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1994-28776-Ordinance No. 94-007 Recorded 7/21/199494-287'76 BEFORE THE BOARD OF COUNTY COMMISSIONERS OF *An Ordinance Amending *The Deschutes County *Comprehensive Plan Resource *Element To Amend ESEE Conflict *Analysis and Decision For *Wetlands and Riparian Areas *and Declaring An Emergency. * REVIEWED Poo DESCHUT JS CORWF CO EON * * 0.36-0965 ORDINANCE NO. 94-007 WHEREAS, the Land Conservation and Development Commission issued a Remand Order 93 -RA -883, requiring Deschutes County to amend the Deschutes County Comprehensive Plan Resource Element economic, social, environmental and energy consequence analysis (ESEE) for riparian areas and wetlands in order to comply with periodic review Factor 2; and, WHEREAS, The Deschutes County Planning Commission conducted a public hearing on the amendment to the Riparian Area ESEE and the Wetland Area ESEE in the Resource Element of the Comprehensive Plan and has made a recommendation to the Board of County Commissioners, and the Board of County Commissioners has conducted a public hearing on the amendment; therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS AS FOLLOWS: Section 1. That the Wetlands and Riparian Areas inventory and the ESEE analysis adopted by Ordinance 92-041 (p. 73 - 76) be deleted and replaced by the inventory and ESEE analysis contained in Exhibit "A", Riparian Areas, and Exhibit "B", Wetlands. Section 2. SEVERABILITY. The provisions of this ordinance are severable. If any section, sentence, clause, or phrase of this ordinance or any exhibit thereto is adjudged to be invalid by a court or competent jurisdiction that decision shall not affect the validity of the remaining portions of this ordinance or exhibit thereto. Section 3. CODIFICATION. County Legal Counsel shall have the authority to format the provisions contained herein in a manner that will integrate them into the County Code consistent with the County Legal Counsel form and style for ordinance codification. Such codification shall include the authority to make format changes, to make changes in numbering systems and to make such numbering changes consistent with interrelated code sections. In addition, as part of codification of these ordinances, County Legal Counsel may insert appropriate legislative history reference. Any legislative history references included herein are not adopted as part of the substance 1 - ORDINANCE - NO. 94-007 (07/20/94) ".�;•�rfFp �(ll 9,4 CHEC �' 1994 of this ordinance, but are included for administrative convenience and as a reference. They may be changed to correct errors and to conform to proper style without action of the Board of County Commissioners. Section 4. REPEAL OF ORDINANCES AS AFFECTING EXISTING LIABILITIES. The repeal, express or implied, of any ordinance, ordinance provision, code section, or any map or any line on a map incorporated therein by reference, by this amending ordinance shall not release or extinguish any duty, condition, penalty, forfeiture, or liability previously incurred or that may hereafter be incurred under such ordinance, unless a provision of this amending ordinance shall so expressly provide, and such ordinance repealed shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such duty, condition, penalty, forfeiture, or liability, and for the purpose of authorizing the prosecution, conviction and punishment of the person or persons who previously violated the repealed ordinance. Section 5. EMERGENCY. This Ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage. DATED this cKu day of , 1994. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON , Chair TOM HROOP, pommissioner ATT /r / Recording Secreta y BARRY SLAUGHTER, Commissioner 2 - ORDINANCE - NO. 94-007 (07/20/94) EXHIBIT "A" FOR ORDINANCE 94-007 0136`026 RIPARIAN AREAS Inventory Riparian areas are areas adjacent to rivers, streams, lakes or ponds where there is vegetation that requires free or unbound water or conditions that are more moist than normal. Riparian areas form an interconnected system within a watershed. At the water's edge they define the transition zone between aquatic systems and terrestrial systems. Riparian areas often contain a diversity of vegetation not found in upland areas. Riparian areas are limited in Deschutes County and are important habitats for both fish and wildlife. In Deschutes County significant riparian habitat is located in one or more of the following three areas: 1. The area within 100 feet of the ordinary high water mark of an inventoried river or stream. The 100 foot wide area may contain both riparian vegetation and upland vegetation. Wetlands and flood plain are also frequently within 100 feet of a stream or river. In some cases the riparian vegetation may extend beyond 100 feet from the ordinary high water mark if it is a designated wetland or flood plain. In forested areas, the Oregon Department of Forestry identifies the riparian management area along Class 1 streams as an area on each side of a stream averaging three times the stream width but not averaging less than 25 feet or more than one hundred feet. The Oregon Department of Fish and Wildlife (ODFW) Land Use Planning Guide contains a section identifying protection policies and standards for various habitats and species. The recommended model ordinance for riparian areas in the handbook identifies a 100 foot area as measured from the ordinary high water line of all Class I and Class II streams. 