1991-20529-Minutes for Meeting June 19,1991 Recorded 7/12/199191-2`529 0107 0254 MINUTES KMB ENTERPRISES SITE 541 (Cyrus) DESCHUTES COUNTY BOARD OF COMMISSIONERS June 19, 1991 Chairman Maudlin called the meeting to order at 6 p.m. Board members in attendance were Dick Maudlin, Tom Throop and Nancy Pope Schlangen. Also present were: Bruce White, Assistant County Counsel; Karen Green, Community Development Director; George Read, Planning Director; and Dave Leslie, Associate Planner. Before the Board was a public hearing to consider whether or not to inventory and zone KMB Enterprises (County Site No. 541) for surface mining. Dave Leslie gave the staff report summarizing that this matter was remanded to the Board by LCDC for consideration of an open space management plan in connection with proposed surface mining. There had been some changes in circumstance since that plan was first prepared, and the Board considered and adopted findings last summer (i.e. beginning construction of residences on the Rim at Aspen Lake Subdivision). Because of these changes, staff was recommending that the public hearing be opened to consider "any and all issues" for public testimony. Since the June 7, 1991, staff report, they had received a letter from the Oregon Department of Fish and Wildlife written in response to a letter from Max Merrill, attorney for the owner, plus two letters from opponents who wished that the property not be zoned for surface mining (which he gave to the Board). The order from LCDC regarding the open space management plan did not require that the inventory adoption, made previously by the Board, be reconsidered. Staff was not recommending that this site be taken off the inventory for aggregate resources. The issue of rezoning the property from flood plain to surface mining was the only issue to be considered. The issues of location, quantity and quality of the material did not need to be discussed since the question of whether to leave this site on the inventory was not being determined. He said the Board should consider the conflicts and consequences of rezoning this property to surface mining or retaining the current zone designation. He pointed out that Goal 5 did require the protection of aggregate resources unless certain conflicts and consequences arose which would leave the property better zoned as flood plain. Chairman Maudlin opened the public hearing for testimony. He asked the members of the Board to declare any contacts they might have had regarding this issue. Commissioners Throop and Schlangen said they had had no contacts. Chairman Maudlin said he had talked with Keith Cyrus but not about this subject. No one challenged any member of the Board's ability to hear this matter. Chairman Maudlin asked that proponents testify first. PAGE 1 MINUTES: 6/19/91 010'7 0255 Max Merrill, attorney representing the applicants, KMB Enterprises, testified that this matter was before the Board because it was remanded to the County from LCDC for the purpose of taking another look at the management proposal. Max Merrill (verbatim): The issue certainly is one of whether it would be better to leave the project the way it is now or to allow the limited excavation and removal of materials that we are requesting with the consequent addition of the ponds that we have worked with the Fish and Wildlife Department, which we believe and I think the letters from the Fish and Wildlife Department, although they have not taken a stand one way or another as to what you folks should do, the implication there is, the indication is that overall for wildlife habitat, the construction of these ponds as requested would have beneficial effect on the habitat, wildlife habitat in that area as opposed to leaving it just as a field as it is now. Commissioner Throop (verbatim): Mr. Chair, I don't read that into the letter. Could you point out to me why you draw that conclusion. Max Merrill (verbatim): The comments in the documents which are in your packet in the report out of the newspaper where the conversation with Mr. Behrens indicates that directly. Our feeling has been all along from our discussions with them that they feel that the habitat would be enhanced over a vacant field, and I believe that is in the newspaper article. Commissioner Throop (verbatim): All it says in the letter that we received June 10 was the plan as developed relative to the open space acreage should provide wildlife benefits. And then it goes on to have another paragraph talking about the ponds, and they say very specifically, they have no position on that at all, no value judgement on that at all. So I think you're reading more into it than .... and you're probably not in a position to represent their position are you Max? Max Merrill (verbatim): No, not at all, but I do believe that with respect to the material that we have submitted