was confirmed.

In deciding the matter of whether or not Jefferson County followed the applicable laws when it approved a destination resort mapping zone focused on the Metolius Basin, aside from issues related to Big Game Habitat argued by LandWatch and the Confederated Tribes of Warm Springs, LUBA concluded that it had.

In particular, LUBA ruled that state law does not afford the springs at the Headwaters of the Metolius any protection against the depletion of groundwater from developments of a sufficient distance from the springs. Thus, according to LUBA, it is irrelevant whether or not the massive proposed Colson Resort would impact the headwaters – because it's too far away. The fact that USGS Scientists have testified that this is likely to be the case means nothing. Here is what LUBA concluded on the matter:

The county’s acknowledged Goal 5 program is concerned with conflicting uses that are proximate to the Metolius River and its headwaters. The mapped areas that will be eligible for destination resorts are over two miles from the Metolius River and its headwaters. With regard to the Metolius Headwater site itself, which appears to be the focus of petitioners’ concern, petitioners argue that the county erred by assuming the destination resorts will have no impact on the groundwater resource that provides the entire flow of the river at its source. The short answer to petitioners’ concern about potential groundwater impacts from destination resorts is that the groundwater resource upon which the Metolius River depends is not an inventoried significant Goal 5 resource [and therefore not subject to regulation intended to protect Goal 5 Resources like the Metolius River.].

Other elements of LUBA's decision – which suggest a lack of clear authority to prevent other types of impacts – may require additional legal clarification in order to know what types of solutions need to be sought in order to protect the Metolius basin from resort impacts. LandWatch is currently considering an appeal of this decision to the Oregon Court of Appeals and has until March 3rd to make a decision.

However, a recent e-mail from the Governor's office suggests that a fairly comprehensive assessment of the inadequacies of current law has already occurred, and that a number of solutions may already be in the works. At this point we lack specifics, because the state has yet to officially release key agency documents that detail its finding, but we hope to have those soon.

When he wrote his letter in June of last year, Governor Kulongoski offered a three part solution for how to address this issue – he would ask the Oregon Department of Water Resources, the Oregon Department of Fish and Wildlife, and the Oregon Department of Environmental Quality to address key concerns.

OWRD was to examine whether existing laws are adequate to ensure that any new destination resort development in or near the Metolius Basin will result in no reduction in stream flows to the Metolius River.

OD&W was to examine whether existing laws are adequate to ensure that new destination resorts in or near the basin avoid any adverse effect on fish or wildlife resource, particularly threatened or endangered species.

DEQ was to examine whether existing laws are adequate to protect the outstanding resource represented by the Metolius.

This plan was followed up by a promise: "If these agencies advise me that additional laws are necessary to achieve these objectives, I will work with the legislature to develop those legislative changes so that we protect the natural treasure of the Metolius basin for generations to come."

In an e-mail sent directly to LandWatch from the Governor's Director of Natural Resources, Mike Carrier, dated February 10th, 2008, we received the following information:

I can tell you that all three agencies (Environmental Quality, Water Resources and Fish and Wildlife) identified key concerns that would arise with the siting of a new resort near the Metolius River. Further, they also reviewed current authorities they possess to address such concerns. All three agencies concluded that they have no clear authority to prevent the construction of a resort.

As a result of the agencies’ analyses, the Governor has asked that they make recommendations to him regarding needed legislation that would increase the state’s authority relative to siting destination resorts. In addition, we have asked the Department of Land Conservation and Development to review land use planning laws and make appropriate recommendations for legislative changes it deems appropriate.

So via Mike Carrier - and we thank him for his response - we now know that key state agencies feel that they lack clear authority to halt the construction of resorts or address key concerns resulting from the siting of resorts near the Metolius River, and that an investigation into legislative solutions is underway.

The next question, the BIG question is what solutions will ultimately be proposed, will they be effective, and can they be implemented in time to protect the Metolius?

Unless the Governor has big plans of his own for offering some protection, or against all odds a piece of legislation emerges in the next 12 days before the current session lets out, all eyes will be on the 2009 session for solutions.