2. The area adjacent to an inventoried river or stream and located within a flood plain mapped by the Federal Emergency Management Agency and zoned Flood Plain by the county. The flood plain may extend beyond 100 feet from the ordinary high water mark of the stream and may contain wetland. 1 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) 0136-0268 3. The area adjacent to a river or stream and inventoried as a wetland on the National Wetlands Inventory Map. A riparian wetland may extend beyond 100 feet from the ordinary high water mark and may be included in a flood plain. The county has not conducted an inventory of riparian areas adjacent to lakes and ponds on private land. However, many of these areas are included in the National Wetland Inventory Maps and are subject to County, State and/or Federal wetland fill and removal regulations. Riparian areas adjacent to the many lakes on federal lands are managed and protected under the federal land and resource management plans and are not included in the county inventory and are not considered in the ESEE analysis of conflicting uses. The three areas described above are further identified in the Deschutes County/City of Bend River Study, the Federal Emergency Management Agency (FEMA) Flood Plain maps, the U.S. Department of the Interior National Wetlands Inventory maps, the Deschutes County Year 2000 Comprehensive Plan and Title 18 of the Deschutes County Code. Deschutes County/ City of Bend River Study The Deschutes County/City of Bend River Study (1986) inventoried the following significant riparian habitat and completed an ESEE analysis of this habitat. The River Study inventory and ESEE analysis for riparian habitat are incorporated herein by reference. The River Study resulted in adoption of a 100 foot setback for structures and septic systems, fill and removal regulations, provisions for conservation easements and prohibition of hydro -electric facilities on certain reaches of the Deschutes River and its tributaries. Riparian Area Inventoried In River Study (Table 6-2) STREAMS ACRES Deschutes River 1,440 Little Deschutes River 2,920 Paulina Creek 846 Fall River 43 Crooked River 38 Squaw Creek 47 Tumalo Creek 50 Indian Ford Creek 573 2 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) FEMA Maps 0136-0269 The Federal Emergency Management Agency (FEMA) maps flood plain adjacent to the following rivers and streams. The flood plain along these rivers and streams is zoned Flood Plain (FP) by Deschutes County. Deschutes River Little Deschutes River Squaw Creek Crooked River Paulina Creek Long Prairie Dry River Spring River Indian Ford Creek Portions of Indian Ford Creek and the Deschutes River near Sunriver have not been surveyed and mapped by FEMA. These areas are not zoned flood plain. However, the Flood Plain Zone, Title 18.96.020, states: "When base flood elevation data has not been provided in the flood insurance study, the Planning Division will obtain, review and reasonably utilize any base flood elevation or flood way data available from federal, state or other sources in determining the location of a flood plain or flood way." National Wetlands Inventory Maps The U.S. Department of Interior National Wetlands Inventory Maps are the county inventory of wetland habitat. These mapped wetlands are subject to county, state and federal fill and removal regulations. Deschutes County Year 2000 Comprehensive Plan The Deschutes County Year 2000 Comprehensive Plan, adopted in 1979, mapped riparian areas along the following rivers and streams. River or Stream Ownership Deschutes River Little Deschutes River Fall River Tumalo Creek Three Creek Squaw Creek Trout Creek Dry Creek Cache Creek Indian Ford Creek Cultus River Charlton Creek Deer Creek Private/Federal Private/Federal Private/Federal Private/Federal Private/Federal Private/Federal Private/Federal Private/Federal Private/Federal Private/Federal Federal Federal Federal 3 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) Cultus Creek Federal Quinn Creek Federal 0136-0270 Fall Creek Federal Moore Creek Federal Title 18.88, the Wildlife Area Combining Zone, contained a provision which required advice from the Oregon Department of Fish and Wildlife to determine the minimum lot sizes in these mapped riparian areas. This provision was deleted from Title 18.88 by Ordinance 92-042 because it was not a clear and objective standard. The Comprehensive Plan map was repealed and replaced with a Wildlife Habitat Combining Zone Map that does not include mapped riparian areas. Title 18 - Deschutes Countv Zoning Ordinance Title 18.04.030 of the Deschutes County Code includes the following streams in the definition of "perennial stream." These streams, in addition to all those listed above, are subject to the 100 foot setback for structures and septic systems. Perennial Streams Listed in Title 18.04.030 Alder Creek Lake Creek - Middle Fork Bottle Creek Metolius Creek Bridge Creek Park Creek - East Fork Brush Draw Park Creek - West Fork Bull Creek Pole Creek Cache Creek Rock Creek Charlton Creek Snow Creek Cultus Creek Soap Creek Cultus River Spring Creek Deer Creek Soda Crater Creek Dry Creek Squaw Creek - North Fork Fall Creek Three Creek First Creek Todd Lake Creek Full Creek Trout Creek Goose Creek Tumalo Creek - North Fork Indian Ford Creek Tumalo Creek - Middle Fork Jack Creek Tumalo Creek - South Fork Kaleetan Creek All of these streams, except portions of Indian Ford Creek, Cache Creek and Dry Creek, are located on federal land and are subject to either the Deschutes National Forest or the Bureau of Land Management Resource Management Plans. 