that the newspaper article and the comments from Mr. Behrens I believe would indicate support for what I'm.. Commissioner Throop (verbatim): Have you seen the letter? Max Merrill (verbatim): Yes. Commissioner Throop (verbatim): This is their position. Max Merrill (verbatim): I understand that. PAGE 2 MINUTES: 6/19/91 0107 0256 Mr. Merrill continued that the two issues which the staff report raised concerning the proposed denial of the rezoning were noise impact and the effect of the ponds on the water resources. The concern about the noise impacts was based upon a staff report on some preliminary tests which expressed concern as to whether the material could be extracted and crushed without raising the decibel level above the DEQ noise standard. He said their position was that these noise levels could be met. In the packet of materials he submitted, there was a letter from Russell N. Altermat who was a professional engineer from Beaverton and specialized in noise control matters. His opinion was that appropriate noise levels within the DEQ requirements could be handled with available modifications or noise buffers to the equipment, including both the removal equipment and the crusher. They were willing to agree to make the necessary modifications to any equipment or do any screening required to make the noise levels meet the DEQ requirements. There was no way to determine exactly what kind of sound would be produced until the equipment was on site. He pointed out another site where the material could be stockpiled and crushed. He said the topography was more wooded and there was a hillside. The decibel readings on this site would be within acceptable DEQ levels without modifying the equipment. They would have brought this alternative up sooner, but they had not realized that the noise issue was going to be a factor until recently. Using this site for stockpiling and crushing would reduce the time they would work at the material removal site by approximately one- half (approximately one year instead of two). This would allow them to do all of the removal and restoration work at one time rather than having the crusher at this site and crushing as it was removed. The second item of concern in the staff report was the impact of the ponds on Squaw Creek. Staff had a concern that because of water tables, the water flowing in and out of the ponds would bring up the temperature of Squaw Creek. There were two ways of dealing with this possible problem. First, they could put a clay layer of sealant around the pond so that the water would not circulate with the water of Squaw Creek. Max Merrill (verbatim): Just today or yesterday, my clients talked to Ted Fies at Fish and Wildlife. He's not able to be here tonight because they have their own hearing going on at the same time, but he mentioned to us that in looking at these ponds and their depth, that his feeling was that it might not be in the best interests of either the ponds themselves or Squaw Creek to do that sealant, and the reason he says that is that with the depth of these ponds, he feels that the water actually may be cooler at the bottom after it sits there for awhile than the water in the creek itself, and that it may be advantageous to have it go through there, and it will also percolate through the underground before it gets back to the stream which will have a filtering effect as well. We're not representing at all tonight that that's their position. All we wanted to do was say that this is something that came up in conversations. Our position simply is that we will certainly defer PAGE 3 MINUTES: 6/19/91 0107 0257 to whatever Fish and Wildlife says would be the best for the water supply system out there. If they feel after looking at it that it should be sealed, we'll seal it. If they feel it would be better to let it percolate, we'll let it percolate. That's entirely up to them, and it doesn't matter to us. But I think that either way that problem is not a real issue. The other issue on the water that was raised was whether the water right which my clients have out there could be there for pond storage. We have a letter from Bob Main in your file that indicates that that should not be a problem, and we don't anticipate that it would be a problem nor does he, so I don't think that that is a real issue either. Mr. Merrill said that another area which the applicants wanted to address was the effect of this project on building permits for houses on the rim. He understood there was a kind of "fast track" building permit process within the effected mining impact zone, with a more detailed process if the houses were actually going to require some shielding from a permanent site problem. They felt that since this was a short-term situation, there shouldn't be any need to modify any houses in the impact area, because they could handle the noise