[Vision2020] Re: A E. Kirsten Peters article thread

[Mark Solomon]

Phil,

All good questions. The basic premise that all uses should be allowed 
with performance conditions attached is simply unworkable in local 
government. You know what the level of staffing is at the county 
level and what their skill levels/expertise are. Staffing up for 
POSSIBLE reviews on POTENTIAL applications under a performance review 
standard just doesn't work.

The other problem with performance standards is that they are 
extremely difficult to write to capture all the possible concerns. 
Take a hypothetical:

"All mining activities shall demonstrate prior to the start of 
activities that they shall not create a significant adverse effect on 
existing groundwater users."

Makes sense. I've even used the word "significant" instead of "no effect".

Three immediate problems with the language: what is significant, who 
are the existing groundwater users and how do you demonstrate?

I truly believe that after we've done the boring funded by IDWR and 
mapped it out, we'll have a much better idea of where the meaningful 
recharge pathways lie and the ordinance can be modified, but until 
then, I don't believe it's  worth what would be an extraordinary 
effort to attempt defining performance standards for what will always 
be a minor use in the sub-basin. And that's without getting into what 
is IDL's reserved authorities and what the county could do if it 
wished to. There is that nasty "Right to Mine" law that prohibits 
local government from enacting performance standards that are 
stricter than the state's.

Mark


>Mark
>
>That the police powers of local government have the ability to 
>condemn uses under the common law is well supported by SCOTUS 
>rulings.  Of course those regulation have to protect the rights of 
>some by removing the rights from others.  Some recieve a benefit, 
>have an afirmation of their 'property rights', but the restrictions 
>remove rights from other folks.
>
>The balancing act of local government is to see that the common good 
>gets protected and that the few rights are removed from people in 
>the process.  If the rights lost by the few to benefit the many are 
>great enough, then a takings has occured and the loses sustained by 
>those few to the benefit of the many have to be compensated for 
>under existing SCOTUS rulings.
>
>I did not hear a single speaker say that the county should not 
>perform its function in protecting the many, only that they felt 
>that the restrictions on the few should be less than contemplated by 
>the regulations.  The term performance standards was used in that 
>element, suggesting that if people could show that their activities 
>were not harmful to the many, that they should be allowed to operate 
>conflicting uses that are restricted or banned by the proposed 
>regulations.
>
>Yes, our groundwater need to be protected as a common resource and 
>one that is precious.  But if only a few are expected to bear the 
>weight and cost of the regulations that heap benefit on the many, 
>why should those few not seek remedy and compensation from those who 
>have recieved that benefit.
>
>The fact that housing developers are given a perfomrance standard 
>and that commercial developers are given a perfomrance standard, but 
>other users are not was interesting in and of itself.  EPA in its 
>work on commercial and residential development's impacts on 
>groundwater quality was pretty clear that the largest impactor of 
>groundwater flows and purity in the USA is from those sources.  In 
>Latah county, construction within the GWPZ gobbles up 40 acres of 
>land a year and is growing at an increasing pace.  Add to that the 
>annexed portions in direct proximaty to Moscow and the obvious large 
>scale impacts to groundwater resources are not crushed rock and 
>gravel pits or people running some horses, its building more and 
>more commercial and residential structures with their resulting 
>runnoffs.
>
>So the regulations as proposed will stop people from having clunky 
>noisome gravel pits and too many stinky old farm animals, but those 
>particular uses are acutally less groundwater impactive than uses 
>which have been allowed and encouraged in the GWPZ.  Why could the 
>regulations not have been developed to allow perfomrance standards 
>for the less impactive uses?  Is it because the regulations as 
>proposed were not about grondwater, but about the restriction of use 
>for things that some people find less than desirable for completely 
>other reasons?
>
>And if cattleman, stable owners and gravel operators are not granted 
>performance standards that have been allowed for more impactive 
>users, why is it that they should not seek compensation for the 
>restrictions that they have to bear?
>
>Phil Nisbet
>
>>From: Mark Solomon <msolomon at moscow.com>
>>To: "Tom Hansen" <thansen at moscow.com>, "'Phil Nisbet'" 
>><pcnisbet1 at hotmail.com>,        <vision2020 at moscow.com>
>>Subject: RE: [Vision2020] IDWR distribution of funds to water projects
>>Date: Thu, 21 Jul 2005 06:29:11 -0700
>>
>>Following is the letter to the editor I submitted yesterday upon 
>>reading Kirsten's "article":
>>
>>Another take
>>
>>Daily News reporter E. Kirsten Peters could have written her 
>>article on the proposed groundwater ordinance (Daily News 7/20) 
>>with journalistic integrity. Instead, she chose to editorialize. 
>>Having attended the meeting myself, Peters' slant that "property 
>>rights got a black eye" could just as easily have been "property 
>>rights defended" but that is not apparently where her personal 
>>beliefs lie.
>>
>>As was clearly stated in the proposed ordinance and by members of 
>>the public in their testimony, property rights are not just about 
>>how someone can develop new uses on their land but also how 
>>existing uses and landowners are protected from harm by new 
>>development. The proposed ordinance, I believe, does an excellent 
>>job of balancing those sometimes conflicting demands in regards to 
>>our most precious local natural resource - our groundwater.
>>
>>Editorials belong on the opinion page, not in the news.
>>
>>Mark Solomon
>
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