4 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) Location. Oualitv and Quantity 0136-0271 The extent of riparian area varies depending on the soil, terrain, aspect, vegetation and hydrology. In the south county, there are extensive areas of flood plain and wetland adjacent to the Deschutes and Little Deschutes Rivers. In the north county, where the Deschutes, Crooked River and Squaw Creek are located in canyons, the riparian area is typically a narrow band confined by the canyon. Native wildlife depend on the limited riparian habitat. According to the Oregon Department of Fish and Wildlife, 37 percent of reptiles, 46 percent of birds and 69 percent of mammals use riparian habitat. Riparian areas are essential habitat for waterfowl and significant habitat for upland game birds including grouse, quail, mourning doves and pheasants. Many non -game species also depend on the riparian habitat. The riparian vegetation is also an important component of fish habitat to stabilize stream banks and provide shade to maintain desireable water temperatures. The riparian areas are used as migration corridors by deer and are travel corridors for many other species of wildlife. The quality of the riparian areas is poor in some areas of the south county where extensive development on small lots has occurred along the Deschutes and Little Deschutes Rivers. Some land owners have removed native vegetation to the river's edge and constructed retaining walls and docks, planted lawns or have removed vegetation to enhance their view of the river. Some grazing damage has occurred on isolated private tracts in the canyons of the Deschutes River and Squaw Creek and along Indian Ford Creek and the Little Deschutes River. However, where residential development or grazing has not occurred adjacent to the streams, the riparian vegetation is generally in fair to good condition. The water level in the Deschutes River fluctuates because of storage and release of water for irrigation from Wickiup and Crane Prairie Reservoirs. The fluctuating water flows cause erosion and increased turbidity. Low flows during the fall and winter greatly diminish the size of wetted area and can render cover near the banks unsuitable for fish habitat. The low flows also create unstable streambank conditions leading to erosion. The timing and velocity of high flows during the spring and summer reduce the potential for revegetation of stream banks. In forested riparian areas the width of the significant habitat area depends on the size (class) of the stream. The Oregon Department of Forestry (ODF) defines riparian habitat in three classifications: riparian area, riparian area of influence and riparian management area. 5 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) 0136-02;2 The ODF riparian area is the wet soil area next to streams lakes, and wetlands. These areas have high water tables and soils which exhibit characteristics of wetness. Water loving plants are often associated with these areas. The ODF riparian area of influence is the transition area between the riparian area and upland vegetation. It contains trees which may provide shade or contribute fine or large woody material or terrestrial insects to a stream. It also may contain trees that provide habitat for wildlife associated with the riparian management area. The ODF riparian management area is the area subject to the regulations in the Forest Practices Act administered by the the Oregon Department of Forestry along class I streams. The width of the riparian management area on each side of the stream is 3 times the width of the streams but not less than 25 feet or greater than 100 feet. This area usually includes a riparian area and riparian area of influence. Commercial forest harvest operations are subject to the State Forest Practices Act and are not regulated by the county. 6 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) Conflicting Uses Determination " �� `�N 173 Conflicting uses identified include: U 1. Fill and removal of material, including vegetation, which could cause reduction in the size, quality or function of riparian habitat or cause destruction or degradation of the riparian vegetation. 2. Locating structural development in riparian areas can reduce the habitat and the use of structures could cause conflicts such as harassment or disturbance of wildlife dependent on the habitat. 3. Cutting of riparian vegetation can remove important shade from streams needed to maintain water temperature for fish, eliminate habitat for various waterfowl, furbearers, and nongame bird species and can also increase the potential for erosion or bank instability in riparian areas. The county does not regulate commercial forest practices; they are regulated by the Oregon Department of Forestry. 