control on their side. Commissioner Throop asked if the County had the ability to ignore the surface mining impact area ordinance. Bruce White said perhaps the County could. If there were specific conditions made in the ESEE process, they could conceivably override, in individuals cases, the County ordinance. Karen Green said she felt they would still have to do a SMIA review, but that it might be more abbreviated based on conditions imposed on the surface mining site. Max Merrill said that all of the lots were similarly situated, so maybe there could be a blanket process for everyone. Bruce White asked if they were proposing to do a noise study for each lot as part of this process? Max Merrill said he didn't think it would be a problem for them to do some meter readings from each lot site. Chairman Maudlin asked how many of the lots would be within one- quarter mile of the mining zone. Mr. Merrill responded probably three-fourths. Matt Cyrus, 68157 Cloverdale Road, Sister, testified that they used a piece of equipment to simulate the noise a crusher would generate, and 50 ft from the machine at full throttle, they recorded 85 decibels. They used it as a portable source of sound to try at different locations. In the location between the Rim at Aspen Lake and Panoramic View Estates, at the nearest homesite at PAGE 4 MINUTES: 6/19/91 010'7 0258 Panoramic View Estates, the reading was approximately 50 decibels, whereas at the Rim at Aspen Lakes, Lot 4, and there was no appreciable reading on the scale. The bottom end of the scale was 40 decibels. This option would eliminated most all of the concerns about the noise. They also took a reading at the proposed crusher site. At the closest homesite, Lot 10, the reading was 63 decibels, which would indicated some abatement would need to be done. The acoustical engineer indicated that would not be a problem. They also tried it at the home at the bridge at Squaw Creek, which was the closest current resident, and the reading there was 40 decibels except when an occasional bird chirped which would raise it to 50. The ambient levels, during light raining weather which created higher readings, ranged between 40 and 45. Keith Cyrus, one of the partners with KMB, testified that there was a number of ways to approaching processing the material from this site. One would be to remove the material to the optional processing site which they owned, another would be to process it through a screen which would reduce the quantity of material which would have to go through the crusher. The screening process was much quieter than using the crusher. There were also some options in the crushing equipment used, i.e. generator, direct drive diesels, size of the crusher. A lot of the new cat engines were very quiet. He felt there was a number of things that they could do before they would need to baffle and screen to alleviate the noise. He showed an illustration of the proposed ponds which had been developed in conjunction with Fish and Wildlife. Keith Cyrus (verbatim): The ponds that you see illustrated here, the right hand illustration is looking from the west to the east toward the lots, that is the very approximate configuration that has been determined in conjunction with Fish and Wildlife. Those sites were selected because there's nothing growing on those but very sparse grass, mostly sage brush, those are gravel bars, there's really no top soil there, and if there were top soil there, we wouldn't be considering this. If you'd notice the work we've done with digging our test wholes, we've attempted to located those areas where there were top soil and as much as is practical, there may be some pockets of top soil within the affected area, but we're trying to hold our outer perimeters out of the area that would produce grass and natural forages. Again, it's unfortunate that Fish and Wildlife had a hearing, a conflict to tonight, otherwise Ted Fies or Norm Behrens could have been here to directly answer some of the questions that have been a concern. In my conversation with Ted this afternoon, I kidded him a little bit about their letter being on the fence again. He's very frustrated about the position that they have to take and the position they've been put in by the County at different times. His comments.. Commissioner Throop (verbatim): Could you expand on that statement. That's an allegation of some kind I'd like to hear more about. PAGE 5 MINUTES: 6/19/91 010'7 0259 Keith Cyrus (verbatim): Well I really don't have anything further. I think that's something.. Commissioner Throop (verbatim): The position that the County put them in? What position did the County put them in? Keith Cyrus (verbatim): I think you'd have to take that up with Fish and Wildlife, and I'm sure they'd be more than willing to sit down and discuss that. The.. Commissioner Throop (verbatim): Well you're willing to speak their position when it's to your benefit, I don't understand why you don't complete your statement on this.. Keith Cyrus (verbatim): The site that we're looking at there, Ted's comments were that that is nothing but barren rock bar, and anything we do to it has to be an improvement. Now that's second hand to you from, through me. Any variances that the homeowners would need, we would cooperate utmost to try to accomplish those for those to alleviate any delays. Kind of secondary benefit of something like this that is often overlooked, with the development of the lots up on the rim, we put in a 64,000 gallon reservoir with a 40 horse fire pump. When electricity is available, most of the time we do have pretty good fire flow. That is available to the different fire departments and the federal and state agencies, if they should have a need. They did contact us after that fire out north of Hinkle Butte this spring which we assisted on with our equipment. If there was a pond where they could draw water for their choppers and their baskets, the same as they used quite extensively on the Awbrey Hall fire. Unfortunately, there was nothing really available within the range that would accommodate that. In this location here, that would be an asset to quite an area there, a pond with enough depth and open enough they could get into to take care of that. Well that's a consideration, I know the County's concerned with safety and wild fires and this would be kind of an extra bonus. That's about all I've got. Chairman Maudlin asked what the depth of the water was from the ground surface down to the water. Keith Cyrus said approximately 4 feet. Chairman Maudlin asked then if the whole plain had a high water table. Keith Cyrus said it appeared to be that way. Chairman Maudlin asked how deep the ponds would be. Keith Cyrus said they were proposing to make them approximately 15 feet deep. Chairman Maudlin said they wouldn't have to fill the ponds then because they'd fill like a well. Keith Cyrus said their proposal was to circulate some of their water right through them to help maintain some circulation for oxygen and fresh water. Chairman Maudlin asked if the water would be running from pond to pond and then back into the creek. Keith Cyrus said the overflow would spill back in. If the ponds were lined, it would probably return over the surface and overflow back in, but if they were not lined, PAGE 6 MINUTES: 6/19/91 0107 0260 it would dissipate back through the gravel which would filter the water. Chairman Maudlin said apparently Mat testified at DLCD that the depth was more than 100 feet below the site. Matt Cyrus said that he was considering the water that was flowing through the gravel formation to be surface water rather than the aquifer where they drilled a well up on the rim. The water level at that point was approximately 100 feet below the creek. Commissioner Schlangen asked if all of the ponds would be connected by a ditch. Reith Cyrus said they were proposing to feed all of the ponds through the ditch. Jim Carnahan, 709 NW Wall Street, Suite 102 Bend, 97701, said he was a civil engineer with David Evans and Associates and was hired by RMB. His conclusion was that the way the ponds were constructed would probably not make any difference to the impacts on Squaw Creek. If the ponds were lined with clay to isolate them, but they were not kept fuller than the surrounding ground water, there would be an uplift problem which would loosen the lining. Therefore, he felt it was better not to line the ponds. If the ponds were unlined, the ground water would go through them. It was his experience that shallow ground water fed the stream and not vice versa. He calculated it would take a minimum of 23 days to move through the gravel material between the ponds and Squaw Creek. Sand and gravel was a natural filter, and if there was a temperature increase while it was in the pond, it would be dissipated by the slow movement back through the ground. Chairman Maudlin asked if the ponds were 15 feet deep and the water table was 4-6 feet deep, how deep the aquifer was. Mr. Carnahan guessed from the results of the test pits, that there was an impermeable layer below the ground water, and then a deeper aquifer. Chairman Maudlin asked if there was any water in Squaw Creek on August 15 and was told it was spring fed. Chairman Maudlin asked for testimony in opposition. Bob Brockway, 68440 George Cyrus Road, Sister, testified that he was a resident of Cloverdale and was speaking as member of the Rural Preservation Committee which was in opposition to the granting of surface mining rights on Squaw Creek. He submitted a statement from the committee regarding a surface mining permit on Squaw Creek file #541 urging the Commissioners to accept the Planning Staff recommendation to deny the application. They