4. Hydroelectric development can alter or destroy riparian habitat. 5. Locating septic systems in riparian area could cause pollution of ground and surface water systems. The potential for this conflict depends on the characteristics of the soil and hydrology. The Department of Environmental Quality regulates the placement and construction of septic systems. The purpose of Department of Environmental Quality regulations (OAR 340-71) is to restore and maintain the quality of public waters and to protect the public health and general welfare of the people of the State of Oregon. 6. Recreational use of the riparian area including boat landing areas, formal and informal trails and camping areas can cause soil compaction and destruction of vegetation. 7. Overgrazing can cause bank erosion and destruction of riparian vegetation leading to increased siltation and higher water temperatures. Farm use, including grazing is a permitted use in most zones outside of the rural service centers. ORS 30.930 to 30.947 contains "right to farm" provisions which prohibit right of action or claim for relief based on nuisance or trespass arising from a farm or forest practice. Therefore the county may not be able to regulate grazing activities in EFU or Forest zoned land. 7 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) 0136-0274 8. Irrigation water storage, release and diversion alters the natural hydrologic cycles in riparian areas causing erosion and alteration of natural riparian vegetation. The county does not have have control over storage, release, use or diversion of water. Water flows and water appropriation are regulated and administered by the Oregon Department of Water Resources. 9. Depending on the hydrology and geology of an area, wells in or adjacent to riparian areas could affect hydrology and alter the amount or quality of water in riparian areas. The State Water Resources Department enforces state statute (ORS 537) and administrative rules (OAR 690) regarding construction and maintenance of wells. ORS 537.769 prohibits adoption of any ordinance, order or regulation by a local government to regulate the inspection or construction of wells. 10. Increase in density of residential lots in or adjacent to riparian areas could result in a decrease of habitat effectiveness because of disturbance to wildlife. The minimum lot size for land adjacent to riparian areas outside of urban growth boundaries and rural service centers is determined by zone as follows: ZONE NININUM LOT SIZE Exclusive Farm Use Farm Parcel Nonfarm Parcel Forest Zone Multiple Use Agriculture Rural Residential Flood Plain Exception area Non -exception area 23 acres irrigated land or more 20 acres 80 acres 10 acres 10 acres 10 acres 80 acres The Board finds that new parcels meeting the minimum lot size in the resource zones (Exclusive Farm Use, Forest, Non -exception Flood Plain) will not cause an increase in residential density that would conflict with riparian habitat values. Fifty-one new 10 acre parcels could potentially be created in the Rural Residential, Multiple Use Agriculture and Flood Plain zone found adjacent to inventoried riparian areas. This number does not include a 376 acre property along Tumalo Creek with over a mile of creek frontage. The potential land divisions are distributed as follows: 8 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) LOCATION Squaw Creek Indian Ford Creek Little Deschutes River Deschutes North of Bend Deschutes South of Bend Tumalo Creek 0135-0275 POTENTIAL NUMBER OF NEW PARCELS 14 16 4 5 12 Undeveloped 376 acre parcel, One mile of creek frontage Creation of new 10 acre parcels would not significantly increase the overall density of residential use adjacent to riparian areas because the areas where new parcels could be created, with the exception of Tumalo Creek, are already divided into lots considerably smaller than 10 acres. 9 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) 013 Conflicting Uses Although there may be economic, social, environmental and energy consequences of 1) permitting or limiting water flow; 2) grazing in the Exclusive Farm Use zones; 3) the number and location of wells; or 4) commercial forest practices in riparian areas, regulation of these conflicting uses is not within the jurisdiction of the county. Therefore, the following ESEE analysis does not consider the consequences of permitting or limiting these conflicting uses. Economic Consequences: A positive economic consequence of limiting conflicting uses is the protection of habitat which will maintain or increase the fish and wildlife populations, vegetation diversity and the natural quality of the areas. Abundant wildlife and natural areas are a main reason tourists visit the county. The maintenance of riparian habitat may increase the value of private property because of the aesthetic values often associated with natural areas and wildlife. However, requiring retention of riparian vegetation on residential land adjacent to rivers and streams may reduce the value of the property depending on the preferences of potential buyers. An economic consequence of limiting removal of riparian vegetation including timber could be a reduction in