felt that the wild life did not balance all ESEE consequences. Reasons for denial were: concern about noise standards (echo effect from canyon walls), groundwater saturation, possible rise in temperature of surface water and ponds could affect biological balance of water and plant life down stream. Since 1941 at least 10 floods had occurred in Squaw Creek or approximately once every five years. A flood would fill the pond with sediment and carry away the existing fish. He provided material from the Corp of Engineers PAGE 7 MINUTES: 6/19/91 0107 0261. relating to the floods on Squaw Creek. In 1964 the estimated discharge was 1,980 cfs. The gauge heights at the measuring station was 6.6 feet. Again in 1980, there was a 2,000 cfs discharge with a gauge height of 6.1 feet. As a tributary of the Deschutes River, Squaw Creek had scenic and wildlife status, and they felt strongly that to allow surface mining on the Squaw Creek flood plain conflicted with the rest of the uses allowed on the waterway. A much larger supply of gravel than what the pond excavation would supply was available on the applicant's property south of the Aspen Lakes development and was approved for use last year. Chairman Maudlin asked if Mr. Brockway knew where the U.S. Guard Station gauge at RM 26.6 was? Mr. Brockway said south of Sisters but he didn't know the exact location. R. C. Owens, testified that he presently lived at Black Butte but had recently purchased lot 6 on the rim. He said he was purchasing a lot which was previously purchased from the Cyruses, the developers. In order for the Cyruses to get approval for the development of these 19 lots, there was a requirement that there be adjacent open space. He was not necessarily opposed to the ponds, and the gravel had to be removed to create the pit for the ponds. However, he felt the two year period being proposed to remove the gravel was outrageously long and would create and eye sore and ear sore for all of the adjacent property owners. He felt RMB had an obligation to satisfy the homeowners in the development which they developed. He felt they should be given a minimal amount of time to take out the gravel to complete the pond building process (i.e. two weeks to a month). He was concerned about how the ponds would look when they were finished, and thought a concrete plan should be developed and brought to the homeowners association for their approval. Before getting to this stage, he felt they should have given the homeowners association the following information: how deep the ponds would be, how many fish would be planted, how many plants, how it would be maintained, who would pay for the maintenance, and under what conditions would the area be turned over to the homeowners association. He felt RMB should be bonded to ensure there would be adequate funds to complete the project. He opposed the proposal until these things could be done. Walter Paul said he would be impacted more than anyone else in the area since the dirt road that the truck would use was about 100 feet from his house. When they hauled water out there last summer, the dust and the noise was severe. They had been hauling gravel over the last year, and when they used there breaks to come down the hill to the bridge, there was a tremendous noise. He said he had walked across Squaw Creek one day this week and didn't get his feet wet. PAGE 8 MINUTES: 6/19/91 0107 0262 Chairman Maudlin asked Mr. Paul if his house was the last one before crossing the bridge. Mr. Paul said yes, on the east side. Dick Mooney, 70090 Camp Polk Road, Sisters, submitted some written testimony. Jim Cummings, 17732 Edmunson Road, Sisters, testified that he agreed with the Planning staff recommendation to deny the zoning. He felt there were a lot of unanswered questions. They had had nine months since the last hearing to get everything worked out. He was concerned that the gravel would be stored on open space. He felt having a surface mine in a flood plain was an important issue for all the residents of Deschutes County. He questioned the wildlife benefit of the ponds, and wanted the area to remain a natural space. Chairman Maudlin asked if there was any rebuttal testimony. Reith Cyrus testified again. He said the gauging station was where Squaw Creek flattened out up by Runkles. Permits and bonding for surface mining were handled through the state. The state required a reclamation bond, and they monitored the yardage removed. The majority of the trucks currently going down the grade were loaded and would probably be using their jake breaks. There would be a some difference during surface mining, because the trucks would not be loaded when going down the hill. They took a reading with a sound meter at that homesite and the meadowlark made more noise than the simulated noise source. The road would need improvement and