material available for the timber industry. Prohibiting forest management in riparian areas could also increase the incidence of tree mortality and fire hazard due to insect infestation which could result in increase cost for controlling wildfire. Maintaining riparian vegetation can stabilize stream banks and thereby prevent loss of land due to erosion. Restricting or regulating recreational development in riparian areas could have an economic consequence because fewer sites would be available for tourists. Owners of property zoned for 10 acre minimum lot sizes would face a reduction in the potential value of their property if they were prohibited from dividing their property adjacent to riparian areas. Social Consequences: The positive social consequence of limiting conflicting uses is the protection of habitat which has aesthetic qualities appreciated by both county residents and tourists. Limiting conflicting uses also helps maintain wildlife populations which are valued by county residents and visitors. 10 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) 0131-02. Limiting conflicting uses such as docks, decks, and er structures could prevent someone from developing their property in a manner they desire. Restricting removal of native vegetation may prevent property owners from increasing their view of a river or stream or prevent them from developing introduced landscaping including lawns. Limiting public improvements such as trails, campgrounds, public boat launching facilities could result in more crowding in existing facilities and an inability to expand existing or develop new facilities for recreation. Limiting land division in exception areas to create new parcels in, or adjacent to, riparian areas would have a social consequence of reducing the number of potential homesites in areas that are zoned for residential development. The positive social consequence would be retention of larger areas of open space free from development. The current minimum lot size in exception areas is 10 acres. In the Rural Residential and Multiple Use Agriculture Zone (exception areas) there is the potential to create a approximately 51 new parcels adjacent to riparian areas. However, it is unlikely that this many new parcels will be created because of limitations of topography, access and flood plain and the desire of owners for parcels larger than 10 acres. Environmental Consequences: The environmental consequences of limiting conflicts with riparian habitat are positive. The habitat would be retained or enhanced which results in stable and diverse fish and wildlife populations and high water quality for fish. Limiting fill and removal activities associated with construction projects and stream bank stabilization will maintain water quality for people and wildlife. Strictly prohibiting management of forest vegetation in riparian areas could lead to increased fire hazard due to increased fuel build up and tree mortality from insect infestations. Wildfire could be an environmental consequence leading to destruction of vegetation and damage to soil causing increased erosion. Energy Consequences: Limiting hydroelectric development as a conflicting use could reduce the opportunity for hydroelectric energy production and require that power be produced from other sources. Additional information and ESEE analysis is provided in the Deschutes County/City of Bend River Study, Chapter 6 and the River Study Staff Report which are incorporated herein by reference. 11 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) Conclusion• 0136-0214118 Based on the above ESEE analysis and the ESEE analysis found in the Deschutes County/City of Bend River Study, consequences should be balanced to allow the conflicting uses but in a limited way in order to protect the resource to the desired extent (OAR 660-16-010(3)). 12 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) Program To Achieve Goal 5 For Riparian Habitat01 0-09 9 Policies and Goals The Deschutes County/City of Bend River Study resulted in the amendment of the Comprehensive Plan to include a chapter entitled Deschutes River Corridor (Ordinance 86-019). Goals and policies in the Water Resource, Open Space, Recreation, Fish, and Wildlife sections of this chapter address riparian habitat protection and enhancement. The Fish and Wildlife chapter of the Comprehensive Plan has a policy (Policy #15) to retain and encourage public ownership of significant fish and wildlife habitat and riparian areas. The Water Resources chapter contains policies to protect water quality and reduce erosion (Policy #9). Zoning Ordinance Deschutes County has numerous zoning regulations which serve to protect the riparian resource. Not every regulation applies to every inventoried stream. Some of these regulations were adopted primarily to protect other Goal 5 resources; however, they also provide some protection of riparian resources as well. For example, the Landscape Management Zone (LM) was adopted to protect scenic and open space values as seen from the designated rivers and streams, but it also has provisions to retain riparian vegetation with a conservation easement within 10 feet of the ordinary high water mark. The fill and removal regulations protect wetlands which are frequently riparian areas. Other regulations such as flood plain restrictions were adopted to reduce hazards but also serve to prohibit most development in riparian areas which are also flood plain zones. The regulations which apply to conflicting uses in riparian areas are discussed below along with a description of the rivers and streams where each regulation applies. The following two provisions apply to all rivers and streams identified in the inventory: 1. In all zones the county zoning ordinance requires a 100 foot setback from the ordinary high water mark of all streams or lakes for all sewage disposal installations and structures. No structures, septic tanks or drain fields are permitted within 100 feet of any inventoried River Study or perennial stream. 2. In all zones a conditional use permit is required for fill and removal of any material, including vegetation, within a wetland or within the bed and banks of an inventoried stream. This provision applies to all wetlands mapped on the National Wetland Inventory Maps. The bed and banks of a stream is defined as the container below full bank stage plus the land 10 feet on either side of the container. 13 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) UZ36-00280 Flood Plain Zone - Title 18.96 Where the riparian area is zoned Flood Plain because it is mapped as flood plain on the FEMA maps, the regulations of Title 18.96 apply. Permitted uses in the flood plain are limited to agriculture, forest management, open space, and residential uses not containing structures. Conditional use permits are required for all other uses. One of the specific purposes of the zone is to conserve riparian areas and maintain fish and wildlife resources. The Flood Plain zone also regulates docks and piers and requires a finding that the structure will not cause the deterioration of destruction of wildlife habitat. Landscape Management Zone - Title 18.84 The following rivers and streams are designated as Landscape Management streams and are subject to the provisions of Title 18.84, the Landscape Management Combining Zone. Deschutes River Little Deschutes River Squaw Creek Crooked River Tumalo Creek Paulina Creek Title 18.84.080(1) requires retention of vegetation to screen development which would be visible from the designated river or stream. This provision may protect riparian vegetation. The zone includes land within 1320 feet of a state scenic waterway (segments of Deschutes River) or a federal Wild and Scenic River (segments of Deschutes River and Squaw Creek), or within 660 feet of the other rivers and streams identified as landscape management. Title 18.84.080.(10) requires a conservation easement for landscape management site plan reviews adjacent to the landscape management rivers and streams. The conservation easement includes the area 10 feet from the ordinary high water mark of the river or stream. The conservation easements shall not require public access. Other Provisions in Title 18 Title 18.113.070(D), Destination Resort Zone, requires complete mitigation of any loss or net degradation of fish and wildlife resources from destination resort development. Title 18.113.070(E), Destination Resort Zone, requires maintenance of riparian vegetation within 100 feet of streams rivers and significant wetlands in new destination resorts. 14 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) 0136-OK0481 Title 18.116.220 requires a conservation easement as a condition of approval for all land use actions involving properties adjacent to the Deschutes River, Crooked River, Fall River, Little Deschutes River, Spring River, Paulina Creek Squaw Creek and Tumalo Creek in order to protect natural resources, natural values and water quality. The conservation easement includes all property within 10 feet of the ordinary high water mark of the river or stream. Concurrent with the adoption of this inventory and ESEE analysis, the Board of County Commissioners has directed the Planning Division to begin the process to amend Title 18.116.220 to add Indian Ford Creek to the list of streams requiring a conservation easement as a condition of approval for land use actions involving properties adjacent to certain streams. Title 18.128(V) establishes criteria for conditional use permits for development of hydroelectric facilities. This provision resulted from the Deschutes County/City of Bend River Study (Ordinance 86-018). The regulations require river enhancement and maintenance or enhancement of existing fish and wildlife habitats. Federal Wild and Scenic River Segments of the Deschutes River and upper Squaw Creek are designated as Federal Scenic Rivers. The U.S. Forest Service is in the process of developing a management plans for the Deschutes River. The county is participating in technical review committees developing the plan. State Scenic Waterway The Deschutes River, except for the portion adjacent to the Sunriver planned development, is designated an Oregon Scenic Waterway. Development within one quarter mile of state scenic waterways is subject to review by the Oregon State Parks and Recreation Department to assure compatibility with the scenic values along the river. New dams are prohibited. Although, the principle objective of the State Scenic Waterways is to