would be graveled to reduce the affected property owners. He wanted to come to an understanding. Some indicated that some items had been u that all of the homeowners, up to t: the proposed site was a separate p space and was not part of the rim. wildlife management was at KMB's sug it was a unique opportunity for thei area. The alternative would be to 14 20. He said they really didn't have by the County. They had worked wi Wildlife and came to an understands: Planner, but the Planning Director and Wildlife Department was not wi. everyone could get together and hams dust. He had concern for the to get together with Mr. Owens )f the comments Mr. Owens made isrepresented to him. He felt tis point, had been aware that _ece of property, it was open The recommendation to do the jestion to the County. He felt i to do something nice in this it the land revert back to EFU- a plan that had been accepted :h the Department of Fish and ig and agreement with a County could not accept it. The Fish _ling to go any further until ter out the details. Chairman Maudlin said some letter were received in opposition to the rezoning and two letters in favor of the application. Mr. Mooney's letter said that he would agree to the ponds if the material was processed elsewhere in a timely manner. Keith Cyrus said the original staff report which went to Salem was full of misrepresentations and errors, and they had not been able PAGE 9 MINUTES: 6/19/91 0167 ®x'63 to obtain some reports. If some things had not been misrepresented, perhaps the process would have moved quicker, and they would have already taken the material out before there were would have been so many problems. Commissioner Throop said the Board of Commissioners denied this project, and the only reason the Board was hearing it again was because LCDC remanded it to the County. His characterization of people dragging their feet and preventing him from moving forward expeditiously with his project was absolutely false. Chairman Maudlin said that the findings were based upon the information that was received and the motion the Board made. If there was additional information other than the findings, he wasn't aware of it. He said the three Commissioners in office at the time read and signed the findings. He pointed out that the LCDC remanded the site back to the County for a very narrow reason, but the Board decided to reopen the hearing for all issues. Commissioner Throop mentioned that he was a member of LCDC but had disqualified himself from participating in the state level decision due to his conflict as a Deschutes County Commissioner. Chairman Maudlin closed the public hearing. Commissioner Throop said he was ready to make a decision. He said this site was in the Squaw Creek flood plain and each of the ponds were below the ground water level. There was already inadequate aquatic habitat on this site, primarily during the summer. He felt this project was too large of a risk and too great a potential to further degrade Squaw Creek. The creation of more surface water and the manner in which the system would work, had the potential of elevating water temperatures even further. These kinds of alterations were inappropriate for a key waterway like Squaw Creek. The potential damage to the water resources could not be mitigated. He said there was no evidence that the noise standards could be met. THROOP: I would be prepared to offer a motion which would recommend that the site be included on the inventory but that the proposal to zone the site for surface mining not be approved, and that the underlying zoning be retained. SCHLANGEN: Second. Bruce White asked if the Board had received a report on noise. Chairman Maudlin said yes. Chairman Maudlin said he wondered whether Squaw Creek could be damaged any more than it already had been. He didn't think the ponds would further damage Squaw Creek. Perhaps the noise had not been addressed as fully as possible, but he didn't think that could PAGE 10 MINUTES: 6/19/91 010'7 0264 be accomplished without the equipment on the site. The proposal not to crush in the valley site was a new proposal, and he didn't feel they had enough answers to make a decision at this time. Commissioner Schlangen said she was going to abstain because she didn't feel she had enough information to vote. Bruce White said staff would like a chance to look at some of the new information, especially the noise report. Chairman Maudlin agreed. Commissioner Throop withdrew his motion, and Commissioner Schlangen withdrew her second. Chairman Maudlin announced that a decision would be made at the Board's meeting on Monday July 1, 1991 at 10 a.m. in the Board's Conference Room in the Deschutes County Administration Building. DESCHUT S COUNTY BOARD OF COMMISSIONERS To T hr oot Commis%ioner -� ancy P S jilaPen, ommis Toner in; BOCC:alb PAGE 11 MINUTES: 6/19/91