protect scenic characteristics, a secondary benefit is retention of riparian vegetation for screening and scenic qualities. Commercial Forest Practices Commercial forest practices in riparian areas on private land are regulated by the Oregon Department of Forestry. Riparian area management on federal land is subject to either Bureau of Land Management or U.S. Forest Service land management plans. Agricultural Practices Agricultural practices including grazing are a permitted use in most zones. In the EFU zone, state statute prohibits 15 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) 0136- g regulations that make farm practices a nuisance or trespa S. Therefore, the county does not regulate farm practices. Oregon Department of Fish and Wildlife The Oregon Department of Fish and Wildlife (ODFW) Land Use Planning Guide identifies acceptable riparian protection ordinances in its Riparian Handbook for Planners. One of the referenced ordinances is Deschutes County's. The handbook specifically describes the 100 foot setback for structures and the Landscape Management Combining Zone as measures protecting riparian areas in Deschutes County. 16 - EXHIBIT "A" ORDINANCE 94-007 (07/20/94) EXHIBIT "B" FOR ORDINANCE NO. 94-007 0136-aP283 WETLANDS Inventory Deschutes County Ordinance 92-045 adopted all wetlands identified on the U. S. Fish and Wildlife Service National Wetland Inventory Maps as the Deschutes County wetland inventory. Wetlands are those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal conditions do support a prevalence of vegetation typically adapted for life in saturated soil conditions. Location. Quality and Ouantity The location and description of wetlands is shown on the U.S. Fish and Wildlife Wetland Inventory Maps. Wetlands in Deschutes County are are found adjacent to rivers, streams, and springs, in low lying areas with soils that inhibit drainage, in and adjacent to natural and constructed lakes and ponds and as a result seepage from irrigation canals and distribution ditches. Wetlands are identified by three indicators: hydrology (is the areas saturated or inundated with water at some time during the growing season); hydric soils (are the soils those that are commonly found in wetlands); and vegetation (is there a predominance of vegetation that commonly grows in wet areas). In the arid climate of Deschutes County, wetlands are essential habitat for waterfowl and significant habitat for upland game birds including grouse, quail, mourning doves and pheasants. Many non -game species also depend on the wetland habitat. The wetlands adjacent to rivers and streams are important hydrological components of the habitat for aquatic species. Conflicting Uses Determination and Analysis Conflicting uses include fill and removal of material, including vegetation, which could cause reduction in the size, quality or function of a wetland. Fill and removal in riparian wetlands can result in erosion and increased stream turbidity. Locating structural development in wetlands would reduce the habitat and the use of the structure could cause conflicts such as harassment or disturbance of wildlife dependent on the habitat. Draining wetlands for agriculture or other development purposes destroys the hydrological function of the wetland and alters the habitat qualities that certain wildlife depend on. 1 - EXHIBIT "B" ORDINANCE NO. 94-007 (07/20/94) Cutting of wetland vegetation adjacent important shade for streams, eliminate waterfowl, furbearers, and nongame bird increase the potential for erosion or riparian areas. 0136-0084 to streams can remove habitat for various species and can also bank instability in Economic, Social, Environmental and Energy Consequences of Conflicting Uses Economic Consequences: The positive economic consequences of limiting conflicting uses are the protection of habitat which will maintain or increase the fish and wildlife populations and natural diversity. Abundant wildlife and natural areas are a main reason tourists visit the county. The maintenance of wetland habitat may increase the value of property because of the aesthetic values often associated with natural areas and wildlife. Restriction of fill and removal in agricultural wetlands could create increased cost for normal maintenance of irrigation storage ponds. Construction in wetlands would cost more than in upland areas because of the amount of fill required to make the ground dry and stable for construction. Social Consequences: The positive social consequence of limiting conflicting uses is the the protection of habitat which has aesthetic qualities appreciated by residents of the area and tourists. Limiting conflicting uses in riparian wetlands will help maintain water quality for wildlife and Limiting conflicting uses could prevent a property owner from developing their property in a manner they desire. Environmental Consequences: The environmental consequences of limiting conflicts with wetland habitat are positive. The habitat would be retained or enhanced which results in stable and diverse fish and wildlife populations and high water quality for fish. There are no significant negative environmental consequences. Energy Consequences: Modifying or filling wetlands to allow development may require more use of equipment and fuel than comparable development on upland areas. Additional information and ESEE analysis is provided in the Deschutes County/City of Bend River Study, Chapter 6 and the 2 - EXHIBIT "B" ORDINANCE NO. 94-007 (07/20/94) River Study Staff Report which are incorpora Aierein by reference. '13 5-'085 Conclusion: Based on the ESEE analysis, consequences should be balanced to allow the conflicting uses but in a limited way in order to protect the resource to the desired extent. Program To Achieve Goal 5 For Wetland Habitat The Deschutes County/City of Bend River Study, the Deschutes County Comprehensive Plan and Title 18 of the Deschutes Code contain policies and regulations to limit conflicting uses. Deschutes County/City of Bend River Study The Deschutes County/City of Bend River Study resulted in the amendment of the Comprehensive Plan to include a chapter entitled Deschutes River Corridor (Ordinance 86-019). The following goals in the Deschutes River Corridor chapter of the Comprehensive Plan address wetland habitat: FISH 7. Deschutes County shall adopt regulations pertaining to fill and removal of material in waterways and adjacent wetlands. 12. Deschutes County, in cooperation with the irrigation districts, USFS, ODFW, and Bureau of Reclamation, should explore means to restore and stabilize riparian and wetland habitats. Emphasis should be on stabilizing flows caused by water regulations. Consideration should also include, but not be limited to, bank erosion control revegetation programs, and elimination of inappropriate levels of riparian livestock grazing along rivers and streams. WILDLIFE 4. Deschutes County, in cooperation with the USFS and ODFW, shall protect and enhance lands containing sensitive wildlife habitat. 9. Deschutes County shall support efforts by local conservation clubs to develop a waterfowl and wetlands habitat improvement program along the Deschutes River. 12. Deschutes County shall adopt regulations pertaining to fill and removal of material in waterways and adjacent wetlands. 3 - EXHIBIT "B" ORDINANCE NO. 94-007 (07/20/94) OPEN SPACE 1. Deschutes County shall include areas along the Deschutes River, Little Deschutes River, Crooked River, Spring River, Fall River, Tumalo Creek, Paulina Creek and Squaw Creek into the Landscape Management Zone. In these areas, the LM zone may include all riparian areas, wetlands and canyons. Goals and policies in the Water Resource, Open Space, Recreation, Fish, and Wildlife sections of the Comprehensive Plan address riparian habitat protection and enhancement. Riparian areas in Deschutes County often contain wetlands. Title 18 - Deschutes County Zoning Ordinance In all zones, the county zoning ordinance requires a 100 foot setback from the ordinary high water mark of all streams or lakes for all sewage disposal installations and structures. Wetland areas are often found within 100 feet of streams. Title 18.128(W), Fill and Removal, establishes the criteria for the conditional use permit. All zones in the county outside of urban growth boundaries require a conditional use permit for fill and removal activity in a wetland or within the bed and banks of a stream or river. The criteria require: (1) review by the Oregon Department of Fish and Wildlife; (2) control of erosion; (3) minimizing disturbance of existing vegetation; (4) a determination that there is no practical alternative for development. A conservation easement is required as a condition for a fill and removal conditional use permit. Title 18.120.050 establishes exceptions to the requirement for fill and removal conditional use permits. A conditional use permit is not required for fill and removal of less than 50 cubic yards for the purpose of removing diseased or insect -infested trees or shrubs, trees presenting a safety hazard or normal maintenance and pruning. An exception to the requirement for a conditional use permit may be granted for: (1) minor fill or removal for vegetative enhancement; (2) maintenance and repair of existing bridges, dams, irrigation facilities that will not alter the existing characteristics of the wetland; (3) maintenance of nonconforming structures or boat docks; (4) emergency actions to mitigate fill and removal violations in order to benefit fish and wildlife habitat; 5) fish and wildlife habitat enhancement projects approved or sponsored by the Oregon Department of Fish and Wildlife. Title 18.96, Flood Plain Zone - protects wetlands within flood plains by requiring a conditional use permit for any development. One of the specific purposes of the zone is to conserve riparian areas and maintain fish and wildlife resources. The Flood Plain zone also regulates docks and piers 4 - EXHIBIT "B" ORDINANCE NO. 94-007 (07/20/94) I and requires a finding that the structure will not cause the deterioration of destruction of wildlife habitat. U13�-UwB'� Division of State Lands The Oregon Division of State Lands requires permits to fill or remove more than 50 cubic yards of material from a wetland. U.S. Army Corps of Engineers The U.S. Army Corps of Engineers administers federal regulations on fill and removal in wetlands. A federal permit may be required for fill and removal of material in a wetland. 5 - EXHIBIT "B" ORDINANCE NO. 94-